
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 10USC638]

 
                         TITLE 10--ARMED FORCES
 
                    Subtitle A--General Military Law
 
                           PART II--PERSONNEL
 
    CHAPTER 36--PROMOTION, SEPARATION, AND INVOLUNTARY RETIREMENT OF 
                    OFFICERS ON THE ACTIVE-DUTY LIST
 
     SUBCHAPTER IV--CONTINUATION ON ACTIVE DUTY AND SELECTIVE EARLY 
                               RETIREMENT
 
Sec. 638. Selective early retirement

    (a)(1) A regular officer on the active-duty list of the Army, Navy, 
Air Force, or Marine Corps may be considered for selective early 
retirement by a selection board convened under section 611(b) of this 
title if the officer is described in any of subparagraphs (A) through 
(D) as follows:
        (A) An officer holding the regular grade of lieutenant colonel 
    or commander who has failed of selection for promotion to the grade 
    of colonel or, in the case of an officer of the Navy, captain two or 
    more times and whose name is not on a list of officers recommended 
    for promotion.
        (B) An officer holding the regular grade of colonel or, in the 
    case of an officer of the Navy, captain who has served at least four 
    years of active duty in that grade and whose name is not on a list 
    of officers recommended for promotion.
        (C) An officer holding the regular grade of brigadier general or 
    rear admiral (lower half) who has served at least three and one-half 
    years of active duty in that grade and whose name is not on a list 
    of officers recommended for promotion.
        (D) An officer holding the regular grade of major general or 
    rear admiral who has served at least three and one-half years of 
    active duty in that grade.

    (2) The Secretary of the military department concerned shall specify 
the number of officers described in paragraphs (1)(A) and (1)(B) which a 
selection board convened under section 611(b) of this title may 
recommend for early retirement. Such number may not be more than 30 
percent of the number of officers considered in each grade in each 
competitive category.
    (3) A regular officer on the active-duty list of the Army, Navy, Air 
Force, or Marine Corps may also be considered for early retirement under 
the circumstances prescribed in section 638a of this title.
    (b)(1) An officer in a grade below brigadier general or rear admiral 
(lower half) who is recommended for early retirement under this section 
or section 638a of this title and whose early retirement is approved by 
the Secretary concerned shall--
        (A) be retired, under any provision of law under which he is 
    eligible to retire, on the date requested by him and approved by the 
    Secretary concerned, which date shall be not later than the first 
    day of the seventh calendar month beginning after the month in which 
    the Secretary concerned approves the report of the board which 
    recommended the officer for early retirement; or
        (B) if the officer is not eligible for retirement under any 
    provision of law, be retained on active duty until he is qualified 
    for retirement under section 3911, 6323, or 8911 of this title, and 
    then be retired under that section, unless he is sooner retired or 
    discharged under some other provision of law.

    (2) An officer who holds the regular grade of brigadier general, 
major general, rear admiral (lower half), or rear admiral who is 
recommended for early retirement under this section and whose early 
retirement is approved by the Secretary concerned shall be retired, 
under any provision of law under which he is eligible to retire, on the 
date requested by him and approved by the Secretary concerned, which 
date shall be not later than the first day of the tenth calendar month 
beginning after the month in which the Secretary concerned approved the 
report of the board which recommended the officer for early retirement.
    (3) The Secretary concerned may defer for not more than 90 days the 
retirement of an officer otherwise approved for early retirement under 
this section or section 638a of this title in order to prevent a 
personal hardship to the officer or for other humanitarian reasons. Any 
such deferral shall be made on a case-by-case basis considering the 
circumstances of the case of the particular officer concerned. The 
authority of the Secretary to grant such a deferral may not be 
delegated.
    (c) So long as an officer in a grade below brigadier general or rear 
admiral (lower half) holds the same grade, he may not be considered for 
early retirement under this section more than once in any five-year 
period.
    (d) The retirement of an officer pursuant to this section shall be 
considered to be an involuntary retirement for purposes of any other 
provision of law.
    (e)(1) The Secretary of Defense shall prescribe regulations for the 
administration of this section.
    (2)(A) Such regulations shall require that when the Secretary of the 
military department concerned submits a list of officers to a selection 
board convened under section 611(b) of this title to consider officers 
for selection for early retirement under this section, such list (except 
as provided in subparagraph (B)) shall include each officer on the 
active-duty list in the same grade and competitive category whose 
position on the active-duty list is between that of the most junior 
officer in that grade and competitive category whose name is submitted 
to the board and that of the most senior officer in that grade and 
competitive category whose name is submitted to the board.
    (B) A list under subparagraph (A) may not include an officer in that 
grade and competitive category (i) who has been approved for voluntary 
retirement under section 3911, 6323, or 8911 of this title, or (ii) who 
is to be involuntarily retired under any provision of law during the 
fiscal year in which the selection board is convened or during the 
following fiscal year.
    (C) An officer not considered by a selection board convened under 
section 611(b) of this title by reason of subparagraph (B) shall be 
retired on the date approved for the retirement of that officer as of 
the convening date of such selection board unless the Secretary 
concerned approves a modification of such date in order to prevent a 
personal hardship for the officer or for other humanitarian reasons.

(Added Pub. L. 96-513, title I, Sec. 105, Dec. 12, 1980, 94 Stat. 2864; 
amended Pub. L. 97-22, Sec. 4(f), July 10, 1981, 95 Stat. 127; Pub. L. 
97-86, title IV, Sec. 405(b)(1), Dec. 1, 1981, 95 Stat. 1105; Pub. L. 
99-145, title V, Sec. 514(b)(1), Nov. 8, 1985, 99 Stat. 628; Pub. L. 
100-456, div. A, title V, Sec. 504, Sept. 29, 1988, 102 Stat. 1967; Pub. 
L. 101-510, div. A, title V, Sec. 521(b)(2), Nov. 5, 1990, 104 Stat. 
1561; Pub. L. 102-190, div. A, title V, Sec. 503(a), Dec. 5, 1991, 105 
Stat. 1355; Pub. L. 103-160, div. A, title V, Sec. 506, Nov. 30, 1993, 
107 Stat. 1646; Pub. L. 104-106, div. A, title V, Sec. 504(b), Feb. 10, 
1996, 110 Stat. 295.)


                               Amendments

    1996--Subsec. (b)(3). Pub. L. 104-106 added par. (3).
    1993--Subsec. (e)(2)(B). Pub. L. 103-160 inserted ``(i)'' after 
``grade and competitive category'', inserted ``(ii)'' after ``of this 
title, or'', and struck out comma after ``any provision of law''.
    1991--Subsec. (e). Pub. L. 102-190 designated existing provisions as 
pars. (1) and (2)(A), in par. (2)(A) inserted ``(except as provided in 
subparagraph (B))'' after ``under this section, such list'', and added 
subpars. (B) and (C).
    1990--Subsec. (a)(3). Pub. L. 101-510, Sec. 521(b)(2)(A), added par. 
(3).
    Subsec. (b)(1). Pub. L. 101-510, Sec. 521(b)(2)(B), inserted ``or 
section 638a of this title'' after ``under this section''.
    1988--Subsec. (a). Pub. L. 100-456 amended subsec. (a) generally. 
Prior to amendment, subsec. (a) read as follows: ``A regular officer on 
the active-duty list of the Army, Navy, Air Force, or Marine Corps--
        ``(1) who holds the regular grade of lieutenant colonel or 
    commander and has failed of selection for promotion to the grade of 
    colonel or, in the case of an officer of the Navy, captain two or 
    more times and whose name is not on a list of officers recommended 
    for promotion;
        ``(2) who holds the regular grade of colonel or, in the case of 
    an officer of the Navy, captain and has served at least four years 
    of active duty in that grade and whose name is not on a list of 
    officers recommended for promotion;
        ``(3) who holds the regular grade of brigadier general or rear 
    admiral (lower half) and has served at least three and one-half 
    years of active duty in that grade and whose name is not on a list 
    of officers recommended for promotion; or
        ``(4) who holds the regular grade of major general or rear 
    admiral and has served at least three and one-half years of active 
    duty in that grade,
may be considered for early retirement by a selection board convened 
under section 611(b) of this title. The Secretary of the military 
department concerned shall specify the number of officers described in 
clauses (1) and (2) which such a board may recommend for early 
retirement, but such number may not be more than 30 percent of the 
number of officers considered in each grade in each competitive 
category.''
    1985--Subsecs. (a)(3), (b), (c). Pub. L. 99-145 substituted ``rear 
admiral (lower half)'' for ``commodore'' wherever appearing.
    1981--Subsec. (a)(3). Pub. L. 97-86 substituted ``commodore'' for 
``commodore admiral''.
    Subsec. (a)(3), (4). Pub. L. 97-22 substituted ``three and one-half 
years of active duty'' for ``four years of active duty''.
    Subsecs. (b), (c). Pub. L. 97-86 substituted ``commodore'' for 
``commodore admiral'' wherever appearing.


                    Effective Date of 1981 Amendment

    Amendment by Pub. L. 97-86 effective Sept. 15, 1981, see section 
405(f) of Pub. L. 97-86, set out as a note under section 101 of this 
title.

                  Section Referred to in Other Sections

    This section is referred to in sections 611, 638a, 688 of this 
title.
