
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 10USC6389]

 
                         TITLE 10--ARMED FORCES
 
                    Subtitle C--Navy and Marine Corps
 
                           PART II--PERSONNEL
 
      CHAPTER 573--INVOLUNTARY RETIREMENT, SEPARATION, AND FURLOUGH
 
Sec. 6389. Naval Reserve and Marine Corps Reserve; officers: 
        elimination from active status; computation of total 
        commissioned service
        
    (a) Subject to section 12645 of this title, an officer in an active 
status in the Naval Reserve in the permanent grade of lieutenant or 
lieutenant (junior grade), and an officer in an active status in the 
Marine Corps Reserve in the permanent grade of captain or first 
lieutenant, who is considered as having twice failed of selection for 
promotion to the next higher grade while on the active-duty list may, in 
the discretion of the Secretary of the Navy, be eliminated from an 
active status or released from active duty and placed on the reserve 
active-status list.
    (b) An officer who is to be eliminated from an active status under 
subsection (a) shall, if qualified, be given an opportunity to request 
transfer to the appropriate Retired Reserve and, if he requests it, 
shall be so transferred. If he is not so transferred, he shall, in the 
discretion of the Secretary, be transferred to the appropriate inactive 
status list or be discharged from the Naval Reserve or the Marine Corps 
Reserve.
    (c)(1) An officer in an active status in the Naval Reserve in the 
permanent grade of lieutenant commander or commander, and an officer in 
an active status in the Marine Corps Reserve in the permanent grade of 
major or lieutenant colonel, who is considered as having twice failed of 
selection for promotion to the next higher grade while on the active-
duty list shall, if qualified, be given an opportunity to request 
transfer to the appropriate Retired Reserve. If he is not so 
transferred, he shall be discharged from the Naval Reserve or the Marine 
Corps Reserve if he has completed a period of total commissioned service 
equal to that specified below for the permanent grade in which he is 
serving:

------------------------------------------------------------------------
                         Grade                                Total
-------------------------------------------------------   commissioned
              Navy                    Marine Corps           service
------------------------------------------------------------------------
Commander.......................  Lieutenant colonel..  28 years.
Lieutenant commander............  Major...............  20 years.
------------------------------------------------------------------------

    (2) Notwithstanding the first sentence of paragraph (1), the 
Secretary may defer the retirement or discharge of such number of 
officers serving in the grade of lieutenant commander as are necessary 
to maintain the authorized officer strength of the Ready Reserve, but 
the duration of such deferment for any individual officer may not be in 
excess of five years.
    (3) Notwithstanding paragraph (1), the Secretary may defer the 
retirement or discharge under this subsection of an officer serving in 
the permanent grade of lieutenant commander or commander in the Naval 
Reserve or in the permanent grade of major or lieutenant colonel in the 
Marine Corps Reserve for a period of time which does not exceed the 
amount of service in an active status which was credited to the officer 
at the time of his original appointment or thereafter under any 
provision of law, if the officer can complete at least 20 years of 
service as computed under section 12732 of this title during the period 
of such deferment.
    (4) Notwithstanding paragraph (1), the Secretary may defer the 
retirement or discharge under this subsection of such number of officers 
serving in the permanent grade of commander in the Medical Corps, 
Chaplain Corps, or Dental Corps in the Naval Reserve as are necessary to 
provide for mobilization requirements.
    (d) For the purposes of subsection (c), the total commissioned 
service of an officer who has served continuously in the Naval Reserve 
or the Marine Corps Reserve following appointment therein in the 
permanent grade of ensign or second lieutenant, as the case may be, 
shall be computed from June 30 of the fiscal year in which he accepted 
the appointment. Each other officer is considered to have for this 
purpose as much total commissioned service as the years of active 
commissioned service of any regular officer on the active-duty list of 
the Navy not restricted in the performance of duty, or any regular 
officer on the active-duty list of the Marine Corps not restricted in 
the performance of duty, as appropriate, who has served continuously 
since original appointment as an ensign on the active-duty list of the 
Navy or as a second lieutenant on the active-duty list of the Marine 
Corps, has not lost numbers or precedence, and is, or has been after 
September 6, 1947, junior to that other officer. However, the total 
commissioned service that the other officer is considered to have may 
not be less than the actual number of years he has served as a 
commissioned officer in a grade above chief warrant officer, W-5.

(Added Pub. L. 85-861, Sec. 1(144)(A), Sept. 2, 1958, 72 Stat. 1509; 
amended Pub. L. 86-559, Sec. 1(46), June 30, 1960, 74 Stat. 274; Pub. L. 
96-513, title III, Sec. 337(a), Dec. 12, 1980, 94 Stat. 2900; Pub. L. 
97-86, title IV, Sec. 405(b)(1), Dec. 1, 1981, 95 Stat. 1105; Pub. L. 
98-525, title V, Sec. 528(c), Oct. 19, 1984, 98 Stat. 2526; Pub. L. 99-
145, title V, Sec. 514(b)(1), Nov. 8, 1985, 99 Stat. 628; Pub. L. 102-
190, div. A, title XI, Sec. 1131(8)(A), Dec. 5, 1991, 105 Stat. 1506; 
Pub. L. 103-337, div. A, title XVI, Secs. 1628, 1673(c)(1), Oct. 5, 
1994, 108 Stat. 2962, 3016; Pub. L. 104-106, div. A, title XV, 
Sec. 1501(c)(25), Feb. 10, 1996, 110 Stat. 499.)

                                          Historical and Revision Notes
-------------------------------------------------------------------------------
---------------------------------
            Revised section                      Source (U.S. Code)            
   Source (Statutes at Large)
-------------------------------------------------------------------------------
---------------------------------
6389(a)...............................  50:1311(c) (1st sentence).           Se
pt. 3, 1954, ch. 1257, Sec.
                                                                              4
11(c) (1st sentence), 68 Stat.
                                                                              1
170.
6389(b)...............................  50:1311(a) (as applicable to         Se
pt. 3, 1954, ch. 1257, Sec.
                                         1311(c)).                            4
11(a) (as applicable to 411(c)),
                                                                              6
8 Stat. 1169.
6389(c)...............................  50:1311(c) (2d sentence).            Se
pt. 3, 1954, ch. 1257, Sec.
                                                                              4
11(c) (2d sentence), 68 Stat.
                                                                              1
170.
6389(d)...............................  50:1311(c) (less 1st and 2d          Se
pt. 3, 1954, ch. 1257, Sec.
                                         sentences).                          4
11(c) (less 1st and 2d
                                                                              s
entences), 68 Stat. 1170.
6389(e)...............................  [No source].                         [N
o source].
-------------------------------------------------------------------------------
---------------------------------

    In subsection (a), the words ``who is considered as having twice 
failed of selection for promotion'' are substituted for the words 
``after failing of selection for promotion * * * a second time'' to 
conform to similar statements in this title. (See the revision note on 
section 5776.) The words ``may be retained in'' are omitted as 
surplusage, since the authority to eliminate such officers from an 
active status is discretionary with the Secretary.
    Subsection (e) is added to avoid conflict with 50:1311(d) and (e), 
codified in sections 6397 and 6403 of this title. 50:1311(d) and (e) 
contain special provisions for ``women officers'' and officers in the 
Nurse Corps, respectively, so that officers in these categories must be 
excepted from this section. Women officers appointed under the act of 
June 24, 1952, ch. 457 (66 Stat. 155; 34 U.S.C. 21e) (codified in 
section 5581 of this title), are not ``women officers'' within the 
meaning of 50:1311(d), however, but are required to be promoted, 
retired, or eliminated from active status as if they were men. (See the 
revision note on section 5665 of this title.) The application of this 
section to these officers is therefore made explicit.
    Both men and women are eligible for appointment as reserve officers 
in the Nurse Corps and are subject to the special provisions relating to 
that corps.


                               Amendments

    1996--Subsec. (c). Pub. L. 104-106 substituted ``section 12732'' for 
``section 1332''.
    1994--Subsec. (a). Pub. L. 103-337, Sec. 1673(c), substituted 
``12645'' for ``1005''.
    Pub. L. 103-337, Sec. 1628(1), inserted ``while on the active-duty 
list'' after ``to the next higher grade'' and ``or released from active 
duty and placed on the reserve active-status list'' after ``from an 
active status''.
    Subsec. (b). Pub. L. 103-337, Sec. 1628(2), struck out ``or (f)'' 
after ``subsection (a)''.
    Subsec. (c). Pub. L. 103-337, Sec. 1628(3)(H), designated last 
sentence as par. (4) and in that sentence substituted ``paragraph (1)'' 
for ``the first two sentences of this subsection'' and struck out 
``captain or'' after ``permanent grade of''.
    Pub. L. 103-337, Sec. 1628(3)(G), designated 4th sentence as par. 
(3) and in that sentence substituted ``paragraph (1)'' for ``the first 
two sentences of this subsection''.
    Pub. L. 103-337, Sec. 1628(3)(F), designated sentence after table as 
par. (2) and in that sentence substituted ``the first sentence of 
paragraph (1)'' for ``the first sentence of this subsection''.
    Pub. L. 103-337, Sec. 1628(3)(E), in table struck out line relating 
to grades of captain in Navy and colonel in Marine Corps and substituted 
``28 years'' for ``26 years''.
    Pub. L. 103-337, Sec. 1628(3)(D), inserted ``while on the active-
duty list'' after ``to the next higher grade'' in first sentence.
    Pub. L. 103-337, Sec. 1628(3)(C), substituted ``major or lieutenant 
colonel'' for ``major or above'' in two places.
    Pub. L. 103-337, Sec. 1628(3)(B), substituted ``lieutenant commander 
or commander'' for ``lieutenant commander or above'' in two places.
    Pub. L. 103-337, Sec. 1628(3)(A), inserted ``(1)'' after ``(c)''.
    Subsec. (e). Pub. L. 103-337, Sec. 1628(4), struck out subsec. (e) 
which read as follows: ``This section does not apply to women reserve 
officers or to reserve officers in the Nurse Corps.''
    Subsec. (f). Pub. L. 103-337, Sec. 1628(4), struck out subsec. (f) 
which provided for transfer or discharge of rear admirals (lower half) 
in Naval Reserve and brigadier generals in Marine Corps Reserve on 
completion of 30 years service or five years in grade and for rear 
admirals in Naval Reserve and major generals in Marine Corps Reserve on 
completion of 35 years service or five years in grade and provided that 
rear admirals (lower half) and rear admirals in Naval Reserve and 
brigadier generals and major generals in Marine Corps Reserve could be 
considered for early retirement by continuation board. See sections 
14508 and 14705 of this title.
    Subsec. (g). Pub. L. 103-337, Sec. 1628(4), struck out subsec. (g) 
which read as follows: ``An officer in an active status in the Naval 
Reserve in the permanent grade of ensign who is found not qualified for 
promotion to the grade of lieutenant (junior grade), and an officer in 
an active status in the Marine Corps Reserve in the permanent grade of 
second lieutenant who is found not qualified for promotion to the grade 
of first lieutenant, may (unless he is sooner promoted) be eliminated 
from an active status.''
    1991--Subsec. (d). Pub. L. 102-190 substituted ``W-5'' for ``W-4''.
    1985--Subsec. (f)(1), (3). Pub. L. 99-145 substituted ``rear admiral 
(lower half)'' for ``commodore''.
    1984--Subsec. (g). Pub. L. 98-525 added subsec. (g).
    1981--Subsec. (f)(1), (3). Pub. L. 97-86 substituted ``commodore'' 
for ``commodore admiral''.
    1980--Subsec. (b). Pub. L. 96-513, Sec. 337(a)(1), substituted 
``subsection (a) or (f)'' for ``subsection (a)''.
    Subsec. (d). Pub. L. 96-513, Sec. 337(a)(2), substituted ``as the 
years of active commissioned service of any regular officer on the 
active-duty'' for ``as any officer in the line on the active'' and ``or 
any regular officer on the active-duty list of the Marine Corps'' for 
``or any officer on the active list of the Marine Corps''.
    Subsec. (e). Pub. L. 96-513, Sec. 337(a)(3), substituted ``does not 
apply to'' for ``applies to women officers appointed under section 5581 
of this title, but not to other''.
    Subsec. (f). Pub. L. 96-513, Sec. 337(a)(4), added subsec. (f).
    1960--Subsec. (c). Pub. L. 86-559 empowered the Secretary to defer 
the retirement or discharge of officers serving in the grade of 
lieutenant commander in the Ready Reserve, in the permanent grade of 
lieutenant commander or above in the Naval Reserve, in the permanent 
grade of major or above in the Marine Corps Reserve, and in the 
permanent grade of captain or commander in the Medical Corps, Chaplain 
Corps, or Dental Corps in the Naval Reserve.


                    Effective Date of 1996 Amendment

    Section 1501(c) of Pub. L. 104-106 provided that the amendment made 
by that section is effective as of Dec. 1, 1994, and as if included as 
an amendment made by the Reserve Officer Personnel Management Act, title 
XVI of Pub. L. 103-337, as originally enacted.


                    Effective Date of 1994 Amendment

    Amendment by section 1673(c)(1) of Pub. L. 103-337 effective Dec. 1, 
1994, except as otherwise provided, and amendment by section 1628 of 
Pub. L. 103-337 effective Oct. 1, 1996, see section 1691 of Pub. L. 103-
337, set out as an Effective Date note under section 10001 of this 
title.


                    Effective Date of 1991 Amendment

    Amendment by Pub. L. 102-190 effective Feb. 1, 1992, see section 
1132 of Pub. L. 102-190, set out as a note under section 521 of this 
title.


                    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.


                    Effective Date of 1980 Amendment

    Amendment by Pub. L. 96-513 effective Sept. 15, 1981, but the 
authority to prescribe regulations under the amendment by Pub. L. 96-513 
effective on Dec. 12, 1980, see section 701 of Pub. L. 96-513, set out 
as a note under section 101 of this title.

                  Section Referred to in Other Sections

    This section is referred to in section 12646 of this title.
