
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: 10USC638a]

 
                         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. 638a. Modification to rules for continuation on active 
        duty; enhanced authority for selective early retirement and 
        early discharges
        
    (a) The Secretary of Defense may authorize the Secretary of a 
military department, during the period beginning on October 1, 1990, and 
ending on December 31, 2001, to take any of the actions set forth in 
subsection (b) with respect to officers of an armed force under the 
jurisdiction of that Secretary.
    (b) Actions which the Secretary of a military department may take 
with respect to officers of an armed force when authorized to do so 
under subsection (a) are the following:
        (1) Shortening the period of the continuation on active duty 
    established under section 637 of this title for a regular officer 
    who is serving on active duty pursuant to a selection under that 
    section for continuation on active duty.
        (2) Providing that regular officers on the active-duty list may 
    be considered for early retirement by a selection board convened 
    under section 611(b) of this title in the case of officers described 
    in any of subparagraphs (A) through (C) as follows:
            (A) Officers in the regular grade of lieutenant colonel or 
        commander who would be subject to consideration for selection 
        for early retirement under section 638(a)(1)(A) of this title 
        except that they have failed of selection for promotion only one 
        time (rather than two or more times).
            (B) Officers in the regular grade of colonel or, in the case 
        of the Navy, captain who would be subject to consideration for 
        selection for early retirement under section 638(a)(1)(B) of 
        this title except that they have served on active duty in that 
        grade less than four years (but not less than two years).
            (C) Officers, other than those described in subparagraphs 
        (A) and (B), holding a regular grade below the grade of colonel, 
        or in the case of the Navy, captain, who are eligible for 
        retirement under section 3911, 6323, or 8911 of this title, or 
        who after two additional years or less of active service would 
        be eligible for retirement under one of those sections and whose 
        names are not on a list of officers recommended for promotion.

        (3) Suspending section 638(c) of this title.
        (4) Convening selection boards under section 611(b) of this 
    title to consider for discharge regular officers on the active-duty 
    list in a grade below lieutenant colonel or commander--
            (A) who have served at least one year of active duty in the 
        grade currently held;
            (B) whose names are not on a list of officers recommended 
        for promotion; and
            (C) who are not eligible to be retired under any provision 
        of law (other than by reason of eligibility pursuant to section 
        4403 of the National Defense Authorization Act for Fiscal Year 
        1993) and are not within two years of becoming so eligible.

    (c)(1) In the case of an action under subsection (b)(2), the 
Secretary of the military department concerned shall specify the number 
of officers described in that subsection which a selection board 
convened under section 611(b) of this title pursuant to the authority of 
that subsection 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.
    (2) In the case of an action authorized under subsection (b)(2), the 
Secretary of Defense may also authorize the Secretary of the military 
department concerned when convening a selection board under section 
611(b) of this title to consider regular officers on the active-duty 
list for early retirement to include within the officers to be 
considered by the board reserve officers on the active-duty list on the 
same basis as regular officers.
    (3) In the case of an action under subsection (b)(2), the Secretary 
of the military department concerned may submit to a selection board 
convened pursuant to that subsection--
        (A) the names of all eligible officers described in that 
    subsection in a particular grade and competitive category; or
        (B) the names of all eligible officers described in that 
    subsection in a particular grade and competitive category who are 
    also in particular year groups, specialties, or retirement 
    categories, or any combination thereof, within that competitive 
    category.

    (d)(1) In the case of an action under subsection (b)(4), the 
Secretary of the military department concerned may submit to a selection 
board convened pursuant to that subsection--
        (A) the names of all officers described in that subsection in a 
    particular grade and competitive category; or
        (B) the names of all officers described in that subsection in a 
    particular grade and competitive category who also are in particular 
    year groups or specialties, or both, within that competitive 
    category.

    (2) The Secretary concerned shall specify the total number of 
officers to be recommended for discharge by a selection board convened 
pursuant to subsection (b)(4). That number may not be more than 30 
percent of the number of officers considered--
        (A) in each grade in each competitive category; or
        (B) in each grade, year group, or specialty (or combination 
    thereof) in each competitive category.

    (3) The total number of officers described in subsection (b)(4) from 
any of the armed forces (or from any of the armed forces in a particular 
grade) who may be recommended during a fiscal year for discharge by a 
selection board convened pursuant to the authority of that subsection 
may not exceed 70 percent of the decrease, as compared to the preceding 
fiscal year, in the number of officers of that armed force (or the 
number of officers of that armed force in that grade) authorized to be 
serving on active duty as of the end of that fiscal year.
    (4) An officer who is recommended for discharge by a selection board 
convened pursuant to the authority of subsection (b)(4) and whose 
discharge is approved by the Secretary concerned shall be discharged on 
a date specified by the Secretary concerned.
    (5) Selection of officers for discharge under this subsection shall 
be based on the needs of the service.
    (e) The discharge or retirement of an officer pursuant to this 
section shall be considered to be involuntary for purposes of any other 
provision of law.

(Added Pub. L. 101-510, div. A, title V, Sec. 521(a)(1), Nov. 5, 1990, 
104 Stat. 1559; amended Pub. L. 102-190, div. A, title V, Sec. 503(b), 
Dec. 5, 1991, 105 Stat. 1355; Pub. L. 102-484, div. A, title V, 
Sec. 503, title LXIV, Sec. 4403(g)(2), Oct. 23, 1992, 106 Stat. 2402, 
2703; Pub. L. 103-160, div. A, title V, Sec. 561(b), Nov. 30, 1993, 107 
Stat. 1667; Pub. L. 105-261, div. A, title V, Sec. 561(c), Oct. 17, 
1998, 112 Stat. 2025; Pub. L. 106-398, Sec. 1 [[div. A], title V, 
Sec. 571(c)], Oct. 30, 2000, 114 Stat. 1654, 1654A-134.)

                       References in Text

    Section 4403 of the National Defense Authorization Act for Fiscal 
Year 1993, referred to in subsec. (b)(4)(C), is section 4403 of Pub. L. 
102-484, which is set out as a note under section 1293 of this title.


                               Amendments

    2000--Subsec. (a). Pub. L. 106-398 substituted ``December 31, 2001'' 
for ``September 30, 2001''.
    1998--Subsec. (a). Pub. L. 105-261 substituted ``during the period 
beginning on October 1, 1990, and ending on September 30, 2001'' for 
``during the nine-year period beginning on October 1, 1990''.
    1993--Subsec. (a). Pub. L. 103-160 substituted ``nine-year period'' 
for ``five-year period''.
    1992--Subsec. (b)(4)(C). Pub. L. 102-484, Sec. 4403(g)(2), inserted 
``(other than by reason of eligibility pursuant to section 4403 of the 
National Defense Authorization Act for Fiscal Year 1993)'' after ``any 
provision of law''.
    Subsec. (c)(3). Pub. L. 102-484, Sec. 503, added par. (3).
    1991--Subsec. (b)(2)(C). Pub. L. 102-190, Sec. 503(b)(1), amended 
subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: 
``Officers holding a regular grade below the grade of colonel or, in the 
case of the Navy, captain who are not eligible for retirement under 
section 3911, 6323, or 8911 of this title but who after two additional 
years of active service as a commissioned officer would be eligible for 
retirement under one of those sections and whose names are not on a list 
of officers recommended for promotion.''
    Subsec. (c). Pub. L. 102-190, Sec. 503(b)(2), designated existing 
provisions as par. (1) and added par. (2).

                  Section Referred to in Other Sections

    This section is referred to in sections 637, 638 of this title.
