
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 42USC211]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
                    CHAPTER 6A--PUBLIC HEALTH SERVICE
 
        SUBCHAPTER I--ADMINISTRATION AND MISCELLANEOUS PROVISIONS
 
                         Part A--Administration
 
Sec. 211. Promotion of commissioned officers


(a) Permanent or temporary promotions; examination

    Promotions of officers of the Regular Corps to any grade up to and 
including the director grade shall be either permanent promotions based 
on length of service, other permanent promotions to fill vacancies, or 
temporary promotions. Permanent promotions shall be made by the 
President, by and with the advice and consent of the Senate, and 
temporary promotions shall be made by the President. Each permanent 
promotion shall be to the next higher grade, and shall be made only 
after examination given in accordance with regulations of the President.

(b) Promotion to certain grades only to fill vacancies; regulations; 
        ``restricted grade'' defined

    The President may by regulation provide that in a specified 
professional category permanent promotions to the senior grade, or to 
both the full grade and the senior grade, shall be made only if there 
are vacancies in such grade. A grade in any category with respect to 
which such regulations have been issued is referred to in this section 
as a ``restricted grade''.

(c) Examinations

    Examinations to determine qualification for permanent promotions may 
be either noncompetitive or competitive, as the Surgeon General shall in 
each case determine; except that examinations for promotions to the 
assistant or senior assistant grade shall in all cases be 
noncompetitive. The officers to be examined shall be selected by the 
Surgeon General from the professional category, and in the order of 
seniority in the grade, from which promotion is to be recommended. In 
the case of a competitive examination the Surgeon General shall 
determine in advance of the examination the number (which may be one or 
more) of officers who, after passing the examination, will be 
recommended to the President for promotion; but if the examination is 
one for promotions based on length of service, or is one for promotions 
to fill vacancies other than vacancies in the director grade or in a 
restricted grade, such number shall not be less than 80 per centum of 
the number of officers to be examined.

(d) Permanent promotions to qualified officers on length of service

    Officers of the Regular Corps, found pursuant to subsection (c) of 
this section to be qualified, shall be given permanent promotions based 
on length of service, as follows:
        (1) Officers in the warrant officer (W-1) grade, chief warrant 
    officer (W-2) grade, chief warrant officer (W-3) grade, chief 
    warrant officer (W-4) grade, and junior assistant grade shall be 
    promoted at such times as may be prescribed in regulations of the 
    President.
        (2) Officers with permanent rank in the assistant grade, the 
    senior assistant grade, and the full grade shall (except as provided 
    in regulations under subsection (b) of this section) be promoted 
    after completion of three, ten, and seventeen years, respectively, 
    of service in grades above the junior assistant grade; and such 
    promotions, when made, shall be effective, for purposes of pay and 
    seniority in grade, as of the day following the completion of such 
    years of service. An officer with permanent rank in the assistant, 
    senior assistant, or full grade who has not completed such years of 
    service shall be promoted at the same time, and his promotion shall 
    be effective as of the same day, as any officer junior to him in the 
    same grade in the same professional category who is promoted under 
    this paragraph.

(e) Promotion of professional category officers to fill certain 
        vacancies

    Officers in a professional category of the Regular Corps, found 
pursuant to subsection (c) of this section to be qualified, may be given 
permanent promotions to fill any or all vacancies in such category in 
the senior assistant grade, the full grade, the senior grade, or the 
director grade; but no officer who has not had one year of service with 
permanent or temporary rank in the next lower grade shall be promoted to 
any restricted grade or to the director grade.

(f) Reexamination upon failure of promotion; effective date of promotion

    If an officer who has completed the years of service required for 
promotion to a grade under paragraph (2) of subsection (d) of this 
section fails to receive such promotion, he shall (unless he has already 
been twice examined for promotion to such grade) be once reexamined for 
promotion to such grade. If he is thereupon promoted (otherwise than 
under subsection (e) of this section), the effective date of such 
promotion shall be one year later than it would have been but for such 
failure. Upon the effective date of any permanent promotion of such 
officer to such grade, he shall be considered as having had only the 
length of service required for such promotion which he previously failed 
to receive.

(g) Separation from service upon failure of promotion

    If, for reasons other than physical disability, an officer of the 
Regular Corps in the warrant officer (W-1) grade or junior assistant 
grade is found pursuant to subsection (c) of this section not to be 
qualified for promotion he shall be separated from the Service. If, for 
reasons other than physical disability, an officer of the Regular Corps 
in the chief warrant officer (W-2), chief warrant officer (W-3), 
assistant, senior assistant, or full grade, after having been twice 
examined for promotion (other than promotion to a restricted grade), 
fails to be promoted--
        (1) if in the chief warrant officer (W-2) or assistant grade he 
    shall be separated from the Service and paid six months' basic pay 
    and allowances;
        (2) if in the chief warrant officer (W-3) or senior assistant 
    grade he shall be separated from the Service and paid one year's 
    basic pay and allowances;
        (3) if in the full grade he shall be considered as not in line 
    for promotion and shall, at such time thereafter as the Surgeon 
    General may determine, be retired from the Service with retired pay 
    (unless he is entitled to a greater amount by reason of another 
    provision of law)--
            (A) in the case of an officer who first became a member of a 
        uniformed service before September 8, 1980, at the rate of 2\1/
        2\ percent of the retired pay base determined under section 
        1406(h) of title 10 for each year, not in excess of 30, of his 
        active commissioned service in the Service; or
            (B) in the case of an officer who first became a member of a 
        uniformed service on or after September 8, 1980, at the rate 
        determined by multiplying--
                (i) the retired pay base determined under section 1407 
            of title 10; by
                (ii) the retired pay multiplier determined under section 
            1409 of such title for the number of years of his active 
            commissioned service in the Service.

(h) Separation from service upon refusal to stand examination

    If an officer of the Regular Corps, eligible to take an examination 
for promotion, refuses to take such examination, he may be separated 
from the Service in accordance with regulations of the President.

(i) Review of record; separation from service

    At the end of his first three years of service, the record of each 
officer of the Regular Corps originally appointed to the senior 
assistant grade or above, shall be reviewed in accordance with 
regulations of the President and, if found not qualified for further 
service, he shall be separated from the Service and paid six months' pay 
and allowances.

(j) Determination of order of seniority

    (1) The order of seniority of officers in a grade in the Regular 
Corps shall be determined, subject to the provisions of paragraph (2) of 
this subsection, by the relative length of time spent in active service 
after the effective date of each such officer's original appointment or 
permanent promotion to that grade. When permanent promotions of two or 
more officers to the same grade are effective on the same day, their 
relative seniority shall be the same as it was in the grade from which 
promoted. In all other cases of original appointments or permanent 
promotions (or both) to the same grade effective on the same day, 
relative seniority shall be determined in accordance with regulations of 
the President.
    (2) In the case of an officer originally appointed in the Regular 
Corps to the grade of assistant or above, his seniority in the grade to 
which appointed shall be determined after inclusion, as service in such 
grade, of any active service in such grade or in any higher grade in the 
Reserve Corps, but (if the appointment is to the grade of senior 
assistant or above) only to the extent of whichever of the following is 
greater: (A) His active service in such grade or any higher grade in the 
Reserve Corps after the first day on which, under regulations in effect 
on the date of his appointment to the Regular Corps, he had the training 
and experience necessary for such appointment, or (B) the excess of his 
total active service in the Reserve Corps (above the grade of junior 
assistant) over three years if his appointment in the Regular Corps is 
to the senior assistant grade, over ten years if the appointment is to 
the full grade, or over seventeen years if the appointment is to the 
senior grade.

(k) Temporary promotions; fill vacancy in higher grade; war or national 
        emergency; selection of officers; termination of appointment

    Any commissioned officer of the Regular Corps in any grade in any 
professional category may be recommended to the President for temporary 
promotion to fill a vacancy in any higher grade in such category, up to 
and including the director grade. In time of war, or of national 
emergency proclaimed by the President, any commissioned officer of the 
Regular Corps in any grade in any professional category may be 
recommended to the President for promotion to any higher grade in such 
category, up to and including the director grade, whether or not a 
vacancy exists in such grade. The selection of officers to be 
recommended for temporary promotions shall be made in accordance with 
regulations of the President. Promotion of an officer recommended 
pursuant to this subsection may be made without regard to length of 
service, without examination, and without vacating his permanent 
appointment, and shall carry with it the pay and allowances of the grade 
to which promoted. Such promotions may be terminated at any time, as may 
be directed by the President.

(l) Determination of requirements of Service by Secretary; assignment of 
        Reserve Officers to professional categories; temporary 
        promotions; termination of temporary promotions

    Whenever the number of officers of the Regular Corps on active duty, 
plus the number of officers of the Reserve Corps who have been on active 
duty for thirty days or more, exceeds the authorized strength of the 
Regular Corps, the Secretary shall determine the requirements of the 
Service in each grade in each category, based upon the total number of 
officers so serving on active duty and the tasks being performed by the 
Service; and the Surgeon General shall thereupon assign each officer of 
the Reserve Corps on active duty to a professional category. If the 
Secretary finds that the number of officers fixed under section 210b(c) 
of this title for any grade and category (or the number of officers, 
including officers of the Reserve Corps, on active duty in such grade in 
such category, if such number is greater than the number fixed under 
section 210b(c) of this title) is insufficient to meet such requirements 
of the Service, officers of either the Regular Corps or the Reserve 
Corps may be recommended for temporary promotion to such grade in such 
category. Any such promotion may be terminated at any time, as may be 
directed by the President.

(m) Acceptance of promotion; oath and affidavit

    Any officer of the Regular Corps, or any officer of the Reserve 
Corps on active duty, who is promoted to a higher grade shall, unless he 
expressly declines such promotion, be deemed for all purposes to have 
accepted such promotion; and shall not be required to renew his oath of 
office, or to execute a new affidavit as required by section 3332 of 
title 5.

(July 1, 1944, ch. 373, title II, Sec. 210, 58 Stat. 687; Feb. 28, 1948, 
ch. 83, Sec. 6(a), 62 Stat. 42; Oct. 12, 1949, ch. 681, title V, 
Sec. 521(c), 63 Stat. 835; 1953 Reorg. Plan No. 1, Secs. 5, 8, eff. Apr. 
11, 1953, 18 F.R. 2053, 67 Stat. 631; Apr. 27, 1956, ch. 211, Sec. 4(a), 
70 Stat. 117; Pub. L. 86-415, Sec. 5(c), Apr. 8, 1960, 74 Stat. 34; Pub. 
L. 87-649, Sec. 11(2), Sept. 7, 1962, 76 Stat. 497; Pub. L. 96-76, title 
III, Sec. 307, Sept. 29, 1979, 93 Stat. 585; Pub. L. 96-342, title VIII, 
Sec. 813(h)(1), Sept. 8, 1980, 94 Stat. 1110; Pub. L. 99-348, title II, 
Sec. 207(a), July 1, 1986, 100 Stat. 701.)

                          Codification

    In subsec. (m), ``section 3332 of title 5'' substituted for ``the 
Act of December 11, 1926, as amended (5 U.S.C. 21a)'' on authority of 
Pub. L. 89-554, Sec. 7(b), Sept. 6, 1966, 80 Stat. 631, the first 
section of which enacted Title 5, Government Organization and Employees.


                               Amendments

    1986--Subsec. (g)(3). Pub. L. 99-348 added subpars. (A) and (B) and 
struck out former subpars. (A) and (B) which read as follows:
    ``(A) in the case of an officer who first became a member of a 
uniformed service before September 8, 1980, at the rate of 2\1/2\ per 
centum of basic pay of the permanent grade held by him at the time of 
retirement for each year, not in excess of thirty, of his active 
commissioned service in the Service; or
    ``(B) in the case of an officer who first became a member of a 
uniformed service on or after September 8, 1980, 2\1/2\ per centum of 
the monthly retired pay base computed under section 1407(h) of title 10, 
for each year, not in excess of thirty, of his active commissioned 
service in the Service.''
    1980--Subsec. (g)(3). Pub. L. 96-342 revised provisions into 
subpars. (A) and (B) and substituted provisions respecting computation 
of retired pay for officers who became members of the uniformed service 
before Sept. 8, 1980, and for officers who became members of the 
uniformed service on or after Sept. 8, 1980, for provisions respecting 
computation of retired pay for officers.
    1979--Subsec. (d)(1). Pub. L. 96-76, Sec. 307(a), inserted 
applicability to warrant officers and chief warrant officers.
    Subsec. (g). Pub. L. 96-76, Sec. 307(b), in provision before par. 
(1), inserted applicability to separation from Service of warrant 
officers and chief warrant officers subsequent to one examination or two 
examinations, respectively, in par. (1), inserted applicability to a 
chief warrant officer (W-2), and in par. (2), inserted applicability to 
a chief warrant officer (W-3).
    1962--Subsec. (g). Pub. L. 87-649 substituted ``basic pay'' for 
``pay'' in cls. (1) and (2).
    1960--Subsec. (g). Pub. L. 86-415 substituted ``of the basic pay of 
the permanent grade held by him at the time of retirement for each 
year'' for ``of his active duty pay at the time of retirement for each 
complete year'' in cl. (3).
    1956--Subsec. (d)(2). Act Apr. 27, 1956, struck out ``pay period and 
for purposes of'' before ``seniority in grade''.
    1949--Subsec. (g). Act Oct. 12, 1949, struck out ``incurred in line 
of duty'' wherever appearing.
    1948--Act Feb. 28, 1948, amended subsecs. (a) to (c) generally and 
added subsecs. (d) to (m).


                    Effective Date of 1979 Amendment

    Amendment by Pub. L. 96-76 effective Oct. 1, 1979, see section 314 
of Pub. L. 96-76, set out as a note under section 206 of this title.


                    Effective Date of 1962 Amendment

    Amendment by Pub. L. 87-649 effective Nov. 1, 1962, see section 15 
of Pub. L. 87-649, set out as an Effective Date note preceding section 
101 of Title 37, Pay and Allowances of the Uniformed Services.


                    Effective Date of 1949 Amendment

    Amendment by act Oct. 12, 1949, effective Oct. 1, 1949, see section 
533(a) of act Oct. 12, 1949.

                          Transfer of Functions

    Functions of Public Health Service, Surgeon General of Public Health 
Service, and all other officers and employees of Public Health Service, 
and functions of all agencies of or in Public Health Service transferred 
to Secretary of Health, Education, and Welfare by Reorg. Plan No. 3 of 
1966, eff. June 25, 1966, 31 F.R. 8855, 80 Stat. 1610, set out as a note 
under section 202 of this title. Secretary of Health, Education, and 
Welfare redesignated Secretary of Health and Human Services by section 
509(b) of Pub. L. 96-88 which is classified to section 3508(b) of Title 
20, Education.
    Functions of Federal Security Administrator transferred to Secretary 
of Health, Education, and Welfare and all agencies of Federal Security 
Agency transferred to Department of Health, Education, and Welfare by 
section 5 of Reorg. Plan No. 1 of 1953, set out as a note under section 
3501 this title. Federal Security Agency and office of Administrator 
abolished by section 8 of Reorg. Plan No. 1 of 1953. Secretary and 
Department of Health, Education, and Welfare redesignated Secretary and 
Department of Health and Human Services by section 509(b) of Pub. L. 96-
88 which is classified to section 3508(b) of Title 20.

                         Delegation of Functions

    Functions of President delegated to Secretary of Health and Human 
Services, see Ex. Ord. No. 11140, Jan. 30, 1964, 29 F.R. 1637, as 
amended, set out as a note under section 202 of this title.

                  Section Referred to in Other Sections

    This section is referred to in sections 210, 212 of this title; 
title 10 section 1406.
