10 U.S.C. § 628 (2024) — Title 10: ARMED FORCES / Chapter 36 / Subchapter III / Section 628: Special selection boards
Special selection boards
Status: in_force

(a) Persons Not Considered by Promotion Boards Due to Administrative Error.—(1) If the Secretary of the military department concerned determines that because of administrative error a person who should have been considered for selection for promotion from in or above the promotion zone by a promotion board was not so considered, the Secretary shall convene a special selection board under this subsection to determine whether that person (whether or not then on active duty) should be recommended for promotion.

(2) A special selection board convened under paragraph (1) shall consider the record of the person whose name was referred to it for consideration as that record would have appeared to the board that should have considered him. That record shall be compared with a sampling of the records of those officers of the same competitive category who were recommended for promotion, and those officers who were not recommended for promotion, by the board that should have considered him.

(3) If a special selection board convened under paragraph (1) does not recommend for promotion a person whose name was referred to it for consideration for selection for appointment to a grade other than a general officer or flag officer grade, the person shall be considered to have failed of selection for promotion.

(b) Persons Considered by Promotion Boards in Unfair Manner.—(1) If the Secretary of the military department concerned determines, in the case of a person who was considered for selection for promotion by a promotion board but was not selected, that there was material unfairness with respect to that person, the Secretary may convene a special selection board under this subsection to determine whether that person (whether or not then on active duty) should be recommended for promotion. In order to determine that there was material unfairness, the Secretary must determine that—

(A) the action of the promotion board that considered the person was contrary to law in a matter material to the decision of the board or involved material error of fact or material administrative error; or

(B) the board did not have before it for its consideration material information.

(2) A special selection board convened under paragraph (1) shall consider the record of the person whose name was referred to it for consideration as that record, if corrected, would have appeared to the board that considered him. That record shall be compared with the records of a sampling of those officers of the same competitive category who were recommended for promotion, and those officers who were not recommended for promotion, by the board that considered him.

(3) If a special selection board convened under paragraph (1) does not recommend for promotion a person whose name was referred to it for consideration, the person incurs no additional failure of selection for promotion.

(c) Reports of Boards.—(1) Each special selection board convened under this section shall submit to the Secretary of the military department concerned a written report, signed by each member of the board, containing the name of each person it recommends for promotion and certifying that the board has carefully considered the record of each person whose name was referred to it.

(2) The provisions of sections 617(b) and 618 of this title apply to the report and proceedings of a special selection board convened under this section in the same manner as they apply to the report and proceedings of a selection board convened under section 611(a) of this title. However, in the case of a board convened under this section to consider a warrant officer or former warrant officer, the provisions of sections 576(d), 576(f), and 613a of this title (rather than the provisions of sections 617(b) and 618 of this title) apply to the report and proceedings of the board in the same manner as they apply to the report and proceedings of a selection board convened under section 573 of this title.

(d) Appointment of Persons Selected by Boards.—(1) If the report of a special selection board convened under this section, as approved by the President, recommends for promotion to the next higher grade a person whose name was referred to it for consideration, that person shall, as soon as practicable, be appointed to that grade in accordance with subsections (b), (c), and (d) of section 624 of this title. However, in the case of a board convened under this section to consider a warrant officer or former warrant officer, if the report of that board, as approved by the Secretary concerned, recommends that warrant officer or former warrant officer for promotion to the next higher grade, that person shall, as soon as practicable, be appointed to the next higher grade in accordance with provisions of section 578(c) of this title (rather than subsections (b), (c), and (d) of section 624 of this title).

(2) A person who is appointed to the next higher grade as the result of the recommendation of a special selection board convened under this section shall, upon that appointment, have the same date of rank, the same effective date for the pay and allowances of that grade, and the same position on the active-duty list as he would have had if he had been recommended for promotion to that grade by the board which should have considered, or which did consider, him. In the case of a person who is not on the active-duty list when appointed to the next higher grade, placement of that person on the active-duty list pursuant to the preceding sentence shall be only for purposes of determination of eligibility of that person for consideration for promotion by any subsequent special selection board under this section.

(e) Deceased Persons.—If a person whose name is being considered for referral to a special selection board under this section dies before the completion of proceedings under this section with respect to that person, this section shall be applied to that person posthumously.

(f) Convening of Boards.—A board convened under this section—

(1) shall be convened under regulations prescribed by the Secretary of Defense;

(2) shall be composed in accordance with section 612 of this title or, in the case of board to consider a warrant officer or former warrant officer, in accordance with section 573 of this title and regulations prescribed by the Secretary of the military department concerned; and

(3) shall be subject to the provisions of section 613 of this title.

(g) Judicial Review.—(1)(A) A court of the United States may review a determination by the Secretary of a military department under subsection (a)(1) or (b)(1) not to convene a special selection board in the case of any person. In any such case, the court may set aside the Secretary's determination only if the court finds the determination to be—

(i) arbitrary or capricious;

(ii) not based on substantial evidence;

(iii) a result of material error of fact or material administrative error; or

(iv) otherwise contrary to law.

(B) If a court sets aside a determination by the Secretary of a military department not to convene a special selection board under this section, it shall remand the case to the Secretary concerned, who shall provide for consideration by such a board.

(2) A court of the United States may review the action of a special selection board convened under this section or an action of the Secretary of the military department concerned on the report of such a board. In any such case, a court may set aside the action only if the court finds that the action was—

(A) arbitrary or capricious;

(B) not based on substantial evidence;

(C) a result of material error of fact or material administrative error; or

(D) otherwise contrary to law.

(3)(A) If, six months after receiving a complete application for consideration by a special selection board under this section in any case, the Secretary concerned has not convened such a board and has not denied consideration by such a board in that case, the Secretary shall be deemed for the purposes of this subsection to have denied the consideration of the case by such a board.

(B) If, six months after the convening of a special selection board under this section in any case, the Secretary concerned has not taken final action on the report of the board, the Secretary shall be deemed for the purposes of this subsection to have denied relief in such case.

(C) Under regulations prescribed under subsection (j), the Secretary of a military department may waive the applicability of subparagraph (A) or (B) in a case if the Secretary determines that a longer period for consideration of the case is warranted. Such a waiver may be for an additional period of not more than six months. The Secretary concerned may not delegate authority to make a determination under this subparagraph.

(h) Limitations of Other Jurisdiction.—No official or court of the United States may, with respect to a claim based to any extent on the failure of a person to be selected for promotion by a promotion board—

(1) consider the claim unless the person has first been referred by the Secretary concerned to a special selection board convened under this section and acted upon by that board and the report of the board has been approved by the President; or

(2) except as provided in subsection (g), grant any relief on the claim unless the person has been selected for promotion by a special selection board convened under this section to consider the person for recommendation for promotion and the report of the board has been approved by the President.

(i) Existing Jurisdiction.—Nothing in this section limits—

(1) the jurisdiction of any court of the United States under any provision of law to determine the validity of any law, regulation, or policy relating to selection boards; or

(2) the authority of the Secretary of a military department to correct a military record under section 1552 of this title.

(j) Regulations.—(1) The Secretary of each military department shall prescribe regulations to carry out this section. Regulations under this subsection may not apply to subsection (g), other than to paragraph (3)(C) of that subsection.

(2) The Secretary may prescribe in the regulations under paragraph (1) the circumstances under which consideration by a special selection board may be provided for under this section, including the following:

(A) The circumstances under which consideration of a person's case by a special selection board is contingent upon application by or for that person.

(B) Any time limits applicable to the filing of an application for such consideration.

(3) Regulations prescribed by the Secretary of a military department under this subsection may not take effect until approved by the Secretary of Defense.

(k) Promotion Board Defined.—In this section, the term "promotion board" means a selection board convened by the Secretary of a military department under section 573(a) or 611(a) of this title.

(Added Pub. L. 96–513, title I, §105, Dec. 12, 1980, 94 Stat. 2859; amended Pub. L. 98–525, title V, §527(a), Oct. 19, 1984, 98 Stat. 2525; Pub. L. 102–190, div. A, title XI, §1131(4), Dec. 5, 1991, 105 Stat. 1506; Pub. L. 102–484, div. A, title X, §1052(10), Oct. 23, 1992, 106 Stat. 2499; Pub. L. 105–261, div. A, title V, §501(a)–(e), Oct. 17, 1998, 112 Stat. 2000–2002; Pub. L. 106–398, §1 [[div. A], title X, §1087(a)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A–290; Pub. L. 107–107, div. A, title V, §§503(b), 505(c)(3)(A), Dec. 28, 2001, 115 Stat. 1083, 1088; Pub. L. 109–364, div. A, title V, §514(a), Oct. 17, 2006, 120 Stat. 2185; Pub. L. 111–383, div. A, title V, §503(b), Jan. 7, 2011, 124 Stat. 4208; Pub. L. 114–92, div. A, title V, §502(c)(1), Nov. 25, 2015, 129 Stat. 807.)

Editorial Notes

Amendments

2015—Subsec. (a)(1). Pub. L. 114–92 struck out "or the name of a person that should have been placed on an all-fully-qualified-officers list under section 624(a)(3) of this title was not so placed," after "not so considered,".

2011—Subsec. (c)(2). Pub. L. 111–383 substituted "sections 576(d), 576(f), and 613a" for "sections 576(d) and 576(f)".

2006—Subsec. (a)(1). Pub. L. 109–364, §514(a)(1), inserted "from in or above the promotion zone" after "for selection for promotion".

Subsec. (b)(1)(A). Pub. L. 109–364, §514(a)(2), inserted "in a matter material to the decision of the board" after "contrary to law".

2001—Subsec. (a)(1). Pub. L. 107–107, §505(c)(3)(A), inserted "or the name of a person that should have been placed on an all-fully-qualified-officers list under section 624(a)(3) of this title was not so placed," after "not so considered,".

Subsecs. (g) to (k). Pub. L. 107–107, §503(b), added subsecs. (g) to (j) and redesignated former subsec. (g) as (k).

2000—Subsec. (c)(2). Pub. L. 106–398 substituted "sections" for "section" after "rather than the provisions of".

1998—Subsec. (a). Pub. L. 105–261, §501(a)(1), inserted subsec. heading, added par. (1), and struck out former par. (1) which read as follows: "In the case of an officer who is eligible for promotion who the Secretary of the military department concerned determines was not considered for selection for promotion by a selection board because of administrative error, the Secretary concerned, under regulations prescribed by the Secretary of Defense, shall convene a special selection board under this subsection (composed in accordance with section 612 of this title or, in the case of a warrant officer, composed in accordance with section 573 of this title and regulations prescribed by the Secretary of the military department concerned) to determine whether such officer should be recommended for promotion."

Subsec. (a)(2). Pub. L. 105–261, §501(a)(2), substituted "the person whose name was referred to it for consideration as that record" for "the officer as his record".

Subsec. (a)(3). Pub. L. 105–261, §501(a)(3), substituted "a person whose name was referred to it for consideration for selection for appointment to a grade other than a general officer or flag officer grade, the person" for "an officer in a grade below the grade of colonel or, in the case of an officer of the Navy, captain whose name was referred to it for consideration, the officer".

Subsec. (b). Pub. L. 105–261, §501(b)(1), inserted subsec. heading, added par. (1), and struck out former par. (1) which read as follows: "In the case of an officer who is eligible for promotion who was considered for selection for promotion by a selection board but was not selected, the Secretary of the military department concerned, under regulations prescribed by the Secretary of Defense, may convene a special selection board under this subsection (composed in accordance with section 612 of this title or, in the case of a warrant officer, composed in accordance with section 573 of this title and regulations prescribed by the Secretary of the military department concerned) to determine whether such officer should be recommended for promotion if the Secretary concerned determines that—

"(A) the action of the board which considered the officer was contrary to law or involved material error of fact or material administrative error; or

"(B) the board did not have before it for its consideration material information."

Subsec. (b)(2). Pub. L. 105–261, §501(b)(2), substituted "the person whose name was referred to it for consideration as that record" for "the officer as his record".

Subsec. (b)(3). Pub. L. 105–261, §501(b)(3)(A), substituted "a person" for "an officer" and "the person" for "the officer".

Subsec. (c). Pub. L. 105–261, §501(c)(1)(A), inserted heading.

Subsec. (c)(1). Pub. L. 105–261, §501(c)(1)(B), substituted "person" for "officer" in two places.

Subsec. (c)(2). Pub. L. 105–261, §501(c)(1)(C), inserted at end "However, in the case of a board convened under this section to consider a warrant officer or former warrant officer, the provisions of sections 576(d) and 576(f) of this title (rather than the provisions of section 617(b) and 618 of this title) apply to the report and proceedings of the board in the same manner as they apply to the report and proceedings of a selection board convened under section 573 of this title."

Subsec. (d). Pub. L. 105–261, §501(c)(2)(A), inserted heading.

Subsec. (d)(1). Pub. L. 105–261, §501(c)(2)(B)–(E), substituted "a person" for "an officer", "that person" for "such officer", and "that grade in" for "the next higher grade in" and inserted at end "However, in the case of a board convened under this section to consider a warrant officer or former warrant officer, if the report of that board, as approved by the Secretary concerned, recommends that warrant officer or former warrant officer for promotion to the next higher grade, that person shall, as soon as practicable, be appointed to the next higher grade in accordance with provisions of section 578(c) of this title (rather than subsections (b), (c), and (d) of section 624 of this title)."

Subsec. (d)(2). Pub. L. 105–261, §501(c)(3), substituted "A person who is appointed" for "An officer who is promoted" and "that appointment" for "such promotion" and inserted at end "In the case of a person who is not on the active-duty list when appointed to the next higher grade, placement of that person on the active-duty list pursuant to the preceding sentence shall be only for purposes of determination of eligibility of that person for consideration for promotion by any subsequent special selection board under this section."

Subsec. (e). Pub. L. 105–261, §501(d), amended subsec. (e) generally. Prior to amendment, subsec. (e) read as follows: "The provisions of section 613 of this title apply to members of special selection boards convened under this section."

Subsecs. (f), (g). Pub. L. 105–261, §501(e), added subsecs. (f) and (g).

1992—Subsec. (b)(1). Pub. L. 102–484 substituted "section 573" for "section 558".

1991—Subsec. (a)(1). Pub. L. 102–190 substituted "section 573" for "section 558".

1984—Subsecs. (a)(1), (b)(1). Pub. L. 98–525 substituted "(composed in accordance with section 612 of this title or, in the case of a warrant officer, composed in accordance with section 558 of this title and regulations prescribed by the Secretary of the military department concerned)" for "(composed in accordance with section 612 of this title)".

Statutory Notes and Related Subsidiaries

Effective Date of 2006 Amendment

Pub. L. 109–364, div. A, title V, §514(c), Oct. 17, 2006, 120 Stat. 2185, provided that: "The amendments made by this section [amending this section and section 14502 of this title] shall take effect on March 1, 2007, and shall apply with respect to selection boards convened on or after that date."

Effective Date of 2001 Amendment

Pub. L. 107–107, div. A, title V, §503(c), Dec. 28, 2001, 115 Stat. 1084, provided that:

"(1) Except as provided in paragraph (2), the amendments made by this section [enacting section 1558 of this title and amending this section] shall apply with respect to any proceeding pending on or after the date of the enactment of this Act [Dec. 28, 2001] without regard to whether a challenge to an action of a selection board of any of the Armed Forces being considered in the proceeding was initiated before, on, or after that date.

"(2) The amendments made by this section shall not apply with respect to any action commenced in a court of the United States before the date of the enactment of this Act."

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

Section effective Sept. 15, 1981, but the authority to prescribe regulations under this section effective on Dec. 12, 1980, see section 701 of Pub. L. 96–513, set out as an Effective Date of 1980 Amendment note under section 101 of this title.

Ratification of Codified Practice

Pub. L. 105–261, div. A, title V, §501(f), Oct. 17, 1998, 112 Stat. 2002, provided that the consideration by a special selection board convened under this section before Oct. 17, 1998, of a person who, at the time of consideration, had been a retired officer or former officer of the Armed Forces (including a deceased retired or former officer) was ratified.

Executive Documents

Delegation of Functions

Functions of President under subsec. (d)(1) to approve, modify, or disapprove report of a selection board delegated to Secretary of Defense to perform, without approval, ratification, or other action by President, and with authority for Secretary to redelegate, see Ex. Ord. No. 12396, §§1(a), 3, Dec. 9, 1982, 47 F.R. 55897, 55898, set out as a note under section 301 of Title 3, The President.
10 U.S.C. § 2197 (2024) — Title 10: ARMED FORCES / Chapter 111 / Section 2197: Renumbered §4844
Renumbered §4844
Status: renumbered

[§2197. Renumbered §4844]
10 U.S.C. § 1211 (2024) — Title 10: ARMED FORCES / Chapter 61 / Section 1211: Members on temporary disability retired list: return to active duty; promotion
Members on temporary disability retired list: return to active duty; promotion
Status: in_force

(a) With his consent, any member of the Army, the Air Force, or the Space Force whose name is on the temporary disability retired list, and who is found to be physically fit to perform the duties of his office, grade, or rank under section 1210(f) of this title, shall—

(1) if a commissioned officer of a regular component, be recalled to active duty and, as soon as practicable, may be reappointed by the President, by and with the advice and consent of the Senate, to the active-duty list in the regular grade held by him when his name was placed on the temporary disability retired list, or in the next higher regular grade;

(2) if a warrant officer of a regular component, be recalled to active duty and, as soon as practicable, be reappointed by the Secretary concerned in the regular grade held by him when his name was placed on the temporary disability retired list, or in the next higher regular warrant grade;

(3) if an enlisted member of a regular component, be reenlisted in the regular grade held by him when his name was placed on the temporary disability retired list or in the next higher regular enlisted grade;

(4) if a commissioned, warrant, or enlisted Reserve, be reappointed or reenlisted as a Reserve for service in his reserve component in the reserve grade held by him when his name was placed on the temporary disability retired list, or appointed or enlisted in the next higher reserve commissioned, warrant, or enlisted grade, as the case may be;

(5) if a commissioned, warrant, or enlisted member of the Army National Guard of the United States or the Air National Guard of the United States when the disability was incurred, and if he cannot be reappointed or reenlisted as a Reserve for service therein, be appointed or enlisted as a Reserve for service in the Army Reserve or the Air Force Reserve, as the case may be, in a grade corresponding to the reserve grade held by him when his name was placed on the temporary disability retired list, or in the next higher reserve commissioned, warrant, or enlisted grade, as the case may be; and

(6) if a member of the Army, the Air Force, or the Space Force who has no regular or reserve grade, be reappointed or reenlisted in the Army, the Air Force, or the Space Force, as the case may be, in the temporary grade held by him when his name was placed on the temporary disability retired list, or appointed or enlisted in the next higher temporary grade.

(b) With his consent, any member of the naval service or of the Coast Guard whose name is on the temporary disability retired list, and who is found to be physically fit to perform the duties of his office, grade, rank, or rating under section 1210(f) of this title, shall—

(1) if he held an appointment in a commissioned grade in a regular component when his name was placed on the temporary disability retired list, be recalled to active duty and, as soon as practicable, may be reappointed by the President, by and with the advice and consent of the Senate, to his regular component in the grade permanently held by him when his name was placed on the temporary disability retired list, or in the next higher grade;

(2) if he held an appointment in the grade of warrant officer, W–1, in a regular component when his name was placed on the temporary disability retired list, be recalled to active duty and, as soon as practicable, be reappointed by the Secretary concerned in his regular component in the grade permanently held by him when his name was placed on the temporary disability retired list, or may be appointed by the President, by and with the advice and consent of the Senate, to the grade of chief warrant officer, W–2;

(3) if he held a permanent enlisted grade in a regular component when his name was placed on the temporary disability retired list, be reenlisted in his regular component in the grade permanently held by him when his name was placed on the temporary disability retired list, or in the next higher enlisted grade;

(4) if he was a member of the Fleet Reserve or the Fleet Marine Corps Reserve when his name was placed on the temporary disability retired list, resume his status in the Fleet Reserve or the Fleet Marine Corps Reserve in the grade held by him when his name was placed on the temporary disability retired list, or in the next higher enlisted grade; and

(5) if a member of a reserve component be reappointed or reenlisted in his reserve component in the grade permanently held by him when his name was placed on the temporary disability retired list or, if that permanent grade is not chief petty officer or master sergeant, in the next higher grade in that reserve component.

(c) If a member is appointed, reappointed, enlisted, or reenlisted, or resumes his status in the Fleet Reserve or the Fleet Marine Corps Reserve, under subsection (a) or (b), his status on the temporary disability retired list terminates on the date of his appointment, reappointment, enlistment, reenlistment, or resumption, as the case may be. However, if such a member does not consent to the action proposed under subsection (a) or (b), and if the member is not discharged, retired, or transferred to the Fleet Reserve or Fleet Marine Corps Reserve or inactive Reserve under section 1210 of this title, his status on the temporary disability retired list and his disability retired pay shall be terminated as soon as practicable and the member shall be discharged.

(d) Disability retired pay of a member covered by this section terminates—

(1) on the date when he is recalled to active duty under subsection (a)(1) or (2) or subsection (b)(1) or (2), for an officer of a regular component;

(2) on the date when he resumes his status in the Fleet Reserve or the Fleet Marine Corps Reserve under subsection (b)(4), for a member of the Fleet Reserve or the Fleet Marine Corps Reserve; and

(3) on the date when he is appointed, reappointed, enlisted, or reenlisted, for any other member of the armed forces.

(e) Whenever seniority in grade or years of service is a factor in determining the qualifications of a member of the armed forces for promotion, each member who has been appointed, reappointed, enlisted, or reenlisted, under subsection (a) or (b), shall, when his name is placed on a lineal list, a promotion list, an approved all-fully-qualified-officers list, or any similar list, have the seniority in grade and be credited with the years of service authorized by the Secretary concerned. The authorized strength in any regular grade is automatically increased to the minimum extent necessary to give effect to each appointment made in that grade under this section. An authorized strength so increased is increased for no other purpose, and while he holds that grade the officer whose appointment caused the increase is counted for the purpose of determining when other appointments, not under this section, may be made in that grade.

(f) Action under this section shall be taken on a fair and equitable basis, with regard being given to the probable opportunities for advancement and promotion that the member might reasonably have had if his name had not been placed on the temporary disability retired list.

(Aug. 10, 1956, ch. 1041, 70A Stat. 96; Pub. L. 87–651, title I, §107(b), Sept. 7, 1962, 76 Stat. 508; Pub. L. 96–513, title V, §501(17), Dec. 12, 1980, 94 Stat. 2908; Pub. L. 99–145, title V, §513(a)(3), Nov. 8, 1985, 99 Stat. 627; Pub. L. 107–107, div. A, title V, §505(c)(4), Dec. 28, 2001, 115 Stat. 1088; Pub. L. 116–283, div. A, title IX, §924(b)(24), Jan. 1, 2021, 134 Stat. 3824.)

Historical and Revision Notes
1956 Act

Revised sectionSource (U.S. Code)Source (Statutes at Large)

1211(a) 
37:275(a).
37:275(b).

37:275(c) (1st sentence). 

Oct. 12, 1949, ch. 681, §§405, 406, 407, 63 Stat. 821.

  
37:276(a) (less clauses (1)–(3)).

  
37:276(a)(1) (1st 7 words).

  
37:276(a)(2) (1st 10 words).

  
37:276(a)(3) (1st 8 words).

  
37:277(a).

1211(b) 
37:275(a).

  
37:275(b).

  
37:275(c) (1st sentence).

  
37:276(a) (less clauses (1)–(3)).

  
37:276(a)(1) (1st 7 words).

  
37:276(a)(2) (1st 10 words).

  
37:276(a)(3) (1st 8 words).

  
37:277(a).

1211(c) 
37:276(a)(1) (less 1st 22 words).

  
37:276(a)(2) (11th through 18th words).

  
37:276(a)(3) (9th and 10th words).

  
37:276(b).

1211(d) 
37:276(a)(1) (8th through 22d words).

  
37:276(a)(2) (less 1st 18 words).

  
37:276(a)(3) (less 1st 10 words).

1211(e) 
37:275(c) (2d sentence).

  
37:277 (less (a)).

1211(f) 
37:275(c) (last sentence).

In subsections (a) and (b), the words "under section 1210(f) of this title" are substituted for the words "If, as a result of a periodic physical examination", in 37:275(a) and (b), and 276(a), and the words "and who are subsequently found to be physically fit", in 37:277(a). The words "subject to the provisions of section 277 of this title", in 37:275(a), are omitted as surplusage.

In subsections (a)(2)–(6) and (b)(2)–(6), the appointment or enlistment is restricted to those already in an enlisted, warrant, or commissioned status, as the case may be, held by the member before placement of his name on the temporary disability retired list, since 37:277 (last sentence) indicates that appointment in the next higher grade for regular warrant officer is restricted to those warrant grades to which the President alone may appoint him. Similarly 37:275 (last 10 words) indicates that an enlisted member may only be reenlisted.

In subsection (a)(2) reference to the President, in 37:277(a), is omitted as inapplicable to the appointment of warrant officers of the Army and the Air Force.

Subsection (a)(5) is substituted for 37:275(b) (proviso) (as applicable to Army and Air Force).

Subsection (a)(6) is inserted, since the words "reserve component" are defined by section 102(k) of the source statute to include members of the Army and the Air Force who have no component status.

In subsection (b)(2), the words "by and with the advice and consent of the Senate" are added to make it clear that all appointments to the grade of commissioned warrant officer in the Navy, Marine Corps, and Coast Guard require Senate confirmation. Although these words do not appear in section 405 of the Career Compensation Act of 1949, there is no indication that an exception to the basic law relating to appointments in commissioned grades was intended.

Subsection (d)(3) is made applicable to members without component status, since the words "reserve component" are defined in section 102(k) of the source statute to include members of the Army and the Air Force who have no component status.

In subsection (e), the words "rank" and "rating" are omitted as surplusage.

1962 Act

The changes correct typographical errors.

Editorial Notes

Amendments

2021—Subsec. (a). Pub. L. 116–283, §924(b)(24)(A), substituted ", the Air Force, or the Space Force" for "or the Air Force" in introductory provisions.

Subsec. (a)(6). Pub. L. 116–283, §924(b)(24)(B), substituted "the Air Force, or the Space Force who" for "or the Air Force, who" and "the Air Force, or the Space Force, as" for "or the Air Force, as".

2001—Subsec. (e). Pub. L. 107–107 inserted "an approved all-fully-qualified-officers list," after "a promotion list,".

1985—Subsec. (c). Pub. L. 99–145 inserted "and if the member is not discharged, retired, or transferred to the Fleet Reserve or Fleet Marine Corps Reserve or inactive Reserve under section 1210 of this title," after "proposed under subsection (a) or (b)," and inserted "and the member shall be discharged" after "as soon as practicable".

1980—Subsec. (a)(1). Pub. L. 96–513 substituted "active-duty list" for "active list of his regular component".

1962—Subsec. (d). Pub. L. 87–651 substituted "subsection (b)(1) or (2)" for "subsection (b)(1), (2), or (3)" in cl. (1), and "subsection (b)(4)" for "subsection (b)(5)" in cl. (2).

Statutory Notes and Related Subsidiaries

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–513 effective Sept. 15, 1981, see section 701 of Pub. L. 96–513, set out as a note under section 101 of this title.

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.
10 U.S.C. § 3678 (2024) — Title 10: ARMED FORCES / Chapter 257 / Section 3678: Contracts with terms of 18 months or more: limitation
Contracts with terms of 18 months or more: limitation
Status: in_force

The Secretary of Defense or the Secretary of a military department may not enter into any contract with a term of 18 months or more, or extend or renew any contract for a term of 18 months or more, for any vessel, aircraft, or vehicle, through a lease, charter, or similar agreement, unless the Secretary has considered all costs of such contract (including estimated termination liability) and has determined in writing that the contract is in the best interest of the Government.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1825(a), (j), Jan. 1, 2021, 134 Stat. 4206, 4208.)

Editorial Notes

Codification

The text of subsec. (b) of section 2401a of this title, which was transferred to this section and amended by Pub. L. 116–283, §1825(j), was based on Pub. L. 103–355, title III, §3065(a)(1), Oct. 13, 1994, 108 Stat. 3337; Pub. L. 104–106, div. A, title VIII, §807(a)(1)(A), Feb. 10, 1996, 110 Stat. 391.

Prior Provisions

Provisions similar to those in this section were contained in Pub. L. 101–165, title IX, §9081, Nov. 21, 1989, 103 Stat. 1147, which was set out as a note under section 2401 of this title, prior to repeal by Pub. L. 103–355, §3065(b).

Amendments

2021—Pub. L. 116–283, §1825(j), transferred subsec. (b) of section 2401a of this title to this section and struck out subsec. (b) designation and heading "Limitation on Contracts With Terms of 18 Months or More" at beginning.

Statutory Notes and Related Subsidiaries

Effective Date

Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.

Leases for Tanker Aircraft Under Multiyear Aircraft-Lease Pilot Program

Pub. L. 107–314, div. A, title I, §133, Dec. 2, 2002, 116 Stat. 2477, provided that: "The Secretary of the Air Force may not enter into a lease for the acquisition of tanker aircraft for the Air Force under section 8159 of the Department of Defense Appropriations Act, 2002 (division A of Public Law 107–117; 115 Stat. 2284; 10 U.S.C. 2401a note [now 10 U.S.C. 3678 note, set out below]) until—

"(1) the Secretary submits the report specified in subsection (c)(6) of such section; and

"(2) either—

"(A) authorization and appropriation of funds necessary to enter into such lease are provided by law; or

"(B) a new start reprogramming notification for the funds necessary to enter into such lease has been submitted in accordance with established procedures."

Multi-Year Aircraft Lease Pilot Program

Pub. L. 107–206, title I, §308, Aug. 2, 2002, 116 Stat. 841, provided that: "During the current fiscal year and hereafter, section 2533a of title 10, United States Code [now 10 U.S.C. 4862], shall not apply to any transaction entered into to acquire or sustain aircraft under the authority of section 8159 of the Department of Defense Appropriations Act, 2002 (division A of Public Law 107–117; 115 Stat. 2284) [set out below]."

Pub. L. 107–117, div. A, title VIII, §8159, Jan. 10, 2002, 115 Stat. 2284, as amended by Pub. L. 107–248, title VIII, §8117, Oct. 23, 2002, 116 Stat. 1564; Pub. L. 113–76, div. C, title VIII, §8122, Jan. 17, 2014, 128 Stat. 133, provided that:

"(a) The Secretary of the Air Force may, from funds provided in this Act [see Tables for classification] or any future appropriations Act, establish and make payments on a multi-year pilot program for leasing general purpose Boeing 767 aircraft and Boeing 737 aircraft in commercial configuration.

"(b) Sections 2401 [see 10 U.S.C. 3671 et seq.] and 2401a [see 10 U.S.C. 3678, 3681] of title 10, United States Code, shall not apply to any aircraft lease authorized by this section.

"(c) Under the aircraft lease Pilot Program authorized by this section:

"(1) The Secretary may include terms and conditions in lease agreements that are customary in aircraft leases by a non-Government lessor to a non-Government lessee, but only those that are not inconsistent with any of the terms and conditions mandated herein. Notwithstanding the provisions of Section [sic] 3324 of Title 31, United States Code, payment for the acquisition of leasehold interests under this section may be made for each annual term up to one year in advance.

"(2) The term of any individual lease agreement into which the Secretary enters under this section shall not exceed 10 years, inclusive of any options to renew or extend the initial lease term.

"(3) The Secretary may provide for special payments in a lessor if the Secretary terminates or cancels the lease prior to the expiration of its term. Such special payments shall not exceed an amount equal to the value of 1 year's lease payment under the lease.

"(4) Subchapter IV of chapter 15 of title 31, United States Code shall apply to the lease transactions under this section, except that the limitation in section 1553(b)(2) shall not apply.

"(5) The Secretary shall lease aircraft under terms and conditions consistent with this section and consistent with the criteria for an operating lease as defined in OMB Circular A–11, as in effect at the time of the lease.

"(6) Lease arrangements authorized by this section may not commence until:

"(A) The Secretary submits a report to the congressional defense committees [Committees on Armed Services of the Senate and the House of Representatives and Subcommittees on Defense of the Committees on Appropriations of the Senate and the House of Representatives] outlining the plans for implementing the Pilot Program. The report shall describe the terms and conditions of proposed contracts and describe the expected savings, if any, comparing total costs, including operation, support, acquisition, and financing, of the lease, including modification, with the outright purchase of the aircraft as modified.

"(B) A period of not less than 30 calendar days has elapsed after submitting the report.

"[(7) Repealed. Pub. L. 113–76, div. C, title VIII, §8122, Jan. 17, 2014, 128 Stat. 133.]

"(8) The Air Force shall accept delivery of the aircraft in a general purpose configuration.

"(9) At the conclusion of the lease term, each aircraft obtained under that lease may be returned to the contractor in the same configuration in which the aircraft was delivered.

"(10) The present value of the total payments over the duration of each lease entered into under this authority shall not exceed 90 percent of the fair market value of the aircraft obtained under that lease.

"(d) No lease entered into under this authority shall provide for—

"(1) the modification of the general purpose aircraft from the commercial configuration, unless and until separate authority for such conversion is enacted and only to the extent budget authority is provided in advance in appropriations Acts for that purpose; or

"(2) the purchase of the aircraft by, or the transfer of ownership to, the Air Force.

"(e) The authority granted to the Secretary of the Air Force by this section is separate from and in addition to, and shall not be construed to impair or otherwise affect, the authority of the Secretary to procure transportation or enter into leases under a provision of law other than this section.

"(f) The authority provided under this section may be used to lease not more than a total of 100 Boeing 767 aircraft and 4 Boeing 737 aircraft for the purposes specified herein.

"(g) Notwithstanding any other provision of law, any payments required for a lease entered into under this Section, or any payments made pursuant to subsection (c)(3) above, may be made from appropriations available for operation and maintenance or for lease or procurement of aircraft at the time that the lease takes effect; appropriations available for operation and maintenance or for lease or procurement of aircraft at the time that the payment is due; or funds appropriated for those payments."

Lease of Firefighting, Crash Rescue, and Snow Removal Equipment

Pub. L. 105–262, title VIII, §8126, Oct. 17, 1998, 112 Stat. 2333, provided that:

"(a) The Secretary of the Army and the Secretary of the Air Force may each enter into one or more multiyear leases of nontactical firefighting equipment, nontactical crash rescue equipment, or nontactical snow removal equipment. The period of a lease entered into under this section shall be for any period not in excess of 10 years. Any such lease shall provide that performance under the lease during the second and subsequent years of the contract is contingent upon the appropriation of funds and shall provide for a cancellation payment to be made to the lessor if such appropriations are not made.

"(b) Lease payments made under subsection (a) shall be made from amounts provided in this or future appropriations Acts.

"(c) This section is effective for all fiscal years beginning after September 30, 1998."
10 U.S.C. § 517 (2024) — Title 10: ARMED FORCES / Chapter 31 / Section 517: Authorized enlisted end strength: members in pay grades E-8 and E-⁠9
Authorized enlisted end strength: members in pay grades E-8 and E-⁠9
Status: in_force

(a) The authorized end strength for enlisted members on active duty (other than for training) in an armed force in pay grades E–8 and E–⁠9 as of the last day of a fiscal year may not be more than 3.0 percent and 1.25 percent, respectively, of the number of enlisted members of that armed force who are on active duty (other than for training). In computing the limitations prescribed in the preceding sentence, there shall be excluded enlisted members of an armed force on active duty as authorized under section 115(a)(1)(B) or 115(b) of this title, or excluded from counting for active duty end strengths under section 115(i) of this title.

[(b) Repealed. Pub. L. 116–283, div. A, title IV, §403(a)(3), Jan. 1, 2021, 134 Stat. 3556.]

(c) Whenever under section 527 of this title the President may suspend the operation of any provision of section 523, 525, or 526 of this title, the Secretary of Defense may suspend the operation of any provision of this section. Any such suspension shall, if not sooner ended, end in the manner specified in section 527 for a suspension under that section.

(Added Pub. L. 87–649, §2(1), Sept. 7, 1962, 76 Stat. 492; amended Pub. L. 96–584, §4, Dec. 23, 1980, 94 Stat. 3377; Pub. L. 97–86, title V, §503(1), (2), Dec. 1, 1981, 95 Stat. 1107, 1108; Pub. L. 97–252, title V, §503(a), Sept. 8, 1982, 96 Stat. 727; Pub. L. 98–94, title V, §503(a), Sept. 24, 1983, 97 Stat. 631; Pub. L. 98–525, title IV, §§413(a), 414(a)(2), Oct. 19, 1984, 98 Stat. 2517, 2518; Pub. L. 99–145, title IV, §413(a), Nov. 8, 1985, 99 Stat. 619; Pub. L. 100–180, div. A, title IV, §413(a), Dec. 4, 1987, 101 Stat. 1083; Pub. L. 101–189, div. A, title IV, §413(a), Nov. 29, 1989, 103 Stat. 1433; Pub. L. 102–190, div. A, title IV, §413(a), Dec. 5, 1991, 105 Stat. 1352; Pub. L. 103–160, div. A, title IV, §413(a), Nov. 30, 1993, 107 Stat. 1642; Pub. L. 103–337, div. A, title V, §552(a), title XVI, §1662(a)(4), Oct. 5, 1994, 108 Stat. 2772, 2988; Pub. L. 105–261, div. A, title IV, §407(a), title X, §1069(a)(2), Oct. 17, 1998, 112 Stat. 1996, 2135; Pub. L. 106–398, §1 [[div. A], title IV, §421(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–95; Pub. L. 107–107, div. A, title IV, §403, Dec. 28, 2001, 115 Stat. 1069; Pub. L. 108–375, div. A, title IV, §416(f), Oct. 28, 2004, 118 Stat. 1868; Pub. L. 110–181, div. A, title IV, §406, Jan. 28, 2008, 122 Stat. 89; Pub. L. 116–283, div. A, title IV, §403(a), Jan. 1, 2021, 134 Stat. 3556.)

Historical and Revision Notes

Revised sectionSource (U.S. Code)Source (Statutes at Large)

517 
37:232(c) (last sentence). 
Oct. 12, 1949, ch. 681, §201(c) (last sentence); added May 20, 1958, Pub. L. 85–422, §1(3) (last sentence), 72 Stat. 124.

Editorial Notes

Amendments

2021—Pub. L. 116–283, §403(a)(1), substituted "enlisted end strength" for "daily average" in section catchline.

Subsec. (a). Pub. L. 116–283, §403(a)(2), in first sentence, substituted "end strength for" for "daily average number of", "as of the last day of a fiscal year" for "in a fiscal year", and "3.0 percent" for "2.5 percent" and struck out before period at end "on the first day of that fiscal year".

Subsec. (b). Pub. L. 116–283, §403(a)(3), struck out subsec. (b) which read as follows: "Whenever the number of members serving in pay grade E–⁠9 is less than the number authorized for that grade under subsection (a), the difference between the two numbers may be applied to increase the number authorized under such subsection for pay grade E–8."

2008—Subsec. (a). Pub. L. 110–181 substituted "1.25 percent" for "1 percent".

2004—Subsec. (a). Pub. L. 108–375 substituted "as authorized under section 115(a)(1)(B) or 115(b) of this title, or excluded from counting for active duty end strengths under section 115(i) of this title." for "(other than for training) in connection with organizing, administering, recruiting, instructing, or training the reserve component of an armed force."

2001—Subsec. (a). Pub. L. 107–107 substituted "2.5 percent" for "2 percent (or, in the case of the Army, 2.5 percent)".

2000—Subsec. (c). Pub. L. 106–398 added subsec. (c).

1998—Subsec. (a). Pub. L. 105–261, §1069(a)(2), substituted "The authorized" for "Except as provided in section 307 of title 37, the authorized".

Pub. L. 105–261, §407(a), substituted "a fiscal year" for "a calendar year" and "the first day of that fiscal year" for "January 1 of that year".

1994—Subsec. (a). Pub. L. 103–337, §552(a), inserted "(or, in the case of the Army, 2.5 percent)" after "may not be more than 2 percent".

Subsec. (b). Pub. L. 103–337, §1661(a)(4)(B), redesignated subsec. (c) as (b) and struck out "or whenever the number of members serving in pay grade E–⁠9 for duty described in subsection (b) is less than the number authorized for that grade under subsection (b)," after "under subsection (a),".

Pub. L. 103–337, §1662(a)(4)(A), struck out subsec. (b) which limited the number of enlisted members in pay grades E–8 and E–⁠9 who could be on active duty (other than for training) or on full-time National Guard duty under the authority of section 502(f) of title 32 (other than for training) as of the end of any fiscal year in connection with organizing, administering, recruiting, instructing, or training the reserve components or the National Guard.

Subsec. (c). Pub. L. 103–337, §1662(a)(4)(B), redesignated subsec. (c) as (b).

1993—Subsec. (b). Pub. L. 103–160, in table, increased fiscal year limitation on number of enlisted men in pay grades E–8 and E–⁠9 on active duty affecting reserve components of the Air Force to 328 and 840 from 279 and 800, respectively.

1991—Subsec. (b). Pub. L. 102–190, in table, increased fiscal year limitation on number of enlisted men in pay grade E–8 on active duty affecting reserve components of the Air Force from 670 to 800, and increased limitation on number of enlisted men in pay grade E–⁠9 on active duty affecting reserve components of the Army from 557 to 569, the Air Force from 231 to 279, and the Marine Corps from 13 to 14.

1989—Subsec. (b). Pub. L. 101–189, §413(a)(2), in table, increased fiscal year limitation on number of enlisted men in pay grades E–8 and E–⁠9 on active duty affecting reserve components of the armed forces: Army, to 557 and 2,585 from 542 and 2,504, respectively; Navy, to 202 and 429 from 200 and 425, respectively; Air Force, to 231 and 670 from 224 and 637, respectively. Marine Corps figures remained unchanged.

Pub. L. 101–189, §413(a)(1), in table, increased fiscal year limitation on number of enlisted men in pay grades E–8 and E–⁠9 on active duty affecting reserve components of the armed forces: Army, to 542 and 2,504 from 529 and 2,350, respectively; Navy, to 200 and 425 from 180 and 400, respectively; Air Force, to 224 and 637 from 150 and 425, respectively. Marine Corps figures remained unchanged.

1987—Subsec. (b). Pub. L. 100–180, §413(a)(2), in table, increased fiscal year limitation on number of enlisted men in pay grades E–8 and E–⁠9 on active duty affecting reserve components of the armed forces: Army, to 529 and 2,350 from 517 and 2,295, respectively; Navy, to 180 and 400 from 175 and 390, respectively; Air Force, to 150 and 425 from 125 and 425, respectively. Marine Corps figures remained unchanged.

Pub. L. 100–180, §413(a)(1), in table, increased fiscal year limitation on number of enlisted men in pay grades E–8 and E–⁠9 on active duty affecting reserve components of the armed forces: Navy, to 175 and 390 from 165 and 381, respectively; Air Force, to 125 and 425 from 80 and 358, respectively; Marine Corps, to 13 and 74 from 9 and 74, respectively. Army figures remained unchanged.

1985—Subsec. (b). Pub. L. 99–145 in table, changed fiscal year limitation on number of enlisted men in pay grades E–8 and E–⁠9 on active duty affecting reserve components of the armed forces: Navy, to 165 and 381 from 156 and 381, respectively; Air Force, to 80 and 358 from 87 and 455, respectively. Army and Marine Corps figures remained unchanged.

1984—Subsec. (b). Pub. L. 98–525, §414(a)(2), inserted "(other than for training) or on full-time National Guard duty under the authority of section 502(f) of title 32 (other than for training)" and substituted "or the National Guard" for "of the armed forces" and "for that grade and armed force" for "prescribed for the grade and the armed force".

Pub. L. 98–525, §413(a), in table, increased fiscal year limitation on number of enlisted men in pay grades E–8 and E–⁠9 on active duty affecting reserve components of the armed forces: Army, to 2,295 and 517 from 1,494 and 314; Air Force, to 455 and 87 from 617 and 143; Marine Corps, to 74 and 9 from 56 and 6. Navy figures remained unchanged.

1983—Subsec. (b). Pub. L. 98–94 increased fiscal year limitation on number of enlisted men in pay grades E–8 and E–⁠9 on active duty affecting reserve components of the armed forces: Army, to 1,494 and 314 from 1,244 and 265; Navy, to 381 and 156 from 329 and 156; Air Force, to 617 and 143 from 441 and 132; Marine Corps figures remained unchanged.

1982—Subsec. (b). Pub. L. 97–252 increased the numbers in columns from 222, 146, 76, and 4 in the line for E–⁠9 to 265, 156, 132, and 6, respectively, and from 908, 319, 307, and 12 in line for E–8 to 1,244, 329, 441, and 56, respectively.

1981—Subsec. (b). Pub. L. 97–86, §503(1), inserted column for "Marine Corps" in table and increased numbers in existing columns headed "Army", "Navy", and "Air Force" from 209, 140, and 71 in line for E–⁠9 to 222, 146, and 76, respectively, and from 823, 302, and 302 in line for E–8 to 908, 319, and 307, respectively.

Subsec. (c). Pub. L. 97–86, §503(2), added subsec. (c).

1980—Pub. L. 96–584 designated existing provisions as subsec. (a), inserted provisions respecting computation of limitations, and added subsec. (b).

Statutory Notes and Related Subsidiaries

Effective Date of 1998 Amendment

Pub. L. 105–261, div. A, title IV, §407(b), Oct. 17, 1998, 112 Stat. 1996, provided that: "The amendments made by subsection (a) [amending this section] shall take effect on October 1, 1999."

Effective Date of 1994 Amendment

Pub. L. 103–337, div. A, title V, §552(c), Oct. 5, 1994, 108 Stat. 2772, provided that: "The amendment made by subsection (a) [amending this section] shall not apply with respect to the number of enlisted members of the Army on active duty in pay grade E–8 during 1994."

Amendment by section 1662(a)(4) of Pub. L. 103–337 effective Dec. 1, 1994, except as otherwise provided, see section 1691 of Pub. L. 103–337, set out as an Effective Date note under section 10001 of this title.

Effective Date of 1989 Amendment

Pub. L. 101–189, div. A, title IV, §413(a)(2), Nov. 29, 1989, 103 Stat. 1433, provided that the amendment made by that section is effective Oct. 1, 1990.

Effective Date of 1987 Amendment

Pub. L. 100–180, div. A, title IV, §413(a)(2), Dec. 4, 1987, 101 Stat. 1083, provided that the amendment made by that section is effective Oct. 1, 1988.

Effective Date of 1985 Amendment

Pub. L. 99–145, title IV, §413(c), Nov. 8, 1985, 99 Stat. 620, provided that: "The amendments made by subsections (a) and (b) [amending this section and section 524 [now 12011] of this title] shall take effect on October 1, 1985."

Effective Date of 1984 Amendment

Pub. L. 98–525, title IV, §413(c), Oct. 19, 1984, 98 Stat. 2518, provided that: "The amendments made by subsections (a) and (b) [amending this section and section 524 [now 12011] of this title] shall take effect on October 1, 1984."

Effective Date of 1983 Amendment

Pub. L. 98–94, title V, §503(c), Sept. 24, 1983, 97 Stat. 631, provided that: "The amendments made by subsections (a) and (b) [amending this section and section 524 [now 12011] of this title] shall take effect on October 1, 1983."

Effective Date

Section effective Nov. 1, 1962, see section 15 of Pub. L. 87–649, set out as a note preceding section 101 of Title 37, Pay and Allowances of the Uniformed Services.

Temporary Exemption From End Strength Grade Restrictions for the Space Force

Pub. L. 117–263, div. A, title V, §526, Dec. 23, 2022, 136 Stat. 2572, provided that: "Section 517 and section 523 (as amended by section 501 of this Act) of title 10, United States Code, shall not apply to the Space Force until January 1, 2024."

Similar provisions were contained in the following prior acts:

Pub. L. 117–81, div. A, title V, §528(a), Dec. 27, 2021, 135 Stat. 1690.

Pub. L. 116–283, div. A, title IX, §929, Jan. 1, 2021, 134 Stat. 3832.

Authorized Active Duty Strengths for Army Enlisted Members in Pay Grade E–8; Special Rule for 1995

Pub. L. 103–337, div. A, title V, §552(b), Oct. 5, 1994, 108 Stat. 2772, provided that the percentage applicable to enlisted members of the Army in pay grade E–8 under subsec. (a) of this section during 1995 would be 2.3 percent, rather than the percentage provided by the amendment made by Pub. L. 103–337, §552(a).

Authority To Waive Grade Strength Laws for Fiscal Year 1991; Certification; Relationship to Other Suspension Authority

Pub. L. 102–25, title II, §§201(b), 202, 205(b), Apr. 6, 1991, 105 Stat. 79, 80, authorized Secretary of a military department to suspend, for fiscal year 1991, the operation of any provision of this section and section 523, 524 (now 12011), 525, or 526 of this title with respect to that military department, that such Secretary may exercise such authority only after submission to the congressional defense committees of a certification in writing that such authority is necessary because of personnel actions associated with Operation Desert Storm, and that such authority is in addition to the authority provided in section 527 of this title.
10 U.S.C. § 7442 (2024) — Title 10: ARMED FORCES / Chapter 753 / Section 7442: Cadets: appointment; numbers, territorial distribution
Cadets: appointment; numbers, territorial distribution
Status: in_force

(a) The authorized strength of the Corps of Cadets of the Academy (determined for any year as of the day before the last day of the academic year) is 4,400 or such lower number as may be prescribed by the Secretary of the Army under subsection (j). Subject to that limitation, cadets are selected as follows:

(1) 65 cadets selected in order of merit as established by competitive examinations from the children of members of the armed forces who were killed in action or died of, or have a service-connected disability rated at not less than 100 per centum resulting from, wounds or injuries received or diseases contracted in, or preexisting injury or disease aggravated by, active service, children of members who are in a "missing status" as defined in section 551(2) of title 37, and children of civilian employees who are in "missing status" as defined in section 5561(5) of title 5. The determination of the Department of Veterans Affairs as to service connection of the cause of death or disability, and the percentage at which the disability is rated, is binding upon the Secretary of the Army.

(2) Five cadets nominated at large by the Vice President or, if there is no Vice President, by the President pro tempore of the Senate.

(3) Ten cadets from each State, five of whom are nominated by each Senator from that State.

(4) Five cadets from each congressional district, nominated by the Representative from the district.

(5) Five cadets from the District of Columbia, nominated by the Delegate to the House of Representatives from the District of Columbia.

(6) Four cadets from the Virgin Islands, nominated by the Delegate in Congress from the Virgin Islands.

(7) Six cadets from Puerto Rico, five of whom are nominated by the Resident Commissioner from Puerto Rico and one who is a native of Puerto Rico nominated by the Governor of Puerto Rico.

(8) Five cadets from Guam, nominated by the Delegate in Congress from Guam.

(9) Three cadets from American Samoa, nominated by the Delegate in Congress from American Samoa.

(10) Three cadets from the Commonwealth of the Northern Mariana Islands, nominated by the Delegate in Congress from the commonwealth.

Each Senator, Representative, and Delegate in Congress, including the Resident Commissioner from Puerto Rico, is entitled to nominate 15 persons 1 for each vacancy that is available to him under this section. Nominees may be submitted without ranking or with a principal candidate and 9 ranked or unranked alternates. Qualified nominees not selected for appointment under this subsection shall be considered qualified alternates for the purposes of selection under other provisions of this chapter. When a nominee of a Senator, Representative, or Delegate is selected for appointment as a cadet, the Senator, Representative, or Delegate shall be notified at least 48 hours before the official notification or announcement of the appointment is made.

(b) In addition, there may be appointed each year at the Academy cadets as follows:

(1) one hundred selected by the President from the children of members of an armed force who—

(A) are on active duty (other than for training) and who have served continuously on active duty for at least eight years;

(B) are, or who died while they were, retired with pay or granted retired or retainer pay;

(C) are serving as members of reserve components and are credited with at least eight years of service computed under section 12733 of this title; or

(D) would be, or who died while they would have been, entitled to retired pay under chapter 1223 of this title except for not having attained 60 years of age;

however, a person who is eligible for selection under paragraph (1) of subsection (a) may not be selected under this paragraph.

(2) 85 nominated by the Secretary of the Army from enlisted members of the Regular Army.

(3) 85 nominated by the Secretary of the Army from enlisted members of reserve components of the Army.

(4) 20 nominated by the Secretary of the Army, under regulations prescribed by him, from the honor graduates of schools designated as honor schools by the Department of the Army, the Department of the Navy, or the Department of the Air Force, and from members of the Reserve Officers' Training Corps.

(5) 200 1 selected by the Secretary of the Army in order of merit (prescribed pursuant to section 7443 of this title) from qualified alternates nominated by persons named in paragraphs (3) through (10) of subsection (a).

(c) The President may also appoint as cadets at the Academy children of persons who have been awarded the Medal of Honor for acts performed while in the armed forces.

(d) The Superintendent may nominate for appointment each year 50 persons from the country at large. Persons nominated under this paragraph may not displace any appointment authorized under paragraphs (2) through (9) of subsection (a) and may not cause the total strength of the Corps of Cadets to exceed the authorized number.

(e) If the annual quota of cadets under subsection (b)(1), (2), (3) is not filled, the Secretary may fill the vacancies by nominating for appointment other candidates from any of these sources who were found best qualified on examination for admission and not otherwise nominated.

(f) Each candidate for admission nominated under paragraphs (3) through (9) of subsection (a) must be domiciled in the State, or in the congressional district, from which he is nominated, or in the District of Columbia, Puerto Rico, American Samoa, Guam, or the Virgin Islands, if nominated from one of those places.

(g) The Secretary of the Army may limit the number of cadets authorized to be appointed under this section to the number that can be adequately accommodated at the Academy, as determined by the Secretary after consulting with the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives, subject to the following:

(1) Cadets chargeable to each nominating authority named in subsection (a)(3) or (4) may not be limited to less than four.

(2) If the Secretary limits the number of appointments under subsection (a)(3) or (4), appointments under subsection (b)(1)–(4) are limited as follows:

(A) 27 appointments under subsection (b)(1);

(B) 27 appointments under subsection (b)(2);

(C) 27 appointments under subsection (b)(3); and

(D) 13 appointments under subsection (b)(4).

(3) If the Secretary limits the number of appointments under subsection (b)(5), appointments under subsection (b)(2)–(4) are limited as follows:

(A) 27 appointments under subsection (b)(2);

(B) 27 appointments under subsection (b)(3); and

(C) 13 appointments under subsection (b)(4).

(4) The limitations provided for in this subsection do not affect the operation of subsection (e).

(h) The Superintendent shall furnish to any Member of Congress, upon the written request of such Member, the name of the Congressman or other nominating authority responsible for the nomination of any named or identified person for appointment to the Academy.

(i) For purposes of the limitation in subsection (a) establishing the aggregate authorized strength of the Corps of Cadets, the Secretary of the Army may for any year permit a variance in that limitation by not more than one percent. In applying that limitation, and any such variance, the last day of an academic year shall be considered to be graduation day.

(j)(1) Beginning with the 2003–2004 academic year, the Secretary of the Army may prescribe annual increases in the cadet strength limit in effect under subsection (a). For any academic year, any such increase shall be by no more than 100 cadets or such lesser number as applies under paragraph (3) for that year. Such annual increases may be prescribed until the cadet strength limit is 4,400.

(2) Any increase in the cadet strength limit under paragraph (1) with respect to an academic year shall be prescribed not later than the date on which the budget of the President is submitted to Congress under section 1105 of title 31 for the fiscal year beginning in the same year as the year in which that academic year begins. Whenever the Secretary prescribes such an increase, the Secretary shall submit to Congress a notice in writing of the increase. The notice shall state the amount of the increase in the cadet strength limit and the new cadet strength limit, as so increased, and the amount of the increase in Senior Army Reserve Officers' Training Corps enrollment under each of sections 2104 and 2107 of this title.

(3) The amount of an increase under paragraph (1) in the cadet strength limit for an academic year may not exceed the increase (if any) for the preceding academic year in the total number of cadets enrolled in the Army Senior Reserve Officers' Training Corps program under chapter 103 of this title who have entered into an agreement under section 2104 or 2107 of this title.

(4) In this subsection, the term "cadet strength limit" means the authorized maximum strength of the Corps of Cadets of the Academy.

(Aug. 10, 1956, ch. 1041, 70A Stat. 240, §4342; Pub. L. 85–861, §33(a)(26), Sept. 2, 1958, 72 Stat. 1565; Pub. L. 87–663, §1(1), (2), Sept. 14, 1962, 76 Stat. 547; Pub. L. 88–276, §1(1), Mar. 3, 1964, 78 Stat. 148; Pub. L. 89–650, §1(1)–(4), Oct. 13, 1966, 80 Stat. 896; Pub. L. 90–374, July 5, 1968, 82 Stat. 283; Pub. L. 90–623, §2(8), Oct. 22, 1968, 82 Stat. 1314; Pub. L. 91–405, title II, §204(c), Sept. 22, 1970, 84 Stat. 852; Pub. L. 92–365, §1(1), Aug. 7, 1972, 86 Stat. 505; Pub. L. 93–171, §1(1)–(4), Nov. 29, 1973, 87 Stat. 690; Pub. L. 94–106, title VIII, §803(b)(1), Oct. 7, 1975, 89 Stat. 538; Pub. L. 96–513, title V, §512(13), Dec. 12, 1980, 94 Stat. 2930; Pub. L. 96–600, §2(a), Dec. 24, 1980, 94 Stat. 3493; Pub. L. 97–60, title II, §203(a)(1), Oct. 14, 1981, 95 Stat. 1006; Pub. L. 98–94, title X, §1005(a)(1), (b)(1), Sept. 24, 1983, 97 Stat. 660; Pub. L. 101–189, div. A, title XVI, §1621(a)(1), Nov. 29, 1989, 103 Stat. 1602; Pub. L. 101–510, div. A, title V, §532(a)(1), Nov. 5, 1990, 104 Stat. 1563; Pub. L. 103–160, div. A, title V, §531, Nov. 30, 1993, 107 Stat. 1657; Pub. L. 103–337, div. A, title XVI, §1672(c)(3), Oct. 5, 1994, 108 Stat. 3015; Pub. L. 104–106, div. A, title V, §532(a), title XV, §1502(a)(1), Feb. 10, 1996, 110 Stat. 314, 502; Pub. L. 105–85, div. A, title X, §1073(a)(62), Nov. 18, 1997, 111 Stat. 1903; Pub. L. 106–65, div. A, title V, §531(b)(1), title X, §1067(1), Oct. 5, 1999, 113 Stat. 602, 774; Pub. L. 106–398, §1 [[div. A], title V, §531(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–109; Pub. L. 107–314, div. A, title V, §532(a), (f), Dec. 2, 2002, 116 Stat. 2545, 2547; Pub. L. 108–136, div. A, title V, §524(a), title X, §1031(a)(53), Nov. 24, 2003, 117 Stat. 1464, 1603; Pub. L. 109–364, div. A, title X, §1071(a)(28), Oct. 17, 2006, 120 Stat. 2399; Pub. L. 110–181, div. A, title V, §525, Jan. 28, 2008, 122 Stat. 104; Pub. L. 110–229, title VII, §718(a), May 8, 2008, 122 Stat. 869; Pub. L. 110–417, [div. A], title V, §540(a), Oct. 14, 2008, 122 Stat. 4454; Pub. L. 111–84, div. A, title V, §527(a), Oct. 28, 2009, 123 Stat. 2288; Pub. L. 112–239, div. A, title X, §1076(f)(38), Jan. 2, 2013, 126 Stat. 1954; Pub. L. 114–92, div. A, title V, §556(a), Nov. 25, 2015, 129 Stat. 824; Pub. L. 114–328, div. A, title V, §566(a), Dec. 23, 2016, 130 Stat. 2138; renumbered §7442 and amended Pub. L. 115–232, div. A, title VIII, §§808(c)(1), 809(a), Aug. 13, 2018, 132 Stat. 1839, 1840; Pub. L. 117–263, div. A, title V, §552(a), Dec. 23, 2022, 136 Stat. 2592; Pub. L. 118–31, div. A, title V, §§561(a), 562(a), Dec. 22, 2023, 137 Stat. 273, 274.)

Historical and Revision Notes

Revised sectionSource (U.S. Code)Source (Statutes at Large)

4342(a) 
10:1092a (1st par., less clauses (a) through (e)).
10:1092a (clause (a), less 14th through 52d words after 4th semicolon; and less last 32 words). 

R.S. 1317.
June 30, 1950, ch. 421, §§1, 2 (last proviso), 64 Stat. 303, 304; June 3, 1954, ch. 251, §2, 68 Stat. 169.

  
10:1092a (1st 13 words of clause (b)).

  
10:1092a (1st 26 words of clause (c)).

  
10:1092a (clause (d)).

  
10:1092a (clause (e), less last 53 words).

4342(b) 
10:1092a (last par.).
10:1098.

4342(c) 
10:1092a (14th through 52d words after 4th semicolon of clause (a)).
10:1092b (last proviso).

4342(d) 
10:1092a (last 32 words of clause (a)).

4342(e) 
10:1092a (clause (b), less 1st 13 words, and less 1st proviso).

4342(f) 
10:1092a (1st proviso of clause (b)).

4342(g) 
10:1092a (clause (c), less 1st 26 words).

4342(h) 
10:1092a (last 53 words of clause (e)).

In subsection (a), the words "the authorized strength * * * is as follows—" are substituted for the words "shall be authorized and consist of the following". The words "at large" and "which totals two thousand four hundred and ninety-six", and 10:1092a (clause (d)) are omitted as surplusage.

In subsection (b), the words "from whatever source of admission", in 10:1092a, are omitted as surplusage. 10:1098 (words before last semicolon) is omitted as obsolete.

In subsection (c), the first 15 words are substituted for the words "all of which cadets shall be". The words "domiciled in" are substituted for the words "actual residents of" to conform to opinions of the Judge Advocate General of the Army (R. 29, 83; J.A.G. 351.11, Feb. 10, 1925).

In subsection (e)(4), the words "armed forces" are substituted for the description of the land or naval forces. The date February 1, 1955, fixed by Proclamation No. 3080 (Jan. 7, 1955; 20 F.R. 173), is substituted for the words "such date as shall thereafter be determined by Presidential proclamation or concurrent resolution of the Congress under section 745 of title 38". The words "including male and female members of * * * and all components thereof" are omitted as surplusage.

In subsection (f), the words "whether a death is service-connected" are substituted for the words "as to the service connection of the cause of death".

In subsection (g), the words "(National Guard of the United States, the Air National Guard of the United States, the Army Reserve, and the Air Force Reserve)", "Regular components", "by members of the National Guard of the United States and the Air National Guard of the United States" and "established at the competitive entrance examination" are omitted as surplusage. The word "grades" is substituted for the words "proficiency averages".

In subsection (h), the words "or shall hereafter be" are omitted as surplusage.

Applicability of Amendment

Amendment of section by section 561(a) of Pub. L. 118–31 applicable to nominations of candidates and appointments to the Service Academies for classes entering such Service Academies beginning with the 2025-2026 academic year. See 2023 Amendment notes below.

Editorial Notes

Amendments

2023—Subsec. (a). Pub. L. 118–31, §561(a)(1), substituted "15 persons" for "10 persons" in concluding provisions.

Subsec. (a)(8). Pub. L. 118–31, §562(a), substituted "Five" for "Four".

Subsec. (b)(5). Pub. L. 118–31, §561(a)(2), substituted "200" for "150".

2022—Subsec. (b)(5). Pub. L. 117–263 substituted "paragraphs (3) through (10)" for "paragraphs (3) and (4)".

2018—Pub. L. 115–232, §808(c)(1), renumbered section 4342 of this title as this section.

Subsec. (b)(5). Pub. L. 115–232, §809(a), substituted "section 7443" for "section 4343".

2016—Subsec. (a). Pub. L. 114–328 inserted at end of concluding provisions "When a nominee of a Senator, Representative, or Delegate is selected for appointment as a cadet, the Senator, Representative, or Delegate shall be notified at least 48 hours before the official notification or announcement of the appointment is made."

2015—Subsec. (a)(6). Pub. L. 114–92, §556(a)(1), substituted "Four" for "Three".

Subsec. (a)(8). Pub. L. 114–92, §556(a)(2), substituted "Four" for "Three".

Subsec. (a)(9). Pub. L. 114–92, §556(a)(3), substituted "Three" for "Two".

Subsec. (a)(10). Pub. L. 114–92, §556(a)(4), substituted "Three" for "Two".

2013—Subsec. (b)(1). Pub. L. 112–239, §1076(f)(38)(A)(i), substituted "paragraph" for "clause" in two places in concluding provisions.

Subsecs. (b)(5), (d), (f). Pub. L. 112–239, §1076(f)(38)(A)(ii)–(C), substituted "paragraphs" for "clauses".

2009—Subsec. (a)(10). Pub. L. 111–84 substituted "Two cadets" for "One cadet".

2008—Subsec. (a). Pub. L. 110–417 substituted "4,400 or such lower number" for "4,000 or such higher number" in introductory provisions.

Subsec. (a)(10). Pub. L. 110–229 substituted "Delegate in Congress" for "resident representative".

Subsec. (j)(1). Pub. L. 110–181 struck out last sentence which read as follows: "However, no increase may be prescribed for any academic year after the 2007–2008 academic year."

2006—Subsec. (a)(9). Pub. L. 109–364 substituted "cadets" for "cadet".

2003—Subsec. (a)(6), (8). Pub. L. 108–136, §524(a)(1), substituted "Three" for "Two".

Subsec. (a)(9). Pub. L. 108–136, §524(a)(2), substituted "Two" for "One".

Subsec. (h). Pub. L. 108–136, §1031(a)(53), substituted "Superintendent" for "Secretary of the Army".

2002—Subsec. (a). Pub. L. 107–314, §532(a)(1), inserted before period at end of first sentence "or such higher number as may be prescribed by the Secretary of the Army under subsection (j)".

Subsec. (i). Pub. L. 107–314, §532(f), struck out "(beginning with the 2001–2002 academic year)" after "any year".

Subsec. (j). Pub. L. 107–314, §532(a)(2), added subsec. (j).

2000—Subsec. (b)(1)(B). Pub. L. 106–398, §1 [[div. A], title V, §531(a)(1)], struck out ", other than those granted retired pay under section 12731 of this title (or under section 1331 of this title as in effect before the effective date of the Reserve Officer Personnel Management Act)" after "retired or retainer pay".

Subsec. (b)(1)(C), (D). Pub. L. 106–398, §1 [[div. A], title V, §531(a)(2)], added subpars. (C) and (D).

1999—Subsec. (a). Pub. L. 106–65, §531(b)(1)(A), substituted "(determined for any year as of the day before the last day of the academic year) is 4,000. Subject to that limitation, cadets are selected as follows:" for "is as follows:" in introductory provisions.

Subsec. (g). Pub. L. 106–65, §1067(1), substituted "and the Committee on Armed Services" for "and the Committee on National Security" in introductory provisions.

Subsec. (i). Pub. L. 106–65, §531(b)(1)(B), added subsec. (i).

1997—Subsec. (a)(10). Pub. L. 105–85 substituted "Mariana" for "Marianas".

1996—Subsec. (a)(10). Pub. L. 104–106, §532(a), added par. (10).

Subsec. (g). Pub. L. 104–106, §1502(a)(1), substituted "Committee on Armed Services of the Senate and the Committee on National Security of the House of Representatives" for "Committees on Armed Services of the Senate and House of Representatives".

1994—Subsec. (b)(1)(B). Pub. L. 103–337 substituted "section 12731 of this title (or under section 1331 of this title as in effect before the effective date of the Reserve Officer Personnel Management Act)" for "section 1331 of this title".

1993—Subsec. (a). Pub. L. 103–160 in concluding provisions substituted "10 persons" for "a principal candidate and nine alternates" and inserted at end "Nominees may be submitted without ranking or with a principal candidate and 9 ranked or unranked alternates. Qualified nominees not selected for appointment under this subsection shall be considered qualified alternates for the purposes of selection under other provisions of this chapter."

1990—Subsec. (a)(8) to (10). Pub. L. 101–510, §532(a)(1)(A), redesignated cls. (9) and (10) as (8) and (9), respectively, and struck out former cl. (8) which read as follows: "One cadet nominated by the Administrator of the Panama Canal Commission from the children of civilian personnel of the United States Government residing in the Republic of Panama who are citizens of the United States."

Subsec. (d). Pub. L. 101–510, §532(a)(1)(B), substituted "clauses (2) through (9)" for "clauses (2)–(7), (9), or (10)".

Subsec. (f). Pub. L. 101–510, §532(a)(1)(C), substituted "clauses (3) through (9)" for "clauses (3)–(7), (9) and (10)".

1989—Subsec. (a)(1). Pub. L. 101–189 substituted "Department of Veterans Affairs" for "Veterans' Administration".

1983—Subsec. (a)(8). Pub. L. 98–94, §1005(b)(1), substituted "One cadet nominated by the Administrator of the Panama Canal Commission from the children of civilian personnel of the United States Government residing in the Republic of Panama who are citizens of the United States" for "One cadet nominated by the Governor of the Panama Canal from the children of civilians residing in the Canal Zone or the children of civilian personnel of the United States Government, or the Panama Canal Company, residing in the Republic of Panama".

Subsec. (a)(10). Pub. L. 98–94, §1005(a)(1), substituted ", nominated by the Delegate in Congress from American Samoa" for "nominated by the Secretary of the Army upon recommendation of the Governor of Samoa".

1981—Subsec. (d). Pub. L. 97–60 substituted provisions authorizing the Superintendent to nominate for appointment each year 50 persons from the country at large for provisions that all cadets were to be appointed by the President and that all such appointments were conditional until the cadet was admitted. See section 4341a of this title.

1980—Subsec. (a)(6), (9). Pub. L. 96–600 substituted "Two cadets" for "One cadet".

Subsec. (h). Pub. L. 96–513 substituted "The" for "Effective beginning with nominations for appointment to the Academy in the calendar year 1964, the".

1975—Subsecs. (a)(1), (8), (b)(1), (c). Pub. L. 94–106 substituted "children" for "sons" wherever appearing.

1973—Subsec. (a)(6). Pub. L. 93–171, §1(1), substituted "One cadet from the Virgin Islands, nominated by the Delegate in Congress from the Virgin Islands" for "Five cadets from each Territory, nominated by the Delegate in Congress from the Territory".

Subsec. (a)(9). Pub. L. 93–171, §1(2), struck out reference to Guam and Virgin Islands.

Subsec. (a)(10). Pub. L. 93–171, §1(3), added cl. (10).

Subsec. (f). Pub. L. 93–171, §1(4), substituted ", (9) and (10) of subsection (a)" for "and (9) of subsection (a)" and struck out reference to Territory.

1972—Subsec. (a)(1). Pub. L. 92–365 increased the number of cadets from 40 to 65 and added sons of members who are in a missing status and sons of civilian employees who are in missing status as eligible for the competitive examination.

1970—Subsec. (a)(5). Pub. L. 91–405 substituted "Delegate to the House of Representatives from the District of Columbia" for "Commissioner of that District".

1968—Subsec. (a). Pub. L. 90–374 increased from five to nine the number of alternates for each vacancy each Senator, Representative, and Delegate in Congress, including the Resident Commissioner from Puerto Rico, is entitled to nominate.

Subsec. (a)(5). Pub. L. 90–623 substituted "Commissioner" for "Commissioners".

1966—Subsec. (a)(1). Pub. L. 89–650, §1(1), provided for selection of cadets to the Military Academy from sons of members of the armed forces who have a 100 per centum service-connected disability and removed the limitation to active service during World War I or World War II or after June 26, 1950, and before Feb. 1, 1955.

Subsec. (a)(2). Pub. L. 89–650, §1(2), provided for nominations to the Military Academy by the President pro tempore of the Senate if there is no Vice President.

Subsec. (b)(1). Pub. L. 89–650, §1(3), increased the number of Presidential appointments to the Military Academy from 75 to 100, provided for selection of eligible persons as stated in items (A) and (B), previously chosen from sons of members of regular components, and declared persons eligible under subsec. (a)(1) ineligible under subsec. (b)(1) of this section.

Subsec. (b)(3). Pub. L. 89–650, §1(4), substituted "reserve components of the Army" for "the Army Reserve".

1964—Pub. L. 88–276 amended section generally, and among other changes, in the noncompetitive appointments, increased the number of cadets nominated by the Vice President from three to five, each Senator, Representative, and Delegate from 4 to 5, and the Commissioner of Puerto Rico from 4 to 5, authorized the Governor of Puerto Rico to appoint one cadet, each Senator, Representative and Delegate to nominate a principal and five alternates for each vacancy, and, in the competitive appointments, permitted the President to appoint 75 cadets annually from the sons of members of the Regular components, instead of a cumulative total of 89, the Secretary of the Army to appoint 85 cadets annually from enlisted members of the Regular Army, instead of a cumulative total of 90, 85 annually from enlisted members of the Army Reserve, instead of a cumulative total of 90, 20 annually from honor graduates of designated honor schools and the R.O.T.C., instead of a cumulative total of 40 from honor schools only, 150 annually, in order of merit, from among the qualified alternates nominated by members of Congress, and when the quota of cadets selected under subsecs. (b)(1), (2), (3) is not filled, to fill the vacancies by appointing those best qualified from any of the three sources, decreased the number of cadets nominated by the Commissioners of the District of Columbia from 6 to 5, and by the Governor of the Panama Canal from 2 to 1, limited appointments to the number that can be adequately accommodated at the Academy, within the limitation that congressional appointments cannot be limited to less than four, and if limited, a priority of selection is established for the other categories, and, beginning in 1964, the Secretary may upon request of a Member of Congress, furnish him the name of any nominating authority responsible for the nomination of any identified person to the Academy.

1962—Subsec. (a)(10). Pub. L. 87–663, §1(1), added cl. (10).

Subsec. (c). Pub. L. 87–633, §1(2), inserted references to American Samoa, Guam, and the Virgin Islands, and substituted "clauses (1)–(5) and (10)" for "clauses (1)–(5)."

1958—Subsec. (c). Pub. L. 85–861 inserted a comma after "district".

Statutory Notes and Related Subsidiaries

Effective Date of 2023 Amendment

Pub. L. 118–31, div. A, title V, §561(d), Dec. 22, 2023, 137 Stat. 274, provided that: "The amendments made by this section [amending this section and sections 8454 and 9442 of this title] shall apply to nominations of candidates and appointments to the Service Academies (as such term is defined in section 347 of title 10, United States Code) for classes entering such Service Academies beginning with the 2025-2026 academic year."

Effective Date of 2018 Amendment

Amendment by Pub. L. 115–232 effective Feb. 1, 2019, with provision for the coordination of amendments and special rule for certain redesignations, see section 800 of Pub. L. 115–232, set out as a note preceding section 3001 of this title.

Effective Date of 2016 Amendment

Pub. L. 114–328, div. A, title V, §566(e), Dec. 23, 2016, 130 Stat. 2139, provided that: "The amendments made by this section [amending this section, sections 6954 and 9342 of this title, and section 51302 of Title 46, Shipping] shall apply with respect to the appointment of cadets and midshipmen to the United States Military Academy, the United States Naval Academy, the United States Air Force Academy, and the United States Merchant Marine Academy for classes entering these service academies after January 1, 2018."

Effective Date of 2015 Amendment

Pub. L. 114–92, div. A, title V, §556(d), Nov. 25, 2015, 129 Stat. 825, provided that: "The amendments made by this section [amending this section and sections 6954 and 9342 of this title] shall apply with respect to the nomination of candidates for appointment to the United States Military Academy, the United States Naval Academy, and the United States Air Force Academy for classes entering these military service academies after the date of the enactment of this Act [Nov. 25, 2015]."

Effective Date of 2009 Amendment

Pub. L. 111–84, div. A, title V, §527(d), Oct. 28, 2009, 123 Stat. 2288, provided that: "The amendments made by this section [amending this section and sections 6954 and 9342 of this title] shall apply with respect to appointments to the United States Military Academy, the United States Naval Academy, and the United States Air Force Academy beginning with the first class of candidates nominated for appointment to these military service academies after the date of the enactment of this Act [Oct. 28, 2009]."

Effective Date of 2008 Amendment

Pub. L. 110–417, [div. A], title V, §540(d), Oct. 14, 2008, 122 Stat. 4454, provided that: "The amendments made by this section [amending this section and sections 6954 and 9342 of this title] shall apply with respect to academic years at the United States Military Academy, the United States Naval Academy, and the Air Force Academy after the 2007-2008 academic year."

Effective Date of 2003 Amendment

Pub. L. 108–136, div. A, title V, §524(d), Nov. 24, 2003, 117 Stat. 1465, provided that: "The amendments made by this section [amending this section and sections 6954 and 9342 of this title] shall apply with respect to the nomination of candidates for appointment to the United States Military Academy, the United States Naval Academy, and the United States Air Force Academy for classes entering those academies after the date of the enactment of this Act [Nov. 24, 2003]."

Effective Date of 1994 Amendment

Amendment by Pub. L. 103–337 effective Dec. 1, 1994, except as otherwise provided, see section 1691 of Pub. L. 103–337, set out as an Effective Date note under section 10001 of this title.

Effective Date of 1981 Amendment

Amendment by Pub. L. 97–60 effective with respect to nominations for appointment to the first class admitted to each Academy after Oct. 14, 1981, see section 203(d) of Pub. L. 97–60, set out as an Effective Date note under section 7441a of this title.

Effective Date of 1980 Amendments

Pub. L. 96–600, §2(d), Dec. 24, 1980, 94 Stat. 3493, provided that: "The amendments made by this section [amending this section and sections 6954 and 9342 of this title] shall be effective beginning with the nominations for appointment to the service academies for academic years beginning more than one year after the date of enactment of this Act [Dec. 24, 1980]."

Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title.

Effective Date of 1973 Amendment

Pub. L. 93–171, §4, Nov. 29, 1973, 87 Stat. 691, provided that: "The amendments made by this Act [amending this section and sections 4343, 6954, 6956, 6958, 9342, and 9343 of this title] shall be effective beginning with the nominations for appointments to the service academies in the calendar year 1974."

Effective Date of 1970 Amendment

Amendment by Pub. L. 91–405 effective Sept. 22, 1970, see section 206(b) of Pub. L. 91–405, set out as an Effective Date note under section 25a of Title 2, The Congress.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–623 intended to restate without substantive change the law in effect on Oct. 22, 1968, see section 6 of Pub. L. 90–623, set out as a note under section 5334 of Title 5, Government Organization and Employees.

Effective Date of 1958 Amendment

Amendment by Pub. L. 85–861 effective Aug. 10, 1956, see section 33(g) of Pub. L. 85–861, set out as a note under section 101 of this title.

Information on Nominations and Applications for Military Service Academies

Pub. L. 116–283, div. A, title V, §575, Jan. 1, 2021, 134 Stat. 3645, as amended by Pub. L. 117–263, div. A, title V, §556, Dec. 23, 2022, 136 Stat. 2595; Pub. L. 118–159, div. A, title V, §559A, Dec. 23, 2024, 138 Stat. 1900, provided that:

"(a) Nominations Portal.—

"(1) In general.—Not later than December 31, 2026, the Secretary of Defense, in consultation with the Superintendents of the military service academies, shall ensure that there is a uniform online portal for all military service academies that enables Members of Congress and other nominating sources to nominate individuals for appointment to each academy through a secure website.

"(2) Information collection and reporting.—The online portal established under paragraph (1) shall have the ability to—

"(A) collect, from each nominating source, the demographic information described in subsection (b) for each individual nominated to attend a military service academy; and

"(B) collect the information required to be included in each annual report of the Secretary under subsection (c) in a manner that enables the Secretary to automatically compile such information when preparing the report.

"(3) Availability of information.—The portal shall allow Members of Congress, other nominating sources, and their designees to view their past nomination records for all application cycles.

"(b) Standard Classifications for Collection of Demographic Data.—

"(1) Standards required.—The Secretary, in consultation with the Superintendents of the military service academies, shall establish standard classifications that cadets, midshipmen, and applicants to the academies may use to report gender, race, and ethnicity and to provide other demographic information in connection with admission to or enrollment in an academy.

"(2) Consistency with omb guidance.—The standard classifications established under paragraph (1) shall be consistent with the standard classifications specified in Office of Management and Budget Directive No. 15 (pertaining to race and ethnic standards for Federal statistics and administrative reporting) or any successor directive.

"(3) Incorporation into applications and records.—Not later than 180 days after the date of the enactment of this Act, the Secretary shall incorporate the standard classifications established under paragraph (1) into—

"(A) applications for admission to the military service academies; and

"(B) the military personnel records of cadets and midshipmen enrolled in such academies.

"(c) Annual Report on the Demographics Military Service Academy Applicants.—

"(1) Report required.—Not later than September 30 of each year beginning after the establishment of the online portal, the Secretary shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report on the demographics of applicants to military service academies for the most recently concluded application year.

"(2) Elements.—Each report under paragraph (1) shall include, with respect to each military service academy, the following:

"(A) The number of individuals who submitted an application for admission to the academy in the application year covered by the report.

"(B) Of the individuals who submitted an application for admission to the academy in such year—

"(i) the overall demographics of applicant pool, disaggregated by the classifications established under subsection (b);

"(ii) the number and percentage who received a nomination, disaggregated by the classifications established under subsection (b);

"(iii) the number and percentage who received an offer for appointment to the academy, disaggregated by the classifications established under subsection (b); and

"(iv) the number and percentage who accepted an appointment to the academy, disaggregated by the classifications established under subsection (b).

"(C) Anything the Secretary determines to be significant regarding gender, race, ethnicity, or other demographic information, described in subsection (b), of such individuals.

"(3) Consultation.—In preparing each report under paragraph (1), the Secretary shall consult with the Superintendents of the military service academies.

"(4) Availability of reports and data.—The Secretary shall—

"(A) make the results of each report under paragraph (1) available on a publicly accessible website of the Department of Defense; and

"(B) ensure that any data included with the report is made available in a machine-readable format that is downloadable, searchable, and sortable.

"(d) Definitions.—In this section:

"(1) The term 'application year' means the period beginning on January 1 of one year and ending on June 1 of the following year.

"(2) The term 'machine-readable' has the meaning given that term in section 3502(18) of title 44, United States Code.

"(3) The term 'military service academy' means—

"(A) the United States Military Academy;

"(B) the United States Naval Academy; and

"(C) the United States Air Force Academy."

Eligibility of Female Individuals for Appointment and Admission to Service Academies; Uniform Application of Academic and Other Standards to Male and Female Individuals

Pub. L. 94–106, title VIII, §803(a), Oct. 7, 1975, 89 Stat. 537, provided that: "Notwithstanding any other provision of law, in the administration of chapter 403 [now 753] of title 10, United States Code [this chapter] (relating to the United States Military Academy), chapter 603 [now 853] of such title (relating to the United States Naval Academy), and chapter 903 [now 953] of such title (relating to the United States Air Force Academy), the Secretary of the military department concerned shall take such action as may be necessary and appropriate to insure that (1) female individuals shall be eligible for appointment and admission to the service academy concerned, beginning with appointments to such academy for the class beginning in calendar year 1976, and (2) the academic and other relevant standards required for appointment, admission, training, graduation, and commissioning of female individuals shall be the same as those required for male individuals, except for those minimum essential adjustments in such standards required because of physiological differences between male and female individuals."

Secretary To Implement Policy of Expeditious Admission of Women to the Academy

Pub. L. 94–106, title VIII, §803(c), Oct. 7, 1975, 89 Stat. 538, provided that: "It is the sense of Congress that, subject to the provisions of subsection (a) [note set out above], the Secretaries of the military departments shall, under the direction of the Secretary of Defense, continue to exercise the authority granted them in chapters 403, 603 and 903 [now 753, 853, and 953] of title 10, United States Code, but such authority must be exercised within a program providing for the orderly and expeditious admission of women to the academies, consistent with the needs of the services, with the implementation of such program upon enactment of this Act [Oct. 7, 1975]."

1 See Applicability of Amendment note below.
10 U.S.C. § 10543 (2024) — Title 10: ARMED FORCES / Chapter 1013 / Section 10543: National Guard and reserve component equipment procurement and military construction funding: inclusion in future-years defense program
National Guard and reserve component equipment procurement and military construction funding: inclusion in future-years defense program
Status: in_force

(a) In General.—The Secretary of Defense shall specify in each future-years defense program submitted to Congress under section 221 of this title the estimated expenditures and the proposed appropriations, for each fiscal year of the period covered by that program, for the procurement of equipment and for military construction for each of the reserve components of the armed forces.

(b) Associated Annexes.—The associated annexes of the future-years defense program shall specify, at the same level of detail as is set forth in the annexes for the active components, the amount requested for—

(1) procurement of each item of equipment to be procured for each reserve component; and

(2) each military construction project to be carried out for each reserve component, together with the location of the project.

(c) Report.—(1) If the aggregate of the amounts specified in paragraphs (1) and (2) of subsection (b) for a fiscal year is less than the amount equal to 90 percent of the average authorized amount applicable for that fiscal year under paragraph (2), the Secretary of Defense shall submit to Congress a report specifying for each reserve component the additional items of equipment that would be procured, and the additional military construction projects that would be carried out, if that aggregate amount were an amount equal to such average authorized amount. The report shall be at the same level of detail as is required by subsection (b).

(2) In this subsection, the term "average authorized amount", with respect to a fiscal year, means the average of—

(A) the aggregate of the amounts authorized to be appropriated for the preceding fiscal year for the procurement of items of equipment, and for military construction, for the reserve components; and

(B) the aggregate of the amounts authorized to be appropriated for the fiscal year preceding the fiscal year referred to in subparagraph (A) for the procurement of items of equipment, and for military construction, for the reserve components.

(3) A report required under paragraph (1) for a fiscal year shall be submitted not later than 90 days after the date on which the President submits to Congress the budget for such fiscal year under section 1105(a) of title 31.

(Added Pub. L. 104–201, div. A, title XII, §1257(a)(1), Sept. 23, 1996, 110 Stat. 2699; amended Pub. L. 105–85, div. A, title X, §1009(a), Nov. 18, 1997, 111 Stat. 1872; Pub. L. 106–398, §1 [[div. A], title IX, §931], Oct. 30, 2000, 114 Stat. 1654, 1654A–237; Pub. L. 112–81, div. A, title X, §1064(11), Dec. 31, 2011, 125 Stat. 1587.)

Editorial Notes

Amendments

2011—Subsec. (c)(3). Pub. L. 112–81 substituted "90 days" for "15 days".

2000—Subsec. (c)(3). Pub. L. 106–398 added par. (3).

1997—Pub. L. 105–85 designated existing provisions as subsec. (a), inserted heading, and added subsecs. (b) and (c).

Statutory Notes and Related Subsidiaries

Effective Date

Pub. L. 104–201, div. A, title XII, §1257(b), Sept. 23, 1996, 110 Stat. 2699, provided that: "Section 10543 of title 10, United States Code, as added by subsection (a), shall apply with respect to each future-years defense program submitted to Congress after the date of the enactment of this Act [Sept. 23, 1996]."

Termination of Reporting Requirements

For termination, effective Dec. 31, 2021, of provisions of this section requiring submittal of report to Congress, see section 1061 of Pub. L. 114–328, set out as a note under section 111 of this title.

Required Level of Detail

Pub. L. 105–85, div. A, title X, §1009(b), Nov. 18, 1997, 111 Stat. 1872, provided that: "The level of detail provided for procurement and military construction in the future-years defense programs for fiscal years after fiscal year 1998 may not be less than the level of detail provided for procurement and military construction in the future-years defense program for fiscal year 1998."
10 U.S.C. § 398a (2024) — Title 10: ARMED FORCES / Chapter 19 / Section 398a: Pilot program for sharing cyber capabilities and related information with foreign operational partners
Pilot program for sharing cyber capabilities and related information with foreign operational partners
Status: in_force

(a) Authority to Establish Pilot Program to Share Cyber Capabilities.—The Secretary of Defense may, with the concurrence of the Secretary of State, provide cyber capabilities and related information developed or procured by the Department of Defense to foreign countries or organizations described in subsection (b) without compensation, to meet operational imperatives if the Secretary of Defense determines that the provision of such cyber capabilities is in the national security interests of the United States.

(b) List of Foreign Countries.—The Secretary of Defense, with the concurrence of the Secretary of State, shall—

(1) establish—

(A) a list of foreign countries that the Secretary of Defense considers suitable for sharing of cyber capabilities and related information under the authority established under subsection (a); and

(B) criteria for establishing the list under subparagraph (A);

(2) not later than 14 days after establishing the list required by paragraph (1), submit to the appropriate committees of Congress such list; and

(3) notify the appropriate committees of Congress in writing of any changes to the list established under paragraph (1) at least 14 days prior to the adoption of any such changes.

(c) Procedures.—Prior to the first use of the authority provided by subsection (a), the Secretaries of Defense and State shall—

(1) establish and submit to the appropriate committees of Congress procedures for a coordination process for subsection (a) that is consistent with the operational timelines required to support the national security of the United States; and

(2) notify the appropriate committees of Congress in writing of any changes to the procedures established under paragraph (1) at least 14 days prior to the adoption of any such changes.

(d) Notification Required.—(1) The Secretary of Defense and Secretary of State jointly shall promptly submit to the appropriate committees of Congress notice in writing of any use of the authority provided by subsection (a) no later than 48 hours following the use of the authority.

(2) Notification under paragraph (1) shall include a certification that the provision of the cyber capabilities was in the national security interests of the United States.

(3) The notification under paragraph (1) shall include an analysis of whether the transfer and the underlying operational imperative could have been met using another authority.

(e) Termination.—The authority established under subsection (a) shall terminate on the date that is 3 years after the date on which this authority becomes law.

(f) Performance Metrics.—(1) The Secretary of Defense shall maintain performance metrics to track the results of sharing cyber capabilities and related information with foreign operational partners under a pilot program authorized by subsection (a).

(2) The performance metrics under paragraph (1) shall include the following:

(A) Whom the cyber capability was used against.

(B) The effect of the cyber capability, including whether and how the transfer of the cyber capability improved the operational cyber posture of the United States and achieved operational objectives of the United States, or had no effect.

(C) Such other outcome-based or appropriate performance metrics as the Secretary considers appropriate for evaluating the effectiveness of a pilot program carried out under subsection (a).

(g) Definitions.—In this section:

(1) The term "appropriate committees of Congress" means—

(A) the congressional defense committees;

(B) the Committee on Foreign Relations of the Senate; and

(C) Committee on Foreign Affairs of the House of Representatives.

(2) The term "cyber capability" means a device or computer program, including any combination of software, firmware, or hardware, designed to create an effect in or through cyberspace.

(h) Rule of Construction.—Nothing in this section shall be construed as amending, diminishing, or otherwise impacting reporting or other obligations under the War Powers Resolution.

(Added Pub. L. 117–263, div. A, title XV, §1551(a), Dec. 23, 2022, 136 Stat. 2918, §398; renumbered §398a and amended Pub. L. 118–31, div. A, title XV, §1501, title XVIII, §1801(a)(6), (7), Dec. 22, 2023, 137 Stat. 533, 683.)

Editorial Notes

References in Text

The War Powers Resolution, referred to in subsec. (h), is Pub. L. 93–148, Nov. 7, 1973, 87 Stat. 555, which is classified generally to chapter 33 (§1541 et seq.) of Title 50, War and National Defense. For complete classification of this Resolution to the Code, see Short Title note set out under section 1541 of Title 50 and Tables.

Amendments

2023—Pub. L. 118–31, §§1501(1), 1801(a)(6), made identical amendments, renumbering section 398 of this title relating to pilot program for sharing cyber capabilities and related information with foreign operational partners as this section.

Subsec. (b)(1)(A). Pub. L. 118–31, §1801(a)(7)(A)(i), substituted "subsection (a)" for "paragraph (a)".

Subsec. (b)(2). Pub. L. 118–31, §1801(a)(7)(A)(ii), substituted "paragraph (1)" for "paragraph (a)".

Subsec. (b)(3). Pub. L. 118–31, §1801(a)(7)(A)(iii), substituted "paragraph (1)" for "clause (1)".

Subsec. (e). Pub. L. 118–31, §1801(a)(7)(B), substituted "subsection (a)" for "paragraph (a)".

Subsecs. (f) to (h). Pub. L. 118–31, §1501(2), added subsec. (f) and redesignated former subsecs. (f) and (g) as (g) and (h), respectively.
10 U.S.C. § 533 (2024) — Title 10: ARMED FORCES / Chapter 33 / Section 533: Service credit upon original appointment as a commissioned officer
Service credit upon original appointment as a commissioned officer
Status: in_force

(a)(1) For the purpose of determining the grade and rank within grade of a person receiving an original appointment in a commissioned grade (other than a warrant officer grade) in the Regular Army, Regular Navy, Regular Air Force, Regular Marine Corps, or Space Force, such person shall be credited at the time of such appointment with any active commissioned service (other than service as a commissioned warrant officer) that he performed in any armed force, the National Oceanic and Atmospheric Administration, or the Public Health Service before such appointment.

(2) The Secretary of Defense shall prescribe regulations, which shall apply uniformly among the Army, Navy, Air Force, Marine Corps, and Space Force, to authorize the Secretary of the military department concerned to limit the amount of prior active commissioned service with which a person receiving an original appointment may be credited under paragraph (1), or to deny any such credit, in the case of a person who at the time of such appointment is credited with constructive service under subsection (b).

(b)(1) Under regulations prescribed by the Secretary of Defense, the Secretary of the military department concerned shall credit a person who is receiving an original appointment in a commissioned grade (other than a commissioned warrant officer grade) in the Regular Army, Regular Navy, Regular Air Force, Regular Marine Corps, or Space Force and who has advanced education or training or special experience with constructive service for such education, training, or experience as follows:

(A) One year for each year of advanced education beyond the baccalaureate degree level, for persons appointed, designated, or assigned in officer categories requiring such advanced education or an advanced degree as a prerequisite for such appointment, designation, or assignment. In determining the number of years of constructive service to be credited under this clause to officers in any professional field, the Secretary concerned shall credit an officer with, but with not more than, the number of years of advanced education required by a majority of institutions that award degrees in that professional field for completion of the advanced education or award of the advanced degree.

(B)(i) Credit for any period of advanced education in a health profession (other than medicine and dentistry) beyond the baccalaureate degree level which exceeds the basic education criteria for appointment, designation, or assignment, if such advanced education will be directly used by the armed force concerned.

(ii) Credit for experience in a health profession (other than medicine or dentistry), if such experience will be directly used by the armed force concerned.

(C) Additional credit of (i) not more than one year for internship or equivalent graduate medical, dental, or other formal professional training required by the armed forces, and (ii) not more than one year for each additional year of such graduate-level training or experience creditable toward certification in a specialty required by the armed forces.

(D) Additional credit as follows:

(i) For special training or experience in a particular officer field as designated by the Secretary concerned, if such training or experience is directly related to the operational needs of the armed force concerned.

(ii) During fiscal years 2021 through 2025, for advanced education in an officer field so designated, if such education is directly related to the operational needs of the armed force concerned.

(E) Additional credit for experience as a physician or dentist, if appointed as a medical or dental officer in the Army or Navy or, in the case of the Air Force, with a view to designation as a medical or dental officer.

(2) The amount of constructive service credited an officer under this subsection may not exceed the amount required in order for the officer to be eligible for an original appointment in the grade of colonel in the Army, Air Force, Marine Corps, or Space Force, or captain in the Navy.

(3) Constructive service credited an officer under this subsection is in addition to any service credited that officer under subsection (a) and shall be credited at the time of the original appointment of the officer.

(c) Constructive service credited an officer under subsection (b) shall be used only for determining the officer's—

(1) initial grade as a regular officer;

(2) rank in grade; and

(3) service in grade for promotion eligibility.

(d)(1) Constructive service may not be credited under subsection (b) for education, training, or experience obtained while serving as a commissioned officer (other than a warrant officer) on active duty or in an active status. However, in the case of an officer who completes advanced education or receives an advanced degree while on active duty or in an active status and in less than the number of years normally required to complete such advanced education or receive such advanced degree, constructive service may, subject to regulations prescribed under subsection (a)(2), be credited to the officer under subsection (b)(1)(A) to the extent that the number of years normally required to complete such advanced education or receive such advanced degree exceeds the actual number of years in which such advanced education or degree is obtained by the officer.

(2) A graduate of the United States Military Academy, the United States Naval Academy, or the United States Air Force Academy is not entitled to service credit under this section for service performed, or education, training, or experience obtained, before graduation from such Academy.

(e) If the Secretary of Defense determines that the number of qualified judge advocates serving on active duty in the Army, Navy, Air Force, or Marine Corps in grades below major or lieutenant commander is critically below the number needed by such armed force in such grades, he may authorize the Secretary of the military department concerned to credit any person receiving an original appointment in the Judge Advocate General's Corps of the Army or Navy, or any person receiving an original appointment in the Air Force or Marine Corps with a view to designation as a judge advocate, with a period of constructive service in such an amount (in addition to any period of service credited such person under subsection (b)(1)) as will result in the grade of such person being that of captain or, in the case of an officer of the Navy, lieutenant and the date of rank of such person being junior to that of all other officers of the same grade serving on active duty.

(f) A reserve officer (other than a warrant officer) who receives an original appointment as an officer (other than as a warrant officer) in the Regular Army, Regular Navy, Regular Air Force, Regular Marine Corps, or Space Force shall—

(1) in the case of an officer on the active-duty list immediately before that appointment as a regular officer, be appointed in the same grade and with the same date of rank as the grade and date of rank held by the officer on the active-duty list immediately before the appointment; and

(2) in the case of an officer not on the active-duty list immediately before that appointment as a regular officer, be appointed in the same grade and with the same date of rank as the grade and date of rank which the officer would have held had the officer been serving on the active-duty list on the date of the appointment as a regular officer.

(Added Pub. L. 96–513, title I, §104(a), Dec. 12, 1980, 94 Stat. 2846; amended Pub. L. 97–22, §3(c), July 10, 1981, 95 Stat. 125; Pub. L. 98–94, title X, §1007(c)(1), Sept. 24, 1983, 97 Stat. 662; Pub. L. 100–180, div. A, title VII, §714(a), Dec. 4, 1987, 101 Stat. 1112; Pub. L. 103–160, div. A, title V, §509(a), Nov. 30, 1993, 107 Stat. 1647; Pub. L. 113–66, div. A, title V, §502, Dec. 26, 2013, 127 Stat. 750; Pub. L. 115–91, div. A, title V, §512(b), Dec. 12, 2017, 131 Stat. 1377; Pub. L. 115–232, div. A, title V, §502(a), Aug. 13, 2018, 132 Stat. 1739; Pub. L. 116–283, div. A, title V, §502(a), title IX, §924(b)(1)(B), (4)(C), (14), Jan. 1, 2021, 134 Stat. 3563, 3820, 3822, 3823; Pub. L. 118–31, div. A, title XVII, §1716(b)(4), Dec. 22, 2023, 137 Stat. 633; Pub. L. 118–159, div. A, title V, §521(c)(2), Dec. 23, 2024, 138 Stat. 1881.)

Editorial Notes

Amendments

2024—Subsec. (b)(2). Pub. L. 118–159 substituted "Marine Corps, or Space Force, or captain in the Navy" for "or Marine Corps, captain in the Navy, or an equivalent grade in the Space Force".

2023—Subsecs. (a)(1), (b)(1), (f). Pub. L. 118–31 struck out "Regular" before "Space Force".

2021—Subsec. (a)(1). Pub. L. 116–283, §924(b)(4)(C), substituted "Regular Marine Corps, or Regular Space Force" for "or Regular Marine Corps".

Subsec. (a)(2). Pub. L. 116–283, §924(b)(1)(B), substituted "Marine Corps, and Space Force" for "and Marine Corps".

Subsec. (b)(1). Pub. L. 116–283, §924(b)(4)(C), substituted "Regular Marine Corps, or Regular Space Force" for "or Regular Marine Corps" in introductory provisions.

Subsec. (b)(1)(D). Pub. L. 116–283, §502(a), amended subpar. (D) generally. Prior to amendment, subpar. (D) read as follows: "Additional credit for special training or experience in a particular officer career field as designated by the Secretary concerned, if such training or experience is directly related to the operational needs of the armed force concerned."

Subsec. (b)(2). Pub. L. 116–283, §924(b)(14), substituted ", captain in the Navy, or an equivalent grade in the Space Force" for "or captain in the Navy".

Subsec. (f). Pub. L. 116–283, §924(b)(4)(C), substituted "Regular Marine Corps, or Regular Space Force" for "or Regular Marine Corps" in introductory provisions.

2018—Subsec. (a)(2). Pub. L. 115–232, §502(a)(2)(A), struck out "or (g)" after "subsection (b)".

Subsec. (b)(1)(D). Pub. L. 115–232, §502(a)(1)(A), added subpar. (D) and struck out former subpar. (D) which read as follows: "Additional credit, in unusual cases, based on special experience in a particular field."

Subsec. (b)(2). Pub. L. 115–232, §502(a)(1)(B), substituted "The amount" for "Except as authorized by the Secretary concerned in individual cases and under regulations prescribed by the Secretary of Defense in the case of a medical or dental officer, the amount" and "in the grade of colonel in the Army, Air Force, or Marine Corps or captain in the Navy" for "in the grade of major in the Army, Air Force, or Marine Corps or lieutenant commander in the Navy".

Subsec. (c). Pub. L. 115–232, §502(a)(2)(A), struck out "or (g)" after "subsection (b)" in introductory provisions.

Subsec. (g). Pub. L. 115–232, §502(a)(2)(B), struck out subsec. (g) which related to constructive service credited to commissioned officers with cyberspace-related experience or advanced education serving on active duty.

2017—Subsec. (g)(4). Pub. L. 115–91 substituted "2023" for "2018".

2013—Subsec. (a)(2). Pub. L. 113–66, §502(1), inserted "or (g)" after "subsection (b)".

Subsec. (c). Pub. L. 113–66, §502(1), inserted "or (g)" after "subsection (b)" in introductory provisions.

Subsec. (g). Pub. L. 113–66, §502(2), added subsec. (g).

1993—Subsec. (b)(1)(A). Pub. L. 103–160, §509(a)(1), in second sentence, substituted "In determining" for "Except as provided in clause (E), in determining" and "advanced education required" for "postsecondary education in excess of four that are required".

Subsec. (b)(1)(E), (F). Pub. L. 103–160, §509(a)(2), (3), redesignated subpar. (F) as (E) and struck out former subpar. (E) which read as follows: "Additional credit of one year for advanced education in a health profession if the number of years of baccalaureate education completed by 75 percent or more of the students entering advanced training in that health profession exceeds, by one or more, the minimum number of years of preprofessional education required by a majority of institutions which award degrees in that health profession. The percentage of such persons shall be computed on an annual basis for each health profession from the data for the year in which the person being appointed, designated, or assigned was admitted to a professional school. However, a person may not receive additional credit under this clause if the amount of his baccalaureate education does not exceed, by one or more, the minimum number of years of preprofessional education required by a majority of institutions which award degrees for that health profession, determined on the basis prescribed in the preceding sentence."

1987—Subsec. (b)(1)(B). Pub. L. 100–180 designated existing provisions as cl. (i) and added cl. (ii).

1983—Subsec. (a)(1). Pub. L. 98–94 inserted ", the National Oceanic and Atmospheric Administration, or the Public Health Service".

1981—Subsec. (b)(1)(A). Pub. L. 97–22, §3(c)(1), inserted ", designated, or assigned" in first sentence after "persons appointed" and substituted "Except as provided in clause (E), in determining the number of years of constructive service to be credited under this clause to officers in any professional field, the Secretary concerned shall credit an officer with, but with not more than, the number of years of postsecondary education in excess of four that are required by a majority of institutions that award degrees in that professional field for completion of the advanced education or award of the advanced degree" for "(Except as provided in clause (E), in determining the years of constructive service under this clause, the Secretary concerned shall grant credit for only the number of years normally required to complete the advanced education or receive the advanced degree".

Subsec. (b)(1)(B). Pub. L. 97–22, §3(c)(2), substituted "appointment, designation, or assignment, if such advanced education" for "appointment as an officer, if such advanced education".

Subsec. (b)(1)(E). Pub. L. 97–22, §3(c)(3), substituted "person being appointed, designated, or assigned was admitted" for "person being appointed was admitted".

Subsec. (d)(1). Pub. L. 97–22, §3(c)(4), inserted provision that, in the case of an officer who completes advanced education or receives an advanced degree while on active duty or in an active status and in less than the number of years normally required to complete such advanced education or receive such advanced degree, constructive service may, subject to regulations prescribed under subsection (a)(2), be credited to the officer under subsection (b)(1)(A) to the extent that the number of years normally required to complete such advanced education or receive such advanced degree exceeds the actual number of years in which such advanced education or degree is obtained by the officer.

Subsec. (f). Pub. L. 97–22, §3(c)(5), substituted "A reserve officer (other than a warrant officer) who receives an original appointment as an officer (other than as a warrant officer) in the Regular Army, Regular Navy, Regular Air Force, or Regular Marine Corps shall (1) in the case of an officer on the active-duty list immediately before that appointment as a regular officer, be appointed in the same grade and with the same date of rank as the grade and date of rank held by the officer on the active-duty list immediately before the appointment; and (2) in the case of an officer not on the active-duty list immediately before that appointment as a regular officer, be appointed in the same grade and with the same date of rank as the grade and date of rank which the officer would have held had the officer been serving on the active-duty list on the date of the appointment as a regular officer" for "An officer of a reserve component who receives an original appointment as an officer (other than a warrant officer) in the Regular Army, Regular Navy, Regular Air Force, or Regular Marine Corps shall be appointed in the grade and with the date of rank to which he would have been entitled had he been serving on active duty as an officer of a reserve component on the date of such original appointment as a regular officer".

Statutory Notes and Related Subsidiaries

Effective Date

Section effective Sept. 15, 1981, but the authority to prescribe regulations under this section effective Dec. 12, 1980, see section 701 of Pub. L. 96–513, set out as an Effective Date of 1980 Amendment note under section 101 of this title.

Annual Report

Pub. L. 116–283, div. A, title V, §502(c), Jan. 1, 2021, 134 Stat. 3564, provided that:

"(1) In general.—Not later than February 1, 2022, and every four years thereafter [sic], each Secretary of a military department shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report on the use of the authorities in subparagraph (D) of section 553(b)(1) [probably means section 533(b)(1)] of title 10, United States Code (as amended by subsection (a)), and subparagraph (D) of section 12207(b)(1) of such title (as amended by subsection (b)) (each referred to in this subsection as a 'constructive credit authority') during the preceding fiscal year for the Armed Forces under the jurisdiction of such Secretary.

"(2) Elements.—Each report under paragraph (1) shall include, for the fiscal year and Armed Forces covered by such report, the following:

"(A) The manner in which constructive service credit was calculated under each constructive credit authority.

"(B) The number of officers credited constructive service credit under each constructive credit authority.

"(C) A description and assessment of the utility of the constructive credit authorities in meeting the operational needs of the Armed Force concerned.

"(D) Such other matters in connection with the constructive credit authorities as the Secretary of the military department concerned considers appropriate."

Ratification of Service Credit Awarded Prior to November 30, 1993

Pub. L. 103–160, div. A, title V, §509(e), Nov. 30, 1993, 107 Stat. 1648, provided that: "To the extent that service credit awarded before the date of the enactment of this Act [Nov. 30, 1993] under section 533, 3353, 5600, or 8353 of title 10, United States Code, based on advanced education in medicine or dentistry was awarded consistent with that section as amended by this section (whether or not properly awarded under that section as in effect before such amendment), the awarding of that service credit is hereby ratified."

Transition Provision Under Defense Officer Personnel Management Act

For savings provision relating to constructive service previously granted, see section 625 of Pub. L. 96–513, set out as a note under section 611 of this title.
10 U.S.C. § 1450 (2024) — Title 10: ARMED FORCES / Chapter 73 / Subchapter II / Section 1450: Payment of annuity: beneficiaries
Payment of annuity: beneficiaries
Status: in_force

(a) In General.—Effective as of the first day after the death of a person to whom section 1448 of this title applies (or on such other day as that person may provide under subsection (j)), a monthly annuity under section 1451 of this title shall be paid to the person's beneficiaries under the Plan, as follows:

(1) Surviving spouse or former spouse.—The eligible surviving spouse or the eligible former spouse.

(2) Surviving children.—The surviving dependent children in equal shares, if the eligible surviving spouse or the eligible former spouse is dead, dies, or otherwise becomes ineligible under this section.

(3) Dependent children.—The dependent children in equal shares if the person to whom section 1448 of this title applies (with the concurrence of the person's spouse, if required under section 1448(a)(3) of this title) elected to provide an annuity for dependent children but not for the spouse or former spouse.

(4) Special needs trusts for sole benefit of certain dependent children.—Notwithstanding subsection (i), a supplemental or special needs trust established under subparagraph (A) or (C) of section 1917(d)(4) of the Social Security Act (42 U.S.C. 1396p(d)(4)) for the sole benefit of a dependent child considered disabled under section 1614(a)(3) of that Act (42 U.S.C. 1382c(a)(3)) who is incapable of self-support because of mental or physical incapacity.

(5) Natural person designated under "insurable interest" coverage.—The natural person designated under section 1448(b)(1) of this title, unless the election to provide an annuity to the natural person has been changed as provided in subsection (f).

(b) Termination of Annuity for Death, Remarriage Before Age 55, Etc.—

(1) General rule.—An annuity payable to the beneficiary terminates effective as of the first day of the month in which eligibility is lost.

(2) Termination of spouse annuity upon death or remarriage before age 55.—An annuity for a surviving spouse or former spouse shall be paid to the surviving spouse or former spouse while the surviving spouse or former spouse is living or, if the surviving spouse or former spouse remarries before reaching age 55, until the surviving spouse or former spouse remarries.

(3) Effect of termination of subsequent marriage before age 55.—If the surviving spouse or former spouse remarries before reaching age 55 and that marriage is terminated by death, annulment, or divorce, payment of the annuity shall be resumed effective as of the first day of the month in which the marriage is so terminated. However, if the surviving spouse or former spouse is also entitled to an annuity under the Plan based upon the marriage so terminated, the surviving spouse or former spouse may not receive both annuities but must elect which to receive.

(c) Offset for Amount of Dependency and Indemnity Compensation.—

(1) Required offset.—If, upon the death of a person to whom section 1448 of this title applies, the surviving spouse or former spouse of that person is also entitled to dependency and indemnity compensation under section 1311(a) of title 38, the surviving spouse or former spouse may be paid an annuity under this section, but only in the amount calculated as follows:

(A) During the period beginning on January 1, 2020, and ending on December 31, 2020, the amount that the annuity otherwise payable under this section would exceed such dependency and indemnity compensation.

(B) During the period beginning on January 1, 2021, and ending on December 31, 2021, the amount that the annuity otherwise payable under this section would exceed two-thirds of such dependency and indemnity compensation.

(C) During the period beginning on January 1, 2022, and ending on December 31, 2022, the amount that the annuity otherwise payable under this section would exceed one-third of such dependency and indemnity compensation.

(D) On and after January 1, 2023, the full amount of the annuity under this section.

(2) Effective date of offset.—A reduction in an annuity under this section required by paragraph (1) shall be effective on the date of the commencement of the period of payment of such dependency and indemnity compensation under title 38.

(3) Limitation on recoupment of offset amount.—Any amount subject to offset under this subsection that was previously paid to the surviving spouse or former spouse shall be recouped only to the extent that the amount paid exceeds any amount to be refunded under subsection (e). In notifying a surviving spouse or former spouse of the recoupment requirement, the Secretary shall provide the spouse or former spouse—

(A) a single notice of the net amount to be recouped or the net amount to be refunded, as applicable, under this subsection or subsection (e);

(B) a written explanation of the statutory requirements for recoupment of the offset amount and for refund of any applicable amount deducted from retired pay;

(C) a detailed accounting of how the offset amount being recouped and retired pay deduction amount being refunded were calculated; and

(D) contact information for a person who can provide information about the offset recoupment and retired pay deduction refund processes and answer questions the surviving spouse or former spouse may have about the requirements, processes, or amounts.

(d) Limitation on Payment of Annuities When Coverage Under Civil Service Retirement Elected.—If, upon the death of a person to whom section 1448 of this title applies, that person had in effect a waiver of that person's retired pay for the purposes of subchapter III of chapter 83 of title 5 or chapter 84 of such title, an annuity under this section shall not be payable unless, in accordance with section 8339(j) or 8416(a) of title 5, that person notified the Office of Personnel Management that he did not desire any spouse surviving him to receive an annuity under section 8341(b) or 8442(a) of that title.

(e) Refund of Amounts Deducted From Retired Pay or CRSC When DIC Offset Is Applicable.—

(1) Full refund when dic greater than sbp annuity.—If an annuity under this section is not payable because of subsection (c), any amount deducted from the retired pay or combat-related special compensation of the deceased under section 1452 of this title shall be refunded to the surviving spouse or former spouse.

(2) Partial refund when sbp annuity reduced by dic.—If, because of subsection (c), the annuity payable is less than the amount established under section 1451 of this title, the annuity payable shall be recalculated under that section. The amount of the reduction in the retired pay required to provide that recalculated annuity shall be computed under section 1452 of this title, and the difference between the amount deducted before the computation of that recalculated annuity and the amount that would have been deducted on the basis of that recalculated annuity shall be refunded to the surviving spouse or former spouse.

(f) Change in Election of Insurable Interest or Former Spouse Beneficiary.—

(1) Authorized changes.—

(A) Election in favor of spouse or child.—A person who elects to provide an annuity to a person designated by him under section 1448(b) of this title may, subject to paragraph (2), change that election and provide an annuity to his spouse or dependent child.

(B) Notice.—The Secretary concerned shall notify the former spouse or other natural person previously designated under section 1448(b) of this title of any change of election under subparagraph (A).

(C) Procedures, effective date, etc.—Any such change of election is subject to the same rules with respect to execution, revocation, and effectiveness as are set forth in section 1448(a)(5) of this title (without regard to the eligibility of the person making the change of election to make such an election under that section). Notwithstanding the preceding sentence, a change of election under this subsection to provide an annuity to a spouse instead of a former spouse may (subject to paragraph (2)) be made at any time after the person providing the annuity remarries without regard to the time limitation in section 1448(a)(5)(B) of this title.

(2) Limitation on change in beneficiary when former spouse coverage in effect.—A person who, incident to a proceeding of divorce, dissolution, or annulment, is required by a court order to elect under section 1448(b) of this title to provide an annuity to a former spouse (or to both a former spouse and child), or who enters into a written agreement (whether voluntary or required by a court order) to make such an election, and who makes an election pursuant to such order or agreement, may not change that election under paragraph (1) unless, of the following requirements, whichever are applicable in a particular case are satisfied:

(A) In a case in which the election is required by a court order, or in which an agreement to make the election has been incorporated in or ratified or approved by a court order, the person—

(i) furnishes to the Secretary concerned a certified copy of a court order which is regular on its face and which modifies the provisions of all previous court orders relating to such election, or the agreement to make such election, so as to permit the person to change the election; and

(ii) certifies to the Secretary concerned that the court order is valid and in effect.

(B) In a case of a written agreement that has not been incorporated in or ratified or approved by a court order, the person—

(i) furnishes to the Secretary concerned a statement, in such form as the Secretary concerned may prescribe, signed by the former spouse and evidencing the former spouse's agreement to a change in the election under paragraph (1); and

(ii) certifies to the Secretary concerned that the statement is current and in effect.

(3) Required former spouse election to be deemed to have been made.—

(A) Deemed election upon request by former spouse.—If a person described in paragraph (2) or (3) of section 1448(b) of this title is required (as described in subparagraph (B)) to elect under section 1448(b) of this title to provide an annuity to a former spouse and such person then fails or refuses to make such an election, such person shall be deemed to have made such an election if the Secretary concerned receives the following:

(i) Request from former spouse.—A written request, in such manner as the Secretary shall prescribe, from the former spouse concerned requesting that such an election be deemed to have been made.

(ii) Copy of court order or other official statement.—Either—

(I) a copy of the court order, regular on its face, which requires such election or incorporates, ratifies, or approves the written agreement of such person; or

(II) a statement from the clerk of the court (or other appropriate official) that such agreement has been filed with the court in accordance with applicable State law.

(B) Persons required to make election.—A person shall be considered for purposes of subparagraph (A) to be required to elect under section 1448(b) of this title to provide an annuity to a former spouse if—

(i) the person enters, incident to a proceeding of divorce, dissolution, or annulment, into a written agreement to make such an election and the agreement (I) has been incorporated in or ratified or approved by a court order, or (II) has been filed with the court of appropriate jurisdiction in accordance with applicable State law; or

(ii) the person is required by a court order to make such an election.

(C) Time limit for request by former spouse.—An election may not be deemed to have been made under subparagraph (A) in the case of any person unless the Secretary concerned receives a request from the former spouse of the person within one year of the date of the court order or filing involved.

(D) Effective date of deemed election.—An election deemed to have been made under subparagraph (A) shall become effective on the day referred to in section 1448(b)(3)(E)(ii) of this title.

(4) Former spouse coverage may be required by court order.—A court order may require a person to elect (or to enter into an agreement to elect) under section 1448(b) of this title to provide an annuity to a former spouse (or to both a former spouse and child).

(g) Limitation on Changing or Revoking Elections.—

(1) In general.—An election under this section may not be changed or revoked.

(2) Exceptions.—Paragraph (1) does not apply to—

(A) a revocation of an election under section 1449(b) of this title; or

(B) a change in an election under subsection (f).

(h) Treatment of Annuities Under Other Laws.—Except as provided in section 1451 of this title, an annuity under this section is in addition to any other payment to which a person is entitled under any other provision of law. Such annuity shall be considered as income under laws administered by the Secretary of Veterans Affairs.

(i) Annuities Exempt From Certain Legal Process.—Except as provided in subsection (a)(4) or (l)(3)(B), an annuity under this section is not assignable or subject to execution, levy, attachment, garnishment, or other legal process.

(j) Effective Date of Reserve-Component Annuities.—

(1) Persons making section 1448(e) designation.—A reserve-component annuity shall be effective in accordance with the designation made under section 1448(e) of this title by the person providing the annuity.

(2) Persons dying before making section 1448(e) designation.—An annuity payable under section 1448(f) of this title shall be effective on the day after the date of the death of the person upon whose service the right to the annuity is based.

(k) Adjustment of Spouse or Former Spouse Annuity Upon Loss of Dependency and Indemnity Compensation.—

(1) Readjustment if beneficiary 55 years of age or more.—If a surviving spouse or former spouse whose annuity has been adjusted under subsection (c) subsequently loses entitlement to dependency and indemnity compensation under section 1311(a) of title 38 because of the remarriage of the surviving spouse, or former spouse, and if at the time of such remarriage the surviving spouse or former spouse is 55 years of age or more, the amount of the annuity of the surviving spouse or former spouse shall be readjusted, effective on the effective date of such loss of dependency and indemnity compensation, to the amount of the annuity which would be in effect with respect to the surviving spouse or former spouse if the adjustment under subsection (c) had never been made.

(2) Repayment of amounts previously refunded.—

(A) General rule.—A surviving spouse or former spouse whose annuity is readjusted under paragraph (1) shall repay any amount refunded under subsection (e) by reason of the adjustment under subsection (c).

(B) Interest required if repayment not a lump sum.—If the repayment is not made in a lump sum, the surviving spouse or former spouse shall pay interest on the amount to be repaid. Such interest shall commence on the date on which the first such payment is due and shall be applied over the period during which any part of the repayment remains to be paid.

(C) Manner of repayment; rate of interest.—The manner in which such repayment shall be made, and the rate of any such interest, shall be prescribed in regulations under section 1455 of this title.

(D) Deposit of amounts repaid.—An amount repaid under this paragraph (including any such interest) received by the Secretary of Defense shall be deposited into the Department of Defense Military Retirement Fund. Any other amount repaid under this paragraph shall be deposited into the Treasury as miscellaneous receipts.

(l) Participants in the Plan Who Are Missing.—

(1) Authority to presume death of missing participant.—

(A) In general.—Upon application of the beneficiary of a participant in the Plan who is missing, the Secretary concerned may determine for purposes of this subchapter that the participant is presumed dead.

(B) Participant who is missing.—A participant in the Plan is considered to be missing for purposes of this subsection if—

(i) the retired pay of the participant has been suspended on the basis that the participant is missing; or

(ii) in the case of a participant in the Plan who would be eligible for reserve-component retired pay but for the fact that he is under 60 years of age, his retired pay, if he were entitled to retired pay, would be suspended on the basis that he is missing.

(C) Requirements applicable to presumption of death.—Any such determination shall be made in accordance with regulations prescribed under section 1455 of this title. The Secretary concerned may not make a determination for purposes of this subchapter that a participant who is missing is presumed dead unless the Secretary finds that—

(i) the participant has been missing for at least 30 days; and

(ii) the circumstances under which the participant is missing would lead a reasonably prudent person to conclude that the participant is dead.

(2) Commencement of annuity.—Upon a determination under paragraph (1) with respect to a participant in the Plan, an annuity otherwise payable under this subchapter shall be paid as if the participant died on the date as of which the retired pay of the participant was suspended.

(3) Effect of person not being dead.—

(A) Termination of annuity.—If, after a determination under paragraph (1), the Secretary concerned determines that the participant is alive—

(i) any annuity being paid under this subchapter by reason of this subsection shall be terminated; and

(ii) the total amount of any annuity payments made by reason of this subsection shall constitute a debt to the United States.

(B) Collection from participant of annuity amounts erroneously paid.—A debt under subparagraph (A)(ii) may be collected or offset—

(i) from any retired pay otherwise payable to the participant;

(ii) if the participant is entitled to compensation under chapter 11 of title 38, from that compensation; or

(iii) if the participant is entitled to any other payment from the United States, from that payment.

(C) Collection from beneficiary.—If the participant dies before the full recovery of the amount of annuity payments described in subparagraph (A)(ii) has been made by the United States, the remaining amount of such annuity payments may be collected from the participant's beneficiary under the Plan if that beneficiary was the recipient of the annuity payments made by reason of this subsection.

(m) Special Survivor Indemnity Allowance.—

(1) Provision of allowance.—The Secretary concerned shall pay a monthly special survivor indemnity allowance under this subsection to the surviving spouse or former spouse of a member of the uniformed services to whom section 1448 of this title applies if—

(A) the surviving spouse or former spouse is entitled to dependency and indemnity compensation under section 1311(a) of title 38;

(B) except for subsection (c) of this section, the surviving spouse or former spouse is eligible for an annuity by reason of a participant in the Plan under subsection (a)(1) of section 1448 of this title or by reason of coverage under subsection (d) or (f) of such section; and

(C) the eligibility of the surviving spouse or former spouse for an annuity as described in subparagraph (B) is affected by subsection (c) of this section.

(2) Amount of payment.—Subject to paragraph (3), the amount of the allowance paid to an eligible survivor under paragraph (1) for a month shall be equal to—

(A) for months during fiscal year 2009, $50;

(B) for months during fiscal year 2010, $60;

(C) for months during fiscal year 2011, $70;

(D) for months during fiscal year 2012, $80;

(E) for months during fiscal year 2013, $90;

(F) for months during fiscal year 2014, $150;

(G) for months during fiscal year 2015, $200;

(H) for months during fiscal year 2016, $275;

(I) for months from October 2016 through November 2018, $310; and

(J) for months after November 2018, the amount determined in accordance with paragraph (6).

(3) Limitation.—The amount of the allowance paid to an eligible survivor under paragraph (1) for any month may not exceed the amount of the annuity for that month that is subject to offset under subsection (c).

(4) Status of payments.—An allowance paid under this subsection does not constitute an annuity, and amounts so paid are not subject to adjustment under any other provision of law.

(5) Source of funds.—The special survivor indemnity allowance shall be paid from amounts in the Department of Defense Military Retirement Fund established under section 1461 of this title.

(6) Cost-of-living adjustments after november 2018.—

(A) In general.—Whenever retired pay is increased for a month under section 1401a of this title (or any other provision of law), the amount of the allowance payable under paragraph (1) for that month shall also be increased.

(B) Amount of increase.—With respect to an eligible survivor of a member of the uniformed services, the increase for a month shall be—

(i) the amount payable pursuant to paragraph (2) for months during the preceding 12-month period; plus

(ii) an amount equal to a percentage of the amount determined pursuant to clause (i), which percentage is the percentage by which the retired pay of the member would have increased for the month, as described in subparagraph (A), if the member was alive (and otherwise entitled to such pay).

(C) Rounding down.—The monthly amount of an allowance payable under this subsection, if not a multiple of $1, shall be rounded to the next lower multiple of $1.

(D) Public notice on amount of allowance payable.—Whenever an increase in the amount of the allowance payable under paragraph (1) is made pursuant to this paragraph, the Secretary of Defense shall publish the amount of the allowance so payable by reason of such increase, including the months for which payable.

(Added Pub. L. 92–425, §1(3), Sept. 21, 1972, 86 Stat. 708; amended Pub. L. 94–496, §1(3), (4), Oct. 14, 1976, 90 Stat. 2375; Pub. L. 95–397, title II, §§203, 207(b), (c), Sept. 30, 1978, 92 Stat. 845, 848; Pub. L. 97–22, §11(a)(3), July 10, 1981, 95 Stat. 137; Pub. L. 97–252, title X, §1003(c), (d), Sept. 8, 1982, 96 Stat. 736; Pub. L. 98–94, title IX, §941(a)(3), (c)(3), Sept. 24, 1983, 97 Stat. 653; Pub. L. 98–525, title VI, §§642(b), 644, Oct. 19, 1984, 98 Stat. 2546, 2548; Pub. L. 99–145, title VII, §§713(b), 717, 718, 719(4)–(6), (8)(A), 722, 723(a), (b)(1), title XIII, §1303(a)(11), Nov. 8, 1985, 99 Stat. 672, 674–677, 739; Pub. L. 99–661, div. A, title VI, §§641(a), (b)(2), (3), 643(a), title XIII, §1343(a)(8)(C), Nov. 14, 1986, 100 Stat. 3885, 3886, 3992; Pub. L. 100–26, §3(3), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100–180, div. A, title VI, §636(a), Dec. 4, 1987, 101 Stat. 1106; Pub. L. 100–224, §5(b)(1), Dec. 30, 1987, 101 Stat. 1538; Pub. L. 101–189, div. A, title XIV, §1407(a)(2)–(4), title XVI, §1621(a)(1), Nov. 29, 1989, 103 Stat. 1588, 1602; Pub. L. 103–337, div. A, title X, §1070(e)(3), Oct. 5, 1994, 108 Stat. 2859; Pub. L. 104–201, div. A, title VI, §634, Sept. 23, 1996, 110 Stat. 2561; Pub. L. 105–85, div. A, title VI, §642(a), Nov. 18, 1997, 111 Stat. 1799; Pub. L. 105–261, div. A, title VI, §643(b), Oct. 17, 1998, 112 Stat. 2048; Pub. L. 106–398, §1 [[div. A], title VI, §655(c)(4)], Oct. 30, 2000, 114 Stat. 1654, 1654A–166; Pub. L. 110–181, div. A, title VI, §§643(a), 644, Jan. 28, 2008, 122 Stat. 157, 158; Pub. L. 110–417, [div. A], title VI, §631(a), Oct. 14, 2008, 122 Stat. 4492; Pub. L. 111–31, div. B, title II, §201, June 22, 2009, 123 Stat. 1857; Pub. L. 112–239, div. A, title VI, §641(b), Jan. 2, 2013, 126 Stat. 1783; Pub. L. 113–291, div. A, title VI, §624(a)(1), (2)(A), Dec. 19, 2014, 128 Stat. 3403; Pub. L. 114–328, div. A, title VI, §§642(d), 643(c)(2), 646, Dec. 23, 2016, 130 Stat. 2165, 2166, 2168; Pub. L. 115–91, div. A, title VI, §621, Dec. 12, 2017, 131 Stat. 1427; Pub. L. 115–232, div. A, title VI, §622(a), (b), Aug. 13, 2018, 132 Stat. 1799; Pub. L. 116–92, div. A, title VI, §622(a)(1), Dec. 20, 2019, 133 Stat. 1427.)

Editorial Notes

Amendments

2019—Subsec. (c)(1). Pub. L. 116–92 substituted "calculated as follows:" for "that the annuity otherwise payable under this section would exceed that compensation." and added subpars. (A) to (D).

2018—Subsec. (m)(2)(I). Pub. L. 115–232, §622(a)(1), substituted "November" for "December".

Subsec. (m)(2)(J). Pub. L. 115–232, §622(a)(2), substituted "for months after November 2018" for "for months during any calendar year after 2018".

Subsec. (m)(6). Pub. L. 115–232, §622(b), substituted "after november 2018" for "after 2018" in heading, added subpars. (A) to (D), and struck out former subpars. (A) and (B) which read as follows:

"(A) In general.—The amount of the allowance payable under paragraph (1) for months during any calendar year beginning after 2018 shall be—

"(i) the amount payable pursuant to paragraph (2) for months during the preceding calendar year, plus

"(ii) an amount equal to the percentage of the amount determined pursuant to clause (i) which percentage is equal to the percentage increase in retired pay of members and former members of the armed forces for such calendar year under section 1401a of this title.

"(B) Public notice on amount of allowance payable.—The Secretary of Defense shall publish in the Federal Register each year the amount of the allowance payable under paragraph (1) for months in such year by reason of the operation of this paragraph."

2017—Subsec. (m)(2)(I), (J). Pub. L. 115–91, §621(1), added subpars. (I) and (J) and struck out former subpar. (I) which read as follows: "for months during each of fiscal years 2017 and 2018, $310."

Subsec. (m)(6). Pub. L. 115–91, §621(2), added par. (6) and struck out former par. (6). Prior to amendment, text read as follows: "This subsection shall only apply with respect to the month beginning on October 1, 2008, and subsequent months through the month ending on May 31, 2018. Effective on June 1, 2018, the authority provided by this subsection shall terminate. No special survivor indemnity allowance may be paid to any person by reason of this subsection for any period before October 1, 2008, or beginning on or after June 1, 2018."

2016—Subsec. (e). Pub. L. 114–328, §643(c)(2)(A), inserted "or CRSC" after "Retired Pay" in heading.

Subsec. (e)(1). Pub. L. 114–328, §643(c)(2)(B), inserted "or combat-related special compensation" after "from the retired pay".

Subsec. (m)(1)(B). Pub. L. 114–328, §642(d), inserted "or (f)" after "subsection (d)".

Subsec. (m)(2)(I). Pub. L. 114–328, §646(1), substituted "each of fiscal years 2017 and 2018" for "fiscal year 2017".

Subsec. (m)(6). Pub. L. 114–328, §646(2), substituted "May 31, 2018" for "September 30, 2017" and substituted "June 1, 2018" for "October 1, 2017" in two places.

2014—Subsec. (a)(4), (5). Pub. L. 113–291, §624(a)(1), added par. (4) and redesignated former par. (4) as (5).

Subsec. (i). Pub. L. 113–291, §624(a)(2)(A), inserted "(a)(4) or" after "subsection".

2013—Subsec. (d). Pub. L. 112–239 inserted "or chapter 84 of such title" after "chapter 83 of title 5", "or 8416(a)" after "8339(j)", and "or 8442(a)" after "8341(b)".

2009—Subsec. (m)(2)(F) to (I). Pub. L. 111–31, §201(a), added subpars. (F) to (I) and struck out former subpar. (F) which read as follows: "for months after fiscal year 2013, $100."

Subsec. (m)(6). Pub. L. 111–31, §201(b), substituted "September 30, 2017" for "February 28, 2016" and substituted "October 1, 2017" for "March 1, 2016" in two places.

2008—Subsec. (c)(3). Pub. L. 110–181, §643(a), added par. (3).

Subsec. (m). Pub. L. 110–181, §644, added subsec. (m).

Subsec. (m)(1)(B). Pub. L. 110–417 substituted "subsection (a)(1) of section 1448 of this title or by reason of coverage under subsection (d) of such section" for "section 1448(a)(1) of this title".

2000—Subsec. (j)(1). Pub. L. 106–398 substituted "A reserve-component annuity shall be effective in accordance with the designation made under section 1448(e) of this title by the person providing the annuity." for "An annuity elected by a person providing a reserve-component annuity shall be effective in accordance with the designation made by such person under section 1448(e) of this title."

1998—Subsec. (f)(3)(D). Pub. L. 105–261 substituted "the day referred to in section 1448(b)(3)(E)(ii) of this title" for "the first day of the first month which begins after the date of the court order or filing involved".

1997—Subsec. (f)(1)(C). Pub. L. 105–85 inserted at end "Notwithstanding the preceding sentence, a change of election under this subsection to provide an annuity to a spouse instead of a former spouse may (subject to paragraph (2)) be made at any time after the person providing the annuity remarries without regard to the time limitation in section 1448(a)(5)(B) of this title."

1996—Pub. L. 104–201 amended section generally, revising and restating provisions relating to payment of annuities and beneficiaries and inserting subsec., par., and subpar. headings.

1994—Subsecs. (c), (k)(1). Pub. L. 103–337 substituted "section 1311(a) of title 38" for "section 411(a) of title 38".

1989—Subsec. (f)(3)(B). Pub. L. 101–189, §1407(a)(4), substituted "within one year of the date of the court order or filing involved" for "before October 1, 1985, or within one year of the date of the court order or filing involved, whichever is later".

Subsec. (h). Pub. L. 101–189, §1621(a)(1), substituted "Department of Veterans Affairs" for "Veterans' Administration".

Subsec. (l)(1). Pub. L. 101–189, §1407(a)(2), substituted "reserve-component retired pay" for "retired pay under chapter 67 of this title".

Subsec. (l)(2). Pub. L. 101–189, §1407(a)(3), struck out "or retainer" after "of which the retired".

1987—Subsec. (b). Pub. L. 100–26, §3(3), made technical amendment to directory language of Pub. L. 99–661, §643(a). See 1986 Amendment note below.

Subsec. (f)(3)(A). Pub. L. 100–224 struck out second of two commas after "required by a court order to make such an election".

Subsec. (k)(1). Pub. L. 100–180 substituted "55 years of age" for "60 years of age".

1986—Subsec. (b). Pub. L. 99–661, §643(a), as amended by Pub. L. 100–26, §3(3), substituted "age 55" for "age 60" in two places.

Subsec. (c). Pub. L. 99–661, §1343(a)(8)(C), substituted "entitled to dependency and indemnity compensation" for "entitled to compensation".

Subsec. (f)(2). Pub. L. 99–661, §641(b)(2)(A), substituted "is required by a court order to elect under section 1448(b) of this title to provide an annuity to a former spouse (or to both a former spouse and child), or who enters into a written agreement (whether voluntary or required by a court order) to make such an election, and who makes an election pursuant to such order or agreement," for "enters into a voluntary written agreement to elect under section 1448(b) of this title to provide an annuity to a former spouse and who makes an election pursuant to such agreement".

Subsec. (f)(2)(A). Pub. L. 99–661, §641(b)(2)(B), substituted "in a case in which the election is required by a court order, or in which an agreement to make the election" for "in a case in which such agreement".

Subsec. (f)(2)(A)(i). Pub. L. 99–661, §641(b)(2)(C), substituted "relating to such election, or the agreement to make such election," for "relating to the agreement to make such election".

Subsec. (f)(2)(B). Pub. L. 99–661, §641(b)(2)(D), substituted "of a written agreement that" for "in which such agreement".

Subsec. (f)(3)(A). Pub. L. 99–661, §641(b)(3), struck out "voluntary" before "written agreement" in two places, inserted "or if such person is required by a court order to make such an election," after "applicable" and inserted "requires such election or" after "on its face, which".

Subsec. (f)(4). Pub. L. 99–661, §641(a), amended par. (4) generally. Prior to amendment, par. (4) read as follows: "Nothing in this chapter authorizes any court to order any person to elect under section 1448(b) of this title to provide an annuity to a former spouse unless such person has voluntarily agreed in writing to make such election."

1985—Subsec. (a)(1), (2). Pub. L. 99–145, §723(a)(1), inserted "or the eligible former spouse" after "widow or widower".

Subsec. (a)(3). Pub. L. 99–145, §723(a)(2), inserted "(with the concurrence of the person's spouse, if required under section 1448(a)(3) of this title)" after "title applies", and "or former spouse" after "the spouse".

Subsec. (a)(4). Pub. L. 99–145, §723(a)(3), struck out "former spouse or other" before "natural person" in two places.

Subsec. (b). Pub. L. 99–145, §723(b)(1), substituted "widow, widower, or former spouse" for "widow or widower" in eight places.

Pub. L. 99–145, §719(4), substituted "under the Plan" for "under this section".

Subsec. (c). Pub. L. 99–145, §723(b)(1), substituted "widow, widower, or former spouse" for "widow or widower" in two places.

Pub. L. 99–145, §718, inserted provision respecting the effective date of the dependency and indemnity compensation offset.

Subsec. (d). Pub. L. 99–145, §719(8)(A), substituted "retired pay" for "retired or retainer pay".

Subsec. (e). Pub. L. 99–145, §719(8)(A), substituted "retired pay" for "retired or retainer pay" in two places.

Pub. L. 99–145, §723(b)(1), substituted "widow, widower, or former spouse" for "widow or widower" in two places.

Subsec. (f)(3)(A). Pub. L. 99–145, §722(1), inserted "or has been filed with the court of appropriate jurisdiction in accordance with applicable State law" after "by a court order" and "or receives a statement from the clerk of the court (or other appropriate official) that such agreement has been filed with the court in accordance with applicable State law" after "voluntary written agreement of such person".

Subsec. (f)(3)(B), (C). Pub. L. 99–145, §722(2), inserted "or filing" after "court order".

Subsec. (i). Pub. L. 99–145, §1303(a)(11)(A), substituted "subsection (l)(3)(B)" for "subsection (l)".

Subsec. (j). Pub. L. 99–145, §719(5), substituted "a person providing a reserve-component annuity" for "any person providing an annuity by virtue of eligibility under section 1448(a)(1)(B) of this title".

Pub. L. 99–145, §713(b), inserted provision respecting the effective date of an annuity payable under section 1448(f) of this title.

Subsec. (k). Pub. L. 99–145, §723(b)(1), substituted "widow, widower, or former spouse" for "widow or widower" wherever appearing.

Subsec. (k)(1). Pub. L. 99–145, §717(1), (2), designated existing provisions as par. (1) and substituted "had never been made." for "had never been made, but such readjustment may not be made until the widow or widower repays any amount refunded under subsection (e) by reason of the adjustment under subsection (c)."

Subsec. (k)(2). Pub. L. 99–145, §717(3), added par. (2).

Subsec. (l)(1). Pub. L. 99–145, §719(6)(A), (8)(A), substituted in first sentence "the Plan" for "the plan" in two places, and substituted "retired pay" for "retired or retainer pay" before "has been suspended".

Subsec. (l)(2). Pub. L. 99–145, §719(6)(B), struck out "the provision of" before "this subchapter".

Subsec. (l)(3)(A). Pub. L. 99–145, §1303(a)(11)(B), struck out "(notwithstanding subsection (h))" before "may be collected".

Subsec. (l)(3)(A)(i). Pub. L. 99–145, §719(8)(A), substituted "retired pay" for "retried or retainer pay".

1984—Subsec. (f)(3), (4). Pub. L. 98–525, §644, added par. (3) and redesignated former par. (3) as (4).

Subsec. (i). Pub. L. 98–525, §642(b)(1), substituted "Except as provided in subsection (l), an" for "An".

Subsec. (l). Pub. L. 98–525, §642(b)(2), added subsec. (l).

1983—Subsec. (a)(4). Pub. L. 98–94, §941(a)(3)(A), struck out "at the time the person to whom section 1448 applies became entitled to retired or retainer pay" after "section 1448(b) of this title".

Subsec. (f)(1). Pub. L. 98–94, §941(a)(3)(B), inserted "(without regard to the eligibility of the person making the change of election to make an election under such section)" after "section 1448(a)(5) of this title".

Pub. L. 98–94, §941(c)(3)(A), struck out "of this subsection" after "subject to paragraph (2)".

Subsec. (f)(2). Pub. L. 98–94, §941(c)(3)(B), substituted "or annulment," for "annulment, or legal separation,".

1982—Subsec. (a)(4). Pub. L. 97–252, §1003(c), substituted "former spouse or other natural person" for "natural person" and "unless the election to provide an annuity to the former spouse or other natural person has been changed as provided in subsection (f)" for "if there is no eligible beneficiary under clause (1) or clause (2)".

Subsec. (f). Pub. L. 97–252, §1003(d), designated existing provisions as par. (1), substituted "A person who elects to provide an annuity to a person designated by him under section 1448(b) of this title may, subject to paragraph (2) of this subsection," for "An unmarried person who elects to provide an annuity to a person designated by him under subsection (a)(4), but who later marries or acquires a dependent child,", inserted provision that the Secretary concerned notify the former spouse or such other natural person previously designated under section 1448(b) of any such change in election, and added pars. (2) and (3).

1981—Subsec. (d). Pub. L. 97–22 substituted "Office of Personnel Management" for "Civil Service Commission".

1978—Subsec. (a). Pub. L. 95–397, §203(1), inserted "(or on such other day as he may provide under subsection (j))" after "death of a person to whom section 1448 of this title applies".

Subsec. (d). Pub. L. 95–397, §207(b), substituted "section 8339(j)" for "section 8339(i)".

Subsec. (f). Pub. L. 95–397, §207(c), substituted "section 1448(a)(5)" for "the last three sentences of section 1448(a)".

Subsecs. (j), (k). Pub. L. 95–397, §203(2), added subsecs. (j) and (k).

1976—Subsec. (a)(3), (4). Pub. L. 94–496, §1(3), added par. (3) and redesignated former par. (3) as (4).

Subsec. (f). Pub. L. 94–496, §1(4), substituted "(a)(4)" for "(a)(3)".

Statutory Notes and Related Subsidiaries

Effective Date of 2019 Amendment

Amendment by Pub. L. 116–92 effective on the first day of the first month that begins after Dec. 20, 2019, see section 622(f) of Pub. L. 116–92, set out as a note under section 1448 of this title.

Effective Date of 2018 Amendment

Pub. L. 115–232, div. A, title VI, §622(c), Aug. 13, 2018, 132 Stat. 1800, provided that: "The amendments made by this section [amending this section] shall take effect on December 1, 2018."

Effective Date of 2016 Amendment

Amendment by section 642(d) of Pub. L. 114–328 inapplicable to accural of annuity benefits under subchapter II of chapter 73 of this title for any period prior to Dec. 23, 2016, with provisions for election of benefits payable to dependent children, see section 642(e) of Pub. L. 114–328, set out as a note under section 1448 of this title.

Effective Date of 2013 Amendment

Pub. L. 112–239, div. A, title VI, §641(c), Jan. 2, 2013, 126 Stat. 1783, provided that: "The amendments made by this section [amending this section and section 1452 of this title] shall apply with respect to any participant electing an annuity for survivors under chapter 84 of title 5, United States Code, on or after the date of the enactment of this Act [Jan. 2, 2013]."

Effective Date of 2008 Amendment

Pub. L. 110–417, [div. A], title VI, §631(b), Oct. 14, 2008, 122 Stat. 4492, provided that: "The amendment made by subsection (a) [amending this section] shall apply with respect to the month beginning on October 1, 2008, and subsequent months as provided by paragraph (6) of subsection (m) of section 1450 of title 10, United States Code, as added by section 644 of the National Defense Authorization Act for Fiscal Year 2008 [Pub. L. 110–181]."

Pub. L. 110–181, div. A, title VI, §643(b), Jan. 28, 2008, 122 Stat. 157, provided that: "Paragraph (3) of subsection (c) of section 1450 of title 10, United States Code, as added by subsection (a), shall apply with respect to the recoupment on or after April 1, 2008, of amounts subject to offset under such subsection."

Effective Date of 1997 Amendment

Pub. L. 105–85, div. A, title VI, §642(b), Nov. 18, 1997, 111 Stat. 1799, provided that: "The amendment made by subsection (a) [amending this section] shall apply with respect to marriages occurring before, on, or after the date of the enactment of this Act [Nov. 18, 1997]."

Effective Date of 1987 Amendments

Pub. L. 100–180, div. A, title VI, §636(b), Dec. 4, 1987, 101 Stat. 1106, provided that: "The amendment made by subsection (a) [amending this section] shall apply as if included in the amendments made by section 643(a) of the National Defense Authorization Act for Fiscal Year 1987 (Public Law 99–661; 100 Stat. 3886) [amending this section]."

Amendment by Pub. L. 100–26 applicable as if included in Pub. L. 99–661 when enacted on Nov. 14, 1986, see section 12(a) of Pub. L. 100–26, set out as a note under section 776 of this title.

Effective Date of 1986 Amendment

Pub. L. 99–661, div. A, title VI, §641(c), Nov. 14, 1986, 100 Stat. 3886, provided that: "The amendments made by this section [amending this section and section 1448 of this title] apply to court orders issued on or after the date of the enactment of this Act [Nov. 14, 1986]."

Pub. L. 99–661, div. A, title VI, §643(b), Nov. 14, 1986, 100 Stat. 3886, provided that: "The amendments made by subsection (a) [amending this section] shall apply with respect to remarriages that occur on or after the date of the enactment of this Act [Nov. 14, 1986], but only with respect to payments for periods after the date of the enactment of this Act."

Effective Date of 1985 Amendment

Amendment by title VII of Pub. L. 99–145 effective Mar. 1, 1986, with prohibition against accrual of benefits to any person by reason of the enactment of such title VII for any period before Mar. 1, 1986, see section 731 of Pub. L. 99–145, set out as a note under section 1447 of this title.

Effective Date of 1982 Amendment; Transition Provisions

Amendment by Pub. L. 97–252 effective Feb. 1, 1983, and applicable to persons becoming eligible to participate in Survivor Benefit Plan provided for in this subchapter before, on, or after Feb. 1, 1983, see section 1006 of Pub. L. 97–252, set out as an Effective Date; Transition Provisions note under section 1408 of this title.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–397 effective Oct. 1, 1978, and applicable to annuities payable by virtue of amendment for months beginning on or after such date, see section 210 of Pub. L. 95–397, set out as a note under section 1447 of this title.

Effective Date of 1976 Amendment

Amendment by Pub. L. 94–496 effective Sept. 21, 1972, see section 3 of Pub. L. 94–496, set out as a note under section 1447 of this title.

Prohibition on Retroactive Benefits

Pub. L. 116–92, div. A, title VI, §622(b), Dec. 20, 2019, 133 Stat. 1427, provided that: "No benefits may be paid to any person for any period before the effective date provided under subsection (f) [enacting provisions set out as a note under section 1448 of this title] by reason of the amendments made by subsection (a) [amending this section and section 1451 of this title]."

Prohibition on Recoupment of Certain Amounts Previously Refunded to SBP Recipients

Pub. L. 116–92, div. A, title VI, §622(c), Dec. 20, 2019, 133 Stat. 1427, provided that: "A surviving spouse who is or has been in receipt of an annuity under the Survivor Benefit Plan under subchapter II of chapter 73 of title 10, United States Code, that is in effect before the effective date provided under subsection (f) [enacting provisions set out as a note under section 1448 of this title] and that is adjusted by reason of the amendments made by subsection (a) [amending this section and section 1451 of this title] and who has received a refund of retired pay under section 1450(e) of title 10, United States Code, shall not be required to repay such refund to the United States."

Recomputation of Annuities

Pub. L. 108–375, div. A, title VI, §644(c), Oct. 28, 2004, 118 Stat. 1961, as amended by Pub. L. 110–417, [div. A], title VI, §632, Oct. 14, 2008, 122 Stat. 4493, provided that:

"(1) Periodic recomputation required.—Effective on the first day of each month specified in paragraph (2)—

"(A) each annuity under section 1450 of title 10, United States Code, that commenced before that month, is computed under a provision of section 1451 of that title amended by subsection (a), and is payable for that month shall be recomputed so as to be equal to the amount that would be in effect if the percent applicable for that month under that provision, as so amended, had been used for the initial computation of the annuity; and

"(B) each supplemental survivor annuity under [former] section 1457 of such title that commenced before that month and is payable for that month shall be recomputed so as to be equal to the amount that would be in effect if the percent applicable for that month under that section, as amended by this section, had been used for the initial computation of the supplemental survivor annuity.

"(2) Time for recomputation.—The requirement under paragraph (1) for recomputation of certain annuities applies with respect to the following months:

"(A) October 2005.

"(B) April 2006.

"(C) April 2007.

"(D) April 2008.

"(3) Savings provision.—If, as a result of the recomputation of annuities under section 1450 of title 10, United States Code, and supplemental survivor annuities under [former] section 1457 of such title, as required by paragraph (1), the total amount of both annuities to be paid to an annuitant for a month would be less (because of the offset required by section 1450(c) of such title for dependency and indemnity compensation) than the amount that would be paid to the annuitant in the absence of recomputation, the Secretary of Defense shall take such actions as are necessary to adjust the annuity amounts to eliminate the reduction."

[Pub. L. 110–417, [div. A], title VI, §632, Oct. 14, 2008, 122 Stat. 4493, provided that the amendment made by that section to section 644(c) of Pub. L. 108–375, set out above, is effective as of Oct. 28, 2004, and as if included in section 644(c) of Pub. L. 108–375 as enacted.]

Effectuation of Intended SBP Annuity for Former Spouse When Not Elected by Reason of Untimely Death of Retiree

Pub. L. 106–65, div. A, title VI, §657, Oct. 5, 1999, 113 Stat. 668, as amended by Pub. L. 106–398, §1 [[div. A], title X, §1087(c)(1)(D)], Oct. 30, 2000, 114 Stat. 1654, 1654A–292, provided that:

"(a) Cases Not Covered by Existing Authority.—Paragraph (3) of section 1450(f) of title 10, United States Code, as in effect on the date of the enactment of this Act [Oct. 5, 1999], shall apply in the case of a former spouse of any person referred to in that paragraph who—

"(1) incident to a proceeding of divorce, dissolution, or annulment—

"(A) entered into a written agreement on or after August 19, 1983, to make an election under section 1448(b) of such title to provide an annuity to the former spouse (the agreement thereafter having been incorporated in or ratified or approved by a court order or filed with the court of appropriate jurisdiction in accordance with applicable State law); or

"(B) was required by a court order dated on or after such date to make such an election for the former spouse; and

"(2) before making the election, died within 21 days after the date of the agreement referred to in paragraph (1)(A) or the court order referred to in paragraph (1)(B), as the case may be.

"(b) Adjusted Time Limit for Request by Former Spouse.—For the purposes of paragraph (3)(C) of section 1450(f) of title 10, United States Code, a court order or filing referred to in subsection (a)(1) of this section that is dated before October 19, 1984, shall be deemed to be dated on the date of the enactment of this Act [Oct. 5, 1999]."

[Pub. L. 106–398, §1 [[div. A], title X, §1087(c)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A–292, provided that: "In the case of any former spouse to whom paragraph (3) of section 1450(f) of title 10, United States Code, applies by reason of the amendment made by paragraph (1)(D) [amending section 657 of Pub. L. 106–65, set out above], the provisions of subsection (b) of section 657 of the National Defense Authorization Act for Fiscal Year 2000 [Pub. L. 106–65, set out above] shall be applied by using the date of the enactment of this Act [Oct. 30, 2000], rather than the date of the enactment of that Act [Oct. 5, 1999]."]
10 U.S.C. § 2172 (2024) — Title 10: ARMED FORCES / Chapter 109 / Section 2172: Renumbered §16302
Renumbered §16302
Status: renumbered

[§2172. Renumbered §16302]
10 U.S.C. § 825 (2024) — Title 10: ARMED FORCES / Chapter 47 / Subchapter V / Section 825: Art. 25. Who may serve on courts-martial
Art. 25. Who may serve on courts-martial
Status: in_force

(a) Any commissioned officer on active duty is eligible to serve on all courts-martial for the trial of any person who may lawfully be brought before such courts for trial.

(b) Any warrant officer on active duty is eligible to serve on general and special courts-martial for the trial of any person, other than a commissioned officer, who may lawfully be brought before such courts for trial.

(c)(1) Any enlisted member on active duty is eligible to serve on a general or special court-martial for the trial of any other enlisted member.

(2) Before a court-martial with a military judge and members is assembled for trial, an enlisted member who is an accused may personally request, orally on the record or in writing, that—

(A) the membership of the court-martial be comprised entirely of officers; or

(B) enlisted members comprise at least one-third of the membership of the court-martial, regardless of whether enlisted members have been detailed to the court-martial.

(3) Except as provided in paragraph (4), after such a request, the accused may not be tried by a general or special court-martial if the membership of the court-martial is inconsistent with the request.

(4) If, because of physical conditions or military exigencies, a sufficient number of eligible officers or enlisted members, as the case may be, is not available to carry out paragraph (2), the trial may nevertheless be held. In that event, the convening authority shall make a detailed written statement of the reasons for nonavailability. The statement shall be appended to the record.

(d)(1) Except as provided in paragraph (2) for capital offenses, the accused in a court-martial with a military judge and members shall be sentenced by the military judge.

(2) In a capital case, if the accused is convicted of an offense for which the court-martial may sentence the accused to death, the accused shall be sentenced in accordance with section 853(c) of this title (article 53(c)).

(3) In a capital case, if the accused is convicted of a non-capital offense, the accused shall be sentenced for such non-capital offense in accordance with section 853(b) of this title (article 53(b)), regardless of whether the accused is convicted of an offense for which the court-martial may sentence the accused to death.

(e)(1) When it can be avoided, no member of an armed force may be tried by a court-martial any member of which is junior to the member being tried in rank or grade.

(2) When convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in the opinion of the convening authority, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member of an armed force is eligible to serve as a member of a general or special court-martial when the member is the accuser or a witness for the prosecution or has acted as preliminary hearing officer or as counsel in the same case.

(3) The convening authority shall detail not less than the number of members necessary to impanel the court-martial under section 829 of this title (article 29).

(4) When convening a court-martial, the convening authority shall detail as members thereof members of the armed forces under such regulations as the President may prescribe for the randomized selection of qualified personnel, to the maximum extent practicable.

(f) Before a court-martial is assembled for the trial of a case, the convening authority may excuse a member of the court from participating in the case. Under such regulations as the Secretary concerned may prescribe, the convening authority may delegate the authority of the convening authority under this subsection to the staff judge advocate or legal officer of the convening authority or to any other principal assistant.

(Aug. 10, 1956, ch. 1041, 70A Stat. 45; Pub. L. 90–632, §2(7), Oct. 24, 1968, 82 Stat. 1336; Pub. L. 98–209, §§3(b), 13(c), Dec. 6, 1983, 97 Stat. 1394, 1408; Pub. L. 99–661, div. A, title VIII, §803(a), Nov. 14, 1986, 100 Stat. 3906; Pub. L. 114–328, div. E, title LV, §5182, title LVI, §5203(e)(2), Dec. 23, 2016, 130 Stat. 2899, 2906; Pub. L. 117–263, div. A, title V, §543(a), Dec. 23, 2022, 136 Stat. 2582; Pub. L. 118–31, div. A, title V, §531(b)(2), Dec. 22, 2023, 137 Stat. 258.)

Historical and Revision Notes

Revised sectionSource (U.S. Code)Source (Statutes at Large)

825(a)
825(b) 

50:589(a).
50:589(b). 

May 5, 1950, ch. 169, §1 (Art. 25), 64 Stat. 116.

825(c) 
50:589(c).

825(d) 
50:589(d).

In subsection (a), the word "commissioned" is inserted before the word "officer" for clarity. The word "is" is substituted for the words "shall be".

In subsections (a), (b), and (c)(1), the words "with the armed forces" are omitted as surplusage.

In subsection (b), the word "is" is substituted for the words "shall be". The words "a commissioned" are substituted for the word "an" for clarity.

In subsection (c), the words "member" and "members", respectively are substituted for the words "person" and "persons". The words "of an armed force" are inserted for clarity.

In subsection (c)(1), the word "is" is substituted for the words "shall be". The word "before" is substituted for the words "prior to". The words "the accused may not" are substituted for the words "no enlisted person shall", for clarity. The word "If" is substituted for the word "Where".

In subsection (c)(2), the word "means" is substituted for the words "shall mean". The words "Secretary concerned" are substituted for the words "Secretary of the Department". The word "may" is substituted for the word "shall". The word "than", before the words "a body", is omitted as surplusage.

In subsection (d)(1), the word "may" is substituted for the word "shall". The word "member" is substituted for the word "person".

In subsection (d)(2), the word "is" is substituted for the words "shall be". The word "detail" is substituted for the word "appoint", since the filling of the position involved is not appointment to an office in the constitutional sense. The words "member of an armed force" and "members of the armed forces", respectively, are substituted for the words "person" and "persons".

Editorial Notes

Amendments

2023—Subsec. (d)(1). Pub. L. 118–31, §531(b)(2)(A)(i), substituted "shall be sentenced by the military judge" for "may, after the findings are announced and before any matter is presented in the sentencing phase, request, orally on the record or in writing, sentencing by members".

Subsec. (d)(2). Pub. L. 118–31, §531(b)(2)(A)(ii), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "In a capital case, the accused shall be sentenced by the members for all offenses for which the court-martial may sentence the accused to death in accordance with section 853(c) of this title (article 53(c))."

Subsec. (e)(1). Pub. L. 118–31, §531(b)(2)(B)(i), substituted "the member being tried" for "him".

Subsec. (e)(2). Pub. L. 118–31, §531(b)(2)(B)(ii), substituted "the opinion of the convening authority" for "his opinion" and "the member" for "he".

Subsec. (f). Pub. L. 118–31, §531(b)(2)(C), substituted "the authority of the convening authority" for "his authority" and "the staff judge advocate or legal officer of the convening authority" for "his staff judge advocate or legal officer".

2022—Subsec. (e)(4). Pub. L. 117–263 added par. (4).

2016—Subsec. (c). Pub. L. 114–328, §5182(a), amended subsec. (c) generally. Prior to amendment, subsec. (c) related to service on general and special courts-martial by enlisted members.

Subsec. (d). Pub. L. 114–328, §5182(b)(2), added subsec. (d). Former subsec. (d) redesignated (e).

Subsec. (e). Pub. L. 114–328, §5182(b)(1), redesignated subsec. (d) as (e). Former subsec. (e) redesignated (f).

Subsec. (e)(2). Pub. L. 114–328, §5203(e)(2), which directed amendment of this section by substituting "preliminary hearing officer" for "investigating officer" in subsec. (d)(2), was executed by making the substitution in subsec. (e)(2) to reflect the probable intent of Congress and the redesignation of subsec. (d) as (e) by Pub. L. 114–328, §5182(b)(1).

Subsec. (e)(3). Pub. L. 114–328, §5182(c), added par. (3).

Subsec. (f). Pub. L. 114–328, §5182(b)(1), redesignated subsec. (e) as (f).

1986—Subsec. (c)(1). Pub. L. 99–661 substituted "has requested orally on the record or in writing" for "has requested in writing".

1983—Subsec. (c)(2). Pub. L. 98–209, §13(c), struck out "the word" before " 'unit' ".

Subsec. (e). Pub. L. 98–209, §3(b), added subsec. (e).

1968—Subsec. (c)(1). Pub. L. 90–632 inserted requirement that an accused's request for inclusion of enlisted members on his court-martial be made before conclusion of a pre-trial session called by the military judge under section 839(a) or before the court is assembled for his trial and substituted "assembled" for "convened" to describe the calling together of the court for the trial in provision allowing such calling together without requested enlisted members if such members cannot be obtained.

Statutory Notes and Related Subsidiaries

Effective Date of 2023 Amendment

Amendment by Pub. L. 118–31 effective immediately after amendment by part 1 of subtitle D of title V of Pub. L. 117–81, see section 531(e) of Pub. L. 118–31, set out as a note under section 816 of this title.

Effective Date of 2022 Amendment

Pub. L. 117–263, div. A, title V, §543(b), Dec. 23, 2022, 136 Stat. 2582, provided that: "The amendment made by subsection (a) [amending this section] shall take effect on the date that is two years after the date of the enactment of this Act [Dec. 23, 2022] and shall apply with respect to courts-martial convened on or after that effective date."

Effective Date of 2016 Amendment

Amendment by Pub. L. 114–328 effective on Jan. 1, 2019, as designated by the President, with implementing regulations and provisions relating to applicability to various situations, see section 5542 of Pub. L. 114–328 and Ex. Ord. No. 13825, set out as notes under section 801 of this title.

Effective Date of 1986 Amendment

Pub. L. 99–661, div. A, title VIII, §803(b), Nov. 14, 1986, 100 Stat. 3906, provided that: "The amendment made by subsection (a) [amending this section] shall apply only to a case in which arraignment is completed on or after the effective date of this title."

Title VIII of Pub. L. 99–661 effective the earlier of (1) the last day of the 120-day period beginning on Nov. 14, 1986; or (2) the date specified in an Executive order for such amendment to take effect, see section 808 of Pub. L. 99–661, set out as a note under section 802 of this title.

Effective Date of 1983 Amendment

Amendment by section 13(c) of Pub. L. 98–209 effective Dec. 6, 1983, and amendment by section 3(b) of Pub. L. 98–209 effective first day of eighth calendar month beginning after Dec. 6, 1983, see section 12(a)(1) of Pub. L. 98–209, set out as a note under section 801 of this title.

Effective Date of 1968 Amendment

Amendment by Pub. L. 90–632 effective first day of tenth month following October 1968, see section 4 of Pub. L. 90–632, set out as a note under section 801 of this title.

Regulations

Pub. L. 117–263, div. A, title V, §543(c), Dec. 23, 2022, 136 Stat. 2582, provided that: "Not later than the effective date specified in subsection (b) [see Effective Date of 2022 Amendment note above], the President shall prescribe regulations implementing the requirement under paragraph (4) of section 825(e) of title 10, United States Code (article 25(e) of the Uniform Code of Military Justice), as added by subsection (a) of this section."