### **CHAPTER 59—SEPARATION**

Sec.
1161.
Commissioned officers: limitations on dismissal.
[1162, 1163. Repealed.]
1164.
Warrant officers: separation for age.
1165.
Regular warrant officers: separation during three-year probationary period.
1166.
Regular warrant officers: elimination for unfitness or unsatisfactory performance.
1167.
Members under confinement by sentence of court-martial: separation after six months confinement.
1168.
Discharge or release from active duty: limitations.
1169.
Regular enlisted members: limitations on discharge.
1170.
Regular enlisted members: minority discharge.
1171.
Regular enlisted members: early discharge.
1172.
Enlisted members: during war or emergency; discharge.
1173.
Enlisted members: discharge for hardship.
1174.
Separation pay upon involuntary discharge or release from active duty.
1174a.
Special separation benefits programs.
1175.
Voluntary separation incentive.
1175a.
Voluntary separation pay and benefits.
1176.
Enlisted members: retention after completion of 18 or more, but less than 20, years of service.
1177.
Members diagnosed with or reasonably asserting post-traumatic stress disorder or traumatic brain injury: medical examination required before administrative separation.
1178.
System and procedures for tracking separations resulting from refusal to participate in anthrax vaccine immunization program.

#### **Editorial Notes**

#### Amendments

**2009**—Pub. L. 111–84, div. A, title V, §512(a)(2), Oct. 28, 2009, 123 Stat. 2281, added item 1177.

**2006**—Pub. L. 109–163, div. A, title VI, §643(a)(2), Jan. 6, 2006, 119 Stat. 3309, added item 1175a.

**2000**—Pub. L. 106–398, §1 [[div. A], title VII, §751(a)(2)], Oct. 30, 2000, 114 Stat. 1654, 1654A–193, added item 1178.

**1996**—Pub. L. 104–134, title II, §2707(a)(2), Apr. 26, 1996, 110 Stat. 1321–330, struck out item 1177 "Members infected with HIV–1 virus: mandatory discharge or retirement".

Pub. L. 104–106, div. A, title V, §§563(a)(1)(B), 567(a)(2), Feb. 10, 1996, 110 Stat. 325, 329, added item 1167 and substituted "Members infected with HIV–1 virus: mandatory discharge or retirement" for "Members who are permanently nonworldwide assignable: mandatory discharge or retirement; counseling" in item 1177.

**1994**—Pub. L. 103–337, div. A, title V, §560(a)(2), title XVI, §1671(b)(10), Oct. 5, 1994, 108 Stat. 2778, 3013, struck out items 1162 "Reserves: discharge" and 1163 "Reserve components: members; limitations on separation" and added item 1177.

**1992**—Pub. L. 102–484, div. A, title V, §541(b), Oct. 23, 1992, 106 Stat. 2413, added item 1176.

**1991**—Pub. L. 102–190, div. A, title VI, §§661(a)(2), 662(a)(2), Dec. 5, 1991, 105 Stat. 1395, 1398, added items 1174a and 1175.

**1980**—Pub. L. 96–513, title V, §501(15), Dec. 12, 1980, 94 Stat. 2908, struck out item 1167 "Regular warrant officers: severance pay" and added item 1174.

**1973**—Pub. L. 93–64, title I, §102, July 9, 1973, 87 Stat. 147, added item 1173.

**1968**—Pub. L. 90–235, §3(a)(1)(B), Jan. 2, 1968, 81 Stat. 757, added items 1169 to 1172.

**1962**—Pub. L. 87–651, title I, §106(c), Sept. 7, 1962, 76 Stat. 508, added item 1168.

#### **Statutory Notes and Related Subsidiaries**

#### Consideration of Reinstatement of a Member of the Armed Forces Involuntarily Separated on the Basis of Refusal To Receive a Vaccination Against COVID-19

Pub. L. 118–31, div. A, title V, §526, Dec. 22, 2023, 137 Stat. 254, provided that:

"(a) Reinstatement.—

"(1) Request; consideration.—At the request of a covered individual during the two years following the date of the involuntary separation of the covered individual, the Secretary concerned shall consider reinstating such covered individual—

"(A) as a member of the Armed Force concerned; and

"(B) in the grade held by such covered individual immediately before the involuntary separation of the covered individual.

"(2) Treatment of period between separation and reinstatement.—The Secretary concerned shall treat the period of time between the involuntary separation of a covered individual and the reinstatement of such covered individual under paragraph (1) as a period of inactivation from active service under the following provisions of section 710 of title 10, United States Code:

"(A) Subsection (b).

"(B) Subparagraphs (B) through (D) of paragraph (2) of subsection (f) [10 U.S.C. 710(f)(2) does not contain subpars. (C) or (D)].

"(C) Paragraph (4) of subsection (f).

"(D) Subsection (g).

"(b) Covered Individual Defined.—In this section, the term 'covered individual' means an individual—

"(1) involuntarily separated from an Armed Force solely on the basis of the refusal of such individual to receive a vaccination against COVID-19; and

"(2) who, during the period beginning on August 24, 2021, and ending on February 24, 2023, submitted a request for a religious, administrative, or medical exemption from a requirement to receive a vaccination against COVID-19."

#### Certain Members Discharged or Dismissed on the Sole Basis of Failure To Obey a Lawful Order To Receive a Vaccine for COVID-19: Communication Strategy Regarding Reinstatement Process

Pub. L. 118–31, div. A, title V, §528, Dec. 22, 2023, 137 Stat. 255, provided that:

"(a) Communication Strategy Required.—Not later than six months after the date of the enactment of this Act [Dec. 22, 2023], the Secretary of Defense, in coordination with the Secretaries of the military departments or, with respect the Coast Guard, the Secretary of the department in which the Secretary is operating when the Coast Guard is not operating as a service in the Navy, shall communicate, to a covered individual, the current, established, process by which a covered individual may be reinstated in the covered Armed Force concerned.

"(b) Definitions.—In this section:

"(1) The term 'covered individual' means an individual discharged or dismissed from a covered Armed Force on the sole basis of failure to obey a lawful order to receive a vaccine for COVID-19.

"(2) The term 'covered Armed Force' means the Army, Navy, Marine Corps, Air Force, Coast Guard, or Space Force."

#### Rescission of COVID–19 Vaccination Mandate

Pub. L. 117–263, div. A, title V, §525, Dec. 23, 2022, 136 Stat. 2571, provided that: "Not later than 30 days after the date of the enactment of this Act [Dec. 23, 2022], the Secretary of Defense shall rescind the mandate that members of the Armed Forces be vaccinated against COVID–19 pursuant to the memorandum dated August 24, 2021, regarding 'Mandatory Coronavirus Disease 2019 Vaccination of Department of Defense Service Members'."

#### Limitation on Certain Discharges Solely on the Basis of Failure To Obey Lawful Order To Receive COVID–19 Vaccine

Pub. L. 117–81, div. A, title VII, §736, Dec. 27, 2021, 135 Stat. 1800, as amended by Pub. L. 117–263, div. A, title V, §524, Dec. 23, 2022, 136 Stat. 2571, provided that:

"(a) Limitation.—Any administrative discharge of a covered member, on the sole basis that the covered member failed to obey a lawful order to receive a vaccine for COVID–19, shall be—

"(1) an honorable discharge;

"(2) a general discharge under honorable conditions; or

"(3) in the case of a covered member receiving an administrative discharge before completing the first 180 continuous days of active duty, uncharacterized.

"(b) Definitions.—In this section:

"(1) The terms 'Armed Forces' and 'military departments' have the meanings given such terms in section 101 of title 10, United States Code.

"(2) The term 'covered member' means a member of an Armed Force under the jurisdiction of the Secretary of a military department."

#### Limitations and Requirements in Connection With Separations for Members of the Armed Forces Who Suffer From Mental Health Conditions in Connection With a Sex-Related, Intimate Partner Violence-Related, or Spousal-Abuse Offense

Pub. L. 116–92, div. A, title V, §570A, Dec. 20, 2019, 133 Stat. 1398, provided that:

"(a) Confirmation of Diagnosis of Condition Required Before Separation.—Before a member of the Armed Forces who was the victim of a sex-related offense, an intimate partner violence-related offense, or a spousal-abuse offense during service in the Armed Forces (whether or not such offense was committed by another member of the Armed Forces), and who has a mental health condition not amounting to a physical disability, is separated, discharged, or released from the Armed Forces based solely on such condition, the diagnosis of such condition must be—

"(1) corroborated by a competent mental health care professional at the peer level or a higher level of the health care professional making the diagnosis; and

"(2) endorsed by the Surgeon General of the military department concerned.

"(b) Narrative Reason for Separation if Mental Health Condition Present.—If the narrative reason for separation, discharge, or release from the Armed Forces of a member of the Armed Forces is a mental health condition that is not a disability, the appropriate narrative reason for the separation, discharge, or release shall be a condition, not a disability, or Secretarial authority.

"(c) Definitions.—In this section:

"(1) The term 'intimate partner violence-related offense' means the following:

"(A) An offense under section 928 or 930 of title 10, United States Code (article 128 or 130 of the Uniform Code of Military Justice).

"(B) An offense under State law for conduct identical or substantially similar to an offense described in subparagraph (A).

"(2) The term 'sex-related offense' means the following:

"(A) An offense under section 920 or 920b of title 10, United States Code (article 120 or 120b of the Uniform Code of Military Justice).

"(B) An offense under State law for conduct identical or substantially similar to an offense described in subparagraph (A).

"(3) The term 'spousal-abuse offense' means the following:

"(A) An offense under section 928 of title 10, United States Code (article 128 of the Uniform Code of Military Justice).

"(B) An offense under State law for conduct identical or substantially similar to an offense described in subparagraph (A).

"(d) Effective Date.—This section shall take effect 180 days after the date of the enactment of this Act [Dec. 20, 2019], and shall apply with respect to separations, discharges, and releases from the Armed Forces that occur on or after that effective date."

#### Prohibition on Involuntary Separation of Certain Members of the Armed Forces

Pub. L. 116–92, div. A, title V, §570B(a), Dec. 20, 2019, 133 Stat. 1398, provided that:

"(1) In general.—No member of the Armed Forces may be involuntarily separated from the Armed Forces solely because that member is a covered member.

"(2) Covered member defined.—In this subsection, the term 'covered member' means a member of the Armed Forces who—

"(A) possesses a current and valid employment authorization document that was issued pursuant to the memorandum of the Secretary of Homeland Security dated June 15, 2012, and entitled 'Exercising Prosecutorial Discretion with Respect to Individuals who Came to the United States as Children'; or

"(B) is currently in a temporary protected status under section 244 of the Immigration and Nationality Act (8 U.S.C. 1254a)."