### §8373. Navy Reserve and Marine Corps Reserve; officers: elimination from active status; computation of total commissioned service

(a) Subject to section 12645 of this title, an officer in an active status in the Navy Reserve in the permanent grade of lieutenant or lieutenant (junior grade), and an officer in an active status in the Marine Corps Reserve in the permanent grade of captain or first lieutenant, who is considered as having twice failed of selection for promotion to the next higher grade while on the active-duty list may, in the discretion of the Secretary of the Navy, be eliminated from an active status or released from active duty and placed on the reserve active-status list.

(b) An officer who is to be eliminated from an active status under subsection (a) shall, if qualified, be given an opportunity to request transfer to the appropriate Retired Reserve and, if he requests it, shall be so transferred. If he is not so transferred, he shall, in the discretion of the Secretary, be transferred to the appropriate inactive status list or be discharged from the Navy Reserve or the Marine Corps Reserve.

(c)(1) An officer in an active status in the Navy Reserve in the permanent grade of lieutenant commander or commander, and an officer in an active status in the Marine Corps Reserve in the permanent grade of major or lieutenant colonel, who is considered as having twice failed of selection for promotion to the next higher grade while on the active-duty list shall, if qualified, be given an opportunity to request transfer to the appropriate Retired Reserve. If he is not so transferred, he shall be discharged from the Navy Reserve or the Marine Corps Reserve if he has completed a period of total commissioned service equal to that specified below for the permanent grade in which he is serving:

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

(2) Notwithstanding the first sentence of paragraph (1), the Secretary may defer the retirement or discharge of such number of officers serving in the grade of lieutenant commander as are necessary to maintain the authorized officer strength of the Ready Reserve, but the duration of such deferment for any individual officer may not be in excess of five years.

(3) Notwithstanding paragraph (1), the Secretary may defer the retirement or discharge under this subsection of an officer serving in the permanent grade of lieutenant commander or commander in the Navy Reserve or in the permanent grade of major or lieutenant colonel in the Marine Corps Reserve for a period of time which does not exceed the amount of service in an active status which was credited to the officer at the time of his original appointment or thereafter under any provision of law, if the officer can complete at least 20 years of service as computed under section 12732 of this title during the period of such deferment.

(4) Notwithstanding paragraph (1), the Secretary may defer the retirement or discharge under this subsection of such number of officers serving in the permanent grade of commander in the Medical Corps, Chaplain Corps, or Dental Corps in the Navy Reserve as are necessary to provide for mobilization requirements.

(d) For the purposes of subsection (c), the total commissioned service of an officer who has served continuously in the Navy Reserve or the Marine Corps Reserve following appointment therein in the permanent grade of ensign or second lieutenant, as the case may be, shall be computed from June 30 of the fiscal year in which he accepted the appointment. Each other officer is considered to have for this purpose as much total commissioned service as the years of active commissioned service of any regular officer on the active-duty list of the Navy not restricted in the performance of duty, or any regular officer on the active-duty list of the Marine Corps not restricted in the performance of duty, as appropriate, who has served continuously since original appointment as an ensign on the active-duty list of the Navy or as a second lieutenant on the active-duty list of the Marine Corps, has not lost numbers or precedence, and is, or has been after September 6, 1947, junior to that other officer. However, the total commissioned service that the other officer is considered to have may not be less than the actual number of years he has served as a commissioned officer in a grade above chief warrant officer, W–⁠5.

(Added Pub. L. 85–861, §1(144)(A), Sept. 2, 1958, 72 Stat. 1509, §6389; amended Pub. L. 86–559, §1(46), June 30, 1960, 74 Stat. 274; Pub. L. 96–513, title III, §337(a), Dec. 12, 1980, 94 Stat. 2900; Pub. L. 97–86, title IV, §405(b)(1), Dec. 1, 1981, 95 Stat. 1105; Pub. L. 98–525, title V, §528(c), Oct. 19, 1984, 98 Stat. 2526; Pub. L. 99–145, title V, §514(b)(1), Nov. 8, 1985, 99 Stat. 628; Pub. L. 102–190, div. A, title XI, §1131(8)(A), Dec. 5, 1991, 105 Stat. 1506; Pub. L. 103–337, div. A, title XVI, §§1628, 1673(c)(1), Oct. 5, 1994, 108 Stat. 2962, 3016; Pub. L. 104–106, div. A, title XV, §1501(c)(25), Feb. 10, 1996, 110 Stat. 499; Pub. L. 109–163, div. A, title V, §515(b)(1)(M), (3)(C), Jan. 6, 2006, 119 Stat. 3233, 3234; renumbered §8373, Pub. L. 115–232, div. A, title VIII, §807(b)(16), Aug. 13, 2018, 132 Stat. 1836.)

| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
| --- | --- | --- |
| 6389(a) | 50:1311(c) (1st sentence). | Sept. 3, 1954, ch. 1257, §411(c) (1st sentence), 68 Stat. 1170. |
| 6389(b) | 50:1311(a) (as applicable to 1311(c)). | Sept. 3, 1954, ch. 1257, §411(a) (as applicable to 411(c)), 68 Stat. 1169. |
| 6389(c) | 50:1311(c) (2d sentence). | Sept. 3, 1954, ch. 1257, §411(c) (2d sentence), 68 Stat. 1170. |
| 6389(d) | 50:1311(c) (less 1st and 2d sentences). | Sept. 3, 1954, ch. 1257, §411(c) (less 1st and 2d sentences), 68 Stat. 1170. |
| 6389(e) | [No source]. | [No source]. |

In subsection (a), the words "who is considered as having twice failed of selection for promotion" are substituted for the words "after failing of selection for promotion * * * a second time" to conform to similar statements in this title. (See the revision note on section 5776.) The words "may be retained in" are omitted as surplusage, since the authority to eliminate such officers from an active status is discretionary with the Secretary.

Subsection (e) is added to avoid conflict with 50:1311(d) and (e), codified in sections 6397 and 6403 of this title. 50:1311(d) and (e) contain special provisions for "women officers" and officers in the Nurse Corps, respectively, so that officers in these categories must be excepted from this section. Women officers appointed under the act of June 24, 1952, ch. 457 (66 Stat. 155; 34 U.S.C. 21e) (codified in section 5581 of this title), are not "women officers" within the meaning of 50:1311(d), however, but are required to be promoted, retired, or eliminated from active status as if they were men. (See the revision note on section 5665 of this title.) The application of this section to these officers is therefore made explicit.

Both men and women are eligible for appointment as reserve officers in the Nurse Corps and are subject to the special provisions relating to that corps.

#### **Editorial Notes**

#### Prior Provisions

A prior section 8373, added Pub. L. 89–172, §1, Sept. 8, 1965, 79 Stat. 662, related to promotion of officers to grades of brigadier general and major general of Air Force Reserve, prior to repeal by Pub. L. 103–337, div. A, title XVI, §1629(c)(1), Oct. 5, 1994, 108 Stat. 2963, effective Oct. 1, 1996. See section 14315 of this title.

Another prior section 8373, added Pub. L. 85–861, §1(178)(C), Sept. 2, 1958, 72 Stat. 1528; amended Pub. L. 86–559, §1(58), June 30, 1960, 74 Stat. 277, containing similar subject matter, expired by its own terms on June 30, 1964.

#### Amendments

2018—Pub. L. 115–232 renumbered section 6389 of this title as this section.

2006—Pub. L. 109–163, §515(b)(3)(C), substituted "Navy Reserve" for "Naval Reserve" in section catchline.

Pub. L. 109–163, §515(b)(1)(M), substituted "Navy Reserve" for "Naval Reserve" wherever appearing in text.

1996—Subsec. (c). Pub. L. 104–106 substituted "section 12732" for "section 1332".

1994—Subsec. (a). Pub. L. 103–337, §1673(c), substituted "12645" for "1005".

Pub. L. 103–337, §1628(1), inserted "while on the active-duty list" after "to the next higher grade" and "or released from active duty and placed on the reserve active-status list" after "from an active status".

Subsec. (b). Pub. L. 103–337, §1628(2), struck out "or (f)" after "subsection (a)".

Subsec. (c). Pub. L. 103–337, §1628(3)(H), designated last sentence as par. (4) and in that sentence substituted "paragraph (1)" for "the first two sentences of this subsection" and struck out "captain or" after "permanent grade of".

Pub. L. 103–337, §1628(3)(G), designated 4th sentence as par. (3) and in that sentence substituted "paragraph (1)" for "the first two sentences of this subsection".

Pub. L. 103–337, §1628(3)(F), designated sentence after table as par. (2) and in that sentence substituted "the first sentence of paragraph (1)" for "the first sentence of this subsection".

Pub. L. 103–337, §1628(3)(E), in table struck out line relating to grades of captain in Navy and colonel in Marine Corps and substituted "28 years" for "26 years".

Pub. L. 103–337, §1628(3)(D), inserted "while on the active-duty list" after "to the next higher grade" in first sentence.

Pub. L. 103–337, §1628(3)(C), substituted "major or lieutenant colonel" for "major or above" in two places.

Pub. L. 103–337, §1628(3)(B), substituted "lieutenant commander or commander" for "lieutenant commander or above" in two places.

Pub. L. 103–337, §1628(3)(A), inserted "(1)" after "(c)".

Subsec. (e). Pub. L. 103–337, §1628(4), struck out subsec. (e) which read as follows: "This section does not apply to women reserve officers or to reserve officers in the Nurse Corps."

Subsec. (f). Pub. L. 103–337, §1628(4), struck out subsec. (f) which provided for transfer or discharge of rear admirals (lower half) in Naval Reserve and brigadier generals in Marine Corps Reserve on completion of 30 years service or five years in grade and for rear admirals in Naval Reserve and major generals in Marine Corps Reserve on completion of 35 years service or five years in grade and provided that rear admirals (lower half) and rear admirals in Naval Reserve and brigadier generals and major generals in Marine Corps Reserve could be considered for early retirement by continuation board. See sections 14508 and 14705 of this title.

Subsec. (g). Pub. L. 103–337, §1628(4), struck out subsec. (g) which read as follows: "An officer in an active status in the Naval Reserve in the permanent grade of ensign who is found not qualified for promotion to the grade of lieutenant (junior grade), and an officer in an active status in the Marine Corps Reserve in the permanent grade of second lieutenant who is found not qualified for promotion to the grade of first lieutenant, may (unless he is sooner promoted) be eliminated from an active status."

1991—Subsec. (d). Pub. L. 102–190 substituted "W–⁠5" for "W–4".

1985—Subsec. (f)(1), (3). Pub. L. 99–145 substituted "rear admiral (lower half)" for "commodore".

1984—Subsec. (g). Pub. L. 98–525 added subsec. (g).

1981—Subsec. (f)(1), (3). Pub. L. 97–86 substituted "commodore" for "commodore admiral".

1980—Subsec. (b). Pub. L. 96–513, §337(a)(1), substituted "subsection (a) or (f)" for "subsection (a)".

Subsec. (d). Pub. L. 96–513, §337(a)(2), substituted "as the years of active commissioned service of any regular officer on the active-duty" for "as any officer in the line on the active" and "or any regular officer on the active-duty list of the Marine Corps" for "or any officer on the active list of the Marine Corps".

Subsec. (e). Pub. L. 96–513, §337(a)(3), substituted "does not apply to" for "applies to women officers appointed under section 5581 of this title, but not to other".

Subsec. (f). Pub. L. 96–513, §337(a)(4), added subsec. (f).

1960—Subsec. (c). Pub. L. 86–559 empowered the Secretary to defer the retirement or discharge of officers serving in the grade of lieutenant commander in the Ready Reserve, in the permanent grade of lieutenant commander or above in the Naval Reserve, in the permanent grade of major or above in the Marine Corps Reserve, and in the permanent grade of captain or commander in the Medical Corps, Chaplain Corps, or Dental Corps in the Naval Reserve.

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

#### 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 1996 Amendment

Pub. L. 104–106, div. A, title XV, §1501(c), Feb. 10, 1996, 110 Stat. 498, provided that the amendment made by that section is effective as of Dec. 1, 1994, and as if included as an amendment made by the Reserve Officer Personnel Management Act, title XVI of Pub. L. 103–337, as originally enacted.

#### Effective Date of 1994 Amendment

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

#### Effective Date of 1991 Amendment

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

#### Effective Date of 1981 Amendment

Amendment by Pub. L. 97–86 effective Sept. 15, 1981, see section 405(f) of Pub. L. 97–86, set out as a note under section 101 of this title.

#### Effective Date of 1980 Amendment

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