### §2164. Officers considered for removal; retirement or discharge; separation benefits

(a) At any time during proceedings under section 2159 or 2160 of this title, and before the removal of an officer, the Secretary may grant a request—

(1) for voluntary retirement, if the officer is otherwise qualified therefor; or

(2) for discharge with separation benefits under section 2146(c) of this title.

(b) Each officer removed from active duty under section 2163 of this title shall—

(1) if on the date of removal the officer is eligible for voluntary retirement under any law, be retired in the grade for which he would be eligible if retired at his request; or

(2) if on that date the officer is ineligible for voluntary retirement under any law, be honorably discharged with separation benefits under section 2146(c) of this title, unless under regulations promulgated by the Secretary the condition under which the officer is discharged does not warrant an honorable discharge.

(Added Pub. L. 88–130, §1(10)(C), Sept. 24, 1963, 77 Stat. 189, §327; amended Pub. L. 97–295, §2(10), Oct. 12, 1982, 96 Stat. 1302; Pub. L. 99–348, title II, §205(b)(6), July 1, 1986, 100 Stat. 700; Pub. L. 105–383, title II, §201(c), Nov. 13, 1998, 112 Stat. 3414; Pub. L. 107–295, title IV, §416(a)(5), Nov. 25, 2002, 116 Stat. 2122; renumbered §2164 and amended Pub. L. 115–282, title I, §§112(b), 123(b)(2), Dec. 4, 2018, 132 Stat. 4216, 4240.)

#### **Editorial Notes**

#### Amendments

2018—Pub. L. 115–282, §112(b), renumbered section 327 of this title as this section.

Subsec. (a). Pub. L. 115–282, §123(b)(2), substituted "section 2159 or 2160" for "section 322 or 323" in introductory provisions.

Subsec. (a)(2). Pub. L. 115–282, §123(b)(2), substituted "section 2146(c)" for "section 286(c)".

Subsec. (b). Pub. L. 115–282, §123(b)(2), substituted "section 2163" for "section 326" in introductory provisions.

Subsec. (b)(2). Pub. L. 115–282, §123(b)(2), substituted "section 2146(c)" for "section 286(c)".

2002—Pub. L. 107–295, §416(a)(5)(A), substituted "separation" for "severance" in section catchline.

Subsec. (a)(2). Pub. L. 107–295, §416(a)(5)(B), added par. (2) and struck out former par. (2) which read as follows: "for honorable discharge with severance benefits under subsection (b) in those cases arising under clause (1) of section 321 of this title; or".

Subsec. (a)(3). Pub. L. 107–295, §416(a)(5)(C), struck out par. (3) which read as follows: "for discharge with severance benefits under subsection (b) in those cases arising under clause (2) of section 321 of this title."

Subsec. (b)(2). Pub. L. 107–295, §416(a)(5)(D), added par. (2) and struck out former par. (2) which read as follows: "if on that date the officer is ineligible for voluntary retirement under any law, be honorably discharged in the grade then held with severance pay computed by multiplying his years of active commissioned service, but not more than twelve, by one month's basic pay of that grade, in those cases arising under clause (1) of section 321 of this title; or".

Subsec. (b)(3). Pub. L. 107–295, §416(a)(5)(E), struck out par. (3) which read as follows: "if on that date the officer is ineligible for voluntary retirement under any law, be discharged in the grade then held with severance pay computed by multiplying his years of active commissioned service, but not more than twelve, by one month's basic pay of that grade, in those cases arising under clause (2) of section 321 of this title, unless the Secretary determines that the conditions under which the officer is discharged or separated do not warrant payment of that amount of severance pay."

1998—Subsec. (b)(3). Pub. L. 105–383 inserted before period at end ", unless the Secretary determines that the conditions under which the officer is discharged or separated do not warrant payment of that amount of severance pay".

1986—Subsec. (b)(1). Pub. L. 99–348 struck out ", and with the pay" after "in the grade".

1982—Pub. L. 97–295 inserted "of this title" after "section 322 or 323" and "section 321" wherever appearing.

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

#### Effective Date of 2002 Amendment

Amendment by Pub. L. 107–295 effective 4 years after Nov. 25, 2002, see section 416(c) of Pub. L. 107–295, set out as a note under section 2146 of this title.