### §2501. Grade on retirement

(a) Commissioned Officers.—

(1) In general.—A commissioned officer who is retired under any provision of this title, shall be retired from active service with the highest grade held by the commissioned officer for not less than six months while on active duty in which, as determined by the Secretary, the commissioned officer's performance of duty was satisfactory.

(2) Conditional determination.—When a commissioned officer is under investigation for alleged misconduct at the time of retirement—

(A) the Secretary may conditionally determine the highest grade of satisfactory service of the commissioned officer pending completion of the investigation; and

(B) the grade under subparagraph (A) is subject to resolution under subsection (c)(2).

(b) Warrant Officers.—Any warrant officer who is retired under any provision of section 580, 1263, 1293, or 1305 of title 10, shall be retired from active service with the highest commissioned grade above chief warrant officer, W–4, held by the warrant officer for not less than six months on active duty in which, as determined by the Secretary, the warrant officer's performance of duty was satisfactory.

(c) Retirement in Lower Grade.—

(1) Misconduct in lower grade.—In the case of a commissioned officer whom the Secretary determines committed misconduct in a lower grade, the Secretary may determine the commissioned officer has not served satisfactorily in any grade equal to or higher than that lower grade.

(2) Adverse findings.—A determination of the retired grade of a commissioned officer shall be resolved following a conditional determination under subsection (a)(2) if the investigation of or personnel action against the commissioned officer results in adverse findings.

(3) Recalculation of retired pay.—If the retired grade of a commissioned officer is reduced pursuant to this subsection, the retired pay of the commissioned officer shall be recalculated under chapter 71 of title 10, and any modification of the retired pay of the commissioned officer shall go into effect on the effective date of the reduction in retired grade.

(d) Finality of Retired Grade Determinations.—

(1) In general.—Except as provided in paragraph (2), a determination of the retired grade of a commissioned officer under this section is administratively final on the day the commissioned officer is retired, and may not be reopened.

(2) Reopening determinations.—A determination of the retired grade of a commissioned officer may be reopened if—

(A) the retirement or retired grade of the commissioned officer was procured by fraud;

(B) substantial evidence comes to light after the retirement that could have led to a lower retired grade under this section and such evidence was not known by competent authority at the time of retirement;

(C) a mistake of law or calculation was made in the determination of the retired grade;

(D) in the case of a retired grade following a conditional determination under subsection (a)(2), the investigation of or personnel action against the commissioned officer results in adverse findings; or

(E) the Secretary determines, under regulations prescribed by the Secretary, that good cause exists to reopen the determination.

(3) Requirements.—If a determination of the retired grade of a commissioned officer is reopened under paragraph (2), the Secretary—

(A) shall notify the commissioned officer of the reopening; and

(B) may not make an adverse determination on the retired grade of the commissioned officer until the commissioned officer has had a reasonable opportunity to respond regarding the basis of the reopening.

(4) Recalculation of retired pay.—If the retired grade of a commissioned officer is reduced through the reopening of the commissioned officer's retired grade under paragraph (2), the retired pay of the commissioned officer shall be recalculated under chapter 71 of title 10, and any modification of the retired pay of the commissioned officer shall go into effect on the effective date of the reduction in retired grade.

(e) Inapplicability to Commissioned Warrant Officers.—This section, including subsection (b), shall not apply to commissioned warrant officers.

(Added Pub. L. 88–130, §1(10)(C), Sept. 24, 1963, 77 Stat. 190, §334; amended Pub. L. 89–444, §1(19), June 9, 1966, 80 Stat. 196; Pub. L. 99–348, title II, §205(b)(7), July 1, 1986, 100 Stat. 700; Pub. L. 102–190, div. A, title XI, §1125(b)(2), Dec. 5, 1991, 105 Stat. 1505; Pub. L. 103–337, div. A, title V, §541(f)(3), Oct. 5, 1994, 108 Stat. 2766; renumbered §2501, Pub. L. 115–282, title I, §114(b), Dec. 4, 2018, 132 Stat. 4223; Pub. L. 116–283, div. G, title LVXXXII [LXXXII], §8201(c), Jan. 1, 2021, 134 Stat. 4641.)

#### **Editorial Notes**

#### Amendments

2021—Subsec. (a). Pub. L. 116–283, §8201(c)(1), designated existing provisions as par. (1), inserted subsec. heading and par. (1) heading, substituted "A commissioned officer" for "Any commissioned officer, other than a commissioned warrant officer,", "the commissioned officer" for "him", and "the commissioned officer's" for "his", and added par. (2).

Subsec. (b). Pub. L. 116–283, §8201(c)(2), inserted heading and substituted "the warrant officer" for "him" and "the warrant officer's" for "his".

Subsecs. (c) to (e). Pub. L. 116–283, §8201(c)(3), added subsecs. (c) to (e).

2018—Pub. L. 115–282 renumbered section 334 of this title as this section.

1994—Subsec. (b). Pub. L. 103–337 substituted "section 580," for "section 564 of title 10 (as in effect on the day before the effective date of the Warrant Officer Management Act) or".

1991—Subsec. (b). Pub. L. 102–190 substituted "section 564 of title 10 (as in effect on the day before the effective date of the Warrant Officer Management Act) or 1263, 1293, or 1305 of title 10" for "section 564, 1263, 1293, or 1305 of title 10".

1986—Subsec. (a). Pub. L. 99–348, §205(b)(7)(A), struck out ", with retired pay of the grade with which retired" after "satisfactory".

Subsec. (b). Pub. L. 99–348, §205(b)(7), struck out ", with retired pay of the grade with which retired" after "satisfactory" and struck out provision that when the rate of pay of such highest grade is less than the pay of the warrant grade with which the officer would otherwise be retired under section 1371 of title 10, the retired pay was to be based on the higher rate of pay.

1966—Pub. L. 89–444 substituted "Grade on retirement" for "Retirement in cases where higher grade has been held" in section catchline.

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

#### Effective Date of 1994 Amendment

Amendment by Pub. L. 103–337 effective on the first day of the fourth month beginning after Oct. 5, 1994, see section 541(h) of Pub. L. 103–337, set out as a note under section 571 of Title 10, Armed Forces.

#### 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 Title 10, Armed Forces.