10 U.S.C. § 12646

Current through P.L. 118-64 (published on www.congress.gov on 05/24/2024), except for [P. L. 118-63]

Section 12646 - Commissioned officers: retention of after completing 18 or more, but less than 20, years of service

(a) If on the date prescribed for the discharge or transfer from an active status of a reserve commissioned officer he is entitled to be credited with at least 18, but less than 19, years of service computed under section 12732 of this title, he may not be discharged or transferred from an active status under chapter 843, 1407, or 1409 of this title or chapter 21 ¹ of title 14, without his consent before the earlier of the following dates-

(1) the date on which he is entitled to be credited with 20 years of service computed under section 12732 of this title; or

(2) the third anniversary of the date on which he would otherwise be discharged or transferred from an active status.

(b) If on the date prescribed for the discharge or transfer from an active status of a reserve commissioned officer he is entitled to be credited with at least 19, but less than 20, years of service computed under section 12732 of this title, he may not be discharged or transferred from an active status under chapter 843, 1407, or 1409 of this title or chapter 21 ¹ of title 14, without his consent before the earlier of the following dates-

(1) the date on which he is entitled to be credited with 20 years of service computed under section 12732 of this title; or

(2) the second anniversary of the date on which he would otherwise be discharged or transferred from an active status.

(c) An officer who is retained in an active status under subsection (a) or (b) is an additional number to those otherwise authorized.

(d) Subsections (a) and (b) do not apply to-

(1) officers who are discharged or transferred from an active status for physical disability, for cause, or because they have reached the age at which transfer from an active status or discharge is required by law; or

(2) commissioned warrant officers.

(e)

(1) A reserve commissioned officer on active duty (other than for training) or full-time National Guard duty (other than full-time National Guard duty for training only) who, on the date on which the officer would otherwise be removed from an active status under section 8373, 14513, or 14514 of this title or section 740 ¹ of title 14, is within two years of qualifying for retirement under section 7311, 8323, or 9311 of this title may, in the discretion of the Secretary concerned and subject to paragraph (2), be retained on that duty for a period of not more than two years.

(2) An officer may be retained on active duty or full-time National Guard duty under paragraph (1) only if-

(A) at the end of the period for which the officer is retained the officer will be qualified for retirement under section 7311, 8323, or 9311 of this title; and

(B) the officer will not, before the end of that period, reach the age at which transfer from an active status or discharge is required by this title or title 14.

(3) An officer who is retained on active duty or full-time National Guard duty under this section may not be removed from an active status while on that duty.

¹ See References in Text note below.

10 U.S.C. § 12646

Added Pub. L. 85-861, §1(22)(B), Sept. 2, 1958, 72 Stat. 1444, §1006; amended Pub. L. 86-559, §1(3)(A), June 30, 1960, 74 Stat. 264; Pub. L. 87-651, title I, §105, Sept. 7, 1962, 76 Stat. 508; Pub. L. 90-130, §1(4), Nov. 8, 1967, 81 Stat. 374; Pub. L. 93-586, §3, Jan. 2, 1975, 88 Stat. 1920; Pub. L. 96-322, §2, Aug. 4, 1980, 94 Stat. 1015; Pub. L. 96-513, title V, §511(30), Dec. 12, 1980, 94 Stat. 2922; renumbered §12646 and amended Pub. L. 103-337, div. A, title XVI, §§1662(h)(2), Oct. 5, 1994, 1675, Oct. 5, 1994, 108 Stat. 2996, 3018; Pub. L. 115-232, div. A, title VIII, §809(a), Aug. 13, 2018, 132 Stat. 1840.

HISTORICAL AND REVISION NOTES 1958 ACT
Revised section	Source (U.S. Code)	Source (Statutes at Large)
1006(a) 1006(b) 1006(c) 1006(d)	50:1195(a) (less last 30 words).50:1195(b) (less last 30 words).50:1227(c).50:1333(c).50:1181(1) (as applicable to 50:1195).	Sept. 3, 1954, ch. 1257, §§102(1) (as applicable to §205), 205, 307(c), 503(c), 68 Stat. 1149, 1151, 1155, 1173; June 30, 1955, ch. 247, §1(b), 69 Stat. 218.
	50:1195(a) (last 30 words).
	50:1195(b) (last 30 words).
1006(e)	50:1195(c).

In subsections (a) and (b), the words "Notwithstanding any other provisions of this chapter, except as provided in sections 1265 and 1279 of this title" and "has been credited with, or" are omitted as surplusage. The words "entitled to be" in clause (1) are inserted for clarity.In subsection (e), the words "at the end of that period" are substituted for the word "then" for clarity. The words "before the end of that period" are substituted for the word "earlier" for clarity.

1962 ACTThe change reflects the repeal of section 611 of the Reserve Officer Personnel Act of 1954 ch. 1257(68 Stat. 1186), formerly section 1391 of title 50, and its restatement in section 787 of title 14 (see sections 5(2) and 36A of the Act of September 2, 1958, Pub. L. 85-861 (72 Stat. 1547 and 1569)).

EDITORIAL NOTES

REFERENCES IN TEXTChapter 21 of title 14, referred to in subsecs. (a) and (b), was comprised of sections 701 to 713 and 720 to 746 prior to the renumbering of such sections as sections 3701 to 3714 and 3731 to 3757, respectively, of title 14 by Pub. L. 115-282, title I, §118(b), Dec. 4, 2018, 132 Stat. 4233. After renumbering, such sections now comprise chapter 37 (designated as chapter "1" in chapter analysis) of title 14.Section 740 of title 14, referred to in subsec. (e)(1), was redesignated section 3751 of title 14 by Pub. L. 115-282, title I, §118(b), Dec. 4, 2018, 132 Stat. 4233, and references to section 740 of title 14 deemed to refer to such redesignated section, see section 123(b)(1) of Pub. L. 115-282 set out as a References to Sections of Title 14 as Redesignated by Pub. L. 115-282 note preceding section 101 of Title 14, Coast Guard.

AMENDMENTS2018-Subsecs. (a), (b). Pub. L. 115-232 substituted "under chapter 843," for "under chapter 573," in introductory provisions.Subsec. (e)(1). Pub. L. 115-232 substituted "under section 8373," for "under section 6389," and "section 7311, 8323, or 9311" for "section 3911, 6323, or 8911".Subsec. (e)(2)(A). Pub. L. 115-232 substituted "section 7311, 8323, or 9311" for "section 3911, 6323, or 8911".1994- Pub. L. 103-337, §1662(h)(2), renumbered section 1006 of this title as this section. Subsecs. (a), (b). Pub. L. 103-337, §1675(d)(3)(B), substituted "573, 1407, or 1409" for "337, 361, 363, 573, 837, 861, or 863". Pub. L. 103-337, §1675(d)(3)(A), substituted "12732" for "1332" wherever appearing.Subsec. (e). Pub. L. 103-337, §1675(d)(3)(C), added subsec. (e) and struck out former subsec. (e) which read as follows: "A reserve commissioned officer on active duty (other than for training) who, on the date on which he would otherwise be removed from an active status under section 3846, 3848, 3851, 3852, 6389, 6397, 6403, 6410, 8846, 8848, 8851, or 8852 of this title or section 740 of title 14, and who is within two years of qualifying for retirement under section 3911, 6323, or 8911 of this title, may, in the discretion of the Secretary concerned, be retained on active duty for a period of not more than two years, if at the end of that period he will be qualified for retirement under one of those sections and will not, before the end of that period, reach the age at which transfer from an active status or discharge is required by this title or title 14. An officer who is retained on active duty under this section may not be removed from an active status while he is on that duty. For officers covered by section 3846, 3848, 3851, or 3852 of this title, the ages at which transfer from an active status or discharge is required are those set forth in section 3843, 3844, or 3845 of this title, or section 21(e) of Public Law 85-861 as the case may be." 1980-Subsec. (e). Pub. L. 96-513 substituted " Public Law 85-861" for "the Act enacting this section". Pub. L. 96-322 substituted "section 740 of title 14" for "section 787 of title 14". 1975-Subsecs. (a), (b). Pub. L. 93-586, §3(1), inserted reference to chapter 21 of title 14. Subsec. (c). Pub. L. 93-586, §3(2), substituted "An officer who is retained" for "An officer of the Army or the Air Force who is retained". Subsec. (e). Pub. L. 93-586, §3(3), substituted "discharge is required by this title or title 14" for "discharge is required by this title".1967-Subsec. (e). Pub. L. 90-130 struck out references to sections 3847 and 8847 of this title. 1962-Subsec. (e). Pub. L. 87-651 substituted "section 787 of title 14" for "section 1391 of title 50". 1960-Subsec. (e). Pub. L. 86-559 struck out references to sections 3849 and 8849 of this title.

STATUTORY NOTES AND RELATED SUBSIDIARIES

REFERENCES TO SECTIONS OF TITLE 14 AS REDESIGNATED BY PUB. L. 115-282Section 740 of title 14 redesignated section 3751 of title 14 by Pub. L. 115-282, title I, §118(b), Dec. 4, 2018, 132 Stat. 4233, and references to section 740 of title 14 deemed to refer to such redesignated section, see section 123(b)(1) of Pub. L. 115-282 set out as a note preceding section 101 of Title 14, Coast Guard.

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 1994 AMENDMENT Amendment by sections 1662(h)(2) and 1675(d)(3)(A) of Pub. L. 103-337 effective Dec. 1, 1994, except as otherwise provided, and amendment by section 1675(d)(3)(B), (C) 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 1980 AMENDMENT 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.

Secretary concerned

The term "Secretary concerned" means-(A) the Secretary of the Army, with respect to matters concerning the Army;(B) the Secretary of the Navy, with respect to matters concerning the Navy, the Marine Corps, and the Coast Guard when it is operating as a service in the Department of the Navy;(C) the Secretary of the Air Force, with respect to matters concerning the Air Force and the Space Force; and(D) the Secretary of Homeland Security, with respect to matters concerning the Coast Guard when it is not operating as a service in the Department of the Navy.

active duty

The term "active duty" means full-time duty in the active military service of the United States, including sustained duty in the Space Force. Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned. Such term does not include full-time National Guard duty.

active status

The term "active status" means the status of a member of a reserve component who is not in the inactive Army National Guard or inactive Air National Guard, on an inactive status list, or in the Retired Reserve.

commissioned officer

The term "commissioned officer" includes a commissioned warrant officer.

full-time National Guard duty

The term "full-time National Guard duty" means training or other duty, other than inactive duty, performed by a member of the Army National Guard of the United States or the Air National Guard of the United States in the member's status as a member of the National Guard of a State or territory, the Commonwealth of Puerto Rico, or the District of Columbia under section 316, 502, 503, 504, or 505 of title 32 for which the member is entitled to pay from the United States or for which the member has waived pay from the United States.

officer

The term "officer" means a commissioned or warrant officer.