Public Law 86–616

by adding the following new sentence at the end of section 3297(d): “Notwithstanding any other provision of law, a board that is to recommend officers for promotion whom it considers to be the best qualified may recommend only those officers whom it also considers to be fully qualified.”;

by amending the last sentence of section 3300(c) to read as follows: “However, the number prescribed by the Secretary for recommendation must be at least 80 percent of those listed for consideration for the first time.”; and

by amending section 3303(d)(3) by striking out the words “the date he would have been retired under section 3913 of this title if he were eligible”; and inserting the words “such date as may be requested by him and approved under regulations to be prescribed by the Secretary of the Army, but not later than the first day of the seventh calendar month after the Secretary approves the report of that board” in place thereof.

Chapter 359 of title 10, United States Code, is amended to read as follows:

“CHAPTER 359. SEPARATION FROM REGULAR ARMY FOR SUBSTANDARD PERFORMANCE OF DUTY

Ҥ3781. Selection boards: composition; duties

“The Secretary of the Army may at any time convene a board of officers to review the record of any commissioned officer on the active list of the Regular Army to determine whether he shall be required, because his performance of duty has fallen below standards prescribed by the Secretary, to show cause for his retention on the active list.

#

Ҥ3782. Boards of inquiry: composition; duties

“(a)“(a)

Boards of inquiry, each composed of three or more officers, shall be convened, at such places as the Secretary of the Army may prescribe, to receive evidence and make findings and recommendations whether an officer, required to show cause under section 3781 of this title, shall lie retained on the active list of the Regular Army.

#

“(b)“(b)

A fair and impartial hearing before a board of inquiry shall be given to each officer so required to show cause for retention.

#

“(c)“(c)

If a board of inquiry determines that the officer has failed to establish that he should be retained on the active list, it shall send the record of its proceedings to a board of review.

#

“(d)“(d)

If a board of inquiry determines that the officer has established that he should be retained on the active list, his case is closed. However, at any time after one year from the date of that determination, he may be again required to show cause for retention under section 3781 of this title.

#

#

Ҥ3783. Boards of review: composition; duties

“(a)“(a)

Boards of review, each composed of three or more officers, shall be convened by the Secretary of the Army, at such times as he may prescribe, to review the records of cases of officers recommended by boards of inquiry for removal from the active list of the Regular Army under section 3782 of this title.

#

“(b)“(b)

If, after reviewing the record of the case, a board of review determines that the officer has failed to establish that he should be retained on the active list, it shall send its recommendation to the Secretary for his action.

#

“(c)“(c)

If, after reviewing the record of the case, a board of review determines that the officer has established that he should be retained on the active list, his case is closed. However, at any time after one year from the date of that determination, he may be again required to show cause for retention under section 3781 of this title.

#

#

Ҥ3784. Removal of officer: action by Secretary of the Army upon recommendation

“The Secretary of the Army may remove an officer from the active list of the Regular Army if his removal is recommended by a board of review under this chapter. The Secretary’s action in such a case is final and conclusive.

#

Ҥ3785. Rights and procedures

“Each officer under consideration for removal from the active list of the Regular Army under this chapter shall be—

“(1)“(1)

notified in writing, at least 30 days before the hearing of his case by a board of inquiry, that he is being required to show cause for retention on the active list;

#

“(2)“(2)

allowed reasonable time, as determined by the board of inquiry under regulations of the Secretary of the Army, to prepare his defense;

#

“(3)“(3)

allowed to appear in person and by counsel at proceedings before a board of inquiry; and

#

“(4)“(4)

allowed full access to, and furnished copies of, records relevant to his case at all stages of the proceeding.

#

#

Ҥ3786. Officer considered for removal: voluntary retirement or honorable discharge; severance benefits

“(a)“(a)

At any time during proceedings under this chapter and before the removal of an officer from the active list of the Regular Army, the Secretary of the Army may grant his request—

“(1)“(1)

for voluntary retirement, if he is otherwise qualified therefor; or

#

“(2)“(2)

for honorable discharge with severance benefits under subsection (b).

#

#

“(b)“(b)

Each officer removed from the active list of the Regular Army under this chapter shall—

“(1)“(1)

if on the date of removal he is eligible for voluntary retirement under any law, be retired in the grade and with the pay for which he would be eligible if retired at his request; or

#

“(2)“(2)

if on that date he 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 12, by one month’s basic pay of that grade.

#

#

“(c)“(c)

For the purposes of subsection (b)(2), a part of a year that is six months or more is counted as a whole year, and a part of a year that is less than six months is disregarded.

#

#

Ҥ3787. Officers eligible to serve on boards

“(a)“(a)

No officer may serve on a board under this chapter unless he holds a regular or temporary grade above lieutenant colonel, and is senior in regular grade to, and outranks, any officer considered by that board.

#

“(b)“(b)

No person may be a member of more than one board convened under this chapter for the same officer.”

#

#

#

The analysis of subtitle B and the analysis of part II of subtitle B are each amended by striking out the following item:

and inserting the following item in place thereof:

The amendments made by this section do not apply to any proceedings begun under chapter 359 of title 10, United States Code, before the enactment of this section.

Subtitle B of title 10, United States Code, is amended by inserting the following new chapter after chapter 359:

“CHAPTER 360.— SEPARATION FROM REGULAR ARMY FOR MORAL OR PROFESSIONAL DERELICTION OR IN INTERESTS OF NATIONAL SECURITY

Ҥ3791. Selection boards: composition; duties

“The Secretary of the Army may at any time convene a board of general officers to review the record of any commissioned officer on the active list of the Regular Army to determine whether he shall be required, because of moral dereliction, professional dereliction, or because his retention is not clearly consistent with the interests of national security, to show cause for his retention on the active list.

#

Ҥ3792. Boards of inquiry: composition; duties

“(a)“(a)

Boards of inquiry, each composed of three or more general officers, shall be convened at such places as the Secretary of the Army may prescribe, to receive evidence and make findings and recommendations whether an officer, required to show cause under section 3791 of this title, shall be retained on the active list of the Regular Army.

#

“(b)“(b)

A fair and impartial hearing before a board of inquiry shall be given to each officer so required to show cause for retention.

#

“(c)“(c)

If a board of inquiry determines that the officer has failed to establish that he should be retained on the active list, it shall send the record of its proceedings to a board of review.

#

“(d)“(d)

If a board of inquiry determines that the officer has established that he should be retained on the active list, his case is closed. However, at any future time, he may be again required to show cause for retention under section 3791 of this title.

#

#

Ҥ3793. Boards of review: composition; duties

“(a)“(a)

Boards of review, each composed of three or more general officers, shall be convened by the Secretary of the Army, at such times as he may prescribe, to review the records of cases of officers recommended by boards of inquiry for removal from the active list of the Regular Army under section 3792 of this title.

#

“(b)“(b)

If, after reviewing the record of the case, a board of review determines that the officer has failed to establish that he should be retained on the active list, it shall send its recommendation to the Secretary for his action.

#

“(c)“(c)

If, after reviewing the record of the case, a board of review determines that the officer has established that he should be retained on the active list, his case is closed. However, at any future time, he may be again required to show cause for retention under section 3791 of this title.

#

#

Ҥ3794. Removal of officer: action by Secretary of the Army upon recommendation

“The Secretary of the Army may remove an officer from the active list of the Regular Army if his removal is recommended by a board of review under this chapter. The Secretary’s action in such a case is final and conclusive.

#

Ҥ3795. Rights and procedures

“Each officer under consideration for removal from the active list of the Regular Army under this chapter shall be—

“(1)“(1)

notified in writing of the charges against him, at least 30 days before the hearing of his case by a board of inquiry, for which he is being required to show cause for retention on the active list;

#

“(2)“(2)

allowed reasonable time, as determined by the board of inquiry under regulations of the Secretary of the Army, to prepare his defense;

#

“(3)“(3)

allowed to appear in person and by counsel at proceedings before a board of inquiry; and

#

“(4)“(4)

allowed full access to, and furnished copies of, records relevant to his case at all stages of the proceeding, except that a board shall withhold any records that the Secretary determines should be withheld in the interests of national security.

#

In any case where any records are withheld under clause (4), the officer whose case is under consideration shall, to the extent that the national security permits, be furnished a summary of the records so withheld.

#

Ҥ3796. Officers considered for removal: retirement or discharge

“(a)“(a)

At any time during proceedings under this chapter and before the removal of an officer from the active list of the Regular Army, the Secretary of the Army may grant his request—

“(1)“(1)

for voluntary retirement, if he is otherwise qualified therefor; or

#

“(2)“(2)

for discharge under subsection (b).

#

#

“(b)“(b)

Each officer removed from the active list of the Regular Army under this chapter shall—

“(1)“(1)

if on the date of remove he is eligible for voluntary retirement under any law, be retired in the grade and with the pay for which he would be eligible if retired at his request; or

#

“(2)“(2)

if on that date he 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 12, by one month’s basic pay of that grade.

#

#

“(c)“(c)

For the purposes of subsection (b)(2), a part of a year that is six months or more is counted as a whole year, and a part of a year that is less than six months is disregarded.

#

#

Ҥ3797. Officers eligible to serve on boards

“(a)“(a)

No officer may serve on a board under this chapter unless he is senior in regular grade to, and outranks, any officer considered by that board.

#

“(b)“(b)

No person may be a member of more than one board convened under this chapter for the same officer.”

#

#

#

The analysis of subtitle B and the analysis of part II of subtitle B are each amended by inserting the following new item:

by amending subsection (a) to read as follows:

“(a)“(a)

A deferred officer who is not recommended for promotion under section 3303(c) of this title, or an officer who is found disqualified for promotion under section 3302(f) of this title, shall, if he has at least 20 years of service computed under section 3927 (a) of this title, be retired, except as provided by section 47a of title 5, on such date as may be requested by him and approved under regulations to be prescribed by the Secretary of the Army, but not later than the first day of the seventh calendar month after the Secretary approves the report of the last board that did not recommend him for promotion to the grade concerned.”; and

#

by amending subsection (b) by striking out the words “so entitled to retire” and inserting the words “the date he completes 20 years of service computed under section 3927(a) of this title, or the first day of the seventh calendar month after the Secretary approves the report of the last board that did not recommend him for promotion to the grade concerned, whichever is later” in place thereof.

by adding the following new sentence at the end of each of subsections (a) and (b) of section 6382: “However, if he so requests, he may be honorably discharged at any time during that fiscal year.”;

by adding the following new sentence at the end of each of subsections (d) and (e) of section 6383: “However, if he so requests, he may be honorably discharged at any time during that fiscal year.”;

by inserting the words “or, in the discretion of the Secretary of the Navy, on any earlier date if the officer so requests” after the words “his name is so reported” in section 6384(b);

by adding the following new sentence at the end of section 6401 (a): “However, if she so requests, she may be honorably discharged at any time during that fiscal year.”; and

by adding the following new sentence at the end of section 6402(a): “However, if she so requests, she may be honorably discharged at any time during that fiscal year.”

by adding the following new sentence at the end of section

Air Force.

8297(d): “Notwithstanding any other provision of law, a board that is to recommend officers for promotion whom it considers to be the best qualified may recommend only those officers whom it also considers to be fully qualified.”;

by amending the last sentence of section 8300(c) to read as follows: “However, the number prescribed by the Secretary for recommendation must be at least 80 percent of those listed for consideration for the first time.”; and

by amending section 8303(d)(3) by striking out the words “the date he would have been retired under section 8913 of this title if he were eligible” and inserting the words “such date as may be requested by him and approved under regulations to be prescribed by the Secretary of the Air Force, but not later than the first day of the seventh calendar month after the Secretary approves the report of that board” in place thereof.

Chapter 859 of title 10, United States Code, is amended to read as follows:

“CHAPTER 859. SEPARATION FROM REGULAR AIR FORCE FOR SUBSTANDARD PERFORMANCE OF DUTY

Ҥ8781. Selection boards: composition; duties

“The Secretary of the Air Force may at any time convene a board of officers to review the record of any commissioned officer on the active list of the Regular Air Force to determine whether he shall be required, because his performance of duty has fallen below standards prescribed by the Secretary, to show cause for his retention on the active list.

#

Ҥ8782. Boards of inquiry: composition; duties

“(a)“(a)

Boards of inquiry, each composed of three or more officers, shall be convened, at such places as the Secretary of the Air Force may prescribe, to receive evidence and make findings and recommendations whether an officer, required to show cause under section 8781 of this title, shall be retained on the active list of the Regular Air Force.

#

“(b)“(b)

A fair and impartial hearing before a board of inquiry shall be given to each officer so required to show cause for retention.

#

“(c)“(c)

If a board of inquiry determines that the officer has failed to establish that he should be retained on the active list, it shall send the record of its proceedings to a board of review.

#

“(d)“(d)

If a board of inquiry determines that the officer has established that he should be retained on the active list, his case is closed. However, at any time after one year from the date of that determination, he may be again required to show cause for retention under section 8781 of this title.

#

#

Ҥ8783. Boards of review: composition; duties

“(a)“(a)

Boards of review, each composed of three or more officers, shall be convened by the Secretary of the Air Force, at such times as he may prescribe, to review the records of cases of officers recommended by boards of inquiry for removal from the active list of the Regular Air Force under section 8782 of this title.

#

“(b)“(b)

If, after reviewing the record of the case, a board of review determines that the officer has failed to establish that he should be retained on the active list, it shall send its recommendation to the Secretary for his action.

#

“(c)“(c)

If, after reviewing the record of the case, a board of review determines that the officer has established that he should be retained on the active list, his case is closed. However, at any time after one year from the date of that determination, he may be again required to show cause for retention under section 8781 of this title.

#

#

Ҥ8784. Removal of officer: action by Secretary of the Air Force upon recommendation

“The Secretary of the Air Force may remove an officer from the active list of the Regular Air Force if his removal is recommended by a board of review under this chapter. The Secretary’s action in such a case is final and conclusive.

#

Ҥ8785. Rights and procedures

“Each officer under consideration for removal from the active list of the Regular Air Force under this chapter shall be—

“(1)“(1)

notified in writing, at least 30 days before the hearing of his case by a board or inquiry, that he is being required to show cause for retention on the active list;

#

“(2)“(2)

allowed reasonable time, as determined by the board of inquiry under regulations of the Secretary of the Air Force, to prepare his defense;

#

“(3)“(3)

allowed to appear in person and by counsel at proceedings before a board of inquiry; and

#

“(4)“(4)

allowed full access to, and furnished copies of, records relevant to his case at all stages of the proceeding.

#

#

Ҥ8786. Officer considered for removal: voluntary retirement or honorable discharge; severance benefits

“(a)“(a)

At any time during proceedings under this chapter and before the removal of an officer from the active list of the Regular Air Force, the Secretary of the Air Force may grant his request—

“(1)“(1)

for voluntary retirement, if he is otherwise qualified therefor; or

#

“(2)“(2)

for honorable discharge with severance benefits under subsection (b).

#

#

“(b)“(b)

Each officer removed from the active list of the Regular Air Force under this chapter shall—

“(1)“(1)

if on the date of remove he is eligible for voluntary retirement under any law, be retired in the grade and with the pay for which he would be eligible if retired at his request; or

#

“(2)“(2)

if on that date he 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 12, by one month’s basic pay of that grade.

#

#

“(c)“(c)

For the purposes of subsection (b)(2), a part of a year that is six months or more is counted as a whole year, and a part of a year that is less than six months is disregarded.

#

#

Ҥ8787. Officers eligible to serve on boards

“(a)“(a)

No officer may serve on a board under this chapter unless he holds a regular or temporary grade above lieutenant colonel, and is senior in regular grade to, and outranks, any officer considered by that board.

#

“(b)“(b)

No person may be a member of more than one board convened under this chapter for the same officer.”

#

#

#

The analysis of subtitle D and the analysis of part II of subtitle D are each amended by striking out the following item:

and inserting the following item in place thereof:

The amendments made by this section do not apply to any proceedings begun under chapter 859 of title 10, United States Code, before the enactment of this section.

Subtitle D of title 10, United States Code, is amended by inserting the following new chapter after chapter 859:

‘CHAPTER 860. SEPARATION FROM REGULAR AIR FORCE FOR MORAL OR PROFESSIONAL DERELICTION OR IN INTERESTS OF NATIONAL SECURITY

Ҥ8791. Selection boards: composition; duties

“The Secretary of the Air Force may at any time convene a board of general officers to review the record of any commissioned officer on the active list of the Regular Air Force to determine whether he shall be required, because of moral dereliction, professional dereliction, or because his retention is not clearly consistent with the interests of national security, to show cause for his retention on the active list.

#

Ҥ8792. Boards of inquiry: composition; duties

“(a)“(a)

Boards of inquiry, each composed of three or more general officers, shall be convened at such places as the Secretary of the Air Force may prescribe, to receive evidence and make findings and recommendations whether an officer, required to show cause under section 8791 of this title, shall be retained on the active list of the Regular Air Force.

#

“(b)“(b)

A fair and impartial hearing before a board of inquiry shall be given to each officer so required to show cause for retention.

#

“(c)“(c)

If a board of inquiry determines that the officer has failed to establish that he should be retained on the active list, it shall send the record of its proceedings to a board of review.

#

“(d)“(d)

If a board of inquiry determines that the officer has established that he should be retained on the active list, his case is closed. However, at any future time, he may be again required to show cause for retention under section 8791 of this title.

#

#

Ҥ8793. Boards of review: composition; duties

“(a)“(a)

Boards of review, each composed of three or more general officers, shall be convened by the Secretary of the Air Force, at such times as he may prescribe, to review the records of cases of officers recommended by boards of inquiry for removal from the active list of the Regular Air Force under section 8792 of this title.

#

“(b)“(b)

If, after reviewing the record of the case, a board of review determines that the officer has failed to establish that he should be retained on the active list, it shall send its recommendation to the Secretary for his action.

#

“(c)“(c)

If, after reviewing the record of the case, a board of review determines that the officer has established that he should be retained on the active list, his case is closed. However, at any future time, he may be again required to show cause for retention under section 8791 of this title.

#

#

Ҥ8794. Removal of officer: action by Secretary of the Air Force upon recommendation

“The Secretary of the Air Force may remove an officer from the active list of the Regular Air Force if his removal is recommended by a board of review under this chapter. The Secretary’s action in such a case is final and conclusive.

#

Ҥ8795. Rights and procedures

“Each officer under consideration for removal from the active list of the Regular Air Force under this chapter shall be—

“(1)“(1)

notified in writing of the charges against him, at least 30 days before the hearing of his case by a board of inquiry, for which he is being required to show cause for retention on the active list;

#

“(2)“(2)

allowed reasonable time, as determined by the board of inquiry under regulations of the Secretary of the Air Force, to prepare his defense;

#

“(3)“(3)

allowed to appear in person and by counsel at proceedings before a board of inquiry; and

#

“(4)“(4)

allowed full access to, and furnished copies of, records relevant to his case at all stages of the proceeding, except that a board shall withhold any records that the Secretary determines should be withheld in the interests of national security.

#

In any case where any records are withheld under clause (4), the officer whose case is under consideration shall, to the extent that the national security permits, be furnished a summary of the records so withheld.

#

Ҥ87S6. Officers considered for removal: retirement or discharge

“(a)“(a)

At any time during proceedings under this chapter and before the removal of an officer from the active list of the Regular Air Force, the Secretary of the Air Force may grant his request—

“(1)“(1)

for voluntary retirement, if he is otherwise qualified therefor; or

#

“(2)“(2)

for discharge under subsection (b).

#

#

“(b)“(b)

Each officer removed from the active list of the Regular Air Force under this chapter shall—

“(1)“(1)

if on the date of remove he is eligible for voluntary retirement under any law, be retired in the grade and with the pay for which he would be eligible if retired at his request; or

#

“(2)“(2)

if on that date he 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 12, by one month’s basic pay of that grade.

#

#

“(c)“(c)

For the purposes of subsection (b)(2), a part of a year that is six months or more is counted as a whole year, and a part of a year that is less than six months is disregarded.

#

#

Ҥ8797. Officers eligible to serve on boards

“(a)“(a)

No officer may serve on a board under this chapter unless he is senior in regular grade to, and outranks, any officer considered by that board.

#

“(b)“(b)

No person may be a member of more than one board convened under this chapter for the same officer.”

#

#

#

The analysis of subtitle D and the analysis of part II of subtitle D are each amended by inserting the following new item:

by amending subsection (a) to read as follows:

“(a)“(a)

A deferred officer who is not recommended for promotion under section 8303(c) of this title, or an officer who is found disqualified for promotion under section 8302(f) of this title, shall, if he has at least 20 years of service computed under section 8927(a) of this title, be retired, except as provided by section 47a of title 5, on such date as may be requested by him and approved under regulations to be prescribed by the Secretary of the Air Force, but not later than the first day of the seventh calendar month after the Secretary approves the report of the last board that did not recommend him for promotion to the grade concerned.”; and

#

by amending subsection (b) by striking out the words “so entitled to retire” and inserting the words “the date he completes 20 years of service computed under section 8927(a) of this title, or the first day of the seventh calendar month after the Secretary approves the report of the last board that did not recommend him for promotion to the grade concerned, whichever is later” in place thereof.

Not more than once in each fiscal year, the Secretary

Convening of boards.

of the Army and the Secretary of the Air Force may convene one or more boards, each consisting of at least five officers of the Regular Army or the Regular Air Force, as the case may be, in a grade above colonel, to review the records of, and recommend for continuation on the active list, officers of that component on the active list in the regular grade of colonel or lieutenant colonel who have at least 20 years of service computed under section 3927(a) or 8927(a) of title 10. United States Code, whichever applies, and who have been considered more than twice but not recommended for promotion to the next higher regular grade.

A board convened under this section shall recommend officers for continuation on the active list in the number specified by the Secretary. The Secretary may specify separate numbers for particular categories of officers. However, except with respect to the first board convened under this section in the Army and in the Air Force, the number specified by him for officers in any category must be at least 80 percent of the officers in that category being considered. An officer may be considered for continuation on the active list under this section only once while serving in the regular grade of colonel and only once while serving in the regular grade of lieutenant colonel.

Except as provided by section 1 of the Act of April 23, 1930, ch. 209, as amended (5 U.S.C. 47a), if the Secretary approves the report

46 Stat. 253.

of a board, he shall, not later than the first day of the seventh calendar month beginning after he approves that report, retire each officer who is considered but not recommended for continuation.

A member of the Army or the Air Force who is retired under this section is entitled to retired pay computed under formula A of section 3991 or 8991, respectively, of title 10.

This section does not apply to—

This section is not effective after June 30, 1965.