§ 1187. Officers eligible to serve on boards

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1980

   Defense Officer Personnel Management Act

   Pub. L. 96–513 title I § 110 · 94 Stat. 2835

   Enacted · 10 U.S.C. § 1187

   Added Pub. L. 96–513, title I, § 110, Dec. 12, 1980, 94 Stat. 2875

   Source evidence

   Code source credit
   Added Pub. L. 96–513, title I, § 110, Dec. 12, 1980, 94 Stat. 2875

   Enacted provision · exact public law section
   Sec. 110. involuntary separation of regular officers for substandard performance of duty or for certain other reasons Part II of subtitle A is amended by inserting after chapter 59 the following new chapter: “CHAPTER 60— SEPARATION OF REGULAR OFFICERS FOR SUBSTANDARD PERFORMANCE OF DUTY OR FOR CERTAIN OTHER REASONS “Sec. “1181. Authority to convene boards of officers to consider separation of officers for substandard performance of duty or for certain other reasons. “1182. Boards of inquiry. “1183. Boards of review. “1184. Removal of officer: action by Secretary upon recommendation of board of review. “1185. Rights and procedures. “1186. Officer considered for removal: voluntary retirement or discharge. “1187. Officers eligible to serve on boards. “§1181. Authority to convene boards of officers to consider separation of officers for substandard performance of duty or for certain other reasons “(a) Under regulations prescribed by the Secretary of Defense, the Secretary of the military department concerned may at any time convene a board of officers to review the record of any commissioned officer (other than a commissioned warrant officer or a retired officer) of the Regular Army, Regular Navy, Regular Air Force, or Regular Marine Corps to determine whether such officer shall be required, because his performance of duty has fallen below standards prescribed by the Secretary of Defense, to show cause for his retention on active duty. “(b) Under regulations prescribed by the Secretary of Defense, the Secretary of the military department concerned may at any time convene a board of officers to review the record of any commissioned officer (other than a commissioned warrant officer or a retired officer) of the Regular Army, Regular Navy, Regular Air Force, or Regular Marine Corps to determine whether such officer should be required, because of misconduct, because of moral or professional dereliction, or because his retention is not clearly consistent with the interests of national security, to show cause for his retention on active duty. “§1182. Boards of inquiry “(a) The Secretary of the military department concerned shall convene boards of inquiry at such times and places as the Secretary may prescribe to receive evidence and make findings and recommendations as to whether an officer who is required under section 1181 of this title to show cause for retention on active duty should be retained on active duty. Each board of inquiry shall be composed of not less than three officers having the qualifications prescribed by section 1187 of this title. “(b) A board of inquiry shall give a fair and impartial hearing to each officer required under section 1181 of this title to show cause for retention on active duty. “(c) If a board of inquiry determines that the officer has failed to Review board establish that he should be retained on active duty, it shall send the record of its proceedings to a board of review convened under section 1183 of this title. “(d) (1) If a board of inquiry determines that the officer has established that he should be retained on active duty, the officer’s case is closed. “(2) An officer who is required to show cause for retention on active duty under subsection (a) of section 1181 of this title and who is determined under paragraph (1) to have established that he should be retained on active duty may not again be required to show cause for retention on active duty under such subsection within the one-year period beginning on the date of that determination. “(3) (A) Subject to subparagraph (B), an officer who is required to show cause for retention on active duty under subsection (b) of section 1181 of this title and who is determined under paragraph (1) to have established that he should be retained on active duty may again be required to show cause for retention at any time. “(B) An officer who has been required to show cause for retention on active duty under subsection (b) of section 1181 of this title and who is thereafter retained on active duty may not again be required to show cause for retention on active duty under such subsection solely because of conduct which was the subject of the previous proceedings, unless the findings or recommendations of the board of inquiry that considered his case are determined to have been obtained by fraud or collusion. “§1183. Boards of review “(a) The Secretary of the military department concerned shall convene boards of review at such times as the Secretary may prescribe to review the cases of officers who a board of inquiry has determined have failed to establish that they should be retained on active duty. Each board of review shall be composed of not less than three officers having the qualifications prescribed by section 1187 of this title. “(b) If, after reviewing the record of the case of any officer, a board Recommendation to Secretary. of review determines that the officer has failed to establish that he should be retained on active duty, the board of review shall recommend to the Secretary concerned that the officer not be retained on active duty. “(c) (1) If, after reviewing the record of the case of any officer, a board of review determines that the officer has established that he should be retained on active duty, the officer’s case is closed. “(2) An officer who is required to show cause for retention under subsection (a) of section 1181 of this title and who is determined under paragraph (1) to have established that he should be retained on active duty may not again be required to show cause for retention under such subsection within the one-year period beginning on the date of that determination. “(3) (A) Subject to subparagraph (B), an officer who is required to show cause for retention under subsection (b) of section 1181 of this title and who is determined under paragraph (1) to have established that he should be retained on active duty may again be required to show cause for retention at any time. “(B) An officer who has been required to show cause for retention as a result of proceedings under subsection (b) of section 1181 of this title and who is thereafter retained on active duty may not again be required to show cause for retention on active duty under such subsection solely because of conduct which was the subject of the previous proceeding, unless the findings or recommendations of the board of inquiry or board of review that considered his case are determined to have been obtained by fraud or collusion. “§1184. Removal of officer: action by Secretary upon recommendation of board of review “The Secretary of the military department concerned may remove an officer from active duty if the removal of such officer from active duty is recommended by a board of review convened under section 1183 of this title. “§1185. Rights and procedures “(a) Under regulations prescribed by the Secretary of Defense, each officer required under section 1181 of this title to show cause for retention on active duty— “(1) shall be notified in writing, at least 30 days before the hearing of his case by a board of inquiry, of the reasons for which he is being required to show cause for retention on active duty; “(2) shall be allowed a reasonable time, as determined by the board of inquiry, to prepare his showing of cause for his retention on active duty; “(3) shall be allowed to appear in person and to be represented by counsel at proceedings before the board of inquiry; and “(4) shall be allowed full access to, and shall be furnished copies of, records relevant to his case, except that the board of inquiry shall withhold any record that the Secretary concerned determines should be withheld in the interest of national security. “(b) When a record is withheld under subsection (a)(4), the officer whose case is under consideration shall, to the extent that the interest of national security permits, be furnished a summary of the record so withheld. “§1186. Officer considered for removal: voluntary retirement or discharge “(a) At any time during proceedings under this chapter with respect to the removal of an officer from active duty, the Secretary of the military department concerned may grant a request by the officer— “(1) for voluntary retirement, if the officer is qualified for retirement; or “(2) for discharge in accordance with subsection (b)(2). “(b) An officer removed from active duty under section 1184 of this title shall— “(1) if eligible for voluntary retirement under any provision of law on the date of such removal, be retired in the grade and with the retired pay for which he would be eligible if retired under such provision; and “(2) if ineligible for voluntary retirement under any provision of law on the date of such removal— “(A) be honorably discharged in the grade then held, in the case of an officer whose case was brought under subsection (a) of section 1181 of this title; or “(B) be discharged in the grade then held, in the case of an officer whose case was brought under subsection (b) of section 1181 of this title. “(c) An officer who is discharged under subsection (b)(2) is entitled, if eligible therefor, to separation pay under section 1174(b) of this title. Ante, p. 2870. “§1187. Officers eligible to serve on boards “(a) (1) Each officer who serves on a board convened under this chapter shall be an officer of the same armed force as the officer being required to show cause for retention on active duty. “(2) Except as provided in paragraph (3), an officer may not serve on a board under this chapter unless such officer is serving on active duty in a grade above lieutenant colonel or commander and is senior in grade and rank to any officer considered by that board. “(3) If qualified officers on active duty are not available in sufficient Retired officers. numbers to comprise a board convened under this chapter, the Secretary of the military department concerned shall complete the membership of the board by appointing retired officers of the same armed force who are retired in a grade above lieutenant colonel or commander and whose retired grade is senior to the grade of any officer considered by the board. A retired general or flag officer who is on active duty for the purpose of serving on a board convened under this chapter shall not, while so serving, be counted against any limitation on the number of general and flag officers who may be on active duty. “(b) No person may be a member of more than one board convened under this chapter to consider the same officer.”.

2. 1999

   Pub. L. 106–65 div. A title V § 504(a) · 113 Stat. 512

   Amended · 10 U.S.C. § 1187

   Pub. L. 106–65 amended text generally. Prior to amendment, text consisted of subsecs. (a) and (b) relating to officers eligible to serve on boards

   Source evidence

   Code amendment note
   Pub. L. 106–65 amended text generally. Prior to amendment, text consisted of subsecs. (a) and (b) relating to officers eligible to serve on boards.

   Enacted provision · exact public law section
   (a) Retention Boards for Regular Officers.— The text of section 1187 of title 10, United States Code, is amended to read as follows: “(a) Active Duty Officers.— Except as provided in subsection (b), each board convened under this chapter shall consist of officers appointed as follows: “(1) Each member of the board shall be an officer of the same armed force as the officer being required to show cause for retention on active duty. “(2) Each member of the board shall be on the active-duty list. “(3) Each member of the board shall be in a grade above major or lieutenant commander, except that at least one member of the board shall be in a grade above lieutenant colonel or commander. “(4) Each member of the board shall be senior in grade to any officer to be considered by the board. “(b) Retired Officers.— If qualified officers on active duty are not available in sufficient numbers to comprise a board convened under this chapter, the Secretary of the military department concerned shall complete the membership of the board by appointing to the board retired officers of the same armed force. A retired officer may be appointed to such a board only if the retired grade of that officer— “(1) is above major or lieutenant commander or, in the case of an officer to be the senior officer of the board, above lieutenant colonel or commander; and “(2) is senior to the grade of any officer to be considered by the board. “(c) Ineligibility by Reason of Previous Consideration Of Same Officer.— No person may be a member of more than one board convened under this chapter to consider the same officer. “(d) Exclusion From Strength Limitation.— A retired general or flag officer who is on active duty for the purpose of serving on a board convened under this chapter shall not, while so serving, be counted against any limitation on the number of general and flag officers who may be on active duty.”.

3. 2008

   Duncan Hunter National Defense Authorization Act for Fiscal Year 2009

   Pub. L. 110–417 § 505(a)(1) · 122 Stat. 4356

   1. Substituted · 10 U.S.C. § 1187(a)

      Pub. L. 110–417, § 505(a)(1), (b), substituted “In General” for “Active Duty Officers” in heading

   2. Redesignated · 10 U.S.C. § 1187(a)

      Pub. L. 110–417, § 505(a)(1), (b), redesignated pars. (3) and (4) as (2) and (3), respectively

   3. Struck · 10 U.S.C. § 1187(a)

      Pub. L. 110–417, § 505(a)(1), (b), struck out former par. (2) which read as follows: “Each member of the board shall be on the active-duty list.”

   Source evidence

   Code amendment note
   Subsec. (a). Pub. L. 110–417, § 505(a)(1), (b), substituted “In General” for “Active Duty Officers” in heading, redesignated pars. (3) and (4) as (2) and (3), respectively, and struck out former par. (2) which read as follows: “Each member of the board shall be on the active-duty list.”

   Enacted provision · exact public law section
   (1) in subsection (a)— (A) by striking paragraph (2); and (B) by redesignating paragraphs (3) and (4) as paragraphs (2) and (3), respectively; and

4. 2008

   Duncan Hunter National Defense Authorization Act for Fiscal Year 2009

   Pub. L. 110–417 § 505(a)(2) · 122 Stat. 4356

   Struck · 10 U.S.C. § 1187(b)

   Pub. L. 110–417, § 505(a)(2), struck out “on active duty” after “qualified officers” in introductory provisions

   Source evidence

   Code amendment note
   Subsec. (b). Pub. L. 110–417, § 505(a)(2), struck out “on active duty” after “qualified officers” in introductory provisions.

   Enacted provision · exact public law section
   (2) in subsection (b), by striking “on active duty” in the matter preceding paragraph (1).

6 of 6 references resolved to an enrolled provision