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Title 10 — Armed Forces

Part II · Chapter 811 — Distribution in Grade

§ 8101. Prescribed number; vacancies

Statutory text

In this chapter, the term “prescribed number” or “number . . . prescribed” as applied to a grade, means the number of officers of a described corps, designation, or other category that shall be maintained in the grade concerned. Except as otherwise specifically provided, the actual number of officers in a grade may not exceed the prescribed number. Vacancies occur whenever, and to the extent that, the actual number falls below the prescribed number.

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. Aug. 10, 1956, ch. 1041, 70A Stat. 299, § 5441 · 70A Stat. 299

    Enacted · 10 U.S.C. § 8101

    Aug. 10, 1956, ch. 1041, 70A Stat. 299, § 5441

    Source evidence

    Code source credit
    Aug. 10, 1956, ch. 1041, 70A Stat. 299, § 5441

  2. Defense Officer Personnel Management Act

    Pub. L. 96–513 title III § 313(a) · 94 Stat. 2835

    Struck · 10 U.S.C. § 8101

    Pub. L. 96–513 struck out “or combination of grades” after “to a grade”, after “in the grade”, and after “in a grade”

    Source evidence

    Code amendment note
    Pub. L. 96–513 struck out “or combination of grades” after “to a grade”, after “in the grade”, and after “in a grade”.

    Enacted provision · exact public law section
    (a) Section 5441, relating to the terms “prescribed number” and “vacancy”, is amended by striking out “or combination of grades” each place it appears.

  3. National Defense Authorization Act for Fiscal Years 1990 and 1991

    Pub. L. 101–189 div. A title XVI § 1622(e)(8) · 103 Stat. 1352

    Inserted · 10 U.S.C. § 8101

    Pub. L. 101–189 inserted “, the term” after “In this chapter”

    Source evidence

    Code amendment note
    Pub. L. 101–189 inserted “, the term” after “In this chapter”.

    Enacted provision · exact public law section
    (8) Sections 5441, 6964(a), and 7081(a) are amended by inserting “, the term” after “In this chapter”.

  4. John S. McCain National Defense Authorization Act for Fiscal Year 2019

    Pub. L. 115–232 div. A title VIII § 807(b)(1) · 132 Stat. 1636

    Changed · 10 U.S.C. § 8101

    Pub. L. 115–232 renumbered section 5441 of this title as this section

    Source evidence

    Code amendment note
    Pub. L. 115–232 renumbered section 5441 of this title as this section.

    Enacted provision · exact public law section
    (1) Chapter 533.— Sections 5441, 5450, and 5451 are redesignated as sections 8101, 8102, and 8103, respectively.

    Effective date note
    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.

3 of 4 references resolved to an enrolled provision · 1 partial

Notes

Historical and Revision Notes

This section is derived from the distribution-in-grade provisions of the Officers Personnel Act of 1947. It is inserted here to show clearly what is meant by the “authorized number” of officers in a grade as used in the distribution-in-grade sections of the Officer Personnel Act. “Prescribed number” is substituted for “authorized number” because the latter, as used in other provisions of law, means simply the maximum number of persons authorized to be in a designated category. As used in the distribution-in-grade provisions of the Officer Personnel Act the term means not only the maximum number of officers that may be in a particular grade, but also the number of officers that should be maintained in that grade. It places not only a ceiling but a floor on the number of officers for the grade concerned. This is accomplished by establishing vacancies when the actual number of officers in the grade concerned falls below the “authorized” or, as used here, the “prescribed” number. Where there is a prescribed number for a grade, an officer should, in the absence of other controlling provisions of law, be promoted to that grade to fill an existing vacancy, as of the date on which the vacancy occurred. In this manner, at least constructively, the prescribed number is maintained.

There is no source for the section because the Officer Personnel Act did not attempt specifically to define “authorized number” in this context. The meaning of the term is derived only from understanding the effect given it throughout the Officer Personnel Act and from the imperative requirements of sections 103, 203, and 303 of the act.

Editorial Notes

Amendments1980–2018 · 3 rounds

2018

Pub. L. 115–232 renumbered section 5441 of this title as this section.

1989

Pub. L. 101–189 inserted “, the term” after “In this chapter”.

1980

Pub. L. 96–513 struck out “or combination of grades” after “to a grade”, after “in the grade”, and after “in a grade”.

Effective Date of 2018 Amendment

Amendment by Pub. L. 115–232 effective , 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.

Statutory Notes and Related Subsidiaries

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–513 effective , but the authority to prescribe regulations under the amendment by Pub. L. 96–513 effective on , see section 701 of Pub. L. 96–513, set out as a note under section 101 of this title.

Credits

1956–2018 · 4 acts
  1. 1956Aug. 10, 1956, ch. 1041, 70A Stat. 299, § 5441
  2. 1980Pub. L. 96–513, title III, § 313(a), , 94 Stat. 2889
  3. 1989Pub. L. 101–189, div. A, title XVI, § 1622(e)(8), , 103 Stat. 1605
  4. 2018renumbered § 8101, Pub. L. 115–232, div. A, title VIII, § 807(b)(1), , 132 Stat. 1834.
Show as published

(Aug. 10, 1956, ch. 1041, 70A Stat. 299, § 5441; Pub. L. 96–513, title III, § 313(a), , 94 Stat. 2889; Pub. L. 101–189, div. A, title XVI, § 1622(e)(8), , 103 Stat. 1605; renumbered § 8101, Pub. L. 115–232, div. A, title VIII, § 807(b)(1), , 132 Stat. 1834.)

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