CHAPTER 1221 - SEPARATION
Title 10 > CHAPTER 1221
Sections (19)
§ 12681 Reserves: discharge authority
Subject to other provisions of this title, reserve commissioned officers may be discharged at the pleasure of the President. Other Reserves may be discharged under regulations prescribed by the Secretary concerned. (Added Pub. L. 103–337, div. A, title XVI, § 1662(i)(1) , Oct. 5, 1994 , 108 Stat. 2997 .)
“SEC. 4411 FORCE REDUCTION TRANSITION PERIOD DEFINED.
“In this subtitle [subtitle B (§§ 4411–4422) of title XLIV of div. D of Pub. L. 102–484 ], the term ‘force reduction transition period’ means the period beginning on October 1, 1991 , and ending on December 31, 2001 .
“SEC. 4412 MEMBER OF SELECTED RESERVE DEFINED.
“In this subtitle, the term ‘member of the Selected Reserve’ means— a member of a unit in the Selected Reserve of the Ready Reserve; and a Reserve designated pursuant to section 268(b) [see 10143(a)] of title 10, United States Code, who is assigned to an authorized position the performance of the duties of which qualify the member for basic pay or compensation for inactive-duty training or both.
“SEC. 4413 RESTRICTION ON RESERVE FORCE REDUCTION.
(“(a) In General.— During the force reduction transition period, a member of the Selected Reserve may not be involuntarily discharged from a reserve component of the Armed Forces, or involuntarily transferred from the Selected Reserve, before the Secretary of Defense has prescribed and implemented regulations that govern the treatment of members of the Selected Reserve assigned to such units and members of the Selected Reserve that are being subjected to such actions and a copy of such regulations has been transmitted to the Committees on Armed Services of the Senate and House of Representatives.
(“(b) Savings Provision.— Subsection (a) shall not apply to actions completed before the date of the enactment of this Act [ Oct. 23, 1992 ].
“SEC. 4414 TRANSITION PLAN REQUIREMENTS.
(“(a) Purpose of Plan.— The purpose of the regulations referred to in section 4413 shall be to ensure that the members of the Selected Reserve are treated with fairness, with respect for their service to their country, and with attention to the adverse personal consequences of Selected Reserve unit inactivations, involuntary discharges of such members from the reserve components of the Armed Forces, and involuntary transfers of such members from the Selected Reserve.
(“(b) Scope of Plan.— The regulations shall include— such provisions as are necessary to implement the provisions of this subtitle and the amendments made by this subtitle; and such other policies and procedures for the recruitment of personnel for service in the Selected Reserve of the Ready Reserve, and for the reassignment, retraining, separation, and retirement of members of the Selected Reserve, as are appropriate for satisfying the needs of the Selected Reserve together with the purpose set out in subsection (a).
(“(c) Minimum Requirements for Plan.— The regulations shall include the following: The giving of a priority for enrollment in, or reassignment to, Selected Reserve units not being inactivated to— personnel being separated from active-duty or full-time National Guard duty; and members of the Selected Reserve whose units are inactivated. The giving of a priority to such personnel for transfer among the reserve components of the Armed Forces in order to facilitate reassignment to such units. A requirement that the Secretaries of the military departments take diligent actions to ensure that members of the reserve components of the Armed Forces are informed in easily understandable terms of the rights and benefits conferred upon such personnel by this subtitle, by the amendments made by this subtitle, and by such regulations. Such other protections, preferences, and benefits as the Secretary of Defense considers appropriate.
(“(d) Uniform Applicability.— The regulations shall apply uniformly to the Army, Navy, Air Force, and Marine Corps.
“SEC. 4415 INAPPLICABILITY TO CERTAIN DISCHARGES AND TRANSFERS.
“The protections, preferences, and benefits provided for in regulations prescribed in accordance with this subtitle do not apply with respect to a member of the Selected Reserve who is discharged from a reserve component of the Armed Forces or is transferred from the Selected Reserve to another category of the Ready Reserve, to the Standby Reserve, or to the Retired Reserve— at the request of the member unless such request was made and approved under a provision of this subtitle or section 12731a of title 10 , United States Code (as added by section 4417); because the member no longer meets the qualifications for membership in the Selected Reserve set forth in any provision of law as in effect on the day before the date of the enactment of this Act [ Oct. 23, 1992 ]; under adverse conditions, as characterized by the Secretary of the military department concerned; or if the member— is immediately eligible for retired pay based on military service under any provision of law; is serving as a military technician, as defined in section 8401(30) of title 5 , United States Code, and would be immediately eligible for an unreduced annuity under the provisions of subchapter III of chapter 83 of such title, relating to the Civil Service Retirement and Disability System, or the provisions of chapter 84 of such title, relating to the Federal Employees’ Retirement System; or is eligible for separation pay under section 1174 of title 10 , United States Code.
“SEC. 4416 FORCE REDUCTION PERIOD RETIREMENTS.
(“(a) Temporary Special Authority for Elimination of Officers From Active Status.— During the force reduction transition period, the Secretary of the Army and the Secretary of the Air Force may, whenever the Secretary determines that such action is necessary, convene a board to recommend an appropriate number of officers in the reserve components of the Army or the Air Force, as the case may be, who (A) have met the age and service requirements specified in section 12731 of title 10 , United States Code, for entitlement to retired pay for nonregular service except for not being at least 60 years of age, or (B) are immediately eligible for retired pay based on military service under any provision of law, for elimination from an active status. An officer who is to be eliminated from an active status under this section, shall, if qualified, be given an opportunity to request transfer to the appropriate Retired Reserve and, if the officer requests it, shall be so transferred. If the officer is not transferred to the Retired Reserve, the officer shall, in the discretion of the Secretary concerned, be transferred to the appropriate inactive status list or be discharged. A member of the Army National Guard of the United States or the Air National Guard of the United States may not be eliminated from an active status under this section without the consent of the Governor or other appropriate authority of the State or territory, Puerto Rico, or the District of Columbia, whichever is concerned.
(“(b) Temporary Special Authority.— During the force reduction transition period, the Secretary concerned may grant a member of the Selected Reserve under the age of 60 years the annual payments provided for under this section if— as of October 1, 1991 , that member has completed at least 20 years of service computed under section 1332 of title 10 , United States Code, or after that date and before the end of the force reduction transition period, such member completes 20 years of service computed under that section or section 12732; the member satisfies the requirements of paragraphs (3) and (4) of section 1331(a) or 12731(a) of title 10, United States Code; and the member applies for transfer to the Retired Reserve.
(“(c) [Repealed. Pub. L. 103–160, div. A, title V, § 561(f)(2)(B), Nov. 30, 1993, 107 Stat. 1667.]
(“(d) Annual Payment Period.— An annual payment granted to a member under this section shall be paid for a period of years prescribed by the Secretary concerned, except that if the member attains 60 years of age during that period the entitlement to the annual payment shall terminate on the member’s 60th birthday. A period prescribed for purposes of this subsection may not be less than one year nor more than five years.
(“(e) Computation of Annual Payment.— The annual payment for a member shall be equal to the amount determined by multiplying the product of 12 and the applicable percent under paragraph (2) by the monthly basic pay to which the member would be entitled if the member were serving on active duty as of the date the member is transferred to the Retired Reserve. Subject to subparagraph (B) the percent applicable to a member for purposes of paragraph (1) is 5 percent plus 0.5 percent for each full year of service, computed under section 12732 of title 10 , United States Code, that a member has completed in excess of 20 years before transfer to the Retired Reserve. The maximum percent applicable under this paragraph is 10 percent. In the case of a member who will attain 60 years of age during the 12-month period following the date on which an annual payment is due, the payment shall be paid on a prorated basis of one-twelfth of the annual payment for each full month between the date on which the payment is due and the date on which the member attains age 60.
(“(f) Applicability Subject to Needs of the Service.— Subject to regulations prescribed by the Secretary of Defense, the Secretary concerned may limit the applicability of this section to any category of personnel defined by the Secretary concerned in order to meet a need of the armed force under the jurisdiction of the Secretary concerned to reduce the number of members in certain grades, the number of members who have completed a certain number of years of service, or the number of members who possess certain military skills or are serving in designated competitive categories. A limitation under paragraph (1) shall be consistent with the purpose set forth in section 4414(a).
(“(g) Nonduplication of Benefits.— A member transferred to the Retired Reserve under the authority of section 12731a of title 10 , United States Code (as added by section 4417), may not be paid annual payments under this section.
(“(h) Funding.— To the extent provided in appropriations Acts, payments under this section in a fiscal year shall be made out of amounts available to the Department of Defense for that fiscal year for the pay of reserve component personnel.
“SEC. 4417 RETIREMENT WITH 15 YEARS OF SERVICE.
(“(a) Authority.—
(“(b) Clerical Amendment.—
“SEC. 4418 SEPARATION PAY.
(“(a) Eligibility.— Subject to section 4415, a member of the Selected Reserve who, after completing at least 6 years of service computed under section 12732 of title 10 , United States Code, and before completing 15 years of service computed under that section, is involuntarily discharged from a reserve component of the Armed Forces or is involuntarily transferred from the Selected Reserve during the force reduction transition period is entitled to separation pay.
(“(b) Amount of Separation Pay.— The amount of separation pay which may be paid to a person under this section is 15 percent of the product of— the years of service credited to that person under section 12733 of title 10 , United States Code; and 62 times the daily equivalent of the monthly basic pay to which the person would have been entitled had the person been serving on active duty at the time of the person’s discharge or transfer. In the case of a person who receives separation pay under this section and who later receives basic pay, compensation for inactive duty training, or retired pay under any provision of law, such basic pay, compensation, or retired pay, as the case may be, shall be reduced by 75 percent until the total amount withheld through such reduction equals the total amount of the separation pay received by that person under this section.
(“(c) Relationship to Other Service-Related Pay.— Subsections (g) and (h) of section 1174 of title 10 , United States Code, shall apply to separation pay under this section.
(“(d) Regulations.— The Secretary of Defense shall prescribe regulations, which shall be uniform for the Army, Navy, Air Force, and Marine Corps, for the administration of this section.
“SEC. 4419 WAIVER OF CONTINUED SERVICE REQUIREMENT FOR CERTAIN RESERVISTS FOR MONTGOMERY GI BILL BENEFITS.
(“(a) Chapter 106.—
(“(b) Chapter 30.—
“SEC. 4420 COMMISSARY AND EXCHANGE PRIVILEGES.
“The Secretary of Defense shall prescribe regulations to authorize a person who involuntarily ceases to be a member of the Selected Reserve during the force reduction transition period to continue to use commissary and exchange stores in the same manner as a member of the Selected Reserve for a period of two years beginning on the later of— the date on which that person ceases to be a member of the Selected Reserve; or the date of the enactment of this Act [ Oct. 23, 1992 ].
“SEC. 4421 APPLICABILITY AND TERMINATION OF BENEFITS.
(“(a) Applicability Subject to Needs of the Service.— Subject to regulations prescribed by the Secretary of Defense, the Secretary of the military department concerned may limit the applicability of a benefit provided under sections 4418 through 4420 to any category of personnel defined by the Secretary concerned in order to meet a need of the armed force under the jurisdiction of the Secretary concerned to reduce the number of members in certain grades, the number of members who have completed a certain number of years of service, or the number of members who possess certain military skills or are serving in designated competitive categories. A limitation under paragraph (1) shall be consistent with the purpose set forth in section 4414(a).
(“(b) Inapplicability to Certain Separations and Reassignments.— Sections 4418 through 4420 do not apply with respect to personnel who cease to be members of the Selected Reserve under adverse conditions, as characterized by the Secretary of the military department concerned.
(“(c) Termination of Benefits.— The eligibility of a member of a reserve component of the Armed Forces (after having involuntarily ceased to be a member of the Selected Reserve) to receive benefits and privileges under sections 4418 through 4420 terminates upon the involuntary separation of such member from the Armed Forces under adverse conditions, as characterized by the Secretary of the military department concerned.
“SEC. 4422 READJUSTMENT BENEFITS FOR CERTAIN VOLUNTARILY SEPARATED MEMBERS OF THE RESERVE COMPONENTS.
(“(a) Special Separation Benefits.—
(“(b) Voluntary Separation Incentive.—
§ 12682 Reserves: discharge upon becoming ordained minister of religion
Under regulations to be prescribed by the Secretary of Defense, a Reserve who becomes a regular or ordained minister of religion is entitled upon his request to a discharge from his reserve enlistment or appointment. (Added Pub. L. 103–337, div. A, title XVI, § 1662(i)(1) , Oct. 5, 1994 , 108 Stat. 2997 .)
§ 12683 Reserve officers: limitation on involuntary separation
(a) An officer of a reserve component who has at least five years of service as a commissioned officer may not be separated from that component without his consent except— under an approved recommendation of a board of officers convened by an authority designated by the Secretary concerned; or by the approved sentence of a court-martial.
(b) Subsection (a) does not apply to any of the following: A separation under section 12684, 14901, or 14907 of this title. A dismissal under section 1161(a) of this title . A transfer under section 12213, 12214, 14514, or 14515 of this title. A separation of an officer who is in an inactive status in the Standby Reserve and who is not qualified for transfer to the Retired Reserve or is qualified for transfer to the Retired Reserve and does not apply for such a transfer.
§ 12684 Reserves: separation for absence without authority or sentence to imprisonment
The President or the Secretary concerned may drop from the rolls of the armed force concerned any Reserve— who has been absent without authority for at least three months; who may be separated under section 12687 of this title by reason of a sentence to confinement adjudged by a court-martial; or who is sentenced to confinement in a Federal or State penitentiary or correctional institution after having been found guilty of an offense by a court other than a court-martial or other military court, and whose sentence has become final. (Added Pub. L. 103–337, div. A, title XVI, § 1662(i)(1) , Oct. 5, 1994 , 108 Stat. 2998 ; amended Pub. L. 104–106, div. A, title V, § 563(b)(2) , Feb. 10, 1996 , 110 Stat. 325 .)
§ 12685 Reserves separated for cause: character of discharge
A member of a reserve component who is separated for cause, except under section 12684 of this title , is entitled to a discharge under honorable conditions unless— the member is discharged under conditions other than honorable under an approved sentence of a court-martial or under the approved findings of a board of officers convened by an authority designated by the Secretary concerned; or the member consents to a discharge under conditions other than honorable with a waiver of proceedings of a court-martial or a board. (Added Pub. L. 103–337, div. A, title XVI, § 1662(i)(1) , Oct. 5, 1994 , 108 Stat. 2998 .)
§ 12686 Reserves on active duty within two years of retirement eligibility: limitation on release from active duty
(a) Limitation.— Under regulations to be prescribed by the Secretary concerned, which shall be as uniform as practicable, a member of a reserve component who is on active duty (other than for training) and is within two years of becoming eligible for retired pay or retainer pay under a purely military retirement system (other than the retirement system under chapter 1223 of this title), may not be involuntarily released from that duty before he becomes eligible for that pay, unless the release is approved by the Secretary.
(b) Waiver.— With respect to a member of a reserve component who is to be ordered to active duty (other than for training) under section 12301 of this title pursuant to an order to active duty that specifies a period of less than 180 days and who (but for this subsection) would be covered by subsection (a), the Secretary concerned may require, as a condition of such order to active duty, that the member waive the applicability of subsection (a) to the member for the period of active duty covered by that order. In carrying out this subsection, the Secretary concerned may require that a waiver under the preceding sentence be executed before the period of active duty begins.
§ 12687 Reserves under confinement by sentence of court-martial: separation after six months confinement
Except as otherwise provided in regulations prescribed by the Secretary of Defense, a Reserve sentenced by a court-martial to a period of confinement for more than six months may be separated from that Reserve’s armed force at any time after the sentence to confinement has become final under chapter 47 of this title and the Reserve has served in confinement for a period of six months. (Added Pub. L. 104–106, div. A, title V, § 563(a)(2)(A) , Feb. 10, 1996 , 110 Stat. 325 .)