Page 403 TITLE 10—ARMED FORCES § 624

§ 624. Promotions: how made (2) The date of rank of an appointed to a higher grade under this section is determined (a)(1) When the report of a selection board con- under section 741(d) of this title. vened under section 611(a) of this title is ap- (c) Appointments under this section shall be proved by the President, the Secretary of the made by the President, by and with the advice military department concerned shall place the and consent of the Senate, except that appoint- names of all officers approved for promotion ments under this section in the grade of first within a competitive category on a single list or , in the case of officers of for that competitive category, to be known as a the Army, Air Force, or Marine Corps, or lieu- promotion list, in the order of the seniority of tenant (junior grade) or lieutenant, in the case such officers on the active-duty list. A pro- of officers of the Navy, shall be made by the motion list is considered to be established under President alone. this section as of the date of the approval of the (d)(1) Under regulations prescribed by the Sec- report of the selection board under the preced- retary of Defense, the appointment of an officer ing sentence. under this section may be delayed if— (2) Except as provided in subsection (d), offi- (A) sworn charges against the officer have cers on a promotion list for a competitive cat- been received by an officer exercising egory shall be promoted to the next higher court-martial jurisdiction over the officer and grade when additional officers in that grade and such charges have not been disposed of; competitive category are needed. Promotions (B) an investigation is being conducted to shall be made in the order in which the names of determine whether disciplinary action of any officers appear on the promotion list and after kind should be brought against the officer; officers previously selected for promotion in (C) a board of officers has been convened that competitive category have been promoted. under chapter 60 of this title to review the Officers to be promoted to the grade of first lieu- record of the officer; tenant or lieutenant (junior grade) shall be pro- (D) a criminal proceeding in a Federal or moted in accordance with regulations prescribed State court is pending against the officer; or by the Secretary concerned. (E) substantiated adverse information about (3)(A) Except as provided in subsection (d), of- the officer that is material to the decision to ficers on the active-duty list in the grade of first appoint the officer is under review by the Sec- lieutenant or, in the case of the Navy, lieuten- retary of Defense or the Secretary concerned. ant (junior grade) who are on an approved all- fully-qualified-officers list shall be promoted to If no disciplinary action is taken against the of- the next higher grade in accordance with regula- ficer, if the charges against the officer are with- tions prescribed by the Secretary concerned. drawn or dismissed, if the officer is not ordered (B) An all-fully-qualified-officers list shall be removed from active duty by the Secretary con- considered to be approved for purposes of sub- cerned under chapter 60 of this title, if the offi- paragraph (A) when the list is approved by the cer is acquitted of the charges brought against President. When so approved, such a list shall be him, or if, after a review of substantiated ad- treated in the same manner as a promotion list verse information about the officer regarding under this chapter. the requirement for exemplary conduct set forth (C) The Secretary of a military department in section 3583, 5947, or 8583 of this title, as appli- may make a recommendation to the President cable, the officer is determined to be among the for approval of an all-fully-qualified-officers list officers best qualified for promotion, as the case only when the Secretary determines that all of- may be, then unless action to delay an appoint- ficers on the list are needed in the next higher ment has also been taken under paragraph (2) grade to accomplish mission objectives. the officer shall be retained on the promotion (D) For purposes of this paragraph, an all- list (including an approved all-fully-qualified-of- fully-qualified-officers list is a list of all officers ficers list, if applicable) and shall, upon pro- on the active-duty list in a grade who the Sec- motion to the next higher grade, have the same retary of the military department concerned de- date of rank, the same effective date for the pay termines— and allowances of the grade to which promoted, (i) are fully qualified for promotion to the and the same position on the active-duty list as next higher grade; and he would have had if no delay had intervened, (ii) would be eligible for consideration for unless the Secretary concerned determines that promotion to the next higher grade by a selec- the officer was unqualified for promotion for tion board convened under section 611(a) of any part of the delay. If the Secretary makes this title upon the convening of such a board. such a determination, the Secretary may adjust (E) If the Secretary of the military depart- such date of rank, effective date of pay and al- ment concerned determines that one or more of- lowances, and position on the active-duty list as ficers or former officers were not placed on an the Secretary considers appropriate under the all-fully-qualified-list under this paragraph be- circumstances. cause of administrative error, the Secretary (2) Under regulations prescribed by the Sec- may prepare a supplemental all-fully-qualified- retary of Defense, the appointment of an officer officers list containing the names of any such under this section may also be delayed in any officers for approval in accordance with this case in which there is cause to believe that the paragraph. officer has not met the requirement for exem- (b)(1) A regular officer who is promoted under plary conduct set forth in section 3583, 5947, or this section is appointed in the regular grade to 8583 of this title, as applicable, or is mentally, which promoted and a reserve officer who is pro- physically, morally, or professionally unquali- moted under this section is appointed in the re- fied to perform the duties of the grade for which serve grade to which promoted. he was selected for promotion. If it is later de- § 624 TITLE 10—ARMED FORCES Page 404 termined by a civilian official of the Depart- 2006—Subsec. (a)(1). Pub. L. 109–364, § 511(d)(1), in- ment of Defense (not below the level of Sec- serted at end ‘‘A promotion list is considered to be es- retary of a military department) that the officer tablished under this section as of the date of the ap- is qualified for promotion to such grade and, proval of the report of the selection board under the preceding sentence.’’ after a review of adverse information regarding Subsec. (d)(1). Pub. L. 109–364, § 511(a)(2)(D)(ii), in- the requirement for exemplary conduct set forth serted ‘‘or if, after a review of substantiated adverse in- in section 3583, 5947, or 8583 of this title, as appli- formation about the officer regarding the requirement cable, the officer is determined to be among the for exemplary conduct set forth in section 3583, 5947, or officers best qualified for promotion to such 8583 of this title, as applicable, the officer is deter- grade, the officer shall be retained on the pro- mined to be among the officers best qualified for pro- motion list (including an approved all-fully- motion,’’ after ‘‘brought against him,’’ in concluding qualified-officers list, if applicable) and shall, provisions. Pub. L. 109–364, § 511(a)(2)(D)(i), as amended by Pub. L. upon such promotion, have the same date of 110–181, struck out ‘‘or’’ after ‘‘chapter 60 of this title,’’. rank, the same effective date for pay and allow- Pub. L. 109–364, § 511(a)(1), substituted ‘‘prescribed by ances in the higher grade to which appointed, the Secretary of Defense’’ for ‘‘prescribed by the Sec- and the same position on the active-duty list as retary concerned’’ in introductory provisions. he would have had if no delay had intervened, Subsec. (d)(1)(E). Pub. L. 109–364, § 511(a)(2)(A)–(C), unless the Secretary concerned determines that added subpar. (E). the officer was unqualified for promotion for Subsec. (d)(2). Pub. L. 109–364, § 511(a)(3), in first sen- any part of the delay. If the Secretary makes tence inserted ‘‘has not met the requirement for exem- plary conduct set forth in section 3583, 5947, or 8583 of such a determination, the Secretary may adjust this title, as applicable, or’’ before ‘‘is mentally, phys- such date of rank, effective date of pay and al- ically,’’ and in second sentence substituted ‘‘If it is lowances, and position on the active-duty list as later determined by a civilian official of the Depart- the Secretary considers appropriate under the ment of Defense (not below the level of Secretary of a circumstances. military department) that the officer is qualified for (3) The appointment of an officer may not be promotion to such grade and, after a review of adverse delayed under this subsection unless the officer information regarding the requirement for exemplary has been given written notice of the grounds for conduct set forth in section 3583, 5947, or 8583 of this the delay, unless it is impracticable to give such title, as applicable, the officer is determined to be written notice before the effective date of the among the officers best qualified for promotion to such grade’’ for ‘‘If the Secretary concerned later deter- appointment, in which case such written notice mines that the officer is qualified for promotion to shall be given as soon as practicable. An officer such grade’’. whose promotion has been delayed under this Pub. L. 109–364, § 511(a)(1), substituted ‘‘prescribed by subsection shall be afforded an opportunity to the Secretary of Defense’’ for ‘‘prescribed by the Sec- make a written statement to the Secretary con- retary concerned’’. cerned in response to the action taken. Any such 2002—Subsec. (d)(1). Pub. L. 107–314 substituted ‘‘para- statement shall be given careful consideration graph (2)’’ for ‘‘subsection (d)(2)’’ in concluding provi- by the Secretary. sions. 2001—Subsec. (a)(3). Pub. L. 107–107, § 505(a)(1), added (4) An appointment of an officer may not be par. (3). delayed under this subsection for more than six Subsec. (c). Pub. L. 107–107, § 505(d)(1), inserted ‘‘, in months after the date on which the officer the case of officers of the Army, Air Force, or Marine would otherwise have been appointed unless the Corps,’’ after ‘‘captain’’ and ‘‘, in the case of officers of Secretary concerned specifies a further period of the Navy,’’ after ‘‘(junior grade) or lieutenant’’. delay. An officer’s appointment may not be de- Subsec. (d)(1). Pub. L. 107–107, § 505(c)(2)(A)(i), inserted layed more than 90 days after final action has ‘‘(including an approved all-fully-qualified-officers list, been taken in any criminal case against such of- if applicable)’’ after ‘‘retained on the promotion list’’ in concluding provisions. ficer in a Federal or State court, more than 90 Subsec. (d)(2). Pub. L. 107–107, § 505(c)(2)(A)(ii), in- days after final action has been taken in any serted ‘‘shall be retained on the promotion list (includ- court-martial case against such officer, or more ing an approved all-fully-qualified-officers list, if appli- than 18 months after the date on which such of- cable) and’’ after ‘‘to such grade, the officer’’ in second ficer would otherwise have been appointed, sentence. whichever is later. 1984—Subsec. (d)(1), (2). Pub. L. 98–525 inserted provi- sion for a determination by the Secretary concerned (Added Pub. L. 96–513, title I, § 105, Dec. 12, 1980, that the officer was unqualified for promotion for any 94 Stat. 2857; amended Pub. L. 97–22, § 4(d), July part of the delay in the officer’s promotion, with the 10, 1981, 95 Stat. 126; Pub. L. 97–295, § 1(8), Oct. 12, inserted provision that if the Secretary made such a de- 1982, 96 Stat. 1289; Pub. L. 98–525, title V, § 526, termination, the Secretary could adjust such date of Oct. 19, 1984, 98 Stat. 2525; Pub. L. 107–107, div. A, rank, effective date of pay and allowances, and position title V, § 505(a)(1), (c)(2)(A), (d)(1), Dec. 28, 2001, on the active-duty list as the Secretary considered ap- 115 Stat. 1085, 1087, 1088; Pub. L. 107–314, div. A, propriate under the circumstances. title X, § 1062(a)(2), Dec. 2, 2002, 116 Stat. 2649; 1982—Subsec. (d)(4). Pub. L. 97–295 substituted ‘‘this subsection’’ for ‘‘the subsection’’. Pub. L. 109–364, div. A, title V, § 511(a), (d)(1), 1981—Subsec. (a)(1). Pub. L. 97–22, § 4(d)(1)(A), struck Oct. 17, 2006, 120 Stat. 2181, 2183; Pub. L. 110–181, out ‘‘or in the case of officers selected for promotion to div. A, title X, § 1063(c)(3), Jan. 28, 2008, 122 Stat. the grade of or lieutenant (junior 322; Pub. L. 114–92, div. A, title V, § 502(a), Nov. grade), when a list of officers selected for promotion is 25, 2015, 129 Stat. 806.) approved by the President,’’ after ‘‘by the President,’’. Subsec. (a)(2). Pub. L. 97–22, § 4(d)(1)(B), inserted pro- AMENDMENTS vision that officers to be promoted to grade of first 2015—Subsec. (a)(3)(E). Pub. L. 114–92 added subpar. lieutenant or lieutenant (junior grade) shall be pro- (E). moted in accordance with regulations prescribed by the 2008—Subsec. (d)(1). Pub. L. 110–181 amended directory Secretary concerned. language of Pub. L. 109–364, § 511(a)(2)(D)(i). See 2006 Subsec. (c). Pub. L. 97–22, § 4(d)(2), substituted ‘‘under Amendment note below. this section in the grade of first lieutenant or captain Page 405 TITLE 10—ARMED FORCES § 626 or lieutenant (junior grade) or lieutenant’’ for ‘‘in the § 625. Authority to vacate promotions to grades grade of first lieutenant or lieutenant (junior grade) of brigadier general and rear (lower under this section’’. half) Subsec. (d)(1). Pub. L. 97–22, § 4(d)(3)(A), (B), sub- stituted ‘‘Under regulations prescribed by the Sec- (a) The President may vacate the promotion retary concerned, the appointment of an officer under to the grade of brigadier general or this section may be delayed’’ for ‘‘The Secretary con- (lower half) of an officer who has served less cerned may delay the appointment of an officer under than 18 months in that grade after promotion to this section’’ in provisions preceding subpar. (A) and, in that grade under this chapter. provisions following subpar. (D), inserted ‘‘then unless (b) An officer of the Army, Air Force, or Ma- action to delay an appointment has also been taken rine Corps whose promotion is vacated under under subsection (d)(2)’’ after ‘‘as the case may be,’’. Subsec. (d)(2). Pub. L. 97–22, § 4(d)(3)(C), substituted this section holds the regular grade of , if ‘‘Under regulations prescribed by the Secretary con- he is a regular officer, or the reserve grade of cerned, the appointment of an officer under this section colonel, if he is a reserve officer. An officer of may also be delayed in any case in which’’ for ‘‘The the Navy whose promotion is vacated under this Secretary concerned may also delay the appointment section holds the regular grade of captain, if he of an officer to the next higher grade under this section is a regular officer, or the reserve grade of cap- in any case in which the Secretary finds that’’. tain, if he is a reserve officer. Subsec. (d)(3). Pub. L. 97–22, § 4(d)(3)(D), (E), inserted (c) The position on the active-duty list of an ‘‘, unless it is impracticable to give such written notice officer whose promotion is vacated under this before the effective date of the appointment, in which section is the position he would have held had case such written notice shall be given as soon as prac- he not been promoted to the grade of brigadier ticable’’ after ‘‘grounds for the delay’’ and struck out ‘‘by the Secretary’’ after ‘‘the action taken’’. general or rear admiral (lower half). (Added Pub. L. 96–513, title I, § 105, Dec. 12, 1980, EFFECTIVE DATE OF 2008 AMENDMENT 94 Stat. 2858; amended Pub. L. 97–86, title IV, Pub. L. 110–181, div. A, title X, § 1063(c), Jan. 28, 2008, § 405(b)(1), (4)(A), Dec. 1, 1981, 95 Stat. 1105; Pub. 122 Stat. 322, provided that the amendment made by L. 99–145, title V, § 514(b)(1), (4)(A), Nov. 8, 1985, section 1063(c) is effective Oct. 17, 2006, and as if in- 99 Stat. 628.) cluded in the John Warner National Defense Authoriza- tion Act for Fiscal Year 2007, Pub. L. 109–364, as en- AMENDMENTS acted. 1985—Pub. L. 99–145 substituted ‘‘rear admiral (lower half)’’ for ‘‘’’ in section catchline and sub- EFFECTIVE DATE OF 2006 AMENDMENT secs. (a) and (c). Pub. L. 109–364, div. A, title V, § 511(e), Oct. 17, 2006, 1981—Pub. L. 97–86 substituted ‘‘commodore’’ for 120 Stat. 2184, provided that: ‘‘The amendments made ‘‘commodore admiral’’ in section catchline and subsecs. by this section [amending this section and sections (a) and (c). 14308 and 14311 of this title] shall take effect on the EFFECTIVE DATE OF 1981 AMENDMENT date of the enactment of this Act [Oct. 17, 2006] and shall apply with respect to officers on promotion lists Amendment by Pub. L. 97–86 effective Sept. 15, 1981, established on or after the date of the enactment of see section 405(f) of Pub. L. 97–86, set out as a note this Act.’’ under section 101 of this title. EFFECTIVE DATE EFFECTIVE DATE Section effective Sept. 15, 1981, but the authority to Section effective Sept. 15, 1981, but the authority to prescribe regulations under this section effective on prescribe regulations under this section effective on Dec. 12, 1980, see section 701 of Pub. L. 96–513, set out as Dec. 12, 1980, see section 701 of Pub. L. 96–513, set out as an Effective Date of 1980 Amendment note under sec- an Effective Date of 1980 Amendment note under sec- tion 101 of this title. tion 101 of this title. § 626. Acceptance of promotions; oath of office DELEGATION OF FUNCTIONS (a) An officer who is appointed to a higher Functions of President under subsec. (c) to appoint grade under section 624 of this title is considered officers in grades of first lieutenant and captain in Army, Air Force, and Marine Corps or in grades of lieu- to have accepted such appointment on the date tenant (junior grade) and lieutenant in Navy delegated on which the appointment is made unless he ex- to Secretary of Defense to perform, without approval, pressly declines the appointment. ratification, or other action by President, and with au- (b) An officer who has served continuously thority for Secretary to redelegate, see Ex. Ord. No. since he subscribed to the oath of office pre- 12396, §§ 1(c), 3, Dec. 9, 1982, 47 F.R. 55897, 55898, set out scribed in section 3331 of title 5 is not required as a note under section 301 of Title 3, The President. to take a new oath upon appointment to a high- er grade under section 624 of this title. DEADLINE FOR UNIFORM REGULATIONS ON DELAY OF PROMOTIONS (Added Pub. L. 96–513, title I, § 105, Dec. 12, 1980, Pub. L. 109–364, div. A, title V, § 511(c), Oct. 17, 2006, 94 Stat. 2858.) 120 Stat. 2183, provided that: EFFECTIVE DATE ‘‘(1) DEADLINE.—The Secretary of Defense shall pre- Section effective Sept. 15, 1981, but the authority to scribe the regulations required by section 624(d) of title prescribe regulations under this section effective on 10, United States Code (as amended by subsection (a)(1) Dec. 12, 1980, see section 701 of Pub. L. 96–513, set out as of this section), and the regulations required by section an Effective Date of 1980 Amendment note under sec- 14311 of such title (as amended by subsection (b)(1) of tion 101 of this title. this section) not later than March 1, 2008. ‘‘(2) SAVINGS CLAUSE FOR EXISTING REGULATIONS.— SUBCHAPTER III—FAILURE OF SELECTION Until the Secretary of Defense prescribes regulations FOR PROMOTION AND RETIREMENT FOR pursuant to paragraph (1), regulations prescribed by YEARS OF SERVICE the Secretaries of the military departments under the sections referred to in paragraph (1) shall remain in ef- Sec. fect.’’ 627. Failure of selection for promotion.