Title 10 — Armed ForcesRelease 119-83
§638a Modification to Rules for Continuation on Active Duty; Enhanced Authority for Selective Early Retirement and Early Discharges
Title 10 › Subtitle Subtitle A— General Military Law › Part II— PERSONNEL › Chapter 36— PROMOTION, SEPARATION, AND INVOLUNTARY RETIREMENT OF OFFICERS ON THE ACTIVE-DUTY LIST › Subchapter IV— CONTINUATION ON ACTIVE DUTY AND SELECTIVE EARLY RETIREMENT › § 638a
Summary
Lets the Secretary of Defense give each military department permission, until a date the Secretary sets but no later than December 31, 2030, to shorten required active-duty continuation, and to hold selection boards to recommend some officers for early retirement or for discharge. The kinds of officers covered include those who are on the active-duty list but not on promotion lists, officers who failed a promotion at least once, certain colonels/captains who have served two years in grade, and officers below those ranks who are eligible for retirement under sections 7311, 8323, or 9311 or will be within two years. These boards are the same type called for under section 611(b) and may also be used to consider some reserve officers on the same basis as regular officers. The Secretary of Defense can allow a waiver of the five-year rule in section 638(c) if needed. There are limits and rules. A board may not recommend more than 30 percent of the officers it considers in any grade or competitive category for early retirement or for discharge. A military department may send a board either all eligible officers in a grade or only certain year groups, specialties, or retirement categories. Officers chosen who are already eligible (or will be within two years, except as noted in section 4403 of the 1993 NDAA) must be retired; others must be discharged. All selections must be based on the needs of the service, and any retirement or discharge under this authority is treated as involuntary.
Full Legal Text
Title 10, §638a
Armed Forces — Source: USLM XML via OLRC
(a)(1)The Secretary of Defense may authorize the Secretary of a military department to take any of the actions set forth in subsection (b) with respect to officers of an armed force under the jurisdiction of that Secretary.
(2)Any authority provided to the Secretary of a military department under paragraph (1) shall expire on the date specified by the Secretary of Defense, but such expiration date may not be later than December 31, 2030.
(b)Actions which the Secretary of a military department may take with respect to officers of an armed force when authorized to do so under subsection (a) are the following:
(1)Shortening the period of the continuation on active duty established under section 637 of this title for a regular officer who is serving on active duty pursuant to a selection under that section for continuation on active duty.
(2)Providing that regular officers on the active-duty list may be considered for early retirement by a selection board convened under section 611(b) of this title in the case of officers described in any of subparagraphs (A) through (C) as follows:
(A)Officers in the regular grade of lieutenant colonel or commander who have failed of selection for promotion at least one time and whose names are not on a list of officers recommended for promotion.
(B)Officers in the regular grade of colonel or, in the case of the Navy, captain who have served on active duty in that grade for at least two years and whose names are not on a list of officers recommended for promotion.
(C)Officers, other than those described in subparagraphs (A) and (B), holding a regular grade below the grade of colonel, or in the case of the Navy, captain, who are eligible for retirement under section 7311, 8323, or 9311 of this title, or who after two additional years or less of active service would be eligible for retirement under one of those sections and whose names are not on a list of officers recommended for promotion.
(3)Convening selection boards under section 611(b) of this title to consider for discharge regular officers on the active-duty list in a grade below lieutenant colonel or commander—
(A)who have served at least one year of active duty in the grade currently held;
(B)whose names are not on a list of officers recommended for promotion; and
(C)who are not eligible to be retired under any provision of law (other than by reason of eligibility pursuant to section 4403 of the National Defense Authorization Act for Fiscal Year 1993) and are not within two years of becoming so eligible.
(4)Convening selection boards under section 611(b) of this title to consider for early retirement or discharge regular officers on the active-duty list in a grade below lieutenant colonel or commander—
(A)who have served at least one year of active duty in the grade currently held; and
(B)whose names are not on a list of officers recommended for promotion.
(c)(1)In the case of an action under subsection (b)(2), the total number of officers described in that subsection that a selection board convened under section 611(b) of this title pursuant to the authority of that subsection may recommend for early retirement may not be more than 30 percent of the number of officers considered in each grade in each competitive category.
(2)In the case of an action authorized under subsection (b)(2), the Secretary of Defense may also authorize the Secretary of the military department concerned when convening a selection board under section 611(b) of this title to consider regular officers on the active-duty list for early retirement to include within the officers to be considered by the board reserve officers on the active-duty list on the same basis as regular officers.
(3)In the case of an action under subsection (b)(2), the Secretary of the military department concerned may submit to a selection board convened pursuant to that subsection—
(A)the names of all eligible officers described in that subsection in a particular grade and competitive category; or
(B)the names of all eligible officers described in that subsection in a particular grade and competitive category who are also in particular year groups, specialties, or retirement categories, or any combination thereof, within that competitive category.
(4)In the case of an action under subsection (b)(2), the Secretary of Defense may also authorize the Secretary of the military department concerned to waive the five-year period specified in section 638(c) of this title if the Secretary of Defense determines that it is necessary for the Secretary of that military department to have such authority in order to meet mission needs.
(d)(1)In the case of an action under subsection (b)(3), the Secretary of the military department concerned may submit to a selection board convened pursuant to that subsection—
(A)the names of all officers described in that subsection in a particular grade and competitive category; or
(B)the names of all officers described in that subsection in a particular grade and competitive category who also are in particular year groups or specialties, or both, within that competitive category.
(2)The total number of officers to be recommended for discharge by a selection board convened pursuant to subsection (b)(3) may not be more than 30 percent of the number of officers considered.
(3)An officer who is recommended for discharge by a selection board convened pursuant to the authority of subsection (b)(3) and whose discharge is approved by the Secretary concerned shall be discharged on a date specified by the Secretary concerned.
(4)Selection of officers for discharge under this subsection shall be based on the needs of the service.
(e)(1)In the case of action under subsection (b)(4), the Secretary of the military department concerned shall specify the total number of officers described in that subsection that a selection board convened under section 611(b) of this title pursuant to the authority of that subsection may recommend for early retirement or discharge. Officers who are eligible, or are within two years of becoming eligible, to be retired under any provision of law (other than by reason of eligibility pursuant to section 4403 of the National Defense Authorization Act for Fiscal Year 1993 (Public Law 102–484)), if selected by the board, shall be retired or retained until becoming eligible to retire under section 7311, 8323, or 9311 of this title, and those officers who are otherwise ineligible to retire under any provision of law shall, if selected by the board, be discharged.
(2)In the case of action under subsection (b)(4), the Secretary of the military department concerned may submit to a selection board convened pursuant to that subsection—
(A)the names of all eligible officers described in that subsection, whether or not they are eligible to be retired under any provision of law, in a particular grade and competitive category; or
(B)the names of all eligible officers described in that subsection in a particular grade and competitive category, whether or not they are eligible to be retired under any provision of law, who are also in particular year groups, specialties, or retirement categories, or any combination thereof, with that competitive category.
(3)The number of officers specified under paragraph (1) may not be more than 30 percent of the number of officers considered.
(4)An officer who is recommended for discharge by a selection board convened pursuant to the authority of subsection (b)(4) and whose discharge is approved by the Secretary concerned shall be discharged on a date specified by the Secretary concerned.
(5)Selection of officers for discharge under this subsection shall be based on the needs of the service.
(f)The discharge or retirement of an officer pursuant to this section shall be considered to be involuntary for purposes of any other provision of law.
Legislative History
Notes & Related Subsidiaries
Editorial Notes
References in Text
section 4403 of the National Defense Authorization Act for Fiscal Year 1993, referred to in subsecs. (b)(3)(C) and (e)(1), is section 4403 of Pub. L. 102–484, which is set out as a note under section 1293 of this title.
Amendments
2025—Subsec. (a)(2). Pub. L. 119–60 substituted “
December 31, 2030” for “
December 31, 2025”. 2018—Subsecs. (b)(2)(C), (e)(1). Pub. L. 115–232 substituted “section 7311, 8323, or 9311” for “section 3911, 6323, or 8911”. 2017—Subsec. (c)(1). Pub. L. 115–91, § 503(1), added par. (1) and struck out former par. (1) which read as follows: “In the case of an action under subsection (b)(2), the Secretary of the military department concerned shall specify the number of officers described in that subsection which a selection board convened under section 611(b) of this title pursuant to the authority of that subsection may recommend for early retirement. Such number may not be more than 30 percent of the number of officers considered in each grade in each competitive category.” Subsec. (d)(2). Pub. L. 115–91, § 503(2), added par. (2) and struck out former par. (2) which read as follows: “The Secretary concerned shall specify the total number of officers to be recommended for discharge by a selection board convened pursuant to subsection (b)(3). That number may not be more than 30 percent of the number of officers considered.” 2016—Subsec. (a)(2). Pub. L. 114–328, § 508(b), substituted “
December 31, 2025” for “
December 31, 2018”. Subsec. (b)(4). Pub. L. 114–328, § 506(1), added par. (4). Subsecs. (e), (f). Pub. L. 114–328, § 506(2), (3), added subsec. (e) and redesignated former subsec. (e) as (f). 2015—Subsec. (d)(2). Pub. L. 114–92 substituted “officers considered.” for “officers considered— “(A) in each grade in each competitive category, except that through
December 31, 2018, such number may be more than 30 percent of the officers considered in each competitive category, but may not be more than 30 percent of the number of officers considered in each grade; or “(B) in each grade, year group, or specialty (or combination thereof) in each competitive category, except that through
December 31, 2018, such number may be more than 30 percent of the officers considered in each competitive category, but may not be more than 30 percent of the number of officers considered in each grade.” 2014—Subsec. (d)(3) to (5). Pub. L. 113–291 redesignated pars. (4) and (5) as (3) and (4), respectively, and struck out former par. (3) which read as follows: “The total number of officers described in subsection (b)(3) from any of the armed forces (or from any of the armed forces in a particular grade) who may be recommended during a fiscal year for discharge by a selection board convened pursuant to the authority of that subsection may not exceed 70 percent of the decrease, as compared to the preceding fiscal year, in the number of officers of that armed force (or the number of officers of that armed force in that grade) authorized to be serving on active duty as of the end of that fiscal year.” 2013—Subsec. (a). Pub. L. 112–239, § 502(1), designated existing provisions as par. (1), struck out “, during the period beginning on
October 1, 1990, and ending on
December 31, 2001, and for the purpose of subsection (b)(4) during the period beginning on
October 1, 2006, and ending on
December 31, 2012,” after “military department”, and added par. (2). Subsec. (b)(2)(A). Pub. L. 113–66, § 503(a)(1), substituted “have failed of selection for promotion at least one time and whose names are not on a list of officers recommended for promotion” for “would be subject to consideration for selection for early retirement under section 638(a)(1)(A) of this title except that they have failed of selection for promotion only one time (rather than two or more times)”. Subsec. (b)(2)(B). Pub. L. 113–66, § 503(a)(2), substituted “have served on active duty in that grade for at least two years and whose names are not on a list of officers recommended for promotion” for “would be subject to consideration for selection for early retirement under section 638(a)(1)(B) of this title except that they have served on active duty in that grade less than four years (but not less than two years)”. Subsec. (b)(3), (4). Pub. L. 112–239, § 502(2), redesignated par. (4) as (3) and struck out former par. (3) which read as follows: “Suspending section 638(c) of this title.” Subsec. (c)(4). Pub. L. 112–239, § 502(3), added par. (4). Subsec. (d). Pub. L. 112–239, § 502(4), substituted “subsection (b)(3)” for “subsection (b)(4)” wherever appearing and “except that through
December 31, 2018,” for “except that during the period beginning on
October 1, 2006, and ending on
December 31, 2012,” in subpars. (A) and (B) of par. (2). 2006—Subsec. (a). Pub. L. 109–364, § 623(b)(1), inserted “and for the purpose of subsection (b)(4) during the period beginning on
October 1, 2006, and ending on
December 31, 2012,” after “
December 31, 2001,”. Subsec. (d)(2)(A). Pub. L. 109–364, § 623(b)(2)(A), inserted “, except that during the period beginning on
October 1, 2006, and ending on
December 31, 2012, such number may be more than 30 percent of the officers considered in each competitive category, but may not be more than 30 percent of the number of officers considered in each grade” before “; or” at end. Subsec. (d)(2)(B). Pub. L. 109–364, § 623(b)(2)(B), inserted “, except that during the period beginning on
October 1, 2006, and ending on
December 31, 2012, such number may be more than 30 percent of the officers considered in each competitive category, but may not be more than 30 percent of the number of officers considered in each grade” before period at end. 2000—Subsec. (a). Pub. L. 106–398 substituted “
December 31, 2001” for “
September 30, 2001”. 1998—Subsec. (a). Pub. L. 105–261 substituted “during the period beginning on
October 1, 1990, and ending on
September 30, 2001” for “during the nine-year period beginning on
October 1, 1990”. 1993—Subsec. (a). Pub. L. 103–160 substituted “nine-year period” for “five-year period”. 1992—Subsec. (b)(4)(C). Pub. L. 102–484, § 4403(g)(2), inserted “(other than by reason of eligibility pursuant to section 4403 of the National Defense Authorization Act for Fiscal Year 1993)” after “any provision of law”. Subsec. (c)(3). Pub. L. 102–484, § 503, added par. (3). 1991—Subsec. (b)(2)(C). Pub. L. 102–190, § 503(b)(1), amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: “Officers holding a regular grade below the grade of colonel or, in the case of the Navy, captain who are not eligible for retirement under section 3911, 6323, or 8911 of this title but who after two additional years of active service as a commissioned officer would be eligible for retirement under one of those sections and whose names are not on a list of officers recommended for promotion.” Subsec. (c). Pub. L. 102–190, § 503(b)(2), designated existing provisions as par. (1) and added par. (2).
Statutory Notes and Related Subsidiaries
Effective Date
of 2018 AmendmentAmendment 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.
Reference
Citations & Metadata
Citation
10 U.S.C. § 638a
Title 10 — Armed Forces
Last Updated
Apr 18, 2026
Release point: 119-83