10 U.S.C. § 123

Current through P.L. 118-107 (published on www.congress.gov on 11/21/2024)

Section 123 - Authority to suspend officer personnel laws during war or national emergency

(a) In time of war, or of national emergency declared by Congress or the President after November 30, 1980, the President may suspend the operation of any provision of law relating to the promotion, involuntary retirement, or separation of commissioned officers of the Army, Navy, Air Force, Marine Corps, Space Force, or Coast Guard Reserve. So long as such war or national emergency continues, any such suspension may be extended by the President.

(b) Any such suspension shall, if not sooner ended, end on the last day of the two-year period beginning on the date on which the suspension (or the last extension thereof) takes effect or on the last day of the one-year period beginning on the date of the termination of the war or national emergency, whichever occurs first. With respect to the end of any such suspension, the preceding sentence supersedes the provisions of title II of the National Emergencies Act (50 U.S.C. 1621-1622) which provide that powers or authorities exercised by reason of a national emergency shall cease to be exercised after the date of the termination of the emergency.

(c) If a provision of law pertaining to the promotion of reserve officers is suspended under this section and if the Secretary of Defense submits to Congress proposed legislation to adjust the grades and dates of rank of reserve commissioned officers other than commissioned warrant officers, such proposed legislation shall, so far as practicable, be the same as that recommended for adjusting the grades and dates of rank of officers of the regular component of the armed force concerned.

(d) Upon the termination of a suspension made under the authority of subsection (a) of a provision of law otherwise requiring the separation or retirement of officers on active duty because of age, length of service or length of service in grade, or failure of selection for promotion, the Secretary concerned shall extend by up to 90 days the otherwise required separation or retirement date of any officer covered by the suspended provision whose separation or retirement date, but for the suspension, would have been before the date of the termination of the suspension or within 90 days after the date of such termination.

10 U.S.C. § 123

Added Pub. L. 85-861, §1(2)(A), Sept. 2, 1958, 72 Stat. 1437; amended Pub. L. 86-559, §1(1), June 30, 1960, 74 Stat. 264; Pub. L. 89-718, §1, Nov. 2, 1966, 80 Stat. 1115; Pub. L. 90-130, §1(1), Nov. 8, 1967, 81 Stat. 374; Pub. L. 96-513, title V, §§501(3), 511(1), Dec. 12, 1980, 94 Stat. 2907, 2920; Pub. L. 97-22, §10(b)(1), July 10, 1981, 95 Stat. 137; Pub. L. 103-337, div. A, title XVI, §1622(a), Oct. 5, 1994, 108 Stat. 2961; Pub. L. 104-106, div. A, title XV, §1501(c)(4), Feb. 10, 1996, 110 Stat. 498; Pub. L. 107-107, div. A, title V, §508(b), Dec. 28, 2001, 115 Stat. 1090; Pub. L. 116-283, div. A, title IX, §924(b)(2)(A)(i), Jan. 1, 2021, 134 Stat. 3821.

HISTORICAL AND REVISION NOTE
Revised section	Source (U.S. Code)	Source (Statutes at Large)
123	50:1199 (less applicability to National Guard).	Sept. 3, 1954, ch. 1257, §209 (less applicability to National Guard), 68 Stat. 1152.

In subsection (b), the words "the same as" are substituted for the word "comparable", since any necessary differences in the recommended legislation between Reserves and Regulars are fully taken account of in the words "So far as practicable".

EDITORIAL NOTES

REFERENCES IN TEXTThe National Emergencies Act, referred to in subsec. (b), is Pub. L. 94-412, Sept. 14, 1976, 90 Stat. 1255. Title II of the Act is classified generally to subchapter II (§1621 et seq.) of chapter 34 of Title 50, War and National Defense. For complete classification of this Act to the Code, see Short Title note set out under section 1601 of Title 50 and Tables.

PRIOR PROVISIONSProvisions similar to those in this section were contained in section 644 of this title prior to repeal by Pub. L. 103-337, §1622(b) .

AMENDMENTS2021-Subsec. (a). Pub. L. 116-283 substituted "Marine Corps, Space Force," for "Marine Corps,". 2001-Subsec. (d). Pub. L. 107-107 added subsec. (d).1996-Subsec. (a). Pub. L. 104-106 struck out "281, 592, 1002, 1005, 1006, 1007, 1374, 3217, 3218, 3219, 3220, 3352(a) (last sentence)," after "armed force:", "5414, 5457, 5458, 5506," after "3855,", and "8217, 8218, 8219," after "6410," and substituted "8855, 10214, 12003, 12004, 12005, 12007, 12202, 12213(a) (second sentence), 12642, 12645, 12646, 12647, 12771, 12772, and 12773" for "and 8855". 1994- Pub. L. 103-337 substituted "Authority to suspend officer personnel laws during war or national emergency" for "Suspension of certain provisions of law relating to reserve commissioned officers" as section catchline and amended text generally, substituting subsecs. (a) to (c) for former subsecs. (a) and (b).1981-Subsec. (a). Pub. L. 97-22 struck out references to sections 3494 and 8494. 1980-Subsec. (a). Pub. L. 96-513 struck out references to sections 3571, 3847, 5867, 8370, 8571, and 8847. 1967-Subsec. (a). Pub. L. 90-130 struck out reference to section 3391.1966-Subsec. (a). Pub. L. 89-718 struck out reference to section 5907. 1960-Subsec. (a). Pub. L. 86-559 inserted references to sections 281, 3855, and 8855 and struck out references to sections 3841, 3842, 3849, 8841, 8842, and 8849.

STATUTORY NOTES AND RELATED SUBSIDIARIES

EFFECTIVE DATE OF 1996 AMENDMENT Pub. L. 104-106, div. A, title XV, §1501(c), Feb. 10, 1996, 110 Stat. 498, provided that the amendment made by that section is effective as of Dec. 1, 1994, and as if included as an amendment made by the Reserve Officer Personnel Management Act, title XVI of Pub. L. 103-337, as originally enacted.

EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103-337 effective Oct. 1, 1996, see section 1691(b)(1) of Pub. L. 103-337, set out as an Effective Date note under section 10001 of this title.

EFFECTIVE DATE OF 1981 AMENDMENT Pub. L. 97-22, §10(b), July 10, 1981, 95 Stat. 137, provided that the amendment made by that section is effective Sept. 15, 1981.

EFFECTIVE DATE OF 1980 AMENDMENT Amendment by section 501(3) of Pub. L. 96-513, striking out references to sections 3571, 5867, and 8571, effective Sept. 15, 1981, and amendment by section 511(1) of Pub. L. 96-513, striking out references to sections 3847, 8370, and 8847, effective Dec. 12, 1980, see section 701 of Pub. L. 96-513, set out as a note under section 101 of this title.

TRANSFER OF FUNCTIONSFor transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

EXECUTIVE DOCUMENTS

DELEGATION OF FUNCTIONS Functions of President under this section delegated to Secretary of Defense, see section 1(11) of Ex. Ord. No. 11390, Jan. 22, 1968, 33 F.R. 841, set out as a note under section 301 of Title 3, The President.

DELEGATION OF AUTHORITY Authority of President under this section as invoked by sections 2 and 3 of Ex. Ord. No. 13223, Sept. 14, 2001, 66 F.R. 48201, as amended, delegated to Secretary of Defense by section 4 of Ex. Ord. No. 13223, and authority of President under this section as invoked by section 2 of Ex. Ord. No. 13223 delegated to Secretary of Homeland Security by section 5 of Ex. Ord. No. 13223, as amended, set out as a note under section 12302 of this title.

National Guard: The term "National Guard" means the Army National Guard and the Air National Guard.
Secretary concerned: The term "Secretary concerned" means-(A) the Secretary of the Army, with respect to matters concerning the Army;(B) the Secretary of the Navy, with respect to matters concerning the Navy, the Marine Corps, and the Coast Guard when it is operating as a service in the Department of the Navy;(C) the Secretary of the Air Force, with respect to matters concerning the Air Force and the Space Force; and(D) the Secretary of Homeland Security, with respect to matters concerning the Coast Guard when it is not operating as a service in the Department of the Navy.
active duty: The term "active duty" means full-time duty in the active military service of the United States, including sustained duty in the Space Force. Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned. Such term does not include full-time National Guard duty.
grade: The term "grade" means a step or degree, in a graduated scale of office or military rank, that is established and designated as a grade by law or regulation.
officer: The term "officer" means a commissioned or warrant officer.
rank: The term "rank" means the order of precedence among members of the armed forces.