10 U.S.C. § 8459

Current through P.L. 118-106 (published on www.congress.gov on 10/04/2024)

Section 8459 - Midshipmen: agreement for length of service

(a) Each midshipman shall sign an agreement with respect to the midshipman's length of service in the armed forces. The agreement shall provide that the midshipman agrees to the following:

(1) That the midshipman will complete the course of instruction at the Naval Academy.

(2) That upon graduation from the Naval Academy the midshipman-

(A) will accept an appointment, if tendered, as a commissioned officer of the Regular Navy, the Regular Marine Corps, or the Regular Air Force; and

(B) will serve on active duty for at least five years immediately after such appointment.

(3) That if an appointment described in paragraph (2) is not tendered or if the midshipman is permitted to resign as a regular officer before completion of the commissioned service obligation of the midshipman, the midshipman-

(A) will accept an appointment as a commissioned officer in the Navy Reserve or the Marine Corps Reserve or as a Reserve in the Air Force for service in the Air Force Reserve; and

(B) will remain in that reserve component until completion of the commissioned service obligation of the midshipman.

(4) That if an appointment described in paragraph (2) or (3) is tendered and the midshipman participates in a program under section 2121 of this title, the midshipman will fulfill any unserved obligation incurred under this section on active duty, regardless of the type of appointment held, upon completion of, and in addition to, any service obligation incurred under section 2123 of this title for participation in such program.

(5) That the midshipman may not obtain employment as a professional athlete until two years after the midshipman graduates from the Academy.

(b)

(1) The Secretary of the Navy may transfer to the Navy Reserve or the Marine Corps Reserve, and may order to active duty for such period of time as the Secretary prescribes (but not to exceed four years), a midshipman who breaches an agreement under subsection (a). The period of time for which a midshipman is ordered to active duty under this paragraph may be determined without regard to section 651(a) of this title.

(2) A midshipman who is transferred to the Navy Reserve or Marine Corps Reserve under paragraph (1) shall be transferred in an appropriate enlisted grade or rating, as determined by the Secretary.

(3) For the purposes of paragraph (1), a midshipman shall be considered to have breached an agreement under subsection (a) if the midshipman is separated from the Naval Academy under circumstances which the Secretary determines constitute a breach by the midshipman of the midshipman's agreement to complete the course of instruction at the Naval Academy and accept an appointment as a commissioned officer upon graduation from the Naval Academy.

(4) A midshipman who violates paragraph (5) of subsection (a) is not eligible for the alternative obligation under paragraph (1).

(c) The Secretary of the Navy shall prescribe regulations to carry out this section. Those regulations shall include-

(1) standards for determining what constitutes, for the purpose of subsection (b), a breach of an agreement under subsection (a);

(2) that a midshipman who obtains employment as a professional athlete-

(A) in violation of paragraph (5) of subsection (a) has breached an agreement under such subsection; and

(B) at least two years after the midshipman graduates from the Academy has not breached an agreement under subsection (a);

(3) procedures for determining whether such a breach has occurred; and

(4) standards for determining the period of time for which a person may be ordered to serve on active duty under subsection (b).

(d) In this section, "commissioned service obligation", with respect to a midshipman, means the period beginning on the date of the midshipman's appointment as a commissioned officer and ending on the sixth anniversary of such appointment or, at the discretion of the Secretary of Defense, any later date up to the eighth anniversary of such appointment.

(e)

(1) This section does not apply to a midshipman who is not a citizen or national of the United States.

(2) In the case of a midshipman who is a minor and who has parents or a guardian, the midshipman may sign the agreement required by subsection (a) only with the consent of a parent or guardian.

(f) A midshipman or former midshipman who does not fulfill each term of the agreement as specified under subsection (a), or the alternative obligation imposed under subsection (b), shall be subject to the repayment provisions of section 303a(e) or 373 of title 37.

10 U.S.C. § 8459

Aug. 10, 1956, ch. 1041, 70A Stat. 432, §6959; Pub. L. 88-276, §5(a), Mar. 3, 1964, 78 Stat. 153; Pub. L. 88-647, title III, §301(19), Oct. 13, 1964, 78 Stat. 1072; Pub. L. 98-525, title V, §§541(b), 542(c), Oct. 19, 1984, 98 Stat. 2529; Pub. L. 99-145, title V, §512(b), Nov. 8, 1985, 99 Stat. 624; Pub. L. 101-189, div. A, title V, §511(c), Nov. 29, 1989, 103 Stat. 1439; Pub. L. 104-106, div. A, title V, §531(b), Feb. 10, 1996, 110 Stat. 314; Pub. L. 109-163, div. A, title V, §515(b)(1)(S), title VI, §687(c)(10), Jan. 6, 2006, 119 Stat. 3233, 3335; Pub. L. 111-84, div. A, title X, §1073(a)(29), Oct. 28, 2009, 123 Stat. 2474; Pub. L. 111-383, div. A, title V, §554(b), Jan. 7, 2011, 124 Stat. 4221; Pub. L. 115-91, div. A, title V, §543(b), title VI, §618(a)(1)(L), Dec. 12, 2017, 131 Stat. 1395, 1426; renumbered §8459, Pub. L. 115-232, div. A, title VIII, §807(c)(1), Aug. 13, 2018, 132 Stat. 1836; Pub. L. 116-92, div. A, title V, §554(b), Dec. 20, 2019, 133 Stat. 1388; Pub. L. 117-263, div. A, title V, §553(b), Dec. 23, 2022, 136 Stat. 2593.

HISTORICAL AND REVISION NOTE
Revised section	Source (U.S. Code)	Source (Statutes at Large)
6959	34 U.S.C. 1048 .	June 30, 1950, ch. 421, §3, 64 Stat. 304.

The words "Hereafter" and "appointed to the United States Naval Academy" are omitted as surplusage. The words "an agreement that *** he will" are substituted for the words "articles *** by which he shall engage". The word "separated" is substituted for the words "discharged by competent authority". The words "if tendered an appointment", "upon graduation from the United States Naval Academy", and "consecutive" are omitted as surplusage. The words "if he is permitted to resign" are substituted for the words "in the event of the acceptance of his resignation", since a resignation is effective only if accepted. The first 43 words of clause (3) are substituted for 34 U.S.C. 1048 (last 30 words of clause (3)). The last sentence is substituted for the words "with the consent of his parents or guardian if he be a minor, and if any he have."

EDITORIAL NOTES

AMENDMENTS2022-Subsec. (a)(5). Pub. L. 117-263, §553(b)(1), amended par. (5) generally. Prior to amendment, par. (5) read as follows: "That the midshipman-"(A) will not seek release from the midshipman's commissioned service obligation or seek or accept approval for off-duty employment while completing the midshipman's commissioned service obligation to obtain employment as a professional athlete following graduation until the midshipman completes a period of at least two consecutive years of commissioned service; and"(B) understands that the appointment alternative described in paragraph (3) will not be used to allow the midshipman to obtain such employment until at least the end of that two-year period."Subsec. (b)(4). Pub. L. 117-263, §553(b)(2), added par. (4).Subsec. (c)(2) to (4). Pub. L. 117-263, §553(b)(3), added par. (2) and redesignated former pars. (2) and (3) as (3) and (4), respectively.Subsec. (d). Pub. L. 117-263, §553(b)(4), substituted "with respect to a midshipman" for "with respect to an officer who is a graduate of the Academy" and "midshipman's" for "officer's".Subsec. (f). Pub. L. 117-263, §553(b)(5), substituted "each term" for "the terms". 2019-Subsec. (a)(5)(A). Pub. L. 116-92 inserted "or seek or accept approval for off-duty employment while completing the midshipman's commissioned service obligation" before "to obtain employment". 2018- Pub. L. 115-232 renumbered section 6959 of this title as this section.2017-Subsec. (a)(5). Pub. L. 115-91, §543(b), added par. (5).Subsec. (f). Pub. L. 115-91, §618(a)(1)(L), inserted "or 373" before "of title 37". 2011-Subsec. (a)(4). Pub. L. 111-383 added par. (4).2009-Subsec. (f). Pub. L. 111-84 substituted "subsection (a)" for "section (a)". 2006-Subsecs. (a)(3)(A), (b)(1), (2). Pub. L. 109-163, §515(b)(1)(S), substituted "Navy Reserve" for "Naval Reserve". Subsec. (f). Pub. L. 109-163, §687(c) (10), added subsec. (f).1996-Subsec. (a)(2)(B). Pub. L. 104-106 substituted "five years" for "six years". 1989-Subsec. (a)(2)(B). Pub. L. 101-189 substituted "six years" for "five years".1985-Pub. L. 99-145 amended section generally. Prior to amendment, section read as follows:"(a) Each midshipman who is a citizen or national of the United States shall sign an agreement that he will-"(1) unless sooner separated from the Naval Academy, complete the course of instruction at the Naval Academy;"(2) accept an appointment and, unless sooner separated from the naval service, serve as a commissioned officer of the Regular Navy, the Regular Marine Corps, or the Regular Air Force for at least five years immediately after graduation; and "(3) accept an appointment as a commissioned officer in the reserve component of the Navy or the Marine Corps or as a Reserve in the Air Force for service in the Air Force Reserve and, unless sooner separated from the naval service, remain therein until at least the sixth anniversary and, at the direction of the Secretary of Defense, up to the eighth anniversary of his graduation if an appointment in the regular component of that armed force is not tendered to him or if he is permitted to resign as a commissioned officer of that component before that anniversary.If the midshipman is a minor and has parents or a guardian, he may sign the agreement only with the consent of the parents or guardian."(b) A midshipman who does not fulfill his agreement under subsection (a) may be transferred by the Secretary of the Navy to the Naval Reserve or the Marine Corps Reserve in an appropriate enlisted grade or rating, and, notwithstanding section 651 of this title, may be ordered to active duty to serve in that grade or rating for such period of time as the Secretary prescribes but not for more than four years."1984-Subsec. (a). Pub. L. 98-525, §541(b), struck out ",unless sooner separated," in introductory text preceding "he will"; inserted in cl. (1) "unless sooner separated from the Naval Academy,"; and inserted ",unless sooner separated from the naval service," in cls. (2) and (3).Subsec. (a)(3). Pub. L. 98-525, §542(c), substituted "at least the sixth anniversary and, at the direction of the Secretary of Defense, up to the eighth anniversary" for "the sixth anniversary".1964-Pub. L. 88-647 designated existing provisions as subsec. (a) and added subsec. (b). Subsec. (a)(2). Pub. L. 88-276 substituted "five" for "three".

STATUTORY NOTES AND RELATED SUBSIDIARIES

EFFECTIVE DATE OF 2022 AMENDMENT Amendment by Pub. L. 117-263 only applicable to cadets or midshipmen who first enroll in the United States Military Academy, the United States Naval Academy, or the United States Air Force Academy on or after June 1, 2021, see section 553(d) of Pub. L. 117-263, as added by section 202(a) of Pub. L. 117-328, set out as a note under section 7448 of this title.

EFFECTIVE DATE OF 2018 AMENDMENT 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.

EFFECTIVE DATE OF 2017 AMENDMENT Revised cadet and midshipman service agreements under this section and sections 7448 and 9448 of this title applicable to cadets and midshipmen who are attending the United States Military Academy, the United States Naval Academy, or the United States Air Force Academy on Dec. 12, 2017, and to persons who begin attendance at such military service academies on or after that date, see section 543(d) of Pub. L. 115-91, set out as a note under section 7448 of this title.

EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104-106 applicable to persons first admitted to United States Military Academy, United States Naval Academy, and United States Air Force Academy after Dec. 31, 1991, see section 531(e) of Pub. L. 104-106, set out as a note under section 7448 of this title.

EFFECTIVE DATE OF 1989 AMENDMENT Amendment by Pub. L. 101-189 applicable to persons who are first admitted to one of the military service academies after Dec. 31, 1991, see section 511(e) of Pub. L. 101-189, as amended, set out as a note under section 2114 of this title.

EFFECTIVE DATE OF 1985 AMENDMENT Amendment by Pub. L. 99-145 (other than with respect to the authority of the Secretary of the Navy to prescribe regulations) effective on the date on which regulations prescribed by the Secretary take effect and applicable to agreements entered into under this section on or after the effective date of such regulations and also with respect to each such agreement that was entered into before the effective date of such regulations by an individual who is a midshipman on such date, see section 512(e) of Pub. L. 99-145, set out as a note under section 7448 of this title.

EFFECTIVE DATE OF 1984 AMENDMENT Amendment by section 541(b) of Pub. L. 98-525 applicable with respect to agreements entered into under this section before, on, or after Oct. 19, 1984, see section 541(d) of Pub. L. 98-525, set out as a note under section 7448 of this title.

EFFECTIVE DATE OF 1964 AMENDMENT; OBLIGATED PERIOD OF SERVICEFor effective date of amendment by Pub. L. 88-276, see section 5(c) of Pub. L. 88-276, set out as a note under section 7448 of this title.

REGULATIONS IMPLEMENTING 1985 AMENDMENT Secretary of the Navy to prescribe regulations required by subsec. (c) of this section as added by Pub. L. 99-145 not later than the end of the 90-day period beginning on Nov. 8, 1985, see section 512(d) of Pub. L. 99-145, set out as a note under section 7448 of this title.

SAVINGS PROVISIONFor savings provision relating to payment or repayment of any bonus, incentive pay, special pay, or similar pay obligated to be paid before Apr. 1, 2006, under a provision of this section amended by section 687(c) of Pub. L. 109-163, see section 687(f) of Pub. L. 109-163, set out as a note under section 510 of this title.

DEPARTMENT OF DEFENSE POLICY ON SERVICE ACADEMY AND ROTC GRADUATES SEEKING TO PARTICIPATE IN PROFESSIONAL SPORTS BEFORE COMPLETION OF THEIR ACTIVE-DUTY SERVICE OBLIGATIONSSecretary of Defense to prescribe, not later than July 1, 2007, Department of Defense policy on whether to authorize service academy and ROTC graduates to participate in professional sports before the completion of their obligations for service on active duty, see section 533 of Pub. L. 109-364, set out as a note under section 7448 of this title.

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.
armed forces: The term "armed forces" means the Army, Navy, Air Force, Marine Corps, Space Force, and Coast Guard.
commissioned officer: The term "commissioned officer" includes a commissioned warrant officer.
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.
pay: The term "pay" includes basic pay, special pay, retainer pay, incentive pay, retired pay, and equivalent pay, but does not include allowances.
rating: The term "rating" means the name (such as "boatswain's mate") prescribed for members of an armed force in an occupational field. The term "rate" means the name (such as "chief boatswain's mate") prescribed for members in the same rating or other category who are in the same grade (such as chief petty officer or seaman apprentice).