Members on temporary disability retired list: return to active duty; promotion

10 U.S.C. § 1211

• Title: 10 — Armed Forces
• Chapter: 61 — RETIREMENT OR SEPARATION FOR PHYSICAL DISABILITY

Text

(a) With his consent, any member of the Army, the Air Force, or the Space Force whose name is on the temporary disability retired list, and who is found to be physically fit to perform the duties of his office, grade, or rank under section 1210(f) of this title, shall—
(1) if a commissioned officer of a regular component, be recalled to active duty and, as soon as practicable, may be reappointed by the President, by and with the advice and consent of the Senate, to the active-duty list in the regular grade held by him when his name was placed on the temporary disability retired list, or in the next higher regular grade;
(2) if a warrant officer of a regular component, be recalled to active duty and, as soon as practicable, be reappointed by the Secretary concerned in the regular grade held by him when his name was placed on the temporary disability retired list, or in the next higher regular warrant grade;
(3) if an enlisted member of a regular component, be reenlisted in the regular grade held by him when his name was placed on the temporary disability retired list or in the next higher regular enlisted grade;
(4) if a commissioned, warrant, or enlisted Reserve, be reappointed or reenlisted as a Reserve for service in his reserve component in the reserve grade held by him when his name was placed on the temporary disability retired list, or appointed or enlisted in the next higher reserve commissioned, warrant, or enlisted grade, as the case may be;
(5) if a commissioned, warrant, or enlisted member of the Army National Guard of the United States or the Air National Guard of the United States when the disability was incurred, and if he cannot be reappointed or reenlisted as a Reserve for service therein, be appointed or enlisted as a Reserve for service in the Army Reserve or the Air Force Reserve, as the case may be, in a grade corresponding to the reserve grade held by him when his name was placed on the temporary disability retired list, or in the next higher reserve commissioned, warrant, or enlisted grade, as the case may be; and
(6) if a member of the Army, the Air Force, or the Space Force who has no regular or reserve grade, be reappointed or reenlisted in the Army, the Air Force, or the Space Force, as the case may be, in the temporary grade held by him when his name was placed on the temporary disability retired list, or appointed or enlisted in the next higher temporary grade.
(b) With his consent, any member of the naval service or of the Coast Guard whose name is on the temporary disability retired list, and who is found to be physically fit to perform the duties of his office, grade, rank, or rating under section 1210(f) of this title, shall—
(1) if he held an appointment in a commissioned grade in a regular component when his name was placed on the temporary disability retired list, be recalled to active duty and, as soon as practicable, may be reappointed by the President, by and with the advice and consent of the Senate, to his regular component in the grade permanently held by him when his name was placed on the temporary disability retired list, or in the next higher grade;
(2) if he held an appointment in the grade of warrant officer, W–1, in a regular component when his name was placed on the temporary disability retired list, be recalled to active duty and, as soon as practicable, be reappointed by the Secretary concerned in his regular component in the grade permanently held by him when his name was placed on the temporary disability retired list, or may be appointed by the President, by and with the advice and consent of the Senate, to the grade of chief warrant officer, W–2;
(3) if he held a permanent enlisted grade in a regular component when his name was placed on the temporary disability retired list, be reenlisted in his regular component in the grade permanently held by him when his name was placed on the temporary disability retired list, or in the next higher enlisted grade;
(4) if he was a member of the Fleet Reserve or the Fleet Marine Corps Reserve when his name was placed on the temporary disability retired list, resume his status in the Fleet Reserve or the Fleet Marine Corps Reserve in the grade held by him when his name was placed on the temporary disability retired list, or in the next higher enlisted grade; and
(5) if a member of a reserve component be reappointed or reenlisted in his reserve component in the grade permanently held by him when his name was placed on the temporary disability retired list or, if that permanent grade is not chief petty officer or master sergeant, in the next higher grade in that reserve component.
(c) If a member is appointed, reappointed, enlisted, or reenlisted, or resumes his status in the Fleet Reserve or the Fleet Marine Corps Reserve, under subsection (a) or (b), his status on the temporary disability retired list terminates on the date of his appointment, reappointment, enlistment, reenlistment, or resumption, as the case may be. However, if such a member does not consent to the action proposed under subsection (a) or (b), and if the member is not discharged, retired, or transferred to the Fleet Reserve or Fleet Marine Corps Reserve or inactive Reserve under section 1210 of this title, his status on the temporary disability retired list and his disability retired pay shall be terminated as soon as practicable and the member shall be discharged.
(d) Disability retired pay of a member covered by this section terminates—
(1) on the date when he is recalled to active duty under subsection (a)(1) or (2) or subsection (b)(1) or (2), for an officer of a regular component;
(2) on the date when he resumes his status in the Fleet Reserve or the Fleet Marine Corps Reserve under subsection (b)(4), for a member of the Fleet Reserve or the Fleet Marine Corps Reserve; and
(3) on the date when he is appointed, reappointed, enlisted, or reenlisted, for any other member of the armed forces.
(e) Whenever seniority in grade or years of service is a factor in determining the qualifications of a member of the armed forces for promotion, each member who has been appointed, reappointed, enlisted, or reenlisted, under subsection (a) or (b), shall, when his name is placed on a lineal list, a promotion list, an approved all-fully-qualified-officers list, or any similar list, have the seniority in grade and be credited with the years of service authorized by the Secretary concerned. The authorized strength in any regular grade is automatically increased to the minimum extent necessary to give effect to each appointment made in that grade under this section. An authorized strength so increased is increased for no other purpose, and while he holds that grade the officer whose appointment caused the increase is counted for the purpose of determining when other appointments, not under this section, may be made in that grade.
(f) Action under this section shall be taken on a fair and equitable basis, with regard being given to the probable opportunities for advancement and promotion that the member might reasonably have had if his name had not been placed on the temporary disability retired list.

History

(Aug. 10, 1956, ch. 1041, 70A Stat. 96; Pub. L. 87–651, title I, §107(b), Sept. 7, 1962, 76 Stat. 508; Pub. L. 96–513, title V, §501(17), Dec. 12, 1980, 94 Stat. 2908; Pub. L. 99–145, title V, §513(a)(3), Nov. 8, 1985, 99 Stat. 627; Pub. L. 107–107, div. A, title V, §505(c)(4), Dec. 28, 2001, 115 Stat. 1088; Pub. L. 116–283, div. A, title IX, §924(b)(24), Jan. 1, 2021, 134 Stat. 3824.)

Editorial Notes

In subsections (a) and (b), the words "under section 1210(f) of this title" are substituted for the words "If, as a result of a periodic physical examination", in 37:275(a) and (b), and 276(a), and the words "and who are subsequently found to be physically fit", in 37:277(a). The words "subject to the provisions of section 277 of this title", in 37:275(a), are omitted as surplusage.
In subsections (a)(2)–(6) and (b)(2)–(6), the appointment or enlistment is restricted to those already in an enlisted, warrant, or commissioned status, as the case may be, held by the member before placement of his name on the temporary disability retired list, since 37:277 (last sentence) indicates that appointment in the next higher grade for regular warrant officer is restricted to those warrant grades to which the President alone may appoint him. Similarly 37:275 (last 10 words) indicates that an enlisted member may only be reenlisted.
In subsection (a)(2) reference to the President, in 37:277(a), is omitted as inapplicable to the appointment of warrant officers of the Army and the Air Force.
Subsection (a)(5) is substituted for 37:275(b) (proviso) (as applicable to Army and Air Force).
Subsection (a)(6) is inserted, since the words "reserve component" are defined by section 102(k) of the source statute to include members of the Army and the Air Force who have no component status.
In subsection (b)(2), the words "by and with the advice and consent of the Senate" are added to make it clear that all appointments to the grade of commissioned warrant officer in the Navy, Marine Corps, and Coast Guard require Senate confirmation. Although these words do not appear in section 405 of the Career Compensation Act of 1949, there is no indication that an exception to the basic law relating to appointments in commissioned grades was intended.
Subsection (d)(3) is made applicable to members without component status, since the words "reserve component" are defined in section 102(k) of the source statute to include members of the Army and the Air Force who have no component status.
In subsection (e), the words "rank" and "rating" are omitted as surplusage.

1962 Act
The changes correct typographical errors.

Editorial Notes

Amendments
2021—Subsec. (a). Pub. L. 116–283, §924(b)(24)(A), substituted ", the Air Force, or the Space Force" for "or the Air Force" in introductory provisions.
Subsec. (a)(6). Pub. L. 116–283, §924(b)(24)(B), substituted "the Air Force, or the Space Force who" for "or the Air Force, who" and "the Air Force, or the Space Force, as" for "or the Air Force, as".
2001—Subsec. (e). Pub. L. 107–107 inserted "an approved all-fully-qualified-officers list," after "a promotion list,".
1985—Subsec. (c). Pub. L. 99–145 inserted "and if the member is not discharged, retired, or transferred to the Fleet Reserve or Fleet Marine Corps Reserve or inactive Reserve under section 1210 of this title," after "proposed under subsection (a) or (b)," and inserted "and the member shall be discharged" after "as soon as practicable".
1980—Subsec. (a)(1). Pub. L. 96–513 substituted "active-duty list" for "active list of his regular component".
1962—Subsec. (d). Pub. L. 87–651 substituted "subsection (b)(1) or (2)" for "subsection (b)(1), (2), or (3)" in cl. (1), and "subsection (b)(4)" for "subsection (b)(5)" in cl. (2).

Statutory Notes and Related Subsidiaries

Effective Date of 1980 Amendment
Amendment by Pub. L. 96–513 effective Sept. 15, 1981, see section 701 of Pub. L. 96–513, set out as a note under section 101 of this title.

Transfer of Functions
For 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.