---
kind: "section"
citation: "10 U.S.C. § 638a"
title: "10"
title_heading: "Armed Forces"
number: "638a"
heading: "Modification to rules for continuation on active duty; enhanced authority for selective early retirement and early discharges"
release: "119-102"
date: "2026-07-12"
url: "https://uscodex.org/usc/10/638a"
units:
  - "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. Modification to rules for continuation on active duty; enhanced authority for selective early retirement and early discharges

- (a)
  - (1) The [Secretary](/usc/10/4951.md?p=3) of Defense may authorize the [Secretary](/usc/10/4951.md?p=3) of a [military](/usc/10/801.md?p=8) [department](/usc/10/101.md?p=a-6) to take any of the actions set forth in [subsection (b)](#b) with respect to [officers](/usc/10/101.md?p=b-1) of an armed force under the jurisdiction of that [Secretary](/usc/10/4951.md?p=3).
  - (2) Any authority provided to the [Secretary](/usc/10/4951.md?p=3) of a [military](/usc/10/801.md?p=8) [department](/usc/10/101.md?p=a-6) under [paragraph (1)](#a-1) shall expire on the date specified by the [Secretary](/usc/10/4951.md?p=3) of Defense, but such expiration date may not be later than December 31, 2030.
- (b) Actions which the [Secretary](/usc/10/4951.md?p=3) of a [military](/usc/10/801.md?p=8) [department](/usc/10/101.md?p=a-6) may take with respect to [officers](/usc/10/101.md?p=b-1) of an armed force when authorized to do so under [subsection (a)](#a) are the following:
  - (1) Shortening the period of the continuation on [active duty](/usc/10/101.md?p=d-1) established under [section 637 of this title](/usc/10/637.md) for a [regular](/usc/10/101.md?p=b-12) [officer](/usc/10/101.md?p=b-1) who is serving on [active duty](/usc/10/101.md?p=d-1) pursuant to a selection under that section for continuation on [active duty](/usc/10/101.md?p=d-1).
  - (2) Providing that [regular](/usc/10/101.md?p=b-12) [officers](/usc/10/101.md?p=b-1) on the [active-duty list](/usc/10/101.md?p=b-13) may be considered for early retirement by a selection board convened under [section 611(b) of this title](/usc/10/611.md?p=b) in the case of [officers](/usc/10/101.md?p=b-1) described in any of subparagraphs [(A)](#b-2-A) through [(C)](#b-2-C) as follows:
    - (A) [Officers](/usc/10/101.md?p=b-1) in the [regular](/usc/10/101.md?p=b-12) [grade](/usc/10/101.md?p=b-7) 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](/usc/10/101.md?p=b-1) recommended for promotion.
    - (B) [Officers](/usc/10/101.md?p=b-1) in the [regular](/usc/10/101.md?p=b-12) [grade](/usc/10/101.md?p=b-7) of colonel or, in the case of the Navy, captain who have served on [active duty](/usc/10/101.md?p=d-1) in that [grade](/usc/10/101.md?p=b-7) for at least two years and whose names are not on a list of [officers](/usc/10/101.md?p=b-1) recommended for promotion.
    - (C) [Officers](/usc/10/101.md?p=b-1), other than those described in subparagraphs [(A)](#b-2-A) and [(B)](#b-2-B), holding a [regular](/usc/10/101.md?p=b-12) [grade](/usc/10/101.md?p=b-7) below the [grade](/usc/10/101.md?p=b-7) of colonel, or in the case of the Navy, captain, who are eligible for retirement under section [7311](/usc/10/7311.md), [8323](/usc/10/8323.md), or [9311](/usc/10/9311.md) of this title, or who after two additional years or less of [active service](/usc/10/101.md?p=d-3) would be eligible for retirement under one of those sections and whose names are not on a list of [officers](/usc/10/101.md?p=b-1) recommended for promotion.
  - (3) Convening selection boards under [section 611(b) of this title](/usc/10/611.md?p=b) to consider for discharge [regular](/usc/10/101.md?p=b-12) [officers](/usc/10/101.md?p=b-1) on the [active-duty list](/usc/10/101.md?p=b-13) in a [grade](/usc/10/101.md?p=b-7) below lieutenant colonel or commander—
    - (A) who have served at least one year of [active duty](/usc/10/101.md?p=d-1) in the [grade](/usc/10/101.md?p=b-7) currently held;
    - (B) whose names are not on a list of [officers](/usc/10/101.md?p=b-1) 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](/usc/10/611.md?p=b) to consider for early retirement or discharge [regular](/usc/10/101.md?p=b-12) [officers](/usc/10/101.md?p=b-1) on the [active-duty list](/usc/10/101.md?p=b-13) in a [grade](/usc/10/101.md?p=b-7) below lieutenant colonel or commander—
    - (A) who have served at least one year of [active duty](/usc/10/101.md?p=d-1) in the [grade](/usc/10/101.md?p=b-7) currently held; and
    - (B) whose names are not on a list of [officers](/usc/10/101.md?p=b-1) recommended for promotion.
- (c)
  - (1) In the case of an action under [subsection (b)(2)](#b-2), the total number of [officers](/usc/10/101.md?p=b-1) described in that subsection that a selection board convened under [section 611(b) of this title](/usc/10/611.md?p=b) pursuant to the authority of that subsection may recommend for early retirement may not be more than 30 percent of the number of [officers](/usc/10/101.md?p=b-1) considered in each [grade](/usc/10/101.md?p=b-7) in each competitive category.
  - (2) In the case of an action authorized under [subsection (b)(2)](#b-2), the [Secretary](/usc/10/4951.md?p=3) of Defense may also authorize the [Secretary](/usc/10/4951.md?p=3) of the [military](/usc/10/801.md?p=8) [department](/usc/10/101.md?p=a-6) concerned when convening a selection board under [section 611(b) of this title](/usc/10/611.md?p=b) to consider [regular](/usc/10/101.md?p=b-12) [officers](/usc/10/101.md?p=b-1) on the [active-duty list](/usc/10/101.md?p=b-13) for early retirement to include within the [officers](/usc/10/101.md?p=b-1) to be considered by the board [reserve](/usc/10/101.md?p=c-6) [officers](/usc/10/101.md?p=b-1) on the [active-duty list](/usc/10/101.md?p=b-13) on the same basis as [regular](/usc/10/101.md?p=b-12) [officers](/usc/10/101.md?p=b-1).
  - (3) In the case of an action under [subsection (b)(2)](#b-2), the [Secretary](/usc/10/4951.md?p=3) of the [military](/usc/10/801.md?p=8) [department](/usc/10/101.md?p=a-6) concerned may submit to a selection board convened pursuant to that subsection—
    - (A) the names of all eligible [officers](/usc/10/101.md?p=b-1) described in that subsection in a particular [grade](/usc/10/101.md?p=b-7) and competitive category; or
    - (B) the names of all eligible [officers](/usc/10/101.md?p=b-1) described in that subsection in a particular [grade](/usc/10/101.md?p=b-7) 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)](#b-2), the [Secretary](/usc/10/4951.md?p=3) of Defense may also authorize the [Secretary](/usc/10/4951.md?p=3) of the [military](/usc/10/801.md?p=8) [department](/usc/10/101.md?p=a-6) concerned to waive the five-year period specified in [section 638(c) of this title](/usc/10/638.md?p=c) if the [Secretary](/usc/10/4951.md?p=3) of Defense determines that it is necessary for the [Secretary](/usc/10/4951.md?p=3) of that [military](/usc/10/801.md?p=8) [department](/usc/10/101.md?p=a-6) to have such authority in order to meet mission needs.
- (d)
  - (1) In the case of an action under [subsection (b)(3)](#b-3), the [Secretary](/usc/10/4951.md?p=3) of the [military](/usc/10/801.md?p=8) [department](/usc/10/101.md?p=a-6) concerned may submit to a selection board convened pursuant to that subsection—
    - (A) the names of all [officers](/usc/10/101.md?p=b-1) described in that subsection in a particular [grade](/usc/10/101.md?p=b-7) and competitive category; or
    - (B) the names of all [officers](/usc/10/101.md?p=b-1) described in that subsection in a particular [grade](/usc/10/101.md?p=b-7) and competitive category who also are in particular year groups or specialties, or both, within that competitive category.
  - (2) The total number of [officers](/usc/10/101.md?p=b-1) to be recommended for discharge by a selection board convened pursuant to [subsection (b)(3)](#b-3) may not be more than 30 percent of the number of [officers](/usc/10/101.md?p=b-1) considered.
  - (3) An [officer](/usc/10/101.md?p=b-1) who is recommended for discharge by a selection board convened pursuant to the authority of [subsection (b)(3)](#b-3) and whose discharge is approved by the [Secretary concerned](/usc/10/2801.md?p=c-5) shall be discharged on a date specified by the [Secretary concerned](/usc/10/2801.md?p=c-5).
  - (4) Selection of [officers](/usc/10/101.md?p=b-1) 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)](#b-4), the [Secretary](/usc/10/4951.md?p=3) of the [military](/usc/10/801.md?p=8) [department](/usc/10/101.md?p=a-6) concerned shall specify the total number of [officers](/usc/10/101.md?p=b-1) described in that subsection that a selection board convened under [section 611(b) of this title](/usc/10/611.md?p=b) pursuant to the authority of that subsection may recommend for early retirement or discharge. [Officers](/usc/10/101.md?p=b-1) 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](/usc/10/7311.md), [8323](/usc/10/8323.md), or [9311](/usc/10/9311.md) of this title, and those [officers](/usc/10/101.md?p=b-1) 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)](#b-4), the [Secretary](/usc/10/4951.md?p=3) of the [military](/usc/10/801.md?p=8) [department](/usc/10/101.md?p=a-6) concerned may submit to a selection board convened pursuant to that subsection—
    - (A) the names of all eligible [officers](/usc/10/101.md?p=b-1) described in that subsection, whether or not they are eligible to be retired under any provision of law, in a particular [grade](/usc/10/101.md?p=b-7) and competitive category; or
    - (B) the names of all eligible [officers](/usc/10/101.md?p=b-1) described in that subsection in a particular [grade](/usc/10/101.md?p=b-7) 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](/usc/10/101.md?p=b-1) specified under [paragraph (1)](#e-1) may not be more than 30 percent of the number of [officers](/usc/10/101.md?p=b-1) considered.
  - (4) An [officer](/usc/10/101.md?p=b-1) who is recommended for discharge by a selection board convened pursuant to the authority of [subsection (b)(4)](#b-4) and whose discharge is approved by the [Secretary concerned](/usc/10/2801.md?p=c-5) shall be discharged on a date specified by the [Secretary concerned](/usc/10/2801.md?p=c-5).
  - (5) Selection of [officers](/usc/10/101.md?p=b-1) for discharge under this subsection shall be based on the needs of the service.
- (f) The discharge or retirement of an [officer](/usc/10/101.md?p=b-1) pursuant to this section shall be considered to be involuntary for purposes of any other provision of law.

## Source credit

(Added Pub. L. 101–510, div. A, title V, § 521(a)(1), Nov. 5, 1990, 104 Stat. 1559; amended Pub. L. 102–190, div. A, title V, § 503(b), Dec. 5, 1991, 105 Stat. 1355; Pub. L. 102–484, div. A, title V, § 503, title LXIV, § 4403(g)(2), Oct. 23, 1992, 106 Stat. 2402, 2703; Pub. L. 103–160, div. A, title V, § 561(b), Nov. 30, 1993, 107 Stat. 1667; Pub. L. 105–261, div. A, title V, § 561(c), Oct. 17, 1998, 112 Stat. 2025; Pub. L. 106–398, § 1 [[div. A], title V, § 571(c)], Oct. 30, 2000, 114 Stat. 1654, 1654A–134; Pub. L. 109–364, div. A, title VI, § 623(b), Oct. 17, 2006, 120 Stat. 2256; Pub. L. 112–239, div. A, title V, § 502, Jan. 2, 2013, 126 Stat. 1714; Pub. L. 113–66, div. A, title V, § 503(a), Dec. 26, 2013, 127 Stat. 750; Pub. L. 113–291, div. A, title V, § 503, Dec. 19, 2014, 128 Stat. 3355; Pub. L. 114–92, div. A, title V, § 503, Nov. 25, 2015, 129 Stat. 807; Pub. L. 114–328, div. A, title V, §§ 506, 508(b), Dec. 23, 2016, 130 Stat. 2108, 2109; Pub. L. 115–91, div. A, title V, § 503, Dec. 12, 2017, 131 Stat. 1373; Pub. L. 115–232, div. A, title VIII, § 809(a), Aug. 13, 2018, 132 Stat. 1840; Pub. L. 119–60, div. A, title VI, § 602, Dec. 18, 2025, 139 Stat. 905.)

## Notes

### 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 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.