U.S. Code
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Title 10
» Subtitle Subtitle A— General Military Law › Part PART II— PERSONNEL › Chapter CHAPTER 59— SEPARATION
10 U.S.C. § 1161
Commissioned officers: limitations on dismissal
(a) No commissioned officer may be dismissed from any armed force except—(1) by sentence of a general court-martial;(2) in commutation of a sentence of a general court-martial; or(3) in time of war, by order of the President.(b) The President or the Secretary of Defense, or in the case of a commissioned officer of the Coast Guard, the Secretary of the department in which the Coast Guard is operating when it is not operating in the Navy, may drop from the rolls of any armed force any commissioned officer (1) who has been absent without authority for at least three months, (2) who may be separated under section 1167 of this title by reason of a sentence to confinement adjudged by a court-martial, or (3) who is sentenced to confinement in a Federal or State penitentiary or correctional institution after having been found guilty of an offense by a court other than a court-martial or other military court, and whose sentence has become final.(Aug. 10, 1956, ch. 1041, 70A Stat. 89; Pub. L. 104–106, div. A, title V, § 563(b)(1), Feb. 10, 1996, 110 Stat. 325; Pub. L. 104–201, div. A, title X, § 1074(a)(5), Sept. 23, 1996, 110 Stat. 2658; Pub. L. 114–328, div. A, title V, § 507, Dec. 23, 2016, 130 Stat. 2109.)Historical and Revision Notes |
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1161(a) | 50:739 (words before semicolon, less applicability to Navy and Marine Corps warrant officers). | May 5, 1950, ch. 169, § 10 (less applicability to Navy and Marine Corps warrant officers), 64 Stat. 146. |
1161(b) | 50:739 (less words before semicolon, less applicability to Navy and Marine Corps warrant officers). | |
In subsections (a) and (b), the word “commissioned” is inserted since, for the Army and the Air Force, the term “officer” is intended to have the same meaning in 50:739 as it has in the Uniform Code of Military Justice (article 4). For Navy warrant officers see section 6408 of this title.
In subsection (b), the words “from his place of duty” are omitted as surplusage. The words “at least” are substituted for the words “or more”. The words “by a court other than a court-martial or other military court” are substituted for the words “by the civil authorities”.
Editorial NotesAmendments2016—Subsec. (b). Pub. L. 114–328 inserted “or the Secretary of Defense, or in the case of a commissioned officer of the Coast Guard, the Secretary of the department in which the Coast Guard is operating when it is not operating in the Navy,” after “President”.
1996—Subsec. (b). Pub. L. 104–201 substituted “section 1167” for “section 1178” in par. (2).
Pub. L. 104–106 struck out “or” after “three months,”, added par. (2), and redesignated former par. (2) as (3).
Statutory Notes and Related SubsidiariesRestoration of Retired Pay to Officers Dropped From Rolls After December 31, 1954 and Before August 25, 1958Pub. L. 85–754, Aug. 25, 1958, 72 Stat. 847, provided: “That notwithstanding any other provisions of law, a former retired officer dropped from the rolls under section 10 of the Act of May 5, 1950, ch. 169 (64 Stat. 146), or section 1161 of title 10, United States Code, after December 31, 1954, and before the date of enactment of this Act [Aug. 25, 1958] shall, for the purposes of entitlement to retired or retirement pay after the date of enactment of this Act, be treated as if he had not been dropped from the rolls. Such an officer is also entitled to retroactive retired or retirement pay for the period beginning on the date he was dropped from the rolls and ending on the date of enactment of this Act, as if he had not been dropped from the rolls.“Sec. 2. A former retired officer covered by this Act is subject to the penal, prohibitory, and restrictive provisions of law applicable to the pay and civil employment of retired officers of the Armed Forces and is not entitled to any other benefit provided by law or regulation for retired officers of the Armed Forces. After the date of enactment of this Act [Aug. 25, 1958], such a former retired officer may, in the discretion of the President, have his entitlement to retired or retirement pay under this Act terminated for any reason for which any retired officer may be dismissed from, or dropped from the rolls of, any Armed Force.“Sec. 3. Appropriations available for the payment of retired pay to members of the Armed Forces are available for payments under this Act.”
Notes of Decisions
Cited in
14
cases (
2 in the last 5 years), 1961–2023 · leading case:
United States v. Davis, 52 M.J. 201 (C.A.A.F. 1999).
United States v. Davis, 52 M.J. 201 (C.A.A.F. 1999).
· cites it 6× “10, 1996) (codified in pertinent part at 10 USC §§ 1161 (b)(2) and 1167). This provision was intended to address circumstances under then-existing law in which a person could continue to remain on active duty, drawing pay and allowances, despite a sentence to long-term…”
Goldsmith v. Clinton, 48 M.J. 84 (C.A.A.F. 1998).
· cites it 4× “See 10 USC §§ 1161 and 1167. Petitioner named as respondents the President and various other members of the Executive Branch.”
Steuer v. United States, 207 Ct. Cl. 282 (Ct. Cl. 1975).
· cites it 2× “I Plaintiff’s motion is stated by him to be based upon the fifth amendment to the Constitution which protects persons from deprivation of life, liberty, or property, without due process of law, and upon statute, 10 U.S.C. § 1161 , which reads in part: ■§1161.”
Kinney v. United States, 51 Fed. Cl. 126 (Fed. Cl. 2001).
· cites it 2× “10 U.S.C. § 1161 (1998); AR at 23. Air Force Instruction (AFI) 36-3207 also addresses the separation of commissioned officers from the Air Force.”
United States v. Wallace, 58 M.J. 759 (N.M.C.C.A. 2003).
“2d 720 (1999)(Congress’ amendment of Title 10 U.S.C. § 1161 and the enactment of Title 10 U.”
Coppedge v. Marsh, 532 F. Supp. 423 (D. Kan. 1982).
“10 U.S.C. § 1161 . 2 . After a reserve officer has completed his or her initial obligated service on active duty, the officer may request an extension of active duty either for a definite period or an indefinite period, as in plaintiffs case.”
Carter v. United States, 206 Ct. Cl. 61 (Ct. Cl. 1975).
“Secondly, erecting for plaintiff a period of “constructive active duty” would not be to plaintiff’s advantage or be equitable to him because under the specific authority of 10 U.S.C. §§ 1161 and 1163, he would become exposed to a discharge under conditions other than honorable…”
Hankins v. United States, 183 Ct. Cl. 32 (Ct. Cl. 1968).
“See 10 U.S.C. § 1161 (“Commissioned officers’ limitations on dismissal” — discharge as a result of a court-martial or in wartime).”
Beard v. Stahr, 200 F. Supp. 766 (D.D.C. 1961).
“§ 739 , (now 10 U.S.C. § 1161 ). On August 10, 1956, the statute invoked in this case became law, 10 U.”
United States v. Sergeant ROBERT B. BERGDAHL (A.C.C.A. 2019).
“See 10 U.S.C. § 1161 (a). The military judge was correct in finding the President can take adverse action which could ultimately result in a resignation, retirement, or separation.”
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