10 U.S.C. § 973

Duties: officers on active duty; performance of civil functions restricted

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(a) No officer of an armed force on active duty may accept employment if that employment requires him to be separated from his organization, branch, or unit, or interferes with the performance of his military duties.(b)(1) This subsection applies—(A) to a regular officer of an armed force on the active-duty list (and a regular officer of the Coast Guard on the active duty promotion list);(B) to a retired regular officer of an armed force serving on active duty under a call or order to active duty for a period in excess of 270 days;(C) to a reserve officer of an armed force serving on active duty under a call or order to active duty for a period in excess of 270 days; and(D) to an officer on the Space Force officer list serving on active duty under section 20105(b) of this title or under a call or order to active duty for a period in excess of 270 days.(2)(A) Except as otherwise authorized by law, an officer to whom this subsection applies may not hold, or exercise the functions of, a civil office in the Government of the United States—(i) that is an elective office;(ii) that requires an appointment by the President by and with the advice and consent of the Senate; or(iii) that is a position in the Executive Schedule under sections 5312 through 5317 of title 5.(B) An officer to whom this subsection applies may hold or exercise the functions of a civil office in the Government of the United States that is not described in subparagraph (A) when assigned or detailed to that office or to perform those functions.(3) Except as otherwise authorized by law, an officer to whom this subsection applies by reason of subparagraph (A) of paragraph (1) may not hold or exercise, by election or appointment, the functions of a civil office in the government of a State (or of any political subdivision of a State).(4)(A) An officer to whom this subsection applies by reason of subparagraph (B) or (C) of paragraph (1) may not hold, by election or appointment, a civil office in the government of a State (or of any political subdivision of a State) if the holding of such office while this subsection so applies to the officer—(i) is prohibited under the laws of that State; or(ii) as determined by the Secretary of Defense or by the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Navy, interferes with the performance of the officer’s duties as an officer of the armed forces.(B) Except as otherwise authorized by law, while an officer referred to in subparagraph (A) is serving on active duty, the officer may not exercise the functions of a civil office held by the officer as described in that subparagraph.(5) Nothing in this subsection shall be construed to invalidate any action undertaken by an officer in furtherance of assigned official duties.(6) In this subsection, the term “State” includes the District of Columbia and a territory, possession, or commonwealth of the United States.(c) An officer to whom subsection (b) applies may seek and hold nonpartisan civil office on an independent school board that is located exclusively on a military reservation.(d) The Secretary of Defense, and the Secretary of Homeland Security with respect to the Coast Guard when it is not operating in the Navy, shall prescribe regulations to implement this section.(Added Pub. L. 90–235, § 4(a)(5)(A), Jan. 2, 1968, 81 Stat. 759; amended Pub. L. 96–513, title I, § 116, Dec. 12, 1980, 94 Stat. 2878; Pub. L. 98–94, title X, § 1002(a), Sept. 24, 1983, 97 Stat. 655; Pub. L. 101–510, div. A, title V, § 556, Nov. 5, 1990, 104 Stat. 1570; Pub. L. 106–65, div. A, title V, § 506, Oct. 5, 1999, 113 Stat. 591; Pub. L. 107–296, title XVII, § 1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 108–136, div. A, title V, § 545, Nov. 24, 2003, 117 Stat. 1479; Pub. L. 118–31, div. A, title XVII, § 1722(f), Dec. 22, 2023, 137 Stat. 672.)Editorial NotesCodification

Another section 1722(f) of Pub. L. 118–31 amended sections 802, 803, and 937 of this title.

Amendments

2023—Subsec. (b)(1)(D). Pub. L. 118–31 added subpar. (D).

2003—Subsec. (b)(3). Pub. L. 108–136, § 545(2), inserted “by reason of subparagraph (A) of paragraph (1)” after “applies” and substituted “(or of any political subdivision of a State)” for “, the District of Columbia, or a territory, possession, or commonwealth of the United States (or of any political subdivision of any such government)”.

Subsec. (b)(4), (5). Pub. L. 108–136, § 545(1), (3), added par. (4) and redesignated former par. (4) as (5).

Subsec. (b)(6). Pub. L. 108–136, § 545(4), added par. (6).

2002—Subsec. (d). Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation”.

1999—Subsec. (b)(1)(B), (C). Pub. L. 106–65 substituted “270 days” for “180 days”.

1990—Subsecs. (c), (d). Pub. L. 101–510 added subsec. (c) and redesignated former subsec. (c) as (d).

1983—Subsec. (b). Pub. L. 98–94 amended subsec. (b) generally. Prior to amendment subsec. (b) provided that, except as otherwise provided by law, no regular officer of an armed force on active duty could hold a civil office by election or appointment, whether under the United States, a Territory or possession, or a State, and that acceptance of such a civil office or the exercise of its functions by such an officer terminated his military appointment.

Subsec. (c). Pub. L. 98–94 added subsec. (c).

1980—Pub. L. 96–513, § 116(c), substituted “officers on active duty” for “regular officers” in section catchline.

Subsec. (a). Pub. L. 96–513, § 116(a), substituted “of an armed force on active duty” for “on the active list of the Regular Army, Regular Navy, Regular Air Force, Regular Marine Corps, or Regular Coast Guard”.

Subsec. (b). Pub. L. 96–513, § 116(b), substituted “regular officer of an armed force on active duty” for “on the active list of the Regular Army, Regular Navy, Regular Air Force, Regular Marine Corps, or Regular Coast Guard”.

Statutory Notes and Related SubsidiariesEffective Date of 2002 Amendment

Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–513 effective Sept. 15, 1981, but the authority to prescribe regulations under the amendment by Pub. L. 96–513 effective on Dec. 12, 1980, see section 701 of Pub. L. 96–513, set out as a note under section 101 of this title.

Construction and Applicability of Section 973(b)

Pub. L. 98–94, title X, § 1002(b), (c), Sept. 24, 1983, 97 Stat. 655, 656, provided that:“(b) Nothing in section 973(b) of title 10, United States Code, as in effect before the date of the enactment of this Act [Sept. 24, 1983], shall be construed—“(1) to invalidate any action undertaken by an officer of an Armed Force in furtherance of assigned official duties; or“(2) to have terminated the military appointment of an officer of an Armed Force by reason of the acceptance of a civil office, or the exercise of its functions, by that officer in furtherance of assigned official duties.“(c) Nothing in section 973(b)(3) of title 10, United States Code, as added by subsection (a), shall preclude a Reserve office to whom such section applies from holding or exercising the functions of an office described in such section for the term to which the Reserve officer was elected or appointed if, before the date of the enactment of this Act [Sept. 24, 1983], the Reserve officer accepted appointment or election to that office in accordance with the laws and regulations in effect at the time of such appointment or election.”

Notes of Decisions

Cited in 21 cases, 1974–2018 · leading case: United States v. Ortiz, 76 M.J. 189 (C.A.A.F. 2017).

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United States v. Ortiz, 76 M.J. 189 (C.A.A.F. 2017). · cites it 4× “We hold that Appellant is not entitled to relief because the applicable statute, 10 U.S.C. § 973 (b) (2012), does not by its terms terminate Colonel Mitchell’s position as an appellate military judge on the CCA, and because, in any event, the statute saves Colonel Mitchell’s…”

Ortiz v. United States, 138 S. Ct. 2165 (2018). “First, Ortiz invoked 10 U. S. C. §973 (b). That statute, designed to ensure civilian preeminence in government, provides that unless “otherwise authorized by law,” an active-duty military officer like Judge Mitchell “may not hold, or exercise the functions of,” certain “civil…”

United States v. Dalmazzi, 76 M.J. 1 (C.A.A.F. 2016). “Appellant asserts that: (1) as a USCMCR judge, Colonel Mitchell was prohibited by 10 U.S.C. § 973 (b)(2)(A)(ii) from sitting on the CCA; and (2) his service on both the *3 USCMCR and the CCA violated the Appointments Clause of the Constitution.”

Neel v. Pippy, 247 F. Supp. 2d 707 (W.D. Pa. 2003). · cites it 9× “This case involves a challenge under Title 10 of the United States Code, 10 U.S.C. § 973 which prohibits a reserve officer of an armed force serving on active duty for [a] period in excess of 270 days from holding or exercising civil office in a State or Commonwealth of the…”

United States v. William Allred, Antoine Haddad, Lou Milhous, Soren Hansen, & Donallco, Inc., 867 F.2d 856 (5th Cir. 1989). “Appellants also assert that Major Held's presence violated the Dual Compensation Statute, 10 U.S.C. § 973 (b). Because appellants have failed to adequately brief this point, we do not address it.”

Jolley v. Grantham, 424 S.E.2d 362 (Ga. Ct. App. 1992). · cites it 3× “206, 207 (1) ( 269 SE2d 467 ) (1980) and 10 USCA § 973, the superior court disqualified Jolley from running, finding as a matter of fact that he would “continue to be an active duty officer until at least October 31, 1992.”

Miss. Com'n on Jud. Perf. v. Osborne, 11 So. 3d 107 (Miss. 2009). “See 10 U.S.C. § 973 (a) 1980. Likewise, some civil service employees are restricted from "actively participat[ing] in political activity in any primary or election in a municipality where he is employed.”

Morrison v. Callaway, 369 F. Supp. 1160 (D.D.C. 1974). · cites it 2× “1 The gravamen of the complaint is founded upon 10 U.S.C. § 973 (b) which provides in pertinent part: “(b) Except as otherwise provided by law, no officer on the active list of the Regular Army, .”

Groves v. United States, 30 Fed. Cl. 28 (Fed. Cl. 1993). “10 U.S.C. § 973 (a) (1988). Since 1983, plaintiff admits he worked in private practice or for others on average more than 40 hours per week.”

Mississippi Comm'n on Jud. Performance v. Osborne, 11 So. 3d 107 (Miss. 2009). “See 10 U.S.C. § 973 (a) 1980. Likewise, some civil service employees are restricted from “actively participating] in political activity in any primary or election in a municipality where he is employed .”

Whether a Military Officer May Continue on Terminal Leave After He Is Appointed to a Fed. Civilian Position Covered by 10 U.S.C. § 973(b)(2)(A) (OLC 2016). · cites it 11× “Whether a Military Officer May Continue on Terminal Leave After He Is Appointed to a Federal Civilian Position Covered by 10 U.S.C. § 973 (b)(2)(A) An active duty military officer on terminal leave who meets the requirements of 5 U.”

Continuation of Terminal Leave for Military Officer Appointed to Fed. Civilian Position (OLC 2016). · cites it 11× “§ 5334a may continue on terminal leave status after his appointment or election to a position covered by 10 U.S.C. § 973 (b)(2)(A). March 24, 2016 MEMORANDUM OPINION FOR THE PRINCIPAL DEPUTY GENERAL COUNSEL DEPARTMENT OF HOMELAND SECURITY You asked whether an active duty…”

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