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UNITED STATES CODE SERVICE
Copyright (c) 1993, Lawyers Cooperative Publishing
*** ARCHIVE MATERIAL ***
*** THIS SECTION IS CURRENT THROUGH THE 103RD CONGRESS, 1ST SESSION ***
TITLE 10. ARMED FORCES
SUBTITLE A. GENERAL MILITARY LAW
PART II. PERSONNEL
CHAPTER 59. SEPARATION
10 USCS § 1163 (1993)
§ 1163. Reserve components: members; limitations on separation
(a) An officer of a reserve component who has at least three years of service as a commissioned officer may not be
separated from that component without his consent except under an approved recommendation of a board of officers
convened by an authority designated by the Secretary concerned, or by the approved sentence of a court--martial. This
subsection does not apply to a separation under subsection (b) of this section or under section 1003 of this title [10 USCS
§ 1003], to a dismissal under section 1161 (a) of this title [10 USCS § 1161(a)], or to a transfer under section 3352 or
8352 of this title [10 USCS § 3352 or 8352].
(b) The President or the Secretary concerned may drop from the rolls of the armed force concerned any Reserve (1)
who has been absent without authority for at least three months, or (2) 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.
(c) A member of a reserve component who is separated therefrom for cause, except under subsection (b), is entitled to
a discharge under honorable conditions unless----
(1) he is discharged under conditions other than honorable under an approved sentence of a court--martial or under the
approved findings of a board of officers convened by an authority designated by the Secretary concerned; or
(2) he consents to a discharge under conditions other than honorable with a waiver of proceedings of a court--martial
or a board.
(d) Under regulations to be prescribed by the Secretary concerned, which shall be as uniform as practicable, a member
of a reserve component who is on active duty (other than for training) and is within two years of becoming eligible for
retired pay or retainer pay under a purely military retirement system, may not be involuntarily released from that duty
before he becomes eligible for that pay, unless his release is approved by the Secretary.
HISTORY: (Aug. 10, 1956, ch 1041, § 1, 70A Stat. 89; Sept. 7, 1962, P.L. 87--651, Title I, § 106(a), 76 Stat. 508.)
(As amended Dec. 30, 1987, P.L. 100--224, § 4, 101 Stat. 1538.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
PRIOR LAW AND REVISION:
1956 Act
———————————————————————-
Revised Section Source (U.S. Code) Source (Statutes at Large)
———————————————————————-
1163(a) ......... 50:992(a). July 9, 1952, ch. 608,
1163(b) ......... 50:992(b). Sec. 249, 66 Stat. 495.
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10 USCS § 1163 (1993)
1163(c) ......... 50:992(c).
———————————————————————-
In subsection (a), the words "at least three years of service as a commissioned officer may not be separated from that
component without his consent" are substituted for the words "completed three years of commissioned service shall not
be involuntarily separated". The words "discharged or" are omitted as covered by the word "separated". The words "or
to a dismissal under section 1161(a) of this title" are inserted, since the word "separated", in 50:992(a), did not cover
"dismissal". The words "or to a transfer under section 3352(b) or 8352(b) of this title" are inserted to reflect the automatic
transfer, under those sections, of an officer of the National Guard who loses his Federal recognition.
In subsection (b), the words "of the armed force concerned" are inserted for clarity. 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". The words "and whose sentence has become final" are substituted for the word "finally".
In subsection (c), the words "is entitled to" are substituted for the words "shall be given". The words "discharged or" are
omitted as covered by the word "separated".
In subsection (c)(1), the words "he is discharged . . . under" are substituted for the words "a discharge is . . . effected
pursuant to".
In subsection (c)(2), the words "proceedings of a court--martial or a board" are substituted for the words "court--martial
or board proceedings".
1962 Act
———————————————————————-
Revised Section Source (U.S. Code) Source (Statutes at Large)
———————————————————————-
1163(d) ......... 50:1016(d). July 9, 1952, ch. 608,
Sec. 265(d); added July 9,
1956, ch. 534 (4th
par.), 70 Stat. 518.
———————————————————————-
The words "becoming eligible for" and "becomes eligible for" are substituted for the words "of qualifying for" and
"qualifies for", respectively. The words "retirement pay" are omitted as obsolete. The word "release" is substituted for the
word "separation" to conform to section 687 of title 10.
AMENDMENTS:
1962. Act Sept. 7, 1962 added subsec. (d).
1987. Act Dec. 30, 1987, in subsec. (d), inserted "(other than for training)".
NOTES:
CODE OF FEDERAL REGULATIONS
Enlisted administrative separations, 32 CFR Part 41.
RESEARCH GUIDE
FEDERAL PROCEDURE L ED:
Armed Forces, Civil Disturbances, and National Defense, Fed Proc, L Ed, § 5:301.
AM JUR:
54 Am Jur 2d, Military, and Civil Defense § 177.
ANNOTATIONS:
Judicial review of military action with respect to type of discharge given serviceman. 4 ALR Fed 343.
INTERPRETIVE NOTES AND DECISIONS
1. Purpose
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10 USCS § 1163 (1993)
2. Release within two years of retirement
3. Basis for and type of discharge
4. Right to hearing
5. Burden of proof
1. Purpose
Purpose of enactment of 10 USCS § 1163(d) is twofold: to provide lump--sum payments to reservists who are
involuntarily released from active duty, and to provide economic security as inducement for reservists to stay in active
service and thus reduce expense of personnel turnover and increase effectiveness of armed services. Fairbank v Brown
(1980, DC Dist Col) 506 F Supp 336.
2. Release within two years of retirement
Protection from discharge afforded by of 10 USCS § 1163(d) did not apply to an officer who, at time of separation,
could meet two year requirement of qualifying for retirement only when such active duty time as was obtained solely
through improperly issued restraining order and injunction was counted towards two year period. Pauls v Seamans (1972,
CA1 Puerto Rico) 468 F2d 361.
"Active duty" within meaning of statute providing that member of reserve component who is on active duty and within
two years of becoming eligible for retired or retainer pay may not be involuntarily released until he becomes eligible for
that pay, included time served by Army Reserve officer on active duty for training purposes. Ulmet v United States (1987,
CA FC) 822 F2d 1079.
Service member's acceptance of readjustment payment did not affect his entitlement to retirement benefits, given
legislative history which clearly showed that Congress considered situation of person who collected readjustment pay,
and who later became qualified for retirement benefits, and given fact that current statute which governs separation pay
upon involuntary release from active duty prevents double retirement benefit for persons who accept readjustment pay,
and who later become qualified for regular retirement benefits by requiring deduction from each retirement payment until
total amount deducted equals readjustment pay received. Ulmet v United States (1987, CA FC) 822 F2d 1079.
"Continuous active duty" language contained in Armed Forces Reserve Act of 1952 and exclusion of reservists released
from active duty for training does not apply to "sanctuary" provision, but rather refers only to readjustment payments, as
later enactment of readjustment pay provision clarifies point by stating that requirement of continuous active duty is for
"purposes of this subsection" only, and thus fact that reservist did not serve "continuous active duty" did not bar him from
entitlement to sanctuary. Ulmet v United States (1987, CA FC) 822 F2d 1079.
For purposes of determining total amount of active service time required for "sanctuary" under 10 USCS § 1163, "active
duty" includes time served by reserve officer on active duty for training tours as any question as to what is included within
meaning of active duty is explicitly resolved by statutory definition which specifically includes "full--time training duty."
Ulmet v United States (1987, CA FC) 822 F2d 1079.
Phrase "on active duty" in 10 USCS § 1163(d) does not include active duty for training. Wilson v United States (1990,
CA FC) 917 F2d 529, companion case (CA FC) 1990 US App LEXIS 18832, reh den (CA FC) 1990 US App LEXIS
21057 and mod (CA FC) 1990 US App LEXIS 21690.
Eighteen year army reservist may not be involuntarily released from duty by order of Secretary of Army alone as two
step procedure set out in army regulations must be followed despite 10 USCS § 1163(d) which provides that Secretary
must personally authorize release of reservists who are within 2 years of qualifying for retirement, since this is meant as
additional requirement, not alternative one. Roberts v Vance (1964) 119 App DC 367, 343 F2d 236.
Amendment stating that officer on training tour of duty does not become eligible for sanctuary does not apply
retroactively absent express statutory provision. Wilson v United States (1989) 16 Cl Ct 765.
Amended "sanctuary" provision barring applicability to individuals on training duty would not be applied retroactively
to case pending at time of amendment in absence of statutory direction or legislative history indicating that it should be
applied retroactively or that amendment represented what had always been the law. Ulmet v United States (1989) 17 Cl
Ct 679.
It is only reasonable that Army first obtained reserve member's request for extension and resulting knowledge of
member's willingness and ability to continue on active duty before it can be assessed liability for continuing backpay on
basis that expiration of training tour of duty ordered resulted in "involuntary" release. Green v United States (1989) 17 Cl
Ct 716.
Plaintiff, scheduled for release from active duty due to reductions in officer strength, did not challenge such release, but
rather, by use of stay, sought to preserve status quo, that is, reenlistment rights which had been denied, and thus did not
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10 USCS § 1163 (1993)
create any new rights and did not reach statutory period which precludes discharge of reservist with 18 years of service
except with agreement of Army Secretary. Fairbank v Brown (1980, DC Dist Col) 506 F Supp 336.
Section 1163(d) providing that member of reserve component who is on active duty and is within 2 years of becoming
eligible for retired pay or retainer pay may not be involuntarily released from that duty before he becomes eligible for that
pay unless release is approved by Secretary does not afford protection to serviceman from being released from current
active duty for training tour on ground that serviceman, who had completed over 16 years of active duty Army service
prior to being relieved from active duty and who later performed periods of active duty for training in Army Reserve since
his release, accrued more than 18 years of active federal service. Steenson v Marsh (1985, ND Ala) 609 F Supp 800.
3. Basis for and type of discharge
District Court did not err in determining that record of Board of Naval Officers proceeding at which it was recommended
that reserve officer be separated with honorable discharge on ground of his admitted homosexuality displayed nothing
more than permissible policy bias, notwithstanding that Board members all stated that in light of Secretary of Navy
instruction there were no conceivable circumstances under which they would retain homosexual in Navy, since, inter
alia, each Board member had stated that he could keep open mind toward argument as to whether or not instruction was
binding on Board. Urban Jacksonville, Inc. v Chalbeck (1985, CA11 Fla) 765 F2d 1085, 38 BNA FEP Cas 750, 38 CCH
EPD para. 35531.
Secretary of Navy was without authority to issue punitive discharge to inactive reservist on basis of secret information
relating to his associations subsequent to separation from active duty. Bland v Connally (1961) 110 App DC 375, 293
F2d 852; Davis v Stahr (1961) 110 App DC 383, 293 F2d 860.
Department of Defense exceeded its statutory authority in characterizing administrative discharges as being issued under
other than honorable conditions to members of inactive reserve having no military duties, based on civilian misconduct,
where Department regulation and policy require no connection between members' civilian misconduct and their military
service and there is no showing that civilian misconduct affected quality of individuals' service to military or had adverse
impact on overall effectiveness of military service. Wood v Secretary of Defense (1980, DC Dist Col) 496 F Supp 192
(disapproved on other grounds Walters v Secretary of Defense, 233 App DC 148, 725 F2d 107, reh den, en banc 237 App
DC 333, 737 F2d 1038).
4. Right to hearing
Regular air force officer is entitled to "fair and impartial" hearing on separation under 10 USCS § 8792, but there is no
similar provision for reserve officers in 10 USCS §§ 1162, 1163; however, Air Force Regulation 36--2, applying to both
regular and reserve officers, guarantees "fair and impartial" hearing and United States Court of Appeals has jurisdiction
of action seeking declaration that discharge of reserve officer was illegal because hearing guaranteed by regulations was
denied. Denton v Secretary of Air Force (1973, CA9 Cal) 483 F2d 21, cert den 414 US 1146, 39 L Ed 2d 102, 94 S Ct
900.
5. Burden of proof
Nowhere in 10 USCS § 1163 or its legislative history is there hint of authority to conduct proceeding in which defendant
bears burden of proof; consequently, dishonorable discharge of air force reserve officer under regulation shifting burden
of proof to accused was unlawful. Carter v United States (1975) 206 Ct Cl 61, 509 F2d 1150, reh den 207 Ct Cl 316, 518
F2d 1199, cert den 423 US 1076, 47 L Ed 2d 86, 96 S Ct 861, reh den 424 US 950, 47 L Ed 2d 356, 96 S Ct 1423 and
later proceeding 209 Ct Cl 790.

SBD

[Hondo]

OK, here's my take on what this means and its implications re: Kerry's 1978 discharge.

The above (10 USC 1163) was the operative portion of federal law under which Kerry was discharged in 1978. Here’s my take on what it says and what it implies. However, be advised that IMO there’s nothing here that will give folks looking for proof that Kerry received a “bad” discharge much comfort.

10 USC 1163 Para (a)

This para, effective when Kerry was discharged in 1978, REQUIRED a board of officers for before ANY reserve officer with 3 or more years of service could be discharged involuntarily (i.e., not at the officer’s request). There were 4 exceptions to this requirement for board action prior to involuntary discharge. These exceptions are specified in 10 USC 1003, 10 USC 1161, 10 USC 3352, and 10 USC 8352.

a. The exception to the requirement for board action due to 10 USC 1003 did not apply. As in effect in 1978, 10 USC 1003 concerned discharge due to maximum age. This is obviously not pertinent to Kerry’s case, since he was much younger than the maximum age limit for reserve officers in 1978.

b. 10 USC 1161 allowed dismissal and/or administrative discharge of a reserve officer for court-martial or federal/state criminal convictions and administratively dropped from rolls (DFR) if AWOL 3+ months. It also gave the President, in time of war, the authority to order summary dismissal of a commissioned officer. Obviously, none of this applies to Kerry. All of these would be matters of public record.

c. 10 USC 3352 and 10 USC 8352 have been renumbered (unchanged) to 10 USC 12213 and 12214. These govern transfers between the USAR and ARNG and the USAFR and ANG. This is obviously not applicable.

The only portion of 10 USC 1162(a) applicable is, therefore, the requirement for a board of officers for involuntary discharge.

10 USC 1163 Para (b)

Seems redundant, since exactly this info also seems to be covered in 10 USC 1161 and this sections of law was listed as an exception to the requirement for a board of officers in para (a). Not sure why it’s repeated here. Perhaps the reason is to make it completely clear that a reserve officer can be administratively discharged without board action if confined due to conviction in civilian court or is AWOL for 3+ months. For the reasons previously stated above, it’s obviously also not applicable in Kerry’s case.

10 USC 1163 Para (c)

This para states that an officer discharged involuntarily, except under para (b), is ENTITLED to an honorable discharge. This para also allows two exceptions to the entitlement to honorable discharge:

a. Punitive discharge by court-martial or a less than honorable discharge due to the approved findings of a board of officers. The former is obviously not applicable. The latter can’t be applicable to Kerry’s 1978 discharge, since the transmittal letter very clearly states that Kerry was receiving an HONORABLE discharge.

b. Voluntary resignation in lieu of court-martial. This is also not applicable to Kerry in 1978. The transmittal letter clearly indicates he is being discharged due to board action and is receiving an honorable discharge.

10 USC 1163 Para (d)

This para is the "18 year active duty sanctuary" provision. Simply, this section prevents reservists serving on active duty with 18 years of active service from being administratively discharged without approval of the service secretary. It is also obviously not applicable to Kerry in 1978; he had less than 4 years of active duty and was not currently serving on active duty at the time.

Summary:

The only portion of 10 USC 1162 applicable to Kerry in 1978 appears to have been the requirement for a board of officers for involuntary discharge. Kerry had 3+ years of reserve service, so he could not have received an involuntary discharge without board action unless he fell into one of the exceptions contained in 10 USC 1162.

Kerry was never court-martialed (would be a matter of public record), so the exception for 10 USC 1161 and/or para (b) allowing punitive discharge is not applicable. He was never convicted and confined as the result of civilian criminal court action (also would be a matter of public record), so that exception in 10 USC 1161 and para (b) don’t apply. I am virtually certain that DFR due to AWOL is a matter of public record, so that exception from 10 USC 1161 and para (b) can be ruled out. Kerry was far too young to be discharged for age in 1978 (10 USC 1003). He was USNR, so transfers actions specified in 10 USC 3352 and 10 USC 8352 don’t apply (these apply to transfer between the Army/Air Force Reserve and Army/Air Force National Guard). Kerry was never under the UCMJ as a reservist (he never drilled; reservists not on extended active duty are subject to the UCMJ only when drilling or serving on active duty for training), so it would have been virtually impossible for him to have been court-martialed or resigned in lieu of court-martial after he left active duty; para (c) thus is not applicable. Finally, Kerry obviously didn’t fall under the 18 year sanctuary provision, so para (d) is not applicable.


There are three slim possibilities that would theoretically still allow Kerry to have received a "bad" discharge between 1972 and 1978. Although each would require him to get reinstated in the USNR before 1978 - and are thus pretty farfetched - for completeness they should be discussed.

a. It’s possible that Kerry could have been DFR as AWOL from the USNR. However, Kerry’s 1978 discharge letter clearly shows he was a member of the USNR in early 1978. Thus, he would have had to have been DFR for AWOL, then later reinstated, for this to be the case. If he was reinstated administratively, no previous "bad" discharge would have occurred. If he was administratively discharged after being DFR for AWOL, it would almost certainly not have been an honorable discharge; anything but an honorable discharge would have made his reinstatement as an officer in the USNR very difficult to impossible. Since Kerry was clearly in the USNR in early 1978, this scenario is so farfetched it can be ignored.

b. It’s also possible that Kerry could have been threatened with being ordered back to active duty and court-martial due to not showing up for USNR drills, and resigned in lieu of court-martial as a result. However, since the letter forwarding his discharge shows that he clearly was a member of the USNR in early 1978, this scenario means that Kerry would have had to resign in lieu of court-martial sometime after mid 1972 (when he was transferred to the standby reserve). Moreover, resignation in lieu of court-martial means he would have received a General(OTH) discharge; he would have had to then be reinstated as an officer in the USNR - virtually impossible with a General(OTH) discharge – prior to early 1978. Again, this scenario is also so farfetched it can be ignored.

c. Finally, it’s theoretically possible that someone could have brought up a charge from Kerry’s active duty time for which the statute of limitations had not yet expired and Kerry could have been threatened with order back to active duty and court-martial on this charge; he then could have resigned voluntarily in lieu of court-martial and received a General (OTH) discharge. Since Kerry was back in the USNR as of early 1978, this has the same problems as noted above. Theoretically possible, yes – but again so unlikely as to be not worth considering.

Bottom line: IMO, nothing here applies but the requirement for a board of officers prior to involuntary discharge. All else can be effectively ruled out.
_________________
"War is an ugly thing, but not the ugliest of things: the decayed and degraded state of moral and patriotic feeling which thinks nothing worth a war, is worse."
-- John Stuart Mill