10 U.S.C. § 638 — Selective early retirement

(a) (1) A regular officer^* on the active-duty list^* of the Army^*, Navy, Air Force, Marine Corps, or Space Force may be considered for selective early retirement by a selection board called under section 611(b) if the officer fits one of these descriptions:

(A) The officer holds the regular rank^* of lieutenant colonel or commander, has failed to be selected for promotion to colonel—or, for a Navy officer, captain—at least two times, and is not on a list of officers recommended for promotion.

(B) The officer holds the regular rank of colonel—or, for a Navy officer, captain—has served at least four years of active duty^* in that rank, and is not on a list of officers recommended for promotion.

(C) The officer holds the regular rank of brigadier general or rear admiral (lower half), has served at least three and one-half years of active duty in that rank, and is not on a list of officers recommended for promotion.

(D) The officer holds the regular rank of major general or rear admiral and has served at least three and one-half years of active duty in that rank.

(2) The Secretary of the military department concerned must specify how many officers described in paragraphs (1)(A) and (1)(B) a selection board under section 611(b) may recommend for early retirement. The number may not exceed 30 percent of the officers considered in each rank and each competitive category.

(3) A regular officer on the active-duty list of the Army, Navy, Air Force, Marine Corps, or Space Force may also be considered for early retirement in the circumstances set out in section 638a.

(b) (1) (A) If an officer below the rank of brigadier general or rear admiral (lower half) is recommended for early retirement under this section or section 638a, and the Secretary concerned^* approves the early retirement, the officer must be retired under any law that makes the officer eligible to retire. The retirement date is the date the officer requests and the Secretary approves. It may not be later than the first day of the seventh calendar month beginning after the month in which the Secretary approves the board’s report recommending early retirement.

(B) If an officer described in subparagraph (A) is not eligible to retire under any law, the officer must be kept on active duty until qualified for retirement under section 7311, 8323, or 9311, and then retired under that section, unless retired or discharged sooner under another law. That retirement must occur no later than the later of these dates:

(i) The first day of the month beginning after the month in which the officer becomes qualified for retirement under that section; or

(ii) the first day of the seventh calendar month beginning after the month in which the Secretary approves the board’s report recommending early retirement.

(2) If an officer holds the regular rank of brigadier general, major general, rear admiral (lower half), or rear admiral, and the officer is recommended for early retirement under this section and the Secretary concerned approves it, the officer must be retired under any law that makes the officer eligible to retire. The retirement date is the date the officer requests and the Secretary approves. It may not be later than the first day of the tenth calendar month beginning after the month in which the Secretary approves the board’s report recommending early retirement.

(3) (A) The Secretary concerned may delay an officer’s otherwise approved early retirement for up to three months to prevent personal hardship or for other humanitarian reasons. The Secretary must decide each delay separately, based on the circumstances of the particular officer. The Secretary may not delegate this authority.

(B) If an officer recommended for early retirement under paragraph (1)(A) or section 638a is approved for a delay under subparagraph (A), the officer must be retired on the date the officer requests and the Secretary approves. That date may not be later than the first day of the tenth calendar month beginning after the month in which the Secretary approves the board’s report recommending early retirement.

(C) The Secretary concerned may delay the retirement of an officer otherwise approved for early retirement under paragraph (1)(B), but never beyond the first day of the tenth calendar month beginning after the month in which the Secretary approves the board’s report recommending early retirement.

(D) If an officer recommended for early retirement under paragraph (2) is approved for a delay under subparagraph (A), the officer must be retired on the date the officer requests and the Secretary approves. That date may not be later than the first day of the thirteenth calendar month beginning after the month in which the Secretary approves the board’s report recommending early retirement.

(c) As long as an officer below the rank of brigadier general or rear admiral (lower half) remains in the same rank, the officer may not be considered for early retirement under this section more than once in any five-year period.

(d) A retirement under this section counts as an involuntary retirement for purposes of any other law.

(e) (1) The Secretary of Defense must issue regulations to administer this section.

(2) (A) The regulations must require that when the Secretary of the military department concerned gives a selection board under section 611(b) a list of officers to consider for early retirement under this section, the list must include each officer on the active-duty list in the same rank and competitive category whose position on that list is between the position of the most junior officer submitted to the board and the position of the most senior officer submitted to the board. This requirement applies except as provided in subparagraph (B).

(B) A list under subparagraph (A) may not include an officer in that rank and competitive category who:

(i) has been approved for voluntary retirement under section 7311, 8323, or 9311; or

(ii) is to be involuntarily retired under any law during the fiscal year in which the selection board is called or during the following fiscal year.

(C) If an officer is not considered by a selection board under section 611(b) because of subparagraph (B), the officer must be retired on the date approved for that officer’s retirement as of the date the board is called. The Secretary concerned may approve a change to that date to prevent personal hardship or for other humanitarian reasons.