Sec. 509. MATTERS RELATING TO SATISFACTORY SERVICE IN GRADE FOR PURPOSES OF RETIREMENT GRADE OF OFFICERS IN HIGHEST GRADE OF SATISFACTORY SERVICE
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## SEC. 509 MATTERS RELATING TO SATISFACTORY SERVICE IN GRADE FOR PURPOSES OF RETIREMENT GRADE OF OFFICERS IN HIGHEST GRADE OF SATISFACTORY SERVICE ###
(a)Conditional Determinations of Grade of Satisfactory Service ####
(1)In general Subsection (a)(1) of section 1370 of title 10, United States Code, is amended by adding at the end the following new sentences: “When an officer is under investigation for alleged misconduct at the time of retirement, the Secretary concerned may conditionally determine the highest grade of satisfactory service of the officer pending completion of the investigation. Such grade is subject to resolution under subsection (b)(3).”. ####
(2)Officers in o-9 and o-10 grades Subsection
(c)of such section is amended by adding at the end the following new paragraph: > > #### “(4) > > The Secretary of Defense may make a conditional certification regarding satisfactory service in grade under paragraph
(1)with respect to an officer under that paragraph notwithstanding the fact that there is pending the disposition of an adverse personnel action against the officer for alleged misconduct. The retired grade of an officer following such a conditional certification is subject to resolution under subsection (b)(3).” > . ####
(3)Reserve officers Subsection (d)(1) of such section is amended by adding at the end the following new sentences: “When an officer is under investigation for alleged misconduct 132 STAT. 1750 at the time of retirement, the Secretary concerned may conditionally determine the highest grade of satisfactory service of the officer pending completion of the investigation. Such grade is subject to resolution under subsection (b)(3).”. ###
(b)Codification of Lowered Grade for Retired Officers or Persons Who Committed Misconduct in a Lower Grade ####
(1)In general Subsection
(b)of such section is amended— #####
(A)in the heading, by striking “Next”; #####
(B)by inserting “(1)” before “An”; and #####
(C)by adding at the end the following new paragraphs: > > #### “(2) > > In the case of an officer or person whom the Secretary concerned determines committed misconduct in a lower grade, the Secretary concerned may determine the officer or person has not served satisfactorily in any grade equal to or higher than that lower grade. > > > #### “(3) > > A determination or certification of the retired grade of an officer shall be resolved following a conditional determination under subsection (a)(1) or (d)(1) or conditional certification under subsection (c)(4), if the investigation of or personnel action against the officer, as applicable, results in adverse findings. If the retired grade of an officer is reduced, the retired pay of the officer under chapter 71 of this title shall be recalculated, and any modification of the retired pay of the officer shall go into effect on the effective date of the reduction in retired grade.” > . ####
(2)Conforming amendments Such section is amended— #####
(A)in subsection (a)(1)— ######
(i)by striking “higher” and inserting “different”; and ######
(ii)by striking “except as provided in paragraph (2)” and inserting “subject to paragraph
(2)and subsection (b)”; #####
(B)in subsection (c)(1), by striking “An officer” and inserting “Subject to subsection (b), an officer”; and #####
(C)in subsection (d)(1)— ######
(i)by striking “higher” each place it appears and inserting “different”; and ######
(ii)by inserting “, subject to subsection (b),” before “shall”. ###
(c)Finality of Retired Grade Determinations Such section is further amended by adding at the end the following new subsection: > > ### “(f) Finality of Retired Grade Determinations > > > ####
(1)> > Except as otherwise provided by law, a determination or certification of the retired grade of an officer pursuant to this section is administratively final on the day the officer is retired, and may not be reopened. > > > #### “(2) > > A determination or certification of the retired grade of an officer may be reopened as follows: > > > ##### “(A) > > If the retirement or retired grade of the officer was procured by fraud. > > > ##### “(B) > > If substantial evidence comes to light after the retirement that could have led to a lower retired grade under this section if known by competent authority at the time of retirement. > > > ##### “(C) > > If a mistake of law or calculation was made in the determination of the retired grade. > > > ##### “(D) > > In the case of a retired grade following a conditional determination under subsection (a)(1) or (d)(1) or conditional certification under subsection (c)(4), if the investigation of or personnel action against the officer, as applicable, results in adverse findings. > > > ##### “(E) > > If the Secretary concerned determines, pursuant to regulations prescribed by the Secretary of Defense, that good cause exists to reopen the determination or certification. > > > #### “(3) > > If a determination or certification of the retired grade of an officer is reopened, the Secretary concerned— > > > ##### “(A) > > shall notify the officer of the reopening; and > > > ##### “(B) > > may not make an adverse determination on the retired grade of the officer until the officer has had a reasonable opportunity to respond regarding the basis of the reopening. > > > #### “(4) > > If a certification of the retired grade of an officer covered by subsection
(c)is reopened, the Secretary concerned shall also notify the President and Congress of the reopening. > > > #### “(5) > > If the retired grade of an officer is reduced through the reopening of the officer’s retired grade, the retired pay of the officer under chapter 71 of this title shall be recalculated, and any modification of the retired pay of the officer shall go into effect on the effective date of the reduction of the officer’s retired grade.” > .