§ 8146. Navy and Marine Corps: temporary appointments of officers designated for limited duty

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(a)Under such regulations as he may prescribe, the Secretary of the Navy may make temporary appointments of officers designated for limited duty in the Regular Navy in grades not above lieutenant and in the Regular Marine Corps in grades not above captain from sources authorized under section 8139 of this title. Such appointments shall be made by warrant if in the grade of warrant officer, W–1, and by commission if in a higher grade.

(b)Temporary appointments under this section do not change the permanent, probationary, or acting status of members so appointed, prejudice them in regard to promotion or appointment, or abridge their rights or benefits. A person receiving a temporary appointment under this section may not suffer any reduction in the pay and allowances to which he was entitled because of his permanent status at the time of his temporary appointment, or any reduction in the pay and allowances to which he was entitled under a prior temporary appointment in a lower grade.

(c)The following members of the naval service are ineligible for temporary appointments under this section:

(1)Retired members.

(2)Members of the Navy Reserve and the Marine Corps Reserve ordered to active duty for training.

(3)Members of the Navy Reserve and the Marine Corps Reserve ordered to active duty in connection with organizing, administering, recruiting, instructing, training, or drilling the Navy Reserve or the Marine Corps Reserve.

(4)Members of the Navy Reserve and the Marine Corps Reserve ordered to temporary active duty to prosecute special work.

(d)Officers designated for limited duty under subsection

(a)may be temporarily appointed by the Secretary of the Navy in a higher grade not above commander in the Regular Navy or lieutenant colonel in the Regular Marine Corps under such regulations as the Secretary may prescribe. Regulations prescribed under this section shall to the greatest extent practicable conform to the procedures prescribed in chapter 36 of this title for selection for promotion and promotion to higher permanent grades.

(e)The Secretary of the Navy may terminate any appointment made under this section.

(Aug. 10, 1956, ch. 1041, 70A Stat. 328, § 5596; Pub. L. 96–513, title III, § 326, Dec. 12, 1980, 94 Stat. 2894; Pub. L. 102–190, div. A, title XI, § 1113(c), (d)(2)(A), Dec. 5, 1991, 105 Stat. 1502; Pub. L. 109–163, div. A, title V, § 515(b)(1)(G), Jan. 6, 2006, 119 Stat. 3233; renumbered § 8146 and amended Pub. L. 115–232, div. A, title VIII, §§ 807(b)(4), 809(a), Aug. 13, 2018, 132 Stat. 1834, 1840.)

Since appointments under this section are either made, or not made, in the discretion of the President, the proviso of 34 U.S.C. 3d, authorizing the President to suspend the operation of this section with respect to lieutenants (junior grade) and lieutenants in the Navy and first lieutenants and captains in the Marine Corps, is omitted from subsection

(a)as unnecessary.

In subsections

(b)and

(c)the words “and above” have been executed by naming the grades they imply, to wit, chief petty officers and master and technical sergeants. In the statement of the grades to which appointments may be made, the words “including the grades of warrant officer and commissioned warrant officer” are omitted as surplusage. In the list of persons who may be appointed, reference to commissioned warrant officers is omitted because they are included within the term “warrant officers”.

In subsection

(f)the words “do not change the * * * status” are substituted for the words “appointments * * * shall not be vacated.” The word “advancement”, the words “in accordance with laws relating to the Regular Navy or Marine Corps”, and the words “privileges and gratuities” are omitted as surplusage. The first proviso is omitted as unnecessary in view of the Career Compensation Act of 1949.

In subsection (g)(2) that portion of 34 U.S.C. 3c(a) which excludes officers on the retired list from the definition of the word “officers” is treated as precluding the appointment of such officers under this section. There is no express statement of law making retired enlisted members ineligible for such appointments; however, the context indicates this to be the intent of Congress. In subsection (g)(3) that portion of 34 U.S.C. 3c(a) which excludes officers on active duty for training from the definition of the word “officers” is treated as precluding the appointment of persons on training duty under this section.

While there is no statement of law making enlisted members of the Naval Reserve and the Marine Corps Reserve on active duty for training ineligible for appointments under this section, the context indicates this to be the intent of Congress and clause

(3)is thus written. The exception as to the Fleet Reserve is omitted as unnecessary inasmuch as, pursuant to the Armed Forces Reserve Act of 1952, the Fleet Reserve is no longer a part of the Naval Reserve but is a separate and distinct component of the Navy.