United States Code

(g) Designation for fellowships; duties; pay.

In accordance with regulations, individual scientists, other than commissioned officers of the Service, may be designated by the Surgeon General to receive fellowships, appointed for duty with the Service without regard to the civil-service laws and compensated in accordance with the Classification Act of 1949, as amended, may hold their fellowships under conditions prescribed therein, and may be assigned for studies or investigations either in this country or abroad during the terms of their fellowships.

(h) Aliens.

Persons who are not citizens may be employed as consultants pursuant to subsection (f) of this section and may be appointed to fellowships pursuant to subsection (g) of this section. Unless otherwise specifically provided, any prohibition in any other Act against the employment of aliens, or against the payment of compensation to them, shall not be applicable in the case of persons employed or appointed pursuant to such subsections.

(i) Civil service appointments by Secretary.

The appointment of any officer or employee of the Service made in accordance with the civil-service laws shall be made by the Secretary, and may be made effective as of the date on which such officer or employee enters upon duty. (July 1, 1944, ch. 373, title II, § 207, formerly § 208, 58 Stat. 685; July 3, 1946, ch. 538, § 4, 60 Stat. 421; Aug. 13, 1946, ch. 958, § 3, 60 Stat. 1049; renumbered and amended Feb. 28, 1948, ch. 83, § 5 (a-d), 62 Stat. 40; Oct. 12, 1949, ch. 681, title V, § 521 (a), 63 Stat. 834; Oct. 28, 1949, ch. 782, title XI, § 1106, 63 Stat. 972; 1953 Reorg. Plan No. 1, §§ 5, 8, eff. Apr. 11, 1953, 18 F.R. 2053, 67 Stat. 631; Apr. 27, 1956, ch. 211, § 3 (a)-(c) (1), 70 Stat. 116; Apr. 8, 1960, Pub. L. 86-415, §§ 2, 3, 74 Stat. 32.)

REFERENCES IN TEXT

The civil-service laws, referred to in subsecs. (f), (g) and (1), are classified generally to Title 5, Executive Departments and Government Officers and Employees.

The Classification Act of 1949, referred to in subsec. (g), is classified to chapter 21 of Title 5.

CODIFICATION

Provisions of subsec. (f), which authorized the compensation of consultants to be fixed without regard to the Classification Act of 1949, were omitted since the employees referred to are now in the classified civil service and subject to the applicable compensation schedules.

Words "in accordance with" were substituted for "without regard to" in subsec. (g), since the scientists are now in the classified civil service and subject to the applicable compensation schedules.

The authority for covering excepted positions into the classified civil service was given the President by section 631a of Title 5, Executive Departments and Government Officers and Employees. By Executive Order 8743, Apr. 25, 1941, set out as a note under section 631a of Title 5, the President exercised this authority with respect to many previously excepted positions.

For positions now covered by the Classification Act of 1949, see sections 1081 and 1082 of Title 5. For the power of the Civil Service Commission to determine the applicability of those sections to specific positions, see section 1083 of Title 5.

1960 Subsec. (a).

AMENDMENTS

Pub. L. 86-415, § 2, added par. (3). Subsec. (b). Pub. L. 86-415, § 3, designated first, second and third sentences as par. (1), fourth sentence as par. (3) and added par. (2).

1956 Subsec. (a) (1). Act Apr. 27, 1956, § 3 (a), inserted reference to subsection (e) of this section.

Subsec. (a) (2). Act Apr. 27, 1956, § 3 (c) (1), which "an indefinite period" for "a period of not more than five years".

Subsec. (e). Act Apr. 27, 1956, § 3 (b), added subsec. (e). Former subsec. (e) redesignated (f). Subsecs. (f)-(1). Act Apr. 27, 1956, § 3(b), redesignated former subsecs. (e)—(h) as (f)—(1). 1949 Subsec. (d). Act Oct. 12, 1949, substituted "base pay" for "pay and pay period" wherever appearing. Subsecs. (e), (f). Act Oct. 28, 1949, substituted "Classification Act of 1949" for "Classification Act of 1923". 1948- Subsec. (a) (1). Act Feb. 28, 1948, struck out "surgery" following "several branches of medicine".

Subsec. (a) (2). Act Feb. 28, 1948, omitted "any such commission" preceding "may be terminated”, and “in his discretion" following "at any time".

Subsec. (b). Act Feb. 28, 1948, provided for grade and number of original appointments.

Subsecs. (c), (d). Act Feb. 28, 1948, added subsecs. (c) and (d). Former subsecs. (c) and (d) redesignated (e) and (f).

Subsecs. (e), (f). Act Feb. 28, 1948, redesignated former subsecs. (c) and (d) as (e) and (f). Former subsecs. (e) and (f) redesignated (g) and (h).

Subsec. (g). Act Feb. 28, 1948, redesignated former subsec. (e) as (g) and changed reference in text from "subsection (c) of this section" to "subsection (e) of this section", and "subsection (d) of this section" to "subsection (g) of this section".

Subsec. (h). Act Feb. 28, 1948, redesignated former subsec. (f) as (h).

1946 Subsec. (b) (2). Act Aug. 13, 1946, inserted "(A)” preceding "to assist", substituted "clause" for "paragraphs", and inserted clause (B).

Subsec. (b). Act July 3, 1946, authorized the appointment of additional officers to grades above that of senior assistant but not above that of director, and limits the number so appointed to 20.

EFFECTIVE DATE OF 1960 AMENDMENT

Section 8(a) of Pub. L. 86-415 provided that: "The amendments made by sections 2 and 5(b) [to subsec. (a) (3) of this section and section 210(b) of this title] shall become effective July 1, 1960."

EFFECTIVE DATE OF 1949 AMENDMENT Amendment of section by act Oct. 12, 1949, was made effective as of Oct. 1, 1949.

DELEGATION OF FUNCTIONS Functions of the President delegated to the Secretary of Health, Education, and Welfare, and the Surgeon General, see Ex. Ord. No. 11140, Jan. 30, 1964, 29 F.R. 1637, set out as a note under section 202 of this title.

TRANSFER OF FUNCTIONS

All functions of the Federal Security Administrator were transferred to the Secretary of Health, Education, and Welfare and all agencies of the Federal Security Agency were transferred to the Department of Health, Education, and Welfare by section 5 of 1953 Reorg. Plan No. 1, set out as a note under section 623 of Title 5, Executive Departments and Government Officers and Employees. The Federal Security Agency and the office of Administrator were abolished by section 8 of Reorg. Plan No. 1.

TERM OF RESERVE COMMISSIONS IN EFFECT ON APR. 27, 1956 Section 3 (c) (2) of act Apr. 27, 1956, provided that: "The enactment of paragraph (1) of this subsection [amending subsec. (a) (2) of this section] shall not affect

the term of the commission of any officer in the Reserve Corps in effect on the date of such enactment [April 27, 1956] unless such officer consents in writing to the extension of his commission for an indefinite period, in which event his commission shall be so extended without the necessity of a new appointment."

§209a. Appointment of regular commissioned nurses; grades; length of service for pay periods.

The number of regular commissioned nurses appointed shall be in addition to the number of regular active commissioned officers otherwise authorized, and not to exceed fifty regular commissioned nurses may be appointed in grades above that of senior assistant and for purposes of pay and pay period shall be considered as having had on the day of appointment service equal to that of the junior officer of the grade to which appointed. 1944, ch. 660, title I, § 101, 58 Stat. 856.)

CODIFICATION

(Dec. 22,

Section is from the First Supplemental Appropriation Act, 1945, act Dec. 22, 1944, and is not a part of the Public Health Service Act of 1944, which comprises this chapter.

§ 209b. Appointment of additional commissioned officers; grades.

There shall be employed fifty additional regular commissioned officers, of which number twenty-four are authorized to be commissioned in the grades above that of senior assistant. (Dec. 22, 1944, ch. 660, title I, § 101, 58 Stat. 857.)

CODIFICATION

Section is from the First Supplemental Appropriation Act, 1945, act Dec. 22, 1944, and is not a part of the Public Health Service Act of 1944, which comprises this chapter.

§ 209c. Repealed. Pub. L. 87-649, § 14b, Sept. 7, 1962, 76 Stat. 499.

Section, act July 3, 1945, ch. 263, title II, 59 Stat. 370, provided that for purposes of pay and pay period the officers appointed to grades above that of senior assistant pursuant to section 209b of this title shall be considered as having had on the date of appointment service equal to that of the junior officer of the grade to which appointed.

§ 209d. Appointment of osteopaths as commissioned officers.

Graduates of colleges of osteopathy whose graduates are eligible for licensure to practice medicine or osteopathy in a majority of the States of the United States, or approved by a body or bodies acceptable to the Secretary, shall be eligible, subject to the other provisions of this chapter, for appointment as commissioned medical officers in the Public Health Service. (Feb. 28, 1948, ch. 83, § 5 (b), 62 Stat. 40; 1953 Reorg. Plan No. 1, §§ 5, 8, eff. Apr. 11, 1953, 18 F. R. 2053, 67 Stat. 631.)

CODIFICATION

Section was not enacted as a part of the Public Health Service Act, which comprises this chapter.

TRANSFER OF FUNCTIONS

No. 1, set out as a note under section 623 of Title 5, Executive Departments and Government Officers and Employees. The Federal Security Agency and the office of Administrator were abolished by section 8 of Reorg. Plan No. 1.

§ 210. Pay and allowances.

(a) Commissioned officers of Regular and Reserve Corps.

Commissioned officers of the Regular and Reserve Corps shall be entitled to receive such pay and allowances as are now or may hereafter be authorized by law.

(b) Purchase of supplies.

Commissioned officers on active duty and retired officers entitled to retired pay pursuant to section 211(g) (3), 212, or 213a (a) of this title, shall be permitted to purchase supplies from the Army, Navy, Air Force, and Marine Corps at the same price as is charged officers thereof.

Members of the National Advisory Health Council and members of other national advisory councils established under this chapter, other than ex officio members, while attending conferences or meetings of their respective councils or while otherwise serving at the request of the Surgeon General, shall be entitled to receive compensation at a rate to be fixed by the Secretary, but not exceeding $50 per diem, and shall also be entitled to receive an allowance for actual and necessary traveling and subsistence expenses while so serying away from their places of residence.

(d) Field employees.

Field employees of the Service, except those employed on a per diem or fee basis, who render parttime duty and are also subject to call at any time for services not contemplated in their regular parttime employment, may be paid annual compensation for such part-time duty and, in addition, such fees for such other services as the Surgeon General may determine; but in no case shall the total paid to any such employee for any fiscal year exceed the amount of the minimum annual salary rate of the classification grade of the employee.

(e) Additional pay for leprosy detail.

Whenever any noncommissioned officer or other employee of the Service is assigned for duty which the Surgeon General finds requires intimate contact with persons afflicted with leprosy, he may be entitled to receive, as provided by regulations of the President, in addition to any pay or compensation to which he may otherwise be entitled, not more than one-half of such pay or compensation.

(f) Allowances included in fellowships.

Individuals appointed under section 209 (g) of this title shall have included in their fellowships such stipends or allowances, including travel and subsistence expenses, as the Surgeon General may deem necessary to procure qualified fellows.

(g) Positions in professional, scientific and executive service; compensation; appointment.

The Secretary is authorized to establish and fix the compensation for, within the Public Health Service, not more than one hundred and fifty positions, of which not less than one hundred and fifteen shall be for the National Institutes of Health, in the professional, scientific, and executive service, each such position being established to effectuate those research and development activities of the Public Health Service which require the services of specially qualified scientific, professional and administrative personnel: Provided, That the rates of compensation for positions established pursuant to the provisions of this subsection shall not be less than the minimum rate of grade 16 of the General Schedule of the Classification Act of 1949, as amended, nor more than the highest rate of grade 18 of the General Schedule of such Act, and shall be subject to the approval of the Civil Service Commission. Positions created pursuant to this subsection shall be included in the classified civil service of the United States, but appointments to such positions shall be made without competitive examination upon approval of the proposed appointee's qualifications by the Civil Service Commission or such officers or agents as it may designate for this purpose. (July 1, 1944, ch. 373, title II, § 208, formerly § 209, 58 Stat. 686; July 3, 1946, ch. 538, § 5 (a), 60 Stat. 422; renumbered and amended Feb. 28, 1948, ch. 83, § 5(a, g, h), 62 Stat. 40; June 16, 1948, ch. 481, § 4(d), 62 Stat. 467; June 24, 1948, ch. 621, § 4(d), 62 Stat. 601; Oct. 12, 1949, ch. 681, title V, § 521(b), 63 Stat. 834; Aug. 9, 1950, ch. 654, § 1, 64 Stat. 426; Aug. 15, 1950, ch. 714, §§ 3(e), 4(b); 64 Stat. 447; 1953 Reorg. Plan No. 1, §§ 5, 8, eff. Apr. 11, 1953, 18 F.R. 2053, 67 Stat. 631; Aug. 1, 1955, ch. 437, title II, § 201, 69 Stat. 407; June 29, 1956, ch. 477, title II, § 201, 70 Stat. 430; June 20, 1958, Pub. L. 85-462, § 12 (e), 72 Stat. 214; Sept. 6, 1958, Pub. L. 85-929, § 9, 72 Stat. 1789; Apr. 8, 1960, Pub. L. 86-415, § 5(b), 74 Stat. 34; Sept. 2, 1960, Pub. L. 86-703, title II, § 201, 74 Stat. 764; Sept. 7, 1962, Pub. L. 87-649, §§ 11(3), 14b, 76 Stat. 497, 499; Oct. 11, 1962, Pub. L. 87-793, § 1001 (d), 76 Stat. 864.)

REFERENCES IN TEXT

The Classification Act of 1949, as amended, referred to in subsec. (g), is classified to chapter 21 of Title 5, Executive Departments and Government Officers and Employees.

AMENDMENTS

1962-Subsec. (b). Pub. L. 87-649 eliminated sentence which permitted commissioned officers on active duty to make allotments from their pay, and substituted "Commissioned officers on active duty and retired officers"

for

"Such officers, and retired officers." See section 704 of Title 37, Pay and Allowances of the Uniformed Services. Subsec (g). Pub. L. 87-793 substituted provisions requiring the rates of compensation to be not less than the minimum rate of grade 16 nor more than the highest rate of grade 18 of the General Schedule, for provisions which prescribed annual rates of compensation of not less than $12,500 nor more than $19,000.

1960 Subsec. (b). Pub. L. 86-415 authorized retired officers entitled to retired pay pursuant to section 211(g) (3), 212, or 213a (a) of this title, to purchase supplies, and included the purchase of supplies from the Air Force.

Subsec. (g). Pub. L. 86-703 substituted "one hundred and fifty" for "eighty-five" and "one hundred and fifteen" for "seventy-three."

1958 Subsec. (g). Pub. L. 85-929 substituted "in the professional, scientific, and executive service" for "in the professional and scientific service", and substituted "of specially qualified scientific, professional, and administrative personnel" for "of specially qualified scientific or professional personnel".

Subsec. (g). Pub. L. 85-462, substituted "eighty-five positions, of which not less than seventy-three shall be for the National Institutes of Health" for "sixty positions". 1956 Subsec. (g). Act June 29, 1956, substituted "$20,000" for "$15,000".

1955 Subsec. (g). Act Aug. 1, 1955, increased from thirty to sixty the number of positions which the Administrator may establish in the professional and scientific service.

1950 Subsec. (b). Act Aug. 9, 1950, struck out of the first sentence the words "and may be granted leaves of absence without any deduction from their pay", following "allotments from their pay".

Subsec. (c). Act Aug. 15, 1950, § 3 (e), made provisions applicable to members of all national advisory councils. Subsec. (g). Act Aug. 15, 1950, § 4 (b), added subsec. (g).

1949-Subsec. (a). Act Oct. 12, 1949, made section applicable to Reserve officers.

Subsec. (b). Act Oct. 12, 1949, redesignated former subsec. (c) as (b) and repealed former subsec. (b) relating to reserve officers.

Subsec. (c). Act Oct. 12, 1949, redesignated former subsec. (e) as (c). Former subsec. (c) redesignated (b). Subsec. (d). Act Oct. 12, 1949, redesignated former subsec. (f) as (d) and repealed former subsec. (d) relating to female commissioned officers and defining "dependent".

Subsec. (e).

Act Oct. 12, 1949, redesignated former subsec. (g) as (e) and omitted references to allowances. Former subsec. (e) redesignated (c).

Subsec. (f). Act Oct. 12, 1949, redesignated former subsec. (h) as (f). Former subsec. (f) redesignated (d). 1948 Subsec. (b). Act Feb. 28, 1948, inserted "except as otherwise provided by law".

Subsec. (e). Acts June 16, 1948, § 4 (d) and June 24, 1948, § 4 (d), made section applicable to the National Advisory Heart Council and increased the per diem of all members from $25 to $50, and made section applicable to the National Advisory Dental Research Council, respectively.

Subsec. (h). Act Feb. 28, 1948, changed reference from "section 209 (d) of this title" to "section 209 (f) of this title".

1946 Subsec. (e). Act July 3, 1946, added "members of the National Advisory Mental Health Council."

EFFECTIVE DATE OF 1962 AMENDMENTS Amendment of section by Pub. L. 87-793 effective on the first day of the first pay period which begins on or after Oct. 11, 1962, see section 1008 of Pub. L. 87-793, set out as a note under section 1161 of Title 5, Executive Departments and Government Officers and Employees. Amendment of section by Pub. L. 87-649 effective on Nov. 1, 1962, see section 15 of Pub. L. 87-649, set out as a note preceding section 101 of Title 37, Pay and Allowances of the Uniformed Services.

EFFECTIVE DATE OF 1960 AMENDMENT Amendment of subsec. (b) of this section by Pub. L. 86-415 effective July 1, 1960, see section 8(a) of Pub. L. 86-415, set out as a note under section 209 of this title.

EFFECTIVE DATE OF 1958 AMENDMENTS Amendment of subsec. (g) by Pub. L. 85-929 effective Sept. 6, 1958, see section 6 (a) of Pub. L. 85-929, set out as a note under section 342 of Title 21, Food and Drugs. Amendment of subsec. (g) by Pub. L. 85-462 effective on June 20, 1958, see note set out under section 1113 of Title 5, Executive Departments and Government Officers and Employees.

EFFECTIVE DATE OF 1950 AMENDMENT

Section 3 (a) of act Aug. 9, 1950, provided that the amendment of this section and the enactment of section 210-1 of this title shall become effective as of July 1, 1950.

EFFECTIVE DATE OF 1949 AMENDMENT

Amendment of section by act Oct. 12, 1949, was effective as of Oct. 1, 1949.

REPEALS

Act July 31, 1956, ch. 804, title I, § 117(b), 70 Stat. 741, which amended subsec. (g) of this section to increase the salary rates, was repealed by Pub. L. 88-426, title III, § 305(1), Aug. 14, 1964, 78 Stat. 422.

Section 14b of Pub. L. 87-649 additionally repealed the first sentence of subsec. (b) of this section which permitted commissioned officers on active duty to make allotments from their pay. See 1962 Amendment note above.

DELEGATION OF FUNCTIONS

Functions of the President delegated to the Secretary of Health, Education, and Welfare, see Ex. Ord. No. 11140, January 30, 1964, 29 F.R. 1637, set out as a note under section 202 of this title.

TRANSFER OF FUNCTIONS

CROSS REFERENCES

Allotments by commissioned officers of the Public Health Service, see section 704 of Title 37, Pay and Allowances of the Uniformed Services.

Pay and allowances of officers of Public Health Service, see Title 37, Pay and Allowances of the Uniformed Services.

§ 210-1. Annual and sick leave.

(a) In accordance with regulations of the President, commissioned officers of the Regular Corps and officers of the Reserve Corps on active duty may be granted annual leave and sick leave without any deductions from their pay and allowances: Provided, That such regulations shall not authorize annual leave to be accumulated in excess of sixty days.

(b) Repealed. Pub. L. 87-649, § 14b, Sept. 7, 1962, 76 Stat. 499.

(c) Except in cases of emergency, no annual leave shall be granted to an officer described in subsection (a) of this section between the date upon which such officer applies for, or the Service directs, his retirement, separation, or release from active duty, whichever date is the earlier, and the effective date of such retirement, separation or release from active duty.

(d) For purposes of this section the term "accumulated annual leave" means unused accrued annual leave carried forward from one leave year into a succeeding leave year, and the term "accrued annual leave" means the annual leave accruing to an officer during one leave year. (July 1, 1944, ch. 373, title II, § 219, as added Aug. 9, 1950, ch. 654, § 2, 64 Stat. 426, and amended Sept. 7, 1962, Pub. L. 87649, § 14b, 76 Stat. 499.)

PARTIAL REPEAL OF SUBSECTION (D) Subsection (d) of this section was repealed by Pub. L. 87-649, § 14b, Sept. 7, 1962, 76 Stat. 499, insofar as it was applicable to the last sen36-500 065 vol. 9

tence of subsection (c) of this section which authorized a lump-sum payment to an officer credited with unused accumulated and accrued annual leave. See section 501 of Title 37, Pay and Allowances of the Uniformed Services. AMENDMENTS

1962 Subsec. (b). Pub. L. 87-649 repealed former subsec. (b), which required forfeiture of all pay and allowances of an officer absent without leave, and is now covered by section 503 of Title 37, Pay and Allowances of the Uniformed Services.

Subsec. (c). Pub. L. 87-649 repealed last sentence which authorized a lump-sum payment for unused accumulated and accrued annual leave on the date of separation, retirement, or release from active duty, and is now covered by section 501 of Title 37, Pay and Allowances of the Uniformed Services.

EFFECTIVE DATE OF 1962 AMENDMENT Amendment of section by Pub. L. 87-649 effective Nov. 1, 1962, see section 15 of Pub. L. 87-649, set out as a note preceding section 101 of Title 37, Pay and Allowances of the Uniformed Services.

EFFECTIVE DATE

Section effective July 1, 1950, see note set out under section 210 of this title.

DELEGATION OF FUNCTIONS

Functions of the President delegated to the Secretary of Health, Education, and Welfare, see Ex. Ord. No. 11140, January 30, 1964, 29 FR. 1637, set out as a note under section 202 of this title.

COMPENSATION FOR PRIOR ACCUMULATED AND ACCRUED LEAVE; LIMITATION; INAPPLICABLE TO OFFICERS ON TERMINAL LEAVE PRIOR TO JULY 1, 1950

Subsections (b) and (c) of section 3 of act Aug. 9, 1950, provided that:

"Any officer who, on June 30, 1949, was credited with more than sixty days of accumulated and accrued leave, shall be compensated for so much of such leave as exceeds sixty days but does not exceed one hundred and twenty days, in a lump-sum payment on the basis of the base and longevity pay, the allowance for subsistence, and the allowance for rental of quarters (whether or not he was receiving such allowance on such date), which were applicable to him on such date under provisions of law then in effect: Provided, That there shall be deducted from the number of days upon which such lump-sum payment is otherwise authorized to be computed the number of days of leave in excess of thirty days taken during the period from July 1, 1949, to June 30, 1950. Payments authorized pursuant to this subsection shall be due and payable on July 1, 1950. All amounts received pursuant to this subsection shall be exempt from taxation.

"The provisions of this Act [sections 210 (b) and 210-1 and notes thereunder of this title] shall not be applicable to an officer who has, prior to July 1, 1950, been placed on terminal leave preceding separation, retirement, or release from active duty."

AVAILABILITY OF FUNDS

Section 4 of act Aug. 9, 1950, provided that: "Funds appropriated by the Act of August 8, 1946 (ch. 870, 60 Stat. 910), to enable the President to carry out the provisions of the Armed Forces Leave Act of 1946 [act Aug. 9, 1946, ch. 931, 60 Stat. 963], are hereby made available for carrying out the provisions of section 3 of this Act set out as a note under this section] and may be allotted to the Public Health Service by transfer to and merger with appropriations thereof or otherwise, in such amounts as may be determined by the Director of the Bureau of the Budget."

LEAVE REGULATIONS

Section 5 of act Aug. 9, 1950, provided that: "Except insofar as the provisions of this Act [sections 210 (b) and 210-1 and notes thereunder of this title] are inconsistent therewith, leave regulations adopted prior to the enactment of this Act [Aug. 9, 1950], pursuant to the Public

Health Service Act [this chapter], shall remain in effect until repealed, amended, or superseded."

§ 210a. Repealed. Pub. L. 87-649, § 14b, Sept. 7, 1962, 76 Stat. 499.

Section, act Feb. 28, 1948, ch. 83, § 5 (e), (f), 62 Stat. 41, related to service credit for commissioned officers on active duty Feb. 28, 1948, and to service credit for pay and promotion purposes of certain appointees during period Feb. 28, 1948 to July 1, 1948.

§ 210b. Professional categories.

(a) Division of corps; basis of categories.

For the purpose of establishing eligibility of officers of the Regular Corps for promotions, the Surgeon General shall by regulation divide the corps into professional categories. Each category shall, as far as practicable, be based upon one of the subjects of examination set forth in section 209 (a) (1) of this title or upon a subdivision of such subject, and the categories shall be designed to group officers by fields of training in such manner that officers in any one grade in any one category will be available for similar duty in the discharge of the several functions of the Service.

(b) Assignment of officers.

Each officer of the Regular Corps on active duty shall, on the basis of his training and experience, be assigned by the Surgeon General to one of the categories established by regulations under subsection (a) of this section. Except upon amendment of such regulations, no assignment so made shall be changed unless the Surgeon General finds (1) that the original assignment was erroneous, or (2) that the officer is equally well qualified to serve in another category to which he has requested to be transferred, and that such transfer is in the interests of the Service. (c) Maximum number of officers in each category.

Within the limits fixed by the Secretary in regulations under section 207 (d) of this title for any fiscal year, the Surgeon General shall determine for each category in the Regular Corps the maximum number of officers authorized to be in each of the grades from the assistant grade to the director grade, inclusive.

(d) Vacancies in grade for purposes of promotion.

The excess of the number so fixed for any grade in any category over the number of officers of the Regular Corps on active duty in such grade in such category (including in the case of the director grade, officers holding such grade in accordance with section 207 (c) of this title) shall for the purpose of promotions constitute vacancies in such grade in such category. For purposes of this subsection, an officer who has been temporarily promoted or who is temporarily holding the grade of director in accordance with section 207 (c) of this title shall be deemed to hold the grade to which so promoted or which he is temporarily holding; but while he holds such promotion or grade, and while any officer is temporarily assigned to a position pursuant to section 206 (c) of this title, the number fixed under subsection (c) of this section for the grade of his permanent rank shall be reduced by one.

(e) Absence of vacancy in grade as affecting promotion.

The absence of a vacancy in a grade in a category shall not prevent an appointment to such grade pursuant to section 209 of this title, a permanent length of service promotion, or the recall of a retired officer to active duty; but the making of such an appointment, promotion, or recall shall be deemed to fill a vacancy if one exists.

(f) Vacancy in grade as affecting maximum number for each category.

Whenever a vacancy exists in any grade in a category the Surgeon General may increase by one the number fixed by him under subsection (c) of this section for the next lower grade in the same category, without regard to the numbers fixed in regulations under section 207 (d) of this title; and in that event the vacancy in the higher grade shall not be filled except by a permanent promotion, and upon the making of such promotion the number for the next lower grade shall be reduced by one. (July 1, 1944, ch. 373, title II, § 209, as added Feb. 28, 1948, ch. 83, § 5 (i), 62 Stat. 41, and amended 1953 Reorg. Plan No. 1, §§ 5, 8, eff. Apr. 11, 1953, 18 F. R. 2053, 67 Stat. 631.)

TRANSFER OF FUNCTIONS

§ 211. Promotion of commissioned officers.

(a) Permanent or temporary promotions; examination.

Promotions of officers of the Regular Corps to any grade up to and including the director grade shall be either permanent promotions based on length of service, other permanent promotions to fill vacancies, or temporary promotions. Permanent promotions shall be made by the President, by and with the advice and consent of the Senate, and temporary promotions shall be made by the President. Each permanent promotion shall be to the next higher grade, and shall be made only after examination given in accordance with regulations of the President.

(b) Promotion to certain grades only to fill vacancies; regulations; definition of "restricted grade”.

The President may by regulation provide that in a specified professional category permanent promotions to the senior grade, or to both the full grade and the senior grade, shall be made only if there are vacancies in such grade. A grade in any category with respect to which such regulations have been issued is referred to in this section as a "restricted grade."

Examinations to determine qualification for permanent promotions may be either noncompetitive or competitive, as the Surgeon General shall in each case determine; except that examinations for promotions to the assistant or senior assistant grade shall in all cases be noncompetitive. The officers to be examined shall be selected by the Surgeon Gen

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United States Code, Volume 9