1977-Pub. L. 95-140, § 2(a)(4), substituted in section catchline "Under Secretaries of Defense" for "Director of Defense Research and Engineering".

Subsec. (a). Pub. L. 95-140, § 2(a)(1), substituted provisions relating to the appointment of the Under Secretary of Defense for Policy and the Under Secretary of Defense for Research and Engineering for provisions relating to the appointment of the Director of Defense Research and Engineering and added provisions relating to the prohibition of the appointment of a person as Under Secretary of Defense for policy within ten years after relief from active duty as a commissioned officer of an armed force.

Subsec. (b). Pub. L. 95-140, § 2(a)(2), substituted "The Under Secretary of Defense for Policy shall perform such duties and exercise such powers as the Secretary of Defense may prescribe. The Under Secretary of Defense for Research and Engineering shall perform" for "The Director performs".

Subsec. (c). Pub. L. 95-140, § 2(a)(3), substituted "Under Secretary of Defense for Policy" for "Director" and "Deputy Secretary" for "Deputy Secretaries" and added provision that the Under Secretary of Defense for Research and Engineering takes precedence in the Department of Defense immediately after the Under Secretary of Defense for Policy.

1972-Subsec. (c). Pub. L. 92-596 substituted "Deputy Secretaries" for "Deputy Secretary".

ORDER OF SUCCESSION

For order of succession in event of death, disability, or absence of the Secretary, see Ex. Ord. No. 10820, May 18, 1959, 24 F.R. 4045, set out as a note under section 3347 of Title 5, Government Organization and Employees.

EMERGENCY FUND FOR RESEARCH, DEVELOPMENT, TEST, AND EVALUATION

Pub. L. 89-37, title III, § 305, June 11, 1965, 79 Stat. 128, which provided that no funds were to be appropriated after June 30, 1966, to or for the use of any armed force of the United States for use as an emergency fund for research, development, test, and evaluation, or procurement or production related thereto unless the appropriation of such funds has been authorized by legislation enacted after that date, was repealed by Pub. L. 97-295, § 6(b), Oct. 12, 1982, 96 Stat. 1314. See section 138(i) of this title.

§ 136. Assistant Secretaries of Defense: appointment; powers and duties; precedence

(a) There are seven Assistant Secretaries of Defense, appointed from civilian life by the President, by and with the advice and consent of the Senate.

(b) The Assistant Secretaries shall perform such duties and exercise such powers as the Secretary of Defense may prescribe. One of the Assistant Secretaries shall be the Assistant Sec

retary of Defense for Health Affairs. He shall have as his principal duty the overall supervision of health affairs of the Department of Defense. One of the Assistant Secretaries shall be the Assistant Secretary of Defense for Manpower and Reserve Affairs. He shall have as his principal duty the overall supervision of manpower and reserve component affairs of the Department of Defense. In addition, one of the Assistant Secretaries shall be the Comptroller of the Department of Defense and shall, subject to the authority, direction, and control of the Secretary—

(1) advise and assist the Secretary in performing such budgetary and fiscal functions and duties, and in exercising such budgetary and fiscal powers, as are needed to carry out the powers of the Secretary;

(2) supervise and direct the preparation of budget estimates of the Department of Defense;

(3) establish and supervise the execution of principles, policies, and procedures to be followed in connection with organizational and administrative matters relating to

(A) the preparation and execution of budgets;

(B) fiscal, cost, operating, and capital property accounting;

(C) progress and statistical reporting; and (D) internal audit;

(4) establish and supervise the execution of policies and procedures relating to the expenditure and collection of funds administered by the Department of Defense; and

(5) establish uniform terminologies, classifications, and procedures concerning matters covered by clauses (1)-(4).

(c) Except as otherwise specifically provided by law, an Assistant Secretary may not issue an order to a military department unless—

(1) the Secretary of Defense has specifically delegated that authority to him in writing; and

(2) the order is issued through the Secretary of the military department concerned, or his designee.

(d) In carrying out subsection (c) and sections 3010, 3012(b) (last two sentences), 5011 (first two sentences), 5031(a) (the last two sentences), 8010, and 8012(b) (last two sentences) of this title, the Secretary of each military department, his civilian assistants, and members of the armed forces under the jurisdiction of his department shall cooperate fully with personnel of the Office of the Secretary of Defense to achieve efficient administration of the Department of Defense and to carry out effectively the authority, direction, and control of the Secretary of Defense.

(e) The Assistant Secretaries take precedence in the Department of Defense after the Secretary of Defense, the Deputy Secretary of Defense, the Secretaries of the military departments, and the Under Secretaries of Defense.

(f) Within the Office of the Assistant Secretary of Defense for Manpower and Reserve Affairs there shall be a Deputy Assistant Secretary of Defense for Reserve Affairs who shall

be appointed from civilian life by the President, by and with the advice and consent of the Senate. Subject to the supervision and control of the Assistant Secretary of Defense for Manpower and Reserve Affairs, the Deputy Assistant Secretary shall be responsible for all matters relating to reserve affairs within the Office of the Assistant Secretary of Defense for Manpower and Reserve Affairs.

(Added Pub. L. 87-651, title II, § 202, Sept. 7, 1962, 76 Stat. 518, and amended Pub. L. 90-168, § 2(1), (2), Dec. 1, 1967, 81 Stat. 521; Pub. L. 91-121, title IV, § 404(a), Nov. 19, 1969, 83 Stat. 207; Pub. L. 92-215, § 1, Dec. 22, 1971, 85 Stat. 777; Pub. L. 92-596, § 4(2), Oct. 27, 1972, 86 Stat. 1318; Pub. L. 95-140, § 3(a), Oct. 21, 1977, 91 Stat. 1173; Pub. L. 96-107, title VIII, § 820(a), Nov. 9, 1979, 93 Stat. 819.)

HISTORICAL AND REVISION NOTES

Source (Statutes at Large)

sen

516.

343, Aug.

July 26, 1947, ch. 343, § 202(c)(7) (less 1st 2 sentences); added Aug. 6, 1958, Pub. L. 85-599, § 3(a) (8th par., less 1st 2 tences), 72 Stat. July 26, 1947, ch. § 203(c); added 10, 1949, ch. 412. § 6(a), (2d par.), 63 Stat. 581; redesignated Aug. 6, 1958, Pub. L. 85-599, §§ 9(a) (1st par., as applicable to § 203(c)), 10(a), 72 Stat. 520, 521. July 26, 1947, ch. 343, § 302 (less 1st sentence); restated Aug. 10, 1949, ch. 412. § 10(b) (less 1st sentence) restated Aug. 10. 1956, ch. 1041, § 21 (less 1st sentence), 70A Stat. 629.

July 26, 1947, ch. 343, § 308(a) (as applicable to § 401), 61 Stat. 509. July 26, 1947, ch. 343,

§ 401; added Aug. 10, 1949, ch. 412, § 11 (1st 2 pars.), 63 Stat. 585.

In subsection (b)(1), 5 U.S.C. 172(b) (last 13 words of 1st sentence) is omitted as surplusage, since they are only a general description of the powers of the Secretary of Defense under this title. 5 U.S.C. 171c-2 (less 1st sentence) is omitted as covered by 5 U.S.C. 171c(c) (1st 18 words of 2d sentence).

In subsection (d), the following substitutions are made: "In carrying out subsection (c) and sections 3010, 3012(b) (last two sentences), 5011 (first two sentences), 5031(a) (last two sentences), 8010, and 8012(b) last two sentences of this title," for "In implementation of this paragraph"; and "members of the armed forces under the jurisdiction of his department" for "the military personnel in such department". The words "in a continuous effort" are omitted as surplusage.

AMENDMENTS

1979-Subsec. (a). Pub. L. 96-107 substituted "seven" for "nine".

1977-Subsec. (e). Pub. L. 95-140 inserted "of Defense" following "Secretary" and substituted "Secretary of Defense" for "Secretaries of Defense" and ". and the Under Secretaries of Defense" for ", and the Director of Defense Research and Engineering". 1972-Subsec. (e). Pub. L. 92-596 substituted "Deputy Secretaries" for "Deputy Secretary".

1971-Subsec. (a). Pub. L. 92-215 increased the number of Assistant Secretaries of Defense from eight to nine.

1969-Subsec. (a). Pub. L. 91-121, § 404(a)(1), increased the number of Assistant Secretaries of Defense from seven to eight.

Subsec. (b). Pub. L. 91-121, § 404(a)(2), provided for an Assistant Secretary of Defense for Health Affairs having as his principal duty the overall supervision of health affairs of the Department of Defense.

1967-Subsec. (b). Pub. L. 90-168, § 2(1), added provisions for an Assistant Secretary of Defense for Manpower and Reserve Affairs with the principal duty of overall supervision of manpower and reserve component affairs of the Department of Defense. Subsec. (f). Pub. L. 90-168, § 2(2), added subsec. (f).

EFFECTIVE DATE OF 1967 AMENDMENT

Section 7 of Pub. L. 90-168 provided that: "The provisions of this Act [amending sections 136, 175, 262, 264, 268, 269, 270, 511, 3013, 5034, 8013, and 8850 of this title, section 502 of Title 32, National Guard, and section 404 of Title 37, Pay and Allowances of the Uniformed Services, enacting sections 3019, 3033, 8019, and 8033 of this title, enacting provisions set out as notes under sections 136 and 8212 of this title, and amending note set out under section 133 of this title] shall become effective on the first day of the first calendar month following the date of enactment [Dec. 1, 1967]."

SHORT TITLE of 1967 Amendment

Section 1 of Pub. L. 90-168 provided: "That this Act [amending sections 136, 175, 262, 264, 268, 269, 270, 511, 3013, 5034, 8013, and 8850 of this title, section 502 of Title 32, National Guard, and section 404 of Title 37, Pay and Allowances of the Uniformed Services, enacting sections 3019, 3033, 8019, and 8033 of this title, enacting provisions set out as notes under sections 136 and 8212 of this title, and amending note set out under section 133 of this title] may be cited as the 'Reserve Forces Bill of Rights and Vitalization Act'."

ORDER OF SUCCESSION

For order of succession in event of death, disability, or absence of the Secretary, see Ex. Ord. No. 10820, May 18, 1959, 24 F.R. 4045, set out as a note under section 3347 of Title 5, Government Organization and Employees.

§ 137. General Counsel: powers and duties

(a) There is a General Counsel of the Department of Defense, appointed from civilian life by the President, by and with the advice and consent of the Senate.

(b) The General Counsel is the chief legal officer of the Department of Defense. He shall perform such functions as the Secretary of Defense may prescribe.

(Added Pub. L. 87-651, title II, § 202, Sept. 7, 1962, 76 Stat. 519, and amended Pub. L. 88-426, title III, § 305(9), Aug. 14, 1964, 78 Stat. 423.)

Compensation of General Counsel, see section 5315 of Title 5, Government Organization and Employees. § 138. Annual authorization of appropriations and personnel strengths for the armed forces; annual manpower requirements and operations and maintenance reports

(a) No funds may be appropriated for any fiscal year to or for the use of any armed force or obligated or expended for

(1) procurement of aircraft, missiles, or naval vessels;

(2) any research, development, test, or evaluation, or procurement or production related thereto;

(3) procurement of tracked combat vehicles; (4) procurement of other weapons;

(5) procurement of naval torpedoes and related support equipment;

(6) military construction (as defined in subsection (f));

(7) the operation and maintenance of any armed force or of the activities and agencies of the Department of Defense (other than the military departments);

(8) procurement of ammunition; or

(9) other procurement by any armed force or by the activities and agencies of the Department of Defense (other than the military departments);

unless funds therefor have been specifically authorized by law.

(b)(1) Congress shall authorize the average personnel strength of the Selected Reserve of each reserve component of the armed forces. No funds may be appropriated for any fiscal year for the pay and allowances of members of any reserve component of the armed forces unless the personnel strength of the Selected Reserve of that reserve component for that fiscal year has been authorized by law.

(2) The Secretary of Defense shall submit to the Congress each year, not later than Febru

ary 15, a written report concerning the equipment of the National Guard and the reserve components of the armed forces for each of the three succeeding fiscal years. Each such report shall include

(A) recommendations as to the type and quantity of each major item of equipment which should be in the inventory of the Selected Reserve of the Ready Reserve of each reserve component of the armed forces;

(B) the quantity and average age of each type of major item of equipment which is expected to be physically available in the inventory of the Selected Reserve of the Ready Reserve of each reserve component as of the beginning of each fiscal year covered by the report;

(C) the quantity and cost of each type of major item of equipment which is expected to be procured for the Selective Reserve of the Ready Reserve of each reserve component from commercial sources or to be transferred to each such Selected Reserve from the active-duty components of the armed forces; and

(D) the quantity of each type of major item of equipment which is expected to be retired, decommissioned, transferred, or otherwise removed from the physical inventory of the Selected Reserve of the Ready Reserve of each reserve component and the plans for replacement of that equipment.

The report required by this paragraph shall be prepared and expressed in the same format and with the same level of detail as the information presented in the annual Five Year Defense Program Procurement Annex prepared by the Department of Defense.

(c)(1)(A) Congress shall authorize the end strength as of the end of each fiscal year for active-duty personnel for each component of the armed forces. The end strength authorized for a component of the armed forces for a fiscal year may be increased by a number equal to not more than 0.5 percent of the total end strength authorized for such component for that fiscal year if the Secretary of Defense determines that such increase is in the national interest. No funds may be appropriated for any fiscal year to or for the use of the active-duty personnel of any component of the armed forces unless the end strength for active-duty personnel of that component for that fiscal year has been authorized by law.

(B) In counting active-duty personnel for the purpose of the end-strengths authorized pursuant to subparagraph (A), persons in the following categories shall be excluded:

(i) Members of the Ready Reserve ordered to active duty under section 673 of this title. (ii) Members of the Selected Reserve of the Ready Reserve ordered to active duty under section 673b of this title.

(iii) Members of the National Guard called into Federal service under section 3500 or 8500 of this title.

(iv) Members of the militia called into Federal service under chapter 15 of this title.

(v) Members of reserve components on active duty for training for 180 days or less.

(vi) Members of reserve components on active duty for 180 days or less to perform special work.

(C) The authorized strength of the Navy is increased by the authorized strength of the Coast Guard during any period when the Coast Guard is operating as a service in the Navy.

(2) Congress shall authorize the end strength as of the end of each fiscal year for civilian personnel for each component of the Department of Defense. No funds may be appropriated for any fiscal year to or for the use of the civilian personnel of any component of the Department of Defense unless the end strength for civilian personnel of that component for that fiscal year has been authorized by law.

(3)(A) The Secretary of Defense shall submit to Congress a written report, not later than February 15 of each fiscal year, recommending the annual active duty end strength level for each component of the armed forces for the next fiscal year and the annual civilian personnel end strength level for each component of the Department of Defense for the next fiscal year, and shall include in that report justification for the strength levels recommended and an explanation of the relationship between the personnel strength levels recommended for that fiscal year and the national security policies of the United States in effect at the time. The justification and explanation shall specify in detail for all military forces (including each land force division, carrier and other major combatant vessel, air wing, and other comparable unit) the

(i) unit mission and capability;

(ii) strategy which the unit supports; and (iii) area of deployment and illustrative areas of potential deployment, including a description of any United States commitment to defend such areas.

(B) The Secretary of Defense shall also include in the report required under subparagraph (A) a detailed discussion of

(i) the manpower required for support and overhead functions within the armed forces and the Department of Defense;

(ii) the relationship of the manpower required for support and overhead functions to the primary combat missions and support policies; and

(iii) the manpower required to be stationed or assigned to duty in foreign countries and aboard vessels located outside the territorial limits of the United States, its territories, and possessions.

(C) In such report, the Secretary of Defense shall also identify, define, and group by mission and by region the types of military bases, installations, and facilities and shall provide an explanation and justification of the relationship between this base structure and the proposed military force structure together with a comprehensive identification of base operating support costs and an evaluation of possible alternatives to reduce such costs.

(D) The Secretary of Defense shall also include in such report with respect to each armed force under the jurisdiction of the Secretary of a military department

(i) the number of positions that require warrant officers or commissioned officers serving on active duty in each of the officer grades during the current fiscal year and the estimated number of such positions for each of the next five fiscal years;

(ii) the estimated number of officers that will be serving on active duty in each grade on the last day of the current fiscal year and the estimated numbers of officers that will be needed on active duty on the last day of each of the next five fiscal years;

(iii) an estimate and analysis for the current fiscal year and for each of the next five fiscal years of gains to and losses from the number of members on active duty in each officer grade, including a tabulation of—

(I) retirements displayed by year of active commissioned service;

(II) discharges;

(III) other separations; (IV) deaths;

(V) promotions; and

(VI) reserve and regular officers ordered to active duty; and

(iv) an analysis of the distribution of each of the following categories of officers serving on active duty on the last day of the preceding fiscal year by grade in which serving and years of active commissioned service:

(I) Regular officers.

(II) Reserve officers on the active-duty list.

(III) Reserve officers described in clauses (B) and (C) of section 523(b)(1) of this title. (IV) Officers other than those specified in subclauses (I), (II), and (III) serving in a temporary grade.

(4) If at the end of any fiscal year there is in effect a war or national emergency, the President may defer the effectiveness of any endstrength limitation with respect to that fiscal year prescribed by law for any military or civilian component of the armed forces or of the Department of Defense. Any such deferral may not extend beyond November 30 of the following fiscal year. The President shall promptly notify Congress of any deferral of an endstrength limitation under this paragraph.

(5) The Secretary of Defense shall use the least costly form of personnel consistent with military requirements and other needs of the Department. In developing the annual personnel authorization requests to Congress and in carrying out personnel policies, the Secretary shall

(A) consider particularly the advantages of converting from one form of personnel (military, civilian, or private contract) to another for the performance of a specified job; and

(B) include in each manpower requirements report submitted under paragraph (3) a complete justification for converting from one form of personnel to another.

(d)(1) Congress shall authorize the average military training student loads for each component of the armed forces. Such authorization is not required for unit or crew training student

loads, but is required for student loads for the following individual training categories

(A) recruit and specialized training;
(B) flight training;

(C) professional training in military and civilian institutions; and

(D) officer acquisition training.

No funds may be appropriated for any fiscal year for training military personnel in the training categories described in clauses (A)-(D) of any component of the armed forces unless the average student load of that component for that fiscal year has been authorized by law.

(2) The Secretary of Defense shall submit to Congress a written report, not later than March 1 of each fiscal year, recommending the average student load for each category of training for each component of the armed forces for the next three fiscal years, and shall include in that report justification for, and explanation of, the average student loads recommended.

(e)(1) The Secretary of Defense shall submit to Congress a written report, not later than February 15 of each fiscal year, with respect to the operations and maintenance of the Army, Navy, Air Force, and Marine Corps for the next fiscal year. The Secretary shall include in each such report recommendations for

(A) the number of aircraft flying hours for the Army, Navy, Air Force, and Marine Corps for the next fiscal year, the number of ship steaming hours for the Navy for the next fiscal year, and the number of field training days for the combat arms battalions of the Army and Marine Corps for the next fiscal year;

(B) the number of ships over 3,000 tons (full load displacement) in each Navy ship classification on which major repair work should be performed during the next fiscal year; and

(C) the number of airframe reworks, aircraft engine reworks, and vehicle overhauls which should be performed by the Army, Navy, Air Force, and Marine Corps during the next fiscal year.

(2) The Secretary shall also include in each such report the justification for and an explanation of the level of funding recommended in the Budget of the President for the next fiscal year for aircraft flying hours, ship steaming hours, field training days for the combat arms battalions, major repair work to be performed on ships of the Navy, airframe reworks, aircraft engine reworks, and vehicle overhauls.

(f)(1) In subsection (a)(6), the term "military construction" includes any construction, development, conversion, or extension of any kind which is carried out with respect to any military facility or installation (including any Government-owned or Government-leased industrial facility used for the production of defense articles and any facility to which section 2353 of this title applies), any activity to which section 2807 of this title applies, any activity to which chapter 133 of this title applies, and advances to the Secretary of Transportation for the construction of defense access roads under section 210 of title 23. Such term does not include any activity to which section 2821 or 2854 of this title applies.

(2) In subsection (e): (A) "Combat arms battalions" means, armor, infantry, mechanized infantry, air assault infantry, airborne infantry, ranger, artillery, and combat engineer battalions and armored cavalry and air cavalry squadrons.

(B) “Major repair work” means, in the case of any ship to which such subsection is applicable, any overhaul, modification, alteration, or conversion work which will result in a total cost to the United States of more than $10,000,000.

(g) The size of the Special Defense Acquisition Fund established pursuant to chapter 5 of the Arms Export Control Act may not exceed $300,000,000 in fiscal year 1982, may not exceed $600,000,000 in fiscal year 1983, and may not exceed $900,000,000 in fiscal year 1984 or any fiscal year thereafter.

(h) The Secretary of Defense shall submit to Congress a written report, not later than February 15 of each fiscal year, recommending the amount of funds to be appropriated to the Department of Defense for the next fiscal year for functions relating to the formulation and carrying out of Department of Defense policies on the control of technology transfer and activities related to the control of technology transfer. The Secretary shall include in that report the proposed allocation of the funds requested for such purpose and the number of personnel proposed to be assigned to carry out such activities during such fiscal year.

(i) Funds may be appropriated for the armed forces for use as an emergency fund for research, development, test, and evaluation, or related procurement or production, only if the appropriation of the funds is authorized by law after June 30, 1966.

(Added Pub. L. 93-155, title VIII, § 803(a), Nov. 16, 1973, 87 Stat. 612, and amended Pub. L. 94-106, title VIII, § 801(a), Oct. 7, 1975, 89 Stat. 537; Pub. L. 94-361, title III, § 302, July 14, 1976, 90 Stat. 924; Pub. L. 96-107, title III, § 303(b), Nov. 9, 1979, 93 Stat. 806; Pub. L. 96-342, title X, § 1001(a)(1), (b)-(d)(1), Sept. 8, 1980, 94 Stat. 1117-1119; Pub. L. 96-513, title I, § 102, title V, § 511(4), Dec. 12, 1980, 94 Stat. 2840, 2920; Pub. L. 97-22, § 2(b), July 10, 1981, 95 Stat. 124; Pub. L. 97-86, title III, § 302, title IX, §§ 901(a), 902, 903, Dec. 1, 1981, 95 Stat. 1104, 1113, 1114; Pub. L. 97-113, title I, § 108(b), Dec. 29, 1981, 95 Stat. 1524; Pub. L. 97-214, § 4, July 12, 1982, 96 Stat. 170; Pub. L. 97-252, title IV, § 402(a), title XI, §§ 1103, 1105, Sept. 8, 1982, 96 Stat. 725, 738, 739; Pub. L. 97-295, § 1(3), (4), Oct. 12, 1982, 96 Stat. 1289.)