2018 US Code
Title 10 - Armed Forces
Subtitle A - General Military Law
Part II - Personnel
Chapter 81 - Civilian Employees
Front Matter

"(1) In general.—Not later than one year after the date of the enactment of this Act [Aug. 13, 2018], the Secretary of Defense shall establish within the Department of Defense a civilian fellowship program designed to provide leadership development and the commencement of a career track toward senior leadership in the Department.

"(2) Designation.—The fellowship program shall be known as the 'John S. McCain Strategic Defense Fellows Program' (in this section referred to as the 'fellows program').

"(1) is a citizen of the United States or a lawful permanent resident of the United States in the year in which the individual applies for participation in the fellows program; and

"(2) either—

"(1) Application required.—Each individual seeking to participate in the fellows program shall submit to the Secretary of Defense an application therefor at such time and in such manner as the Secretary shall specify.

"(2) Elements.—Each application of an individual under this subsection shall include the following:

"(1) In general.—Each year, the Secretary of Defense shall select participants in the fellows program from among applicants for the fellows program for such year who qualify for participation in the fellows program based on character, commitment to public service, academic achievement, extracurricular activities, and such other qualifications for participation in the fellows program as the Secretary considers appropriate.

"(2) Number.—The number of individuals selected to participate in the fellows program in any year may not exceed the numbers as follows:

"(3) Background investigation.—An individual selected to participate in the fellows program may not participate in the program unless the individual successfully undergoes a background investigation applicable to the position to which the individual will be assigned under the fellows program and otherwise meets such requirements applicable to assignment to a sensitive position within the Department that the Secretary considers appropriate.

"(1) In general.—Each individual who participates in the fellows program shall be assigned to a position in one of the following:

"(2) Position requirements.—Each Secretary of a military department, and each Under Secretary of Defense and Director of a Defense Agency who reports directly to the Secretary of Defense, shall submit to the Secretary of Defense each year the qualifications and skills to be demonstrated by participants in the fellows program to qualify for assignment under this subsection for service in a position of the office of such Secretary, Under Secretary, or Director.

"(3) Assignment to positions.—The Secretary of Defense shall each year assign participants in the fellows program to positions in the offices of the Secretaries of the military departments, and the offices of the Under Secretaries and Directors described in paragraph (2). In making such assignments, the Secretary of Defense shall seek to best match the qualifications and skills of participants in the fellows program with the requirements of positions available for assignment. Each participant so assigned shall serve as a special assistant to the Secretary, Under Secretary, or Director to whom assigned.

"(4) Limitation on number assignable to secretaries of military departments.—The number of participants in the fellows program who are assigned to the office of a Secretary of a military department in any year may not exceed five participants.

"(5) Term.—The term of each assignment under the fellows program shall be one year.

"(6) Pay and benefits.—An individual assigned to a position under the fellows program shall be compensated at the rate of compensation for employees at level GS–10 of the General Schedule, and shall be treated as an employee of the United States during the term of assignment, including for purposes of eligibility for health care benefits and retirement benefits available to employees of the United States.

"(7) Education loan repayment.—To the extent that funds are provided in advance in appropriations Acts, the Secretary of Defense may repay any loan of a participant in the fellows program if the loan is described by subparagraph (A), (B), or (C) of section 16301(a)(1) of title 10, United States Code. Any repayment of loans under this paragraph shall be on a first-come, first-served basis.

"(1) In general.—The Secretary of Defense shall ensure that participants in the fellows program—

"(2) Reservation of positions.—In carrying out paragraph (1)(B), the Secretary shall reserve for participants who successfully complete the fellows program not fewer than 30 positions in the excepted service within the Department that are suitable for the commencement of a career track toward senior leadership within the Department. Any position so reserved shall not be subject to or covered by any reduction in headquarters personnel required under any other provision of law.

"(3) Noncompetitive appointment.—Upon the successful completion of the assignment of a participant in the fellows program in a position pursuant to subsection (e), the Secretary may, without regard to the provisions of subchapter I of chapter 33 of title 5, United States Code, appoint the participant to a position reserved pursuant to paragraph (2) if the Secretary determines that such appointment will contribute to the development of highly qualified future senior leaders for the Department.

"(4) Publication of selection.—The Secretary shall publish on an Internet website of the Department available to the public the names of the individuals selected to participate in the fellows program.

"(1) In general.—Each Secretary of a military department may carry out a pilot program under which former cadets or midshipmen described in paragraph (2) (in this section referred to as 'eligible individuals') under the jurisdiction of such Secretary may be appointed by the Secretary of Defense in the excepted service under section 3320 of title 5, United States Code, in the Department of Defense.

"(2) Cadets and midshipmen.—Except as provided in paragraph (3), a former cadet or midshipman described in this paragraph is any former cadet at the United States Military Academy or the United States Air Force Academy, and any former midshipman at the United States Naval Academy, who—

"(3) Exception.—A former cadet or midshipman whose medical disqualification as described in paragraph (2)(B) is the result of the gross negligence or misconduct of the former cadet or midshipman is not an eligible individual for purposes of appointment under a pilot program.

"(1) In general.—The positions to which an eligible individual may be appointed under a pilot program conducted under this section are existing positions within the Department of Defense in grades up to GS–9 under the General Schedule under section 5332 of title 5, United States Code (or equivalent). The authority in subsection (a) does not authorize the creation of additional positions, or create any vacancies to which eligible individuals may be appointed under a pilot program.

"(2) Term positions.—Any appointment under a pilot program shall be to a position having a term of five years or less.

"(1) Recruitment and retention of eligible individuals.—The authority in subsection (a) may be used only to the extent necessary to recruit and retain on a non-competitive basis cadets and midshipmen who are relieved of an obligation for active duty in the Armed Forces due to becoming medically disqualified from serving on active duty in the Armed Forces, and may not be used to appoint any other individuals in the excepted service.

"(2) Voluntary acceptance of appointments.—A pilot program conducted under this section may not be used as an implicit or explicit basis for compelling an eligible individual to accept an appointment in the excepted service in accordance with this section.

"(1) In general.—The authority to appoint eligible individuals in the excepted service under a pilot program conducted under this section shall expire on the date that is four years after the date of the enactment of this Act [Dec. 12, 2017].

"(2) Effect on existing appointments.—The termination by paragraph (1) of the authority in subsection (a) shall not affect any appointment made under that authority before the termination date specified in paragraph (1) in accordance with the terms of such appointment.

"(1) Report required.—Not later than the date that is three years after the date of the enactment of this Act [Dec. 12, 2017], each Secretary of a military department shall submit to the appropriate congressional committees a report containing an evaluation of the effectiveness of the pilot program conducted by such Secretary under this section, including the number of eligible individuals appointed as civilian employees of the Department of Defense under the program and the retention rate for such employees.

"(2) Appropriate congressional committees defined.—In this section, the term 'appropriate congressional committees' means the Committee on Armed Services and the Committee on Homeland Security and Government Affairs of the Senate and the Committee on Armed Services and the Committee on Oversight and Government Reform of the House of Representatives."

"(1) A management or business background.

"(2) Experience working with large or complex organizations.

"(3) Expertise in management and organizational change, data analytics, or business process design.

"(1) In general.—Not later than September 30, 2019, and September 30, 2021, the Secretary shall brief the appropriate committees of Congress on the exercise of the authority in this section.

"(2) Elements.—Each briefing under this subsection shall include the following:

"(3) Appropriate committees of congress defined.—In this subsection, the term 'appropriate committees of Congress' means—

"(1) In general.—The authority to appoint individuals in this section shall expire on September 30, 2021.

"(2) Construction with existing appointments.—The expiration in paragraph (1) of the authority in this section shall not be construed to terminate any appointment made under this section before the date of expiration that continues according to its term as of the date of expiration."

"(1) In general.—The cybersecurity and legal professionals described in this subsection are the following:

"(2) Inapplicability to ses positions.—The pilot program shall not apply to positions within the Senior Executive Service under subchapter VIII of chapter 53 of title 5, United States Code.

"(1) Inapplicability of general civil service appointment authorities to appointments.—Under the pilot program, the Secretary of Defense, with respect to the Defense Agencies, and the Secretary of the military department concerned, with respect to the military departments, may appoint qualified candidates as cybersecurity and legal professionals without regard to the provisions of subchapter I of chapter 33 of title 5, United States Code.

"(2) Appointment on direct-hire basis.—Appointments under the pilot program shall be made on a direct-hire basis.

"(1) Renewable term appointments.—Each individual shall serve with the Department of Defense as a cybersecurity or legal professional under the pilot program pursuant to an initial appointment to service with the Department for a term of not less than 2 years nor more than 8 years. Any term of appointment under the pilot program may be renewed for one or more additional terms of not less than 2 years nor more than 8 years as provided in subsection (h).

"(2) Length of terms.—The length of the term of appointment to a position under the pilot program shall be prescribed by the Secretary of Defense taking into account the national security, mission, and other applicable requirements of the position. Positions having identical or similar requirements or terms may be grouped into categories for purposes of the pilot program. The Secretary may delegate any authority in this paragraph to a commissioned officer of the Armed Forces in pay grade O–7 or above or an employee in the Department in the Senior Executive Service.

"(1) Treatment of personnel appointed as employees.—Except as otherwise provided by this section, individuals serving with the Department of Defense as cybersecurity or legal professionals under the pilot program pursuant to appointments under this section shall be considered employees (as specified in section 2105 of title 5, United States Code) for purposes of the provisions of title 5, United States Code, and other applicable provisions of law, including, in particular, for purposes as follows:

"(2) Scope of rights and benefits.—In administering the pilot program, the Secretary of Defense shall specify, and from time to time update, a comprehensive description of the rights and benefits of individuals serving with the Department under the pilot program pursuant to this subsection and of the provisions of law under which such rights and benefits arise.

"(1) Basic pay.—Individuals serving with the Department of Defense as cybersecurity or legal professionals under the pilot program shall be paid basic pay for such service in accordance with a schedule of pay prescribed by the Secretary of Defense for purposes of the pilot program.

"(2) Treatment as basic pay.—Basic pay payable under the pilot program shall be treated for all purposes as basic pay paid under the provisions of title 5, United States Code.

"(3) Performance awards.—Individuals serving with the Department as cybersecurity or legal professionals under the pilot program may be awarded such performance awards for outstanding performance as the Secretary shall prescribe for purposes of the pilot program. The performance awards may include a monetary bonus, time off with pay, or such other awards as the Secretary considers appropriate for purposes of the pilot program. The award of performance awards under the pilot program shall be based in accordance with such policies and requirements as the Secretary shall prescribe for purposes of the pilot program.

"(4) Additional compensation.—Individuals serving with the Department as cybersecurity or legal professionals under the pilot program may be awarded such additional compensation above basic pay as the Secretary (or the designees of the Secretary) consider appropriate in order to promote the recruitment and retention of highly skilled and productive cybersecurity and legal professionals to and with the Department.

"(1) The first term of appointment of an individual to service with the Department of Defense as a cybersecurity or legal professional, regardless of length.

"(2) The first term of appointment of an individual to a supervisory position in the Department as a cybersecurity or legal professional, regardless of length and regardless of whether or not such term of appointment to a supervisory position is the first term of appointment of the individual concerned to service with the Department as a cybersecurity or legal professional.

"(1) In general.—The Secretary of Defense shall prescribe the conditions for the renewal of appointments under the pilot program. The conditions may apply to one or more categories of positions, positions on a case-by-case basis, or both.

"(2) Particular conditions.—In prescribing conditions for the renewal of appointments under the pilot program, the Secretary shall take into account the following (in the order specified):

"(3) Service performance.—The assessment of the service performance of an individual under the pilot program for purposes of paragraph (2)(B) shall consist of an assessment of the ability of the individual to effectively accomplish mission goals for the position concerned as determined by the supervisor or manager of the individual based on the individual's performance evaluations and the knowledge of and review by such supervisor or manager (developed in consultation with the individual) of the individual's performance in the position. An individual's tenure of service in a position or the Department of Defense may not be the primary element of the assessment.

"(1) creates opportunities for education, training, and career-broadening experiences, and for experimental opportunities in other organizations within and outside the Federal Government; and

"(2) reflects the differentiated needs of personnel at different stages of their careers.

"(1) In general.—The pilot program shall provide for an individual who is in a successive term after the first 8 years with the Department of Defense as a cybersecurity or legal professional under the pilot program to take, at the election of the individual, a paid or unpaid sabbatical from service with the Department for professional development or education purposes. The length of a sabbatical shall be any length not less than 6 months nor more than 1 year (unless a different period is approved by the Secretary of the military department or head of the organization or element of the Department concerned for purposes of this subsection). The purpose of any sabbatical shall be subject to advance approval by the organization or element in the Department in which the individual is currently performing service. The taking of a sabbatical shall be contingent on the written agreement of the individual concerned to serve with the Department for an appropriate length of time at the conclusion of the term of appointment in which the sabbatical commences, with the period of such service to be in addition to the period of such term of appointment.

"(2) Number of sabbaticals.—An individual may take more than one sabbatical under this subsection.

"(3) Repayment.—Except as provided in paragraph (4), an individual who fails to satisfy a written agreement executed under paragraph (1) with respect to a sabbatical shall repay the Department an amount equal to any pay, allowances, and other benefits received by the individual from the Department during the period of the sabbatical.

"(4) Waiver of repayment.—An agreement under paragraph (1) may include such conditions for the waiver of repayment otherwise required under paragraph (3) for failure to satisfy such agreement as the Secretary specifies in such agreement.

"(1) In general.—The authority of the Secretary of Defense to appoint individuals for service with the Department of Defense as cybersecurity or legal professionals under the pilot program shall expire on December 31, 2029.

"(2) Effect on existing appointments.—The termination of authority in paragraph (1) shall not be construed to terminate or otherwise affect any appointment made under this section before December 31, 2029, that remains valid as of that date.

"(1) Interim final rule.—Not later than one year after the date of the enactment of this Act [Dec. 12, 2017], the Secretary of Defense shall prescribe an interim final rule to implement the pilot program.

"(2) Final rule.—Not later than 180 days after prescribing the interim final rule under paragraph (1) and considering public comments with respect to such interim final rule, the Secretary shall prescribe a final rule to implement the pilot program.

"(3) Objectives.—The regulations prescribed under paragraphs (1) and (2) shall accomplish the objectives set forth in subsections (a) through (j) and otherwise ensure flexibility and expedited appointment of cybersecurity and legal professionals in the Department of Defense under the pilot program.

"(1) Reports required.—Not later than January 30 of each of 2022, 2025, and 2028, the Secretary of Defense shall submit to the appropriate committees of Congress a report on the carrying out of the pilot program. Each report shall include the following:

"(2) Appropriate committees of congress defined.—In this subsection, the term 'appropriate committees of Congress' means—

"(1) In general.—The Secretary of Defense may make a temporary appointment or a term appointment in the Department when the need for the services of an employee in the Department is not permanent.

"(2) Extension.—The Secretary may extend a temporary appointment or a term appointment made under paragraph (1).

"(1) In general.—If there is a critical hiring need, the Secretary of Defense may make a noncompetitive temporary appointment or a noncompetitive term appointment in the Department of Defense, without regard to the requirements of sections 3327 and 3330 of title 5, United States Code, for a period that is not more than 18 months.

"(2) No extension available.—An appointment made under paragraph (1) may not be extended.

"(1) The term 'temporary appointment' means the appointment of an employee in the competitive service for a period that is not more than one year.

"(2) The term 'term appointment' means the appointment of an employee in the competitive service for a period that is more than one year and not more than five years, unless the Secretary of Defense, before the appointment of the employee, authorizes a longer period."

"(1) In general.—The Secretary shall administer this section in accordance with regulations prescribed by the Secretary for purposes of this section.

"(2) Lower limit on appointments.—The regulations may establish a lower limit on the number of individuals appointable under subsection (a) during a fiscal year than is otherwise provided for under subsection (b), based on such factors as the Secretary considers appropriate.

"(3) Public notice and advertising.—To the extent practical, as determined by the Secretary, the Secretary shall publicly advertise positions available under this section. In carrying out the preceding sentence, the Secretary shall—

"(1) The term 'current post-secondary student' means a person who—

"(2) The term 'institution of higher education' has the meaning given the term in section 101 of the Higher Education Act of 1965 (20 U.S.C. 1001).

"(3) The term 'recent graduate', with respect to appointment of a person under this section, means a person who was awarded a degree by an institution of higher education not more than two years before the date of the appointment of such person, except that in the case of a person who has completed a period of obligated service in a uniformed service of more than four years, such term means a person who was awarded a degree by an institution of higher education not more than four years before the date of the appointment of such person."

"(1) The Secretary of Defense with respect to each Department of Defense component listed in subsection (f) other than the Department of the Army, the Department of the Navy, and the Department of the Air Force.

"(2) The Secretary of a military department with respect to such military department.

"(1) Financial management positions.

"(2) Accounting positions.

"(3) Auditing positions.

"(4) Actuarial positions.

"(5) Cost estimation positions.

"(6) Operational research positions.

"(7) Business and business administration positions.

"(1) The Office of the Secretary of Defense.

"(2) A Defense Agency.

"(3) The Office of the Chairman of the Joint Chiefs of Staff.

"(4) The Joint Staff.

"(5) A combatant command.

"(6) The Office of the Inspector General of the Department of Defense.

"(7) A Field Activity of the Department of Defense.

"(8) The Department of the Army.

"(9) The Department of the Navy.

"(10) The Department of the Air Force.

"(1) the employee was appointed initially under open, competitive examination under subchapter I of chapter 33 of such title to the time-limited appointment;

"(2) the employee has served under 1 or more time-limited appointments by a defense industrial base facility or the Major Range and Test Facilities Base for a period or periods totaling more than 24 months without a break of 2 or more years; and

"(3) the employee's performance has been at an acceptable level of performance throughout the period or periods (as the case may be) referred to in paragraph (2).

"(1) becomes a career-conditional employee, unless the employee has otherwise completed the service requirements for career tenure; and

"(2) acquires competitive status upon appointment.

"(1) such employee applies for a position covered by this section within the period of 2 years after the most recent date of separation; and

"(2) such employee's most recent separation was for reasons other than misconduct or performance.

"(1) shall ensure that the authority in subsection (a) is utilized to build government capabilities that are needed to perform inherently governmental functions, functions closely associated with inherently governmental functions, and other critical functions;

"(2) shall include a mechanism to ensure that follow-on funding to provide compensation for civilian employees of the Department to perform functions described in paragraph (1) is provided from appropriate accounts; and

"(3) may establish additional criteria and levels of approval within the Department for the utilization of funds to provide compensation for civilian employees of the Department pursuant to subsection (a).

"(1) The amount of funds used under the authority in subsection (a) to provide compensation for civilian employees.

"(2) The source or sources of the funds so used.

"(3) The number of civilian employees employed through the use of such funds.

"(4) The actions taken by the Secretary to ensure that follow-on funding for such civilian employees is provided through appropriate accounts.

"(1) In general.—Not later than 180 days after the date of the enactment of this Act [Oct. 28, 2009], the Secretary of Defense shall establish a program of leadership recruitment and development for civilian employees of the Department of Defense, to be known as the 'Department of Defense Civilian Leadership Program' (in this section referred to as the 'program').

"(2) Objectives.—The objectives of the program shall be as follows:

"(3) Available authorities.—In carrying out the program, the Secretary may exercise any authority available to the Office of Personnel Management under section 4703 of title 5, United States Code, except that the Secretary shall not be bound by the limitations in subsection (d) of such section. Nothing in this section shall be construed to authorize the waiver of any part of chapter 71 of title 5, United States Code, or any regulation implementing such chapter, in the carrying out of the program.

"(1) In general.—The following individuals shall be eligible to participate in the program:

"(2) Limitation on number of participants in program.—The total number of individuals who may participate in the program in any fiscal year may not exceed 5,000.

"(3) Limitation on period of participation in program.—The maximum period of time that an individual may participate in the program is three years.

"(1) Competitive entry.—The selection of individuals for entry into the program shall be made on the basis of a competition conducted at least twice each year. In each competition, participants in the program shall be selected from among applicants determined by the Secretary to be the most highly qualified in terms of academic merit, work experience, and demonstrated leadership skills. Each competition shall provide for entry-level participants and midcareer participants in the program.

"(2) Allocation of positions.—The Secretary shall allocate positions in the program among the components of the Department of Defense that—

"(3) Assignments to positions.—Participants in the program shall be assigned to components of the Department that best match their skills and qualifications. Participants in the program may be rotated among components of the Department of Defense at the discretion of the Secretary.

"(4) Initial compensation.—The initial compensation of participants in the program shall be determined by the Secretary based on the qualifications of such participants and applicable market conditions.

"(5) Education and training.—The Secretary shall provide participants in the program with training, mentoring, and educational opportunities that are appropriate to facilitate the development of such participants into effective civilian leaders for the Department of Defense.

"(6) Objective, merit-based principles for personnel decisions.—The Secretary shall make personnel decisions under the program in accordance with such objective, merit-based criteria as the Secretary shall prescribe in regulations for purposes of the program. Such criteria shall include, but not be limited to, criteria applicable to the following:

"(7) Consideration for senior management, functional, and technical workforce.—Any participant in the program who, as determined by the Secretary, demonstrates outstanding performance shall be afforded priority in consideration for selection into the appropriate element of the senior management, functional, and technical workforce of the Department of Defense (as defined in [former] section 115b(f) of title 10, United States Code)."

"(1) have received a special immigrant visa issued pursuant to section 1059 of the National Defense Authorization Act for Fiscal Year 2006 (Public Law 109–163) [8 U.S.C. 1101 note] or section 1244 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110–181) [8 U.S.C. 1157 note]; and

"(2) are lawfully present in the United States.

"(1) In general.—Except as provided in paragraph (2), the program established under subsection (a) shall be funded from the annual general operating budget of the Department of Defense.

"(2) Exception.—The Secretary of State shall reimburse the Department of Defense for any costs associated with individuals described in subsection (b) whose work is for or on behalf of the Department of State.

"(1) In general.—Except as provided in paragraph (2), the program established under subsection (a) shall terminate on December 31, 2014.

"(2) Earlier termination.—If the Secretary of Defense, jointly with the Secretary of State, determines that the program established under subsection (a) should terminate before the date specified in paragraph (1), the Secretaries may terminate the program if the Secretaries notify Congress in writing of such termination at least 180 days before such termination."