(h)

Persons who are not citizens may be employed as consultants pursuant to subsection (e) and may be appointed to fellowships pursuant to subsection (f). 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. 1/

(i) The appointment of any officer or employee of the Service made in accordance with the civil-service laws shall be made by the Administrator, and may be made effective as of the date on which such officer or employee enters upon duty.1/

Sec. 208.2/ (a) 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. 2/

(b)2/ In accordance with regulations of the President, commissioned officers of the Regular Corps and officers of the Reserve Corps on active duty may make allotments from their pay. 3/ Such officers shall also be permitted to purchase quartermaster supplies from the Army, Navy, and Marine Corps at the same price as is charged officers of the Army, Navy, and Marine Corps.

(c)2/ Members of the National Advisory Health Council and members of other national advisory councils established under this Act, 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 Administrator, 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 serving away from their places of residence. 4/

(d)2/ Field employees of the Service, except those employed on a per diem or fee basis, who render part-time duty and are also subject to call at any time for services not contemplated in their regular part-time 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) 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. 5)

(f) Individuals appointed under section 207(f) 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. 6&7/

1/ Subsections (h) and (i) were redesignated as such by section 3(b) of PL 492, 84th Congress. These subsections were formerly subsections (g) and (h).

2/ Section 208, formerly section 209, was so redesignated by section 5(c) of PL 425, 80th Congress. Subsection (a) was amended, former subsections (b) and (d), repealed, and former subsections (c) (e) and (f) were redesignated (b) (c) and (d), respectively, by section 521 (b) of the Career Compensation Act of 1949.

3/ Subsection (b) was amended by PL 677, 81st Congress, effective July 1, 1950.

4/ Subsection (c), formerly subsection (e), was amended by section 5(a) of the National Mental Health Act, section 4(d) of the National Heart Act, section 4(d) of the National Dental Research Act, and Section 3(e) of PL 692, 81st Congress.

5/ Subsection (e), formerly subsection (g), was so redesignated and was amended by section 521(b) of the Career Compensation Act of 1949.

6/ Section 5(h) of PL 425, 80th Congress, amended former subsection (h) by changing "section 208(d)" to "section 207(f)". Subsection (h) was redesignated (f) by section 521(b) of the Career Compensation Act of 1949.

7/ Section 3 of the Act of April 27, 1956 (PL 492) renumbered section 207(f) to read section 207(g). By inadvertence, the reference in section 208(f) was not changed.

(g) The Administrator is authorized to establish and fix the compensation for, within the Public Health Service, not more than sixty positions, in the professional and scientific 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 or professional personnel: PROVIDED, That the rates of compensation for positions established pursuant to the provisions of this subsection shall not be less than $12,500 per annum nor more than $19,000 per annum, 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.1/

Sec. 209. (a) 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 207 (a) (1) 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) 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). Except upon amendment of such regulations, no assignment so made shall be changed unless the Surgeon General finds (1) that the original assignment was erronecus, 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) Within the limits fixed by the Administrator in regulations under section 206 (d) 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) 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 206 (c)) shall for the purpose of promotionsconstitute 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 206 (c) 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 205 (c), the number fixed under subsection (c) of this section for the grade of his permanent rank shall be reduced by one.

(e) The absence of a vacancy in a grade in a category shall not prevent an appointment to such grade purusant to section 207, 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) 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) for the next lower grade in the same category, without regard to the numbers fixed in regulations under section 206 (d); 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.2/

1/ Subsection (g) was amended by PL 195, 84th Congress, and further amended by section 117(b) of PL 854, 84th Congress.

2/ Section 209 added by section 5(i) of PL 425, 80th Congress.

Promotions and Separation of Commissioned Officers in the Regular Corps

Sec. 210. (a) 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) 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".

(c) 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 General from the professional category, and in the order of seniority in the grade, from which promotion is to be recommended. In the case of a competitive examination the Surgeon General shall determine in advance of the examination the number (which may be one or more) of officers who, after passing the examination, will be recommended to the President for promotion; but if the examination is one for promotions based on length of service, or is oņe for promotions to fill vacancies other than vacancies in the director grade or in a restricted grade, such number shall not be less than 80 per centum of the number of officers to be examined.

(d) Officers of the Regular Corps, found pursuant to subsection (c) to be qualified, shall be given permanent promotions based on length of service, as follows:

(1) Officers in the junior assistant grade shall be promoted at such times as may be prescribed in regulations of the President.

(2) Officers with permanent rank in the assistant grade, the senior assistant grade, and the full grade shall (except as provided in regulations under subsection (b)) be promoted after completion of three, ten, and seventeen years, respectively, of service in grades above the junior assistant grade; and such promotions, when made, shall be effective, for purposes of pay and seniority in grade, as of the day following the completion of such years of service. An officer with permanent rank in the assistant, senior assistant, or full grade who has not completed such years of service shall be promoted at the same time, and his promotion shall be effective as of the same day, as any officer junior to him in the same grade in the same professional category who is promoted under this paragraph.1/

(e) Officers in a professional category of the Regular Corps, found pursuant to subsection (c) to be qualified, may be given permanent promotions to fill any or all vacancies in such category in the senior assistant grade, the full grade, the senior grade, or the director grade; but no officer who has not had one year of service with permanent or temporary rank in the next lower grade shall be promoted to any restricted grade or to the director grade.

(f) If an officer who has completed the years of service required for promotion to a grade under paragraph (2) of subsection (d) fails to receive such promotion, he shall (unless he has already been twice examined for promotion to such grade) be once reexamined for promotion to such grade. If he is thereupon promoted (otherwise than under subsection (e)), the effective date of such promotion shall be one year later than it would have been but for such failure. Upon the effective date of any permanent promotion of such officer to such grade, he shall be considered as having had only the length of service required for such promotion which he previously failed to receive.

42

USC 211

1/ Subsection 210(d) (2) amer:ded by section 4(a) of PL-492-84th Congress.

(g) If, for reasons other than physical disability, an officer of the Regular Corps in the junior assistant grade is found pursuant to subsection (c) not to be qualified for promotion he shall be separated from the Service. If, for reasons other than physical disability, an officer of the Regular Corps in the assistant, senior assistant, or full grade, after having been twice examined for promotion (other than promotion to a restricted grade), fails to be promoted---

(1) if in the assistant grade he shall be separated from the Service and paid six months' pay and allowances;

(2) if in the senior assistant grade he shall be separated from the Service and paid one year's pay and allowances;

(3) if in the full grade he shall be considered as not in line for promotion and shall, at such time thereafter as the Surgeon General may determine, be retired from the Service with retired pay (unless he is entitled to a greater amount by reason of another provision of law) at the rate of 2-1/2 per centum of his active duty pay at the time of retirement for each complete year, not in excess of thirty, of his active commissioned service in the Service. 1year,

(h) If an officer of the Regular Corps, eligible to take an examination for promotion, refuses to take such examination, he may be separated from the Service in accordance with regulations of the President.

(i) At the end of his first three years of service, the record of each officer of the Regular Corps originally appointed to the senior assistant grade or above, shall be reviewed in accordance with regulations of the President and, if found not qualified for further service, he shall be separated from the Service and paid six months' pay and allowances.

(j) (1) The order of seniority of officers in a grade in the Regular Corps shall be determined, subject to the provisions of paragraph (2), by the relative length of time spent in active service after the effective date of each such officer's original appointment or permanent promotion to that grade. When permanent promotions of two or more officers to the same grade are effective on the same day, their relative seniority shall be the same as it was in the grade from which promoted. In all other cases of original appointments or permanent promotions (or both) to the same grade effective on the same day, relative seniority shall be determined in accordance with regulations of the President.

(2) In the case of an officer originally appointed in the Regular Corps to the grade of assistant or above, his seniority in the grade to which appointed shall be determined after inclusion, as service in such grade, of any active service in such grade or in any higher grade in the Reserve Corps, but (if the appointment is to the grade of senior assistant or above) only to the extent of whichever of the following is greater: (A) His active service in such grade or any higher grade in the Reserve Corps after the first day on which, under regulations in effect on the date of his appointment to the Regular Corps, he had the training and experience necessary for such appointment, or (B) the excess of his total active service in the Reserve Corps (above the grade of junior assistant) over three years if his appointment in the Regular Corps is to the senior assistant grade, over ten years if the appointment is to the full grade, or over seventeen years if the appointment is to the senior grade.

(k) Any commissioned officer of the Regular Corps in any grade in any professional category may be recommended to the President for temporary promotion to fill a vacancy in any higher grade in such category, up to and including the director grade. In time of war, or of national emergency proclaimed by the President, any commissioned officer of the Regular Corps in any grade in any professional category may be recommended to the President for promotion to any higher grade in such category, up to and including the director grade, whether or not a vacancy exists in such grade. The selection of officers to be recommended for temporary promotions shall be made in accordance with regulations of the President. Promotion of an officer recommended pursuant to this subsection may be made without regard to length of service, without examination, and without vacating his permanent appointment, and shall carry with it the pay and allowances of the grade to which promoted. Such promotions may be terminated at any time, as may be directed by the President.

1/Subsection (g) amended by Section 521 (c) of the Career Compensation Act of

(1) Whenever the number of officers of the Regular Corps on active duty, plus the number of officers of the Reserve Corps who have been on active duty for thirty days or more, exceeds the authorized strength of the Regular Corps, the Administrator shall determine the requirements of the Service in each grade in each category, based upon the total number of officers so serving on active duty and the tasks being performed by the Service; and the Surgeon General shall thereupon assign each officer of the Reserve Corps on active duty to a professional category. If the Administrator finds that the number of officers fixed under section 209 (c) for any grade and category (or the number of officers, including officers of the Reserve Corps, on active duty in such grade in such category, if such number is greater than the number fixed under section 209 (c)) is insufficient to meet such requirements of the Service, officers of either the Regular Corps or the Reserve Corps may be recommended for temporary promotion to such grade in such category. Any such promotion may be terminated at any time, as may be directed by the President.

(m) Any officer of the Regular Corps, or any officer of the Reserve Corps on active duty, who is promoted to a higher grade shall, unless he expressly declines such promotion, be deemed for all purposes to have accepted such promotion; and shall not be required to renew his oath of office, or to execute a new affidavit as required by the Act of December 11, 1926, as amended (5 U.S.C. 21a). 1/ Retirement of Commissioned Officers

42 USC 212

Sec. 211.2/ (a) A commissioned officer shall be retired on the first day of the month following the month in which he attains the age of sixty-four years; and a commissioned officer may be retired by the Administrator, and shall be retired if he applies for retirement, on the first day of any month after completion of thirty years of active commissioned or noncommissioned service in the Service. If he is an officer in the Regular Corps, he shall, except as provided in subsection (b), be entitled to receive retired pay at the rate of 75 per centum of his active pay at the time of retirement.

(b) (1) Any commissioned officer of the Regular Corps who at the time of his original appointment was more than forty-five years of age shall upon his retirement for age pursuant to subsection (a) of this section be entitled to retired pay at the rate of 4 per centum of his active pay at the time of such retirement for each twelve months of active commissioned or noncommissioned service in the Service, including any active commissioned service in the Armed Forces, but in no case more than 75 per centum of such active pay. 4/

(2) The retired pay of an officer, who is retired pursuant to subsection (a) of this section or pursuant to paragraph (1) of this subsection and who has served four years or more as Surgeon General, Deputy Surgeon General, or Assistant Surgeon General, shall be based on the pay of the highest grade held by him as such Surgeon General, Deputy Surgeon General, or Assistant Surgeon General. 5/

(c) A commissioned officer who has been retired under the provisions of this section may, (1), if an officer of the Regular Corps, be involuntarily recalled to active duty during such times as the Corps may constitute a branch of the land and naval forces of the United States, and (2), if an officer of either the Regular Corps or the Reserve Corps, be recalled to active duty at any time with his consent.4/

Section 210 was amended by section 6(a) of PL 425, 80th Congress.

2/ Section 211 was amended by section 521(d) of the Career Compensation Act of 1949 by repeal of former subsection (a) and the redesignation of former subsections (b) (c) (d) (e) (f) (g) and (h) as subsection (a) (b) (c) (d) (e) (f) and (g) respectively.

3/ The first sentence of redesignated subsection (a) was amended by section 7(a) of PT. 425, 80th Congress. 4/ Subsections 211(a), (b)(1), and (c) were amended by section 5 of PL 492, 84th Congress.

5/ Paragraph (2) of redesignated subsection (b) was amended by section 7(b) of PL 425, 80th Congress, and further amended by section 521(b) of the Career Compensation Act of 1949.