Title 10, Authority and Responsibility

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In the DoD, “Title 10” is a big deal.  “Title 10” means Title 10 of the United States Code – the law that defines the structure of the United States Military. There are other portions of US Law that affect the military – much of the Federal Acquisition Regulations derive from Title 41. Titles 40 and 44 includes stuff about Chief Information Officers of Federal Agencies. Title 17 is the Copyright Act, which we have to follow, yadda yadda yadda.

But at the end of the day, in DoD, most people are only familiar with Title 10. Even then, people just say it like it’s a mantra. “Title 10, y’know,” they sigh discontentedly, as if that explains all the dysfunctions of the day.

Generally, this seems to be some sort of shorthand for the idea that the Military Departments are where all the real power lies. Sometimes the phrase, “Organize, Train & Equip” is heard. These phrases are shorthand for the Goldwaters-Nichols Act of 1986, which re-organized the Department and created the Combatant and Unified Commands.  (And is codified in Title 10.)

Goldwater-Nichols tasked the Unified Combatant Commands to actually fight the nation’s wars, and changed the mission of the Military Departments (Army, Navy, and Air Force) to “Organize, Train and Equip” the forces which would be assigned to the combatant commands.  All the MilDeps have basically the same mission, defined in 10 USC § 3013 (Army), 10 USC § 5013 (Navy), or 10 USC § 8013 (Air Force).

Here’s the Army one:

(b) Subject to the authority, direction, and control of the Secretary of Defense and subject to the provisions of chapter 6 of this title, the Secretary of the Army is responsible for, and has the authority necessary to conduct, all affairs of the Department of the Army, including the following functions:

(1) Recruiting.
(2) Organizing.
(3) Supplying.
(4) Equipping (including research and development).
(5) Training.
(6) Servicing.
(7) Mobilizing.
(8) Demobilizing.
(9) Administering (including the morale and welfare of personnel).
(10) Maintaining.
(11) The construction, outfitting, and repair of military equipment.
(12) The construction, maintenance, and repair of buildings, structures, and utilities and the acquisition of real property and interests in real property necessary to carry out the responsibilities specified in this section.

All three Military Departments have the same 12 missions.  Interestingly too, they all start with the same phrase: “Subject to the authority, direction, and control of the Secretary of Defense…”  As it turns out, when staff officers in OSD or the Joint Staff sigh and moan that the Services just do whatever parochial thing they’re gonna do, and oh, Title 10 gives them every authority to do it… this is a total cop-out!  The Services and Defense agencies only have the authority to do things, “subject to the authority, direction, and control of the SecDef”.  I refer to this as the: “My Title 10 trumps your Title 10” principle.

The problem is not that the Services or Agencies are parochial – of course they’re parochial.  If they weren’t parochial, we’d call them “Joint”.  The problem (IMHO, of course) is that OSD is so dysfunctional that we can’t agree what direction and control to exert with our authority.

It’s clear though:  Title 10 says the buck stops at the SecDef.  So there’s no use wringing our hands together and blaming the Services, or the CoComs or the Defense Agencies.  Where Title 10 grants Authority, it can’t help but grant Responsibility too.

If say, there’s a problem with how we deliver Enterprise Services in the DoD…  ultimately the responsibility to make things right is with the SecDef…   somebody in the Office of the Secretary of Defense better get right on that…

(But don’t get me started on Title 10 and Title 50.)

8 thoughts on “Title 10, Authority and Responsibility

    1. Dan Post author

      Ah, a fascinating process called “positive law codification”. Basically, there’s a team of lawyers who re-write all public law as United States Code, and eventually re-submit it back to Congress as “positive law”.

      Positive law codification by the Office of the Law Revision Counsel is the process of preparing and enacting a codification bill to restate existing law as a positive law title of the United States Code. The restatement conforms to the policy, intent, and purpose of Congress in the original enactments, but the organizational structure of the law is improved, obsolete provisions are eliminated, ambiguous provisions are clarified, inconsistent provisions are resolved, and technical errors are corrected. ”

      “After the codification bill and explanation are finalized, they are submitted to the Committee on the Judiciary of the House of Representatives for introduction of the bill. Once the bill is introduced, a formal review and comment period begins. At the conclusion of the comment period, an amendment that reflects corrections and comments is prepared by the Office of the Law Revision Counsel and transmitted to the Committee on the Judiciary for Committee action. The explanation of the bill is converted into a report that accompanies the bill. Typically, the bill is passed by the House of Representatives under suspension of the rules and by the Senate by unanimous consent.”

  1. Flobert Stan

    what about if you get forced out of the Army after 17yrs of service without the opportunity to complete your career in the Reserve or National Guard

    1. Dan Post author

      Your question seems to imply that you or someone you know has been treated unfairly – which a lawyer might describe as “facts not in evidence”.

      As a taxpaying citizen, I might be pleased to know that the Army is forcing out poor performers or miscreants. Or alternatively, I might be outraged by the injustice.

      I have no comment on the situation you describe because you haven’t said enough to comment on.

  2. Dena Jo

    My husband has been active duty for 18 years & 5 months. He is dropping his packet 12 months before he retires which will be in June 2018; he is staying in three extra months so our girls can finish their school year. So in June of 2017 he will be dropping his packet. He has zero intentions of staying in. He just received orders to a new duty station that we are not happy about. That is putting it midly. We have been at his current duty station for almost two years and our report date to our new assignment is Jan of 2016. Six months later he would be dropping his packet. He told branch we want to stay here and will be retiring soon, etc, etc. We don’t want to move our kids mid school year, again, and our oldest, a 7th grader, is thriving here and moving to her 6th school in the middle of 7th grade will be hard. Being so close to retirement we assumed we wouldn’t have to PCS again. They need this position filled and apparently the don’t care they he will be not much value at the new job given the fact that he won’t be there very long. If he doesn’t take the assignment it’s our understanding he will have to get out 6 months later. Can he retire early? Is that an option? I know they offer that to soldier they are kicking out but with having 19 years in at that point could he still get his retirement at the 19 year mark amount with all the benefits including medical. What we really want is stabilization and they have something called a sanctuary law that if you’ve been in 18 years you should be able to finish out your career, at the full 20 year mark, at the duty station you are currently assigned to. It’s a regulation for active duty members but nobody seems to know anything about it. Any advice is greatly appreciated!

    Thanks you in advance,

    1. Dan Post author

      Respectfully, I did 6 1/2 years active duty and I’ve been an OSD civilian for 14-or-so years – but not in personnel. I’m an IT guy; I really have no great insight in the issues you ask about. I’m sorry.

  3. Mike Bolton

    Does Title 10 override DoDI, NAVINST or any other instructions of departments it was meant to provide guidance for? For example: 1214: right to fair hearing. I’ve been told throughout this (unwarranted in my opinion) medical adsep process that I was not entitled to an adsep board or platform of any kind to advocate for myself… yet the statue clearly states no member of the armed forces may be retired or separated for physical disability without a full and fair hearing if he demands it.

    1. Dan Post author

      I am a policy wonk, not a lawyer, but yes, absolutely. Title 10 overrides any department level instruction, such as a DoDI or NAVINST. Title 10 is “Title 10 of the United States Code” It is law, and overrides any department-level instruction. The executive branch (i.e. the DoD or MilDeps) cannot change the law which is properly passed by Congress and signed by the President. In the United States, only the Constitution has higher precedence than US Code. That said, how the law is interpreted is subject to judicial precedent. Sometimes in my life what I have thought was quite clear reading of the law (or Constitution) was less clear after I read the case law (i.e. former court decisions) about how that language meant.


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