US (United States) Code. Title 10. Subtitle A. Part II. Chapter 73: Annuities based on retired or retainer pay

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-CITE-

10 USC CHAPTER 73 - ANNUITIES BASED ON RETIRED OR

RETAINER PAY 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

.

-HEAD-

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

-MISC1-

Subchapter Sec.

I. Retired Serviceman's Family Protection Plan 1431

II. Survivor Benefit Plan 1447

III. Supplemental Survivor Benefit Plan 1456

AMENDMENTS

1990 - Pub. L. 101-510, div. A, title VI, Sec. 631(1), title

XIV, Sec. 1484(l)(4)(A), Nov. 5, 1990, 104 Stat. 1580, 1719,

amended Pub. L. 101-189, Sec. 1404(a)(2), see 1989 Amendment note

below.

1989 - Pub. L. 101-189, div. A, title XIV, Sec. 1404(a)(2), Nov.

29, 1989, 103 Stat. 1586, as amended by Pub. L. 101-510, div. A,

title VI, Sec. 631(1), title XIV, Sec. 1484(l)(4)(A), Nov. 5, 1990,

104 Stat. 1580, 1719, added item for subchapter III, effective Apr.

1, 1992.

1980 - Pub. L. 96-513, title V, Sec. 511(54)(A), Dec. 12, 1980,

94 Stat. 2925, amended chapter heading to read: ''ANNUITIES BASED

ON RETIRED OR RETAINER PAY''.

1972 - Pub. L. 92-425, Sec. 1(1), Sept. 21, 1972, 86 Stat. 706,

added subchapter analysis and amended chapter heading by inserting

''; SURVIVOR BENEFIT PLAN'' after ''PAY'' which could not be

executed as directed in view of amendment by Pub. L. 87-381.

1961 - Pub. L. 87-381, Sec. 1(1), Oct. 4, 1961, 75 Stat. 810,

substituted ''RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN'' for

''ANNUITIES BASED ON RETIRED OR RETAINER PAY'' in chapter heading.

-SECREF-

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in sections 1408, 1461, 1463 of this

title; title 5 sections 5531, 8311, 8317; title 26 sections 72,

122, 6334; title 33 section 3071; title 38 section 5301; title 42

section 213a.

-CITE-

10 USC SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY

PROTECTION PLAN 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN

.

-HEAD-

SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN

-MISC1-

Sec.

1431. Election of annuity: members of armed forces.

1432. Election of annuity: former members of armed forces.

1433. Mental incompetency of member.

1434. Kinds of annuities that may be elected.

1435. Eligible beneficiaries.

1436. Computation of reduction in retired pay; withdrawal for

severe financial hardship.

1436a. Coverage paid up at 30 years and age 70.

1437. Payment of annuity.

1438. Deposits for amounts not deducted.

1439. Refund of amounts deducted from retired pay.

1440. Annuities not subject to legal process.

1441. Annuities in addition to other payments.

1442. Recovery of annuity erroneously paid.

(1443. Repealed.)

1444. Regulations; determinations.

1444a. Regulations regarding payment of annuity to a representative

payee.

1445. Correction of administrative deficiencies.

1446. Restriction on participation.

AMENDMENTS

1999 - Pub. L. 106-65, div. A, title VI, Sec. 655(b), Oct. 5,

1999, 113 Stat. 667, added item 1436a.

1991 - Pub. L. 102-190, div. A, title VI, Sec. 654(b)(2), Dec.

5, 1991, 105 Stat. 1390, added item 1444a.

1972 - Pub. L. 92-425, Sec. 1(2)(B), (C), Sept. 21, 1972, 86

Stat. 706, struck out item 1443 ''Board of Actuaries'', and struck

out ''reports to Congress'' from item 1444.

1961 - Pub. L. 87-381, Sec. 6(2), (3), Oct. 4, 1961, 75 Stat.

812, inserted ''; withdrawal for severe financial hardship'' in

item 1436, and added items 1445 and 1446.

-SECREF-

SUBCHAPTER REFERRED TO IN OTHER SECTIONS

This subchapter is referred to in title 38 section 1315.

-CITE-

10 USC Sec. 1431 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN

-HEAD-

Sec. 1431. Election of annuity: members of armed forces

-STATUTE-

(a) This section applies to all members of the armed forces

except -

(1) members whose names are on a retired list other than a list

maintained under section 12774(a) of this title;

(2) cadets at the United States Military Academy, the United

States Air Force Academy, or the Coast Guard Academy; and

(3) midshipmen.

(b) To provide an annuity under section 1434 of this title, a

person covered by subsection (a) may elect to receive a reduced

amount of the retired pay or retainer pay to which he may become

entitled as a result of service in his armed force. Except as

otherwise provided in this section, unless it is made before he

completes nineteen years of service for which he is entitled to

credit in the computation of his basic pay, the election must be

made at least two years before the first day for which retired pay

or retainer pay is granted. However, if, because of military

operations, a member is assigned to an isolated station or is

missing, interned in a neutral country, captured by a hostile

force, or beleaguered or besieged, and for that reason is unable to

make an election before completing nineteen years of that service,

he may make the election, to become effective immediately, within

one year after he ceases to be assigned to that station or returns

to the jurisdiction of his armed force, as the case may be. A

member to whom retired pay or retainer pay is granted

retroactively, and who is otherwise eligible to make an election,

may make the election within ninety days after receiving notice

that such pay has been granted to him. An election made after

August 13, 1968, is not effective if -

(1) the elector dies during the first thirty-day period he is

entitled to retired pay as a result of a physical condition which

led to his being granted retired pay under chapter 61 of title 10

with a disability of 100 per centum under the standard schedule

of rating disabilities in use by the Department of Veterans

Affairs at the time of the determination of the per centum of his

disability;

(2) the disability was not the result of injury or disease

received in line of duty as a direct result of armed conflict;

and

(3) his surviving spouse or children are entitled to dependency

and indemnity compensation under chapter 13 of title 38 based

upon his death.

(c) An election may be changed or revoked by the elector before

the first day for which retired or retainer pay is granted. Unless

it is made on the basis of restored mental competency under section

1433 of this title, or unless it is made before the elector

completes nineteen years of service for which he is entitled to

credit in the computation of his basic pay (in which case only the

latest change or revocation shall be effective), the change or

revocation is not effective if it is made less than two years

before the first day for which retired or retainer pay is granted.

The elector may, however, before the first day for which retired or

retainer pay is granted, change or revoke his election (provided

the change does not increase the amount of the annuity elected) to

reflect a change in the marital or dependency status of the member

or his family that is caused by death, divorce, annulment,

remarriage, or acquisition of a child, if such change or revocation

of election is made within two years of such change in marital or

dependency status.

(d) If an election made under this section is found to be void

for any reason except fraud or willful intent of the member making

the election, he may make a corrected election at any time within

90 days after he is notified in writing that the election is void.

A corrected election made under this subsection is effective as of

the date of the voided election it replaces.

-SOURCE-

(Aug. 10, 1956, ch. 1041, 70A Stat. 108; Pub. L. 85-861, Sec.

33(a)(11), Sept. 2, 1958, 72 Stat. 1565; Pub. L. 87-381, Sec. 2,

Oct. 4, 1961, 75 Stat. 810; Pub. L. 90-485, Sec. 1(1), (2), Aug.

13, 1968, 82 Stat. 751; Pub. L. 96-513, title V, Sec. 511(55), Dec.

12, 1980, 94 Stat. 2925; Pub. L. 99-145, title XIII, Sec.

1301(a)(2), Nov. 8, 1985, 99 Stat. 735; Pub. L. 101-189, div. A,

title XVI, Sec. 1621(a)(1), Nov. 29, 1989, 103 Stat. 1602; Pub. L.

104-106, div. A, title XV, Sec. 1501(c)(17), Feb. 10, 1996, 110

Stat. 499.)

-MISC1-

Historical and Revision Notes

1956 Act

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Revised section Source (U.S. Code) Source (Statutes at

Large)

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1431(a) 1431(b) 37:371 (less (e) and Aug. 8, 1953, ch.

(f)). 37:372(a) (2d 393, Sec. 2 (less

sentence). (e) and (f)), 3(a)

37:372(a) (less 2d, (less 5th

5th, 6th, and last sentence), (b), 67

sentences). Stat. 501, 502;

37:372(b) (less Apr. 29, 1954, ch.

last sentence). 176, 68 Stat. 64.

1431(c) 37:372(a) (6th and

last sentences).

1431(d) 37:372(b) (last

sentence).

-------------------------------

In subsection (a), the language of the revised subsection is

substituted for 37:371(b) and (c), to make clear that the section

was intended to include enlisted members and members of the Army,

or the Air Force, without component. The words ''the United States

Air Force Academy'' are inserted to reflect its establishment by

the Air Force Academy Act (68 Stat. 47). The words ''retirement

pay'' are omitted as covered by the words ''retired pay''. The

words ''equivalent pay'' are omitted as surplusage. 37:371(c) (less

1st 21 words) is omitted as executed, since the persons described

must have completed 18 years of the required service on the

effective date of the source statute and exercised the option by

180 days after that date. 37:371(a) is omitted, since the revised

chapter applies only to the armed forces. 37:371(d) is omitted,

since the words ''person entitled to retired or retainer pay'', or

their equivalent, are used throughout the revised chapter.

37:371(g) is omitted, since the words ''retired or retainer pay''

are used throughout the revised chapter. 37:371(h) is omitted as

unnecessary in view of the definitions contained in section 101(5),

(7), and (8). 37:372(a) (2d sentence) is omitted as surplusage.

In subsection (b), 37:372(a) (last 28 words of 1st sentence) is

omitted as covered by section 1434 of this title. The words ''or

naval'' are omitted as covered by the word ''military''. The last

sentence is substituted for 37:372(a) (4th sentence, less 61st

through 81st words). 37:372(a) (3d sentence, and 61st through 85th

words of 4th sentence) and 37:372(b) (less last sentence) are

omitted as executed.

In subsection (c), the words ''is retired or becomes entitled to

retired or retainer pay'' are substituted for the words ''his

retirement'' and ''he retires'' since, under sections 1331-1333 of

this title, a person may be granted retired pay without having been

retired. The last eight words are substituted for 37:372(a) (7th

through 17th words of last sentence). 37:372(a) (last sentence,

less 1st 17 words) is omitted as surplusage.

1958 ACT

The change makes clear that section 1431 applies to a person who,

because of military operations, is missing under any circumstances.

AMENDMENTS

1996 - Subsec. (a)(1). Pub. L. 104-106 substituted ''section

12774(a)'' for ''section 1376(a)''.

1989 - Subsec. (b)(1). Pub. L. 101-189 substituted ''Department

of Veterans Affairs'' for ''Veterans' Administration''.

1985 - Subsec. (b)(3). Pub. L. 99-145 substituted ''surviving

spouse'' for ''widow''.

1980 - Subsec. (b). Pub. L. 96-513 substituted ''August 13,

1968,'' for ''the date of enactment of this amendment''.

1968 - Subsec. (b). Pub. L. 90-485, Sec. 1(1), increased from

eighteen to nineteen the number of years of service the annuitant

must complete, decreased from three to two years before eligibility

the time required to make an election, and inserted provisions that

an election made after Aug. 13, 1968 will not be effective if the

conditions of cls. (1) to (3) are satisfied.

Subsec. (c). Pub. L. 90-485, Sec. 1(2), decreased from three to

two years before the first day for which retired or retainer pay is

granted the time required to change or revoke an election when the

ground of restored mental competency is not present, inserted

provision that any change or revocation in an election after the

completion of 19 years of service is effective if made before the

first day for which retired or retainer pay is granted, and

provided for a change or revocation in an election before the first

day for which retired or retainer pay is granted when there is a

change in marital or dependency status, if such change or

revocation of election is made within two years of such change in

marital or dependency status.

1961 - Subsec. (a). Pub. L. 87-381 substituted ''other than a

list maintained under section 1376(a) of this title'' for ''or who

are in the Retired Reserve'', redesignated pars. (4) and (5) as (2)

and (3), and struck out former pars. (2) and (3) which related to

reserves on an inactive status list, and members assigned to the

inactive National Guard, respectively.

Subsec. (b). Pub. L. 87-381 required that unless the election is

made before 18 years of service, it must be made at least three

years before the first day for which retired or retainer pay is

granted, inserted assignment to an isolated station among the

reasons permitting a delayed election, changed the period within

which to make such delayed election from within six months after

return to the jurisdiction of his armed force, to within one year

after he ceases to be assigned to the isolated station or his

return to the jurisdiction of his armed force, and if the member is

retroactively granted retired or retainer pay, and is eligible for

an election, he may elect within 90 days after notice of such

grant.

Subsec. (c). Pub. L. 87-381 substituted ''the first day for which

retired or retainer pay is granted'' for ''his retirement or before

he becomes entitled to retired or retainer pay'', the requirement

that the change or revocation is not effective if made less than 3

years before the first day for which retired or retainer pay is

granted, for a required period of five years after change or

revocation before retirement or becoming entitled to retired or

retainer pay, and deleted ''If he revokes the election, he may not

change or withdraw the revocation.''

Subsec. (d). Pub. L. 87-381 substituted permission to make a

corrected election within 90 days after notice that the election is

void for any reason, except fraud or willful intent of the member

making election, with such election effective as of the date of the

election it replaces, for provisions which denied the ability to

revoke any election by a person retired or granted retired or

retainer pay before Nov. 1, 1953, and who elected within 180 days

after that date to receive reduced pay to provide for an annuity.

1958 - Subsec. (b). Pub. L. 85-861 struck out ''in action'' after

''he is missing''.

EFFECTIVE DATE OF 1996 AMENDMENT

Section 1501(c) of Pub. L. 104-106 provided that the amendment

made by that section is effective as of Dec. 1, 1994, and as if

included as an amendment made by the Reserve Officer Personnel

Management Act, title XVI of Pub. L. 103-337, as originally

enacted.

EFFECTIVE DATE OF 1980 AMENDMENT

Amendment by Pub. L. 96-513 effective Dec. 12, 1980, see section

701(b)(3) of Pub. L. 96-513, set out as a note under section 101 of

this title.

EFFECTIVE DATE OF 1968 AMENDMENT

Section 6 of Pub. L. 90-485 provided in part that: ''Clause (1)

and clause (6) of section 1 (amending this section and section 1436

of this title), and sections 2, 3, and 4 of this Act (amending

section 1331 (now 12731) of this title and enacting material set

out as notes under this section) are effective on the date of

enactment (Aug. 13, 1968). Remaining provisions of this Act

(amending this section and sections 1434, 1435, 1437, and 1446 of

this title, and enacting provisions set out as a note under this

section) are effective on the first day of the third calendar month

following the date of enactment.''

EFFECTIVE DATE OF 1958 AMENDMENT

Amendment by Pub. L. 85-861 effective Aug. 10, 1956, see section

33(g) of Pub. L. 85-861, set out as a note under section 101 of

this title.

SHORT TITLE OF 1978 AMENDMENT

Section 1 of Pub. L. 95-397, Sept. 30, 1978, 92 Stat. 843,

provided: ''That this Act (amending sections 1076, 1331 (now

12731), 1434, and 1447 to 1452 of this title and enacting

provisions set out as notes under sections 1076, 1434, 1447, and

1448 of this title) may be cited as the 'Uniformed Services

Survivors' Benefits Amendments of 1978'.''

-TRANS-

TRANSFER OF FUNCTIONS

For transfer of authorities, functions, personnel, and assets of

the Coast Guard, including the authorities and functions of the

Secretary of Transportation relating thereto, to the Department of

Homeland Security, and for treatment of related references, see

sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic

Security, and the Department of Homeland Security Reorganization

Plan of November 25, 2002, as modified, set out as a note under

section 542 of Title 6.

-MISC5-

PROVISIONS EFFECTIVE FOR CERTAIN MEMBERS ON AUGUST 13, 1968

Section 3 of Pub. L. 90-485 provided that: ''For members to whom

section 1431 of title 10, United States Code (this section),

applies on the date of enactment of this Act (Aug. 13, 1968), the

provisions of section 1434(c) of that title, as amended by this Act

(section 1(3) of Pub. L. 90-485) are effective immediately and

automatically''.

ELECTION OF ANNUITY MADE PRIOR TO AUGUST 13, 1968

Section 4 of Pub. L. 90-485 provided that: ''A retired member who

elected an annuity under chapter 73 of title 10, United States Code

(this chapter), before the date of enactment of this Act (Aug. 13,

1968), but did not make the election that was then provided by

section 1434(c) of that title, may, before the first day of the

thirteenth calendar month beginning after the date of enactment of

this Act, make that election. That election becomes effective on

the first day of the month following the month in which the

election is made. Under regulations prescribed under section

1444(a) of this title, on or before the effective date the retired

member must pay the total additional amount that would otherwise

have been deducted from his retired or retainer pay to reflect such

an election, had it been effective when he retired, plus the

interest which would have accrued on that additional amount up to

the effective date, except that if an undue hardship or financial

burden would otherwise result payment may be made in from two to

twelve monthly installments when the monthly amounts involved are

$25, or less, or in from two to thirty-six monthly installments

when the monthly amounts involved exceed $25. No amounts by which a

member's retired or retainer pay was reduced may be refunded to, or

credited on behalf of, the retired member by virtue of an

application made by him under this section. A retired member

described in the first sentence of this section, who does not make

the election provided under this section, will not be allowed under

section 1436(b) of title 10, to reduce an annuity or withdraw from

participation in an annuity program under that title.''

ELECTIONS SUBJECT TO COST TABLES APPLICABLE ON DATE OF RETIREMENT;

ANNUITIES PAYABLE TO BENEFICIARIES ELIGIBLE UNDER LAW IN EFFECT THE

DAY PRIOR TO AUGUST 13, 1968

Section 5 of Pub. L. 90-485 provided, effective on the first day

of the third calendar month following Aug. 13, 1968, that:

''Notwithstanding any other provision of this Act (see Effective

Date of 1968 Amendment note set out above), elections in effect on

the date of enactment (Aug. 13, 1968) will remain under the cost

tables applicable on the date of retirement, and the annuities

provided thereunder shall be payable to those eligible

beneficiaries prescribed under the law in effect on the day prior

to the date of enactment of this Act.''

APPLICABILITY OF PROVISIONS IN EFFECT ON THE DAY PRIOR TO AUGUST

13, 1968

Section 6 of Pub. L. 90-485 provided in part that:

''Notwithstanding any other provision of this Act (see Effective

Date of 1968 Amendment note set out above), any member to whom

section 1431 of title 10, United States Code (this section),

applies on the date of enactment of this Act (Aug. 13, 1968) may,

before the first day of the thirteenth calendar month beginning

after the date of enactment of this Act, submit a written

application to the Secretary concerned requesting that an election

or a change or revocation of election made by such member prior to

the date of enactment of this Act shall continue to be governed by

the provisions of section 1431(b) or (c) of title 10, United States

Code (subsec. (b) or (c) of this section) as in effect on the day

before the date of enactment of this Act.''

INTERIM AUTHORITY FOR SELECTION OF COMMANDERS AND CAPTAINS FOR

CONTINUATION ON ACTIVE DUTY

Section 3(q) of Pub. L. 88-130 rendered election, change, or

revocation of election under this section effective if made prior

to the convening date of the board which considers Coast Guard

commanders and captains for continuation.

CHANGE OR REVOCATION OF AN ELECTION FILED PRIOR TO OCTOBER 4, 1961

Section 7 of Pub. L. 87-381 provided that: ''Any person who,

before the date of enactment of this Act (Oct. 4, 1961), has filed

a change or revocation, subject to section 1431(c) of title 10,

United States Code (subsec. (c) of this section), of an election

made under section 1431(b) of that title (subsec. (b) of this

section), which change or revocation would be ineffective if the

first day for which retired or retainer pay is granted were to be

the date of enactment of this Act (Oct. 4, 1961), shall have that

change or revocation become effective on that date, or three years

after the date upon which it was filed, whichever is later.''

PROVISIONS APPLICABLE TO CERTAIN PERSONS RETIRING AFTER OCTOBER 4,

1961, FOR DISABILITY

Section 8 of Pub. L. 87-381 provided that: ''Any person who -

''(1) made an election before the date of enactment of this Act

(Oct. 4, 1961), which would be effective if he retired on the day

before such date; and

''(2) hereafter retires for physical disability before

completing 18 years of service for which he is entitled to credit

in the computation of his basic pay -

shall be considered as having applicable to him all of the

provisions of chapter 73 of title 10, United States Code (this

chapter), existing on the date preceding the date of enactment of

this Act (Oct. 4, 1961), except that any revocation or change of an

election is not effective until three years after the date of

filing such revocation or change, or the date of enactment of this

Act (Oct. 4, 1961), whichever is later.''

CHANGE OR REVOCATION OF ELECTION BY CERTAIN COLONELS AND LIEUTENANT

COLONELS

Pub. L. 86-616, Sec. 11, July 12, 1960, 74 Stat. 396, provided

that: ''Notwithstanding section 1431 of title 10, United States

Code (this section), a change or revocation of an election made

under that section by an officer who is retired under section 10 of

this Act (set out as a note under section 3297 of this title) is

effective if made at such a time that it would have been effective

had he been retired on the earliest date prescribed for an officer

of his kind by section 3916, 3921, 8916, or 8921 of title 10, as

appropriate.''

CHANGE OR REVOCATION OF ELECTION BY CERTAIN OFFICERS OF REGULAR

NAVY AND REGULAR MARINE CORPS

Pub. L. 86-616, Sec. 13, July 12, 1960, 74 Stat. 396, provided

that: ''An officer who has been considered but not recommended for

continuation on the active list under section 1 of the Act of

August 11, 1959. Public Law 86-155 (73 Stat. 333) (set out as a

note under section 5701 of this title), and who retired or retires

voluntarily before the second day of the month following the month

in which this Act is enacted (July 1960), may, within six months

following the enactment of this Act (July 12, 1960), affirm a

change or revocation of an election made under section 1431 of

title 10, United States Code (this section), before his retirement,

if the change or revocation would have been effective under section

3 of the Act of August 11, 1959, Public Law 86-155, as amended by

this Act (set out as a note under section 5701 of this title), but

for his voluntary retirement. If an officer takes no action under

this section, his currently valid election under section 1431 of

title 10, United States Code (this section), shall remain

unchanged. The computation of the revised reduction in retired pay

in the case of an officer who affirms a change of election under

this section shall be in accordance with section 1436 of title 10,

United States Code, and according to the conditions that existed on

the day the officer became eligible for retired pay. An

affirmation or revocation made under this section is effective on

the first day of the month in which made. No refund may be made

and no additional payment may be required with respect to any

period before that date.''

ELECTION OF ANNUITY BY CERTAIN PERSONNEL

Pub. L. 86-197, Sec. 4, Aug. 25, 1959, 73 Stat. 426, provided

that: ''Any person who, on the effective date of this Act (August

25, 1959), would not have completed 18 years of service for which

he is entitled to credit in the computation of his basic pay under

the laws in effect prior to the effective date of this Act, and

who, as a result of the enactment of this Act (amending sections

1332 (now 12732), 3683, 3926, 6324, 8683 and 8926 of this title,

and enacting provisions set out as notes under sections 3441 and

12732 of this title), is credited with more than 17 years of such

service, shall be allowed twelve months from the effective date of

this Act to make the election provided by section 1431(b) of title

10, United States Code (subsection (b) of this section),

notwithstanding the requirement of the second sentence of that

section.''

CHANGE OR REVOCATION OF ELECTION BY CERTAIN OFFICERS

Effective date of change or revocation of election by certain

officers, see section 3 of Pub. L. 86-155, Aug. 11, 1959, 73 Stat.

336, set out as a note under section 5701 of this title.

PUBLIC HEALTH SERVICE

Authority vested by this chapter in ''military departments'',

''the Secretary concerned'', or ''the Secretary of Defense'' to be

exercised, with respect to commissioned officers of Public Health

Service, by Secretary of Health and Human Services or his designee,

see section 213a of Title 42, The Public Health and Welfare.

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

Authority vested by this chapter in ''military departments'',

''the Secretary concerned'', or ''the Secretary of Defense'' to be

exercised, with respect to commissioned officer corps of National

Oceanic and Atmospheric Administration, by Secretary of Commerce or

Secretary's designee, see section 3071 of Title 33, Navigation and

Navigable Waters.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1432, 1433, 1434 of this

title.

-CITE-

10 USC Sec. 1432 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN

-HEAD-

Sec. 1432. Election of annuity: former members of armed forces

-STATUTE-

A person who was a former member of an armed force on November 1,

1953, and who is granted retired or retainer pay after that date,

may, at the time he is granted that pay, make an election as

provided in section 1431 of this title.

-SOURCE-

(Aug. 10, 1956, ch. 1041, 70A Stat. 109.)

-MISC1-

Historical and Revision Notes

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Revised section Source (U.S. Code) Source (Statutes at

Large)

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1432 37:372(a) (5th Aug. 8, 1953, ch.

sentence). 393, Sec. 3(a) (5th

sentence), 67 Stat.

502.

-------------------------------

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1433, 1434 of this title.

-CITE-

10 USC Sec. 1433 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN

-HEAD-

Sec. 1433. Mental incompetency of member

-STATUTE-

If a person who would be entitled to make an election under

section 1431 or 1432 of this title is determined to be mentally

incompetent by medical officers of the armed force concerned or of

the Department of Veterans Affairs, or by a court of competent

jurisdiction, and for that reason cannot make the election within

the prescribed time, the Secretary concerned may make an election

for that person upon the request of his spouse or, if there is no

spouse, of his children who would be eligible to be made

beneficiaries under section 1435 of this title. If the person for

whom the Secretary has made an election is later determined to be

mentally competent by medical officers of the Department of

Veterans Affairs or by a court of competent jurisdiction, he may,

within 180 days after that determination, change or revoke that

election. However, deductions made from his retired or retainer

pay before that date may not be refunded.

-SOURCE-

(Aug. 10, 1956, ch. 1041, 70A Stat. 109; Pub. L. 101-189, div. A,

title XVI, Sec. 1621(a)(1), Nov. 29, 1989, 103 Stat. 1602.)

-MISC1-

Historical and Revision Notes

---------------------------------------------------------------------

Revised section Source (U.S. Code) Source (Statutes at

Large)

---------------------------------------------------------------------

1433 37:372 (less (a) and Aug. 8, 1953, ch.

(b)). 393, Sec. 3 (less

(a) and (b)), 67

Stat. 502.

-------------------------------

The first 19 words are substituted for 37:372(c) (1st 9 words).

The words ''who would be eligible to be made beneficiaries under

section 1435 of this title'' are inserted to reflect the

limitations in 37:371(f). The words ''for that reason cannot'' are

substituted for the words ''because of such mental incompetency is

incapable of''. The words ''or is adjudged mentally incompetent'',

''provided for in this section'', and ''where appropriate is

subsequently adjudged mentally competent'' are omitted as

surplusage. The last sentence is substituted for 37:372(c) (last

sentence).

AMENDMENTS

1989 - Pub. L. 101-189 substituted ''Department of Veterans

Affairs'' for ''Veterans' Administration'' in two places.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1431 of this title.

-CITE-

10 USC Sec. 1434 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN

-HEAD-

Sec. 1434. Kinds of annuities that may be elected

-STATUTE-

(a) The annuity that a person is entitled to elect under section

1431 or 1432 of this title shall, in conformance with actuarial

tables selected by the Board of Actuaries under section 1436(a) of

this title, be the amount specified by the elector at the time of

the election, but not more than 50 percent nor less than 12 1/2

percent of his retired or retainer pay, in no case less than $25.

He may make the annuity payable -

(1) to, or on behalf of, the surviving spouse, ending when the

spouse dies or, if the spouse remarries before age 60, when the

spouse remarries;

(2) in equal shares to, or on behalf of, the surviving children

eligible for the annuity at the time each payment is due, ending

when there is no surviving eligible child; or

(3) to, or on behalf of, the surviving spouse, and after the

death of that spouse or the remarriage of that spouse before age

60, in equal shares to, or on behalf of, the surviving eligible

children, ending when there is no surviving eligible child.

(b) A person may elect to provide both the annuity provided in

clause (1) of subsection (a) and that provided in clause (2) of

subsection (a), but the combined amount of the annuities may not be

more than 50 percent nor less than 12 1/2 percent of his retired or

retainer pay but in no case less than $25.

(c) An election of any annuity under clause (1) or (2) of

subsection (a), or any combination of annuities under subsection

(b), shall provide that no deduction may be made from the elector's

retired or retainer pay after the last day of the month in which

there is no beneficiary who would be eligible for the annuity if

the elector died. For the purposes of the preceding sentence, a

child (other than a child who is incapable of supporting himself

because of a mental defect or physical incapacity existing before

his eighteenth birthday) who is at least eighteen, but under

twenty-three years of age, and who is not pursuing a course of

study or training defined in section 1435 of this title, shall be

considered an eligible beneficiary unless the Secretary concerned

approves an application submitted by the member under section

1436(b)(4) of this title. An election of an annuity under clause

(3) of subsection (a) shall provide that no deduction may be made

from the elector's retired or retainer pay after the last day of

the month in which there is no eligible spouse because of death or

divorce.

(d) Under regulations prescribed under section 1444(a) of this

title, a person may, before or after the first day for which

retired or retainer pay is granted, provided for allocating, during

the period of the surviving spouse's eligibility, a part of the

annuity under subsection (a)(3) for payment to those of his

surviving children who are not children of that spouse.

(e) Whenever there is an increase in retired and retainer pay

under section 1401a of this title, each annuity that is payable

under this subchapter on the day before the effective date of that

increase to a spouse or child of a member who died on or before

March 20, 1974, shall be increased by the same percentage as the

percentage of that increase, effective on the effective date of

that increase.

-SOURCE-

(Aug. 10, 1956, ch. 1041, 70A Stat. 109; Pub. L. 87-381, Sec. 3,

Oct. 4, 1961, 75 Stat. 811; Pub. L. 90-485, Sec. 1(3), Aug. 13,

1968, 82 Stat. 751; Pub. L. 95-397, title I, Sec. 101(a), Sept. 30,

1978, 92 Stat. 843; Pub. L. 96-513, title V, Sec. 511(56), Dec. 12,

1980, 94 Stat. 2925.)

-MISC1-

Historical and Revision Notes

---------------------------------------------------------------------

Revised section Source (U.S. Code) Source (Statutes at

Large)

---------------------------------------------------------------------

1434(a) 1434(b) 37:373(a) (less 4th Aug. 8, 1953, ch.

1434(c) par.). 37:373(b). 393, Sec. 4 (less

37:373(a)(4th (c) and (d)), 67

par.). Stat. 502.

-------------------------------

In subsection (a), the first 17 words are substituted for

37:373(a) (1st 26 words of 1st sentence). The words ''may be 50,

25, or 12 1/2 percent'' are substituted for the words ''in such

amount, expressed as a percentage of the reduced amount of his

retired pay * * * in amounts equal to one-half, one-quarter or

one-eighth''. 37:373(a) (last 53 words of 1st sentence of 2d par.,

and last 53 words of 1st sentence of 3d par.) is omitted as covered

by section 1435(2) of this title. Clause (1) is substituted for

37:373(a)(1). Clause (2) is substituted for 37:373(a)(2) (less last

53 words of 1st sentence). Clause (3) is substituted for

37:373(a)(3) (less last 53 words of 1st sentence). The word

''eligible'' is inserted in clauses (2) and (3) to reflect the

limitations in 37:371(f).

In subsection (c), the first 11 words are substituted for

37:373(a)(4) (1st 24 words). The words ''the annuity'' are

substituted for the words ''an annuity payable under the election

made by him''.

AMENDMENTS

1980 - Subsecs. (a), (b). Pub. L. 96-513 substituted ''percent''

for ''per centum'' wherever appearing.

1978 - Subsec. (a)(1). Pub. L. 95-397, Sec. 101(a)(1),

substituted ''or, if the spouse remarries before age 60, when the

spouse remarries'' for ''or remarries''.

Subsec. (a)(3). Pub. L. 95-397, Sec. 101(a)(2), substituted ''of

that spouse or the remarriage of that spouse before age 60'' for

''or remarriage of that spouse''.

Subsec. (e). Pub. L. 95-397, Sec. 101(a)(3), added subsec. (e).

1968 - Subsec. (a). Pub. L. 90-485 substituted provisions

allowing election of an annuity amount, in conformance with the

selected actuarial tables, of not more than 50 percent nor less

than 12 1/2 percent of retired or retired or retainer pay, but in

no case less than $25, for provisions allowing election of an

annuity amount of 50, 25, or 12 1/2 percent of reduced retired or

retainer pay.

Subsec. (b). Pub. L. 90-485 substituted provisions that the

combined amount of annuities may not be more than 50 percent nor

less than 12 1/2 percent of retired or retainer pay, but in no case

less than $25, for provisions that the combined amount of annuities

may be only 25 or 12 1/2 percent of reduced retired or retainer pay

and provisions that the reduction in retired or retainer pay on

account of each annuity, and the amount of each annuity, be

determined in the same manner that it would be determined if the

other annuity had not been elected.

Subsec. (c). Pub. L. 90-485 made mandatory the provisions that an

election of any annuity under cls. (1) or (2) of subsec. (a), or

any combination of annuities under subsec. (b), and the provision

that an election of an annuity under cl. (3) of subsec. (a) shall

provide that no deduction may be made from the elector's retired or

retainer pay after the last day of the month in which there is no

beneficiary who would be eligible for the annuity if the elector

died or there is no eligible spouse because of death or divorce,

respectively, and inserted provision determining what constitutes

an eligible beneficiary.

Subsec. (d). Pub. L. 90-485 reenacted subsec. (d) without change.

1961 - Subsec. (b). Pub. L. 87-381, Sec. 3(1), substituted

permission to elect only 25 or 12 1/2 percent of the member's

reduced retired or retainer pay for each annuity for provisions

limiting the combined amount of the annuities to not more than 50

percent or the reduced pay, and added that the reduction in pay on

account of each annuity, and the amount of each annuity, shall be

determined as if the other annuity had not been elected.

Subsec. (d). Pub. L. 87-381, Sec. 3(2), added subsec. (d).

EFFECTIVE DATE OF 1980 AMENDMENT

Amendment by Pub. L. 96-513 effective Dec. 12, 1980, see section

701(b)(3) of Pub. L. 96-513, set out as a note under section 101 of

this title.

EFFECTIVE DATE OF 1978 AMENDMENT

Section 101(b) of Pub. L. 95-397 provided that: ''No benefits

shall accrue to any person by virtue of the amendments made by

subsection (a) (amending this section) for any period prior to the

first day of the first calendar month following the month in which

this Act is enacted (Sept. 1978) or October 1, 1978, whichever is

later.''

EFFECTIVE DATE OF 1968 AMENDMENT

For effective date of amendment by Pub. L. 90-485, see section 6

of Pub. L. 90-485, set out as a note under section 1431 of this

title.

INCREASE IN AMOUNT OF ANNUITY PAYABLE UNDER RETIRED SERVICEMAN'S

FAMILY PROTECTION PLAN

Section 102 of Pub. L. 95-397 provided that: ''Each annuity that

is payable under subchapter I of chapter 73 of title 10, United

States Code, on the day before the date of the enactment of this

Act (Sept. 30, 1978) to a spouse or child of a member of the

uniformed services who died on or before March 20, 1974, shall be

increased effective as of the first day of the first calendar month

following the month in which this Act (See Short Title note set out

under section 1431 of this title) is enacted (September 1978), or

as of October 1, 1978, whichever is later, by the percentage

increase in retired and retainer pay under section 1401a of that

title since September 21, 1972.''

PROVISIONS EFFECTIVE FOR CERTAIN MEMBERS ON AUGUST 13, 1968

Provisions of this section as amended by Pub. L. 90-485 effective

immediately and automatically for members to whom section 1431 of

this title applies on Aug. 13, 1968, see section 3 of Pub. L.

90-485, set out as a note under section 1431 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1431, 1436 of this title.

-CITE-

10 USC Sec. 1435 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN

-HEAD-

Sec. 1435. Eligible beneficiaries

-STATUTE-

Only the following persons are eligible to be made the

beneficiaries of, or to receive payments under, an annuity elected

under this subchapter by a member of the armed forces:

(1) The spouse of the member on the date when the member is

retired or becomes entitled to retired or retainer pay or, if the

member was already retired or entitled to retired or retainer pay

on November 1, 1953, the spouse on that date.

(2) The children of the member who are -

(A) unmarried;

(B) under eighteen years of age, or incapable of supporting

themselves because of a mental defect or physical incapacity

existing before their eighteenth birthday, or at least

eighteen, but under twenty-three, years of age and pursuing a

full-time course of study or training in a high school, trade

school, technical or vocational institute, junior college,

college, university, or comparable recognized educational

institution;

(C) legitimate or adopted children of, or stepchildren in

fact dependent for their support upon, the member;

(D) living on the date when the member is retired or becomes

entitled to retired or retainer pay or, if the member was

already retired or entitled to retired or retainer pay on

November 1, 1953, living on that date; and

(E) born on or before the date prescribed in clause (D).

For the purposes of clause (2)(B), a child is considered to be

pursuing a full-time course of study or training during an interval

between school years that does not exceed one hundred and fifty

days if he has demonstrated to the satisfaction of the Secretary

concerned that he has a bonafide intention of commencing, resuming,

or continuing to pursue a full-time course of study or training in

a recognized educational institution immediately after that

interval.

-SOURCE-

(Aug. 10, 1956, ch. 1041, 70A Stat. 110; Pub. L. 90-485, Sec. 1(4),

(5), Aug. 13, 1968, 82 Stat. 752; Pub. L. 92-425, Sec. 1(2)(A),

Sept. 21, 1972, 86 Stat. 706.)

-MISC1-

Historical and Revision Notes

---------------------------------------------------------------------

Revised section Source (U.S. Code) Source (Statutes at

Large)

---------------------------------------------------------------------

1435(1) 1435(2) 37:371(e). Aug. 8, 1953, ch.

37:371(f). 393, Sec. 2(e),

(f), 67 Stat. 501.

-------------------------------

In clauses (1) and (2), the words ''is retired or becomes

entitled to retired or retainer pay'' are substituted for the words

''retired member'', since the words ''retired member'', as defined

in the source statute, included former members who have been

awarded that pay.

In clause (1), the words '' 'widow' includes a widower'' are

omitted as covered by the definition of ''spouse'' in section

101(32) of this title.

AMENDMENTS

1972 - Pub. L. 92-425 substituted ''subchapter'' for ''chapter''.

1968 - Pub. L. 90-485 inserted provisions in cl. (2)(B)

concerning children of the member who are at least 18, but under 23

and pursuing a full-time course of study or training and inserted

text following cl. (2)(E) relating to children considered to be

pursuing a full-time course of study or training.

EFFECTIVE DATE OF 1968 AMENDMENT

Amendment by Pub. L. 90-485 effective on first day of third

calendar month following Aug. 13, 1968, see section 6 of Pub. L.

90-485, set out as a note under section 1431 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1433, 1434, 1437 of this

title.

-CITE-

10 USC Sec. 1436 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN

-HEAD-

Sec. 1436. Computation of reduction in retired pay; withdrawal for

severe financial hardship

-STATUTE-

(a) The reduction in the retired or retainer pay of any person

who elects an annuity under this subchapter shall be computed by

the armed force concerned as of the date when the person becomes

eligible for that pay but without regard to any increase in that

pay to reflect changes in the Consumer Price Index. It shall be

computed under an actuarial equivalent method based on (1)

appropriate actuarial tables selected by the Board of Actuaries,

and (2) an interest rate of 3 percent a year, or such other rate as

the Secretary of the Treasury, after considering the average yield

on outstanding marketable long-term obligations of the United

States during the preceding six months, may specify by August 1 of

any year for the following year. The method and tables shall be

those in effect on the date as of which the computation is made.

(b) Under regulations prescribed under section 1444(a) of this

title, the Secretary concerned may, upon application by the retired

member, allow the member -

(1) to reduce the amount of the annuity specified by him under

section 1434(a) and 1434(b) of this title but to not less than

the prescribed minimum; or

(2) to withdraw from participation in an annuity program under

this title; or

(3) to elect the annuity provided under clause (1) of section

1434(a) of this title in place of the annuity provided under

clause (3) of such section, if on the first day for which retired

or retainer pay is granted the member had in effect a valid

election under clause (3) of such section, and he does not have a

child beneficiary who would be eligible for the annuity provided

under clause (3) of such section. For this purpose, a child

(other than a child who is incapable of supporting himself

because of a mental defect or physical incapacity existing before

his eighteenth birthday) who is at least eighteen, but under

twenty-three years of age shall not be considered an eligible

beneficiary; or

(4) to elect that a child (other than a child who is incapable

of supporting himself because of a mental defect or physical

incapacity existing before his eighteenth birthday) who is at

least eighteen, but under twenty-three years of age shall not be

considered eligible for the annuity provided under clause (2) of

section 1434(a) of this title, or for an annuity provided under

section 1434(b) of this title, if on the first day for which

retired or retainer pay is granted the member had in effect a

valid election under clause (2) of section 1434(a) of this title,

or under section 1434(b) of this title.

A retired member may not reduce an annuity under clause (1) of this

subsection, or withdraw under clause (2) of this subsection,

earlier than the first day of the seventh calendar month beginning

after he applies for reduction or withdrawal. A change of election

under clause (3) of this subsection shall be effective on the first

day of the month following the month in which application is made.

An election under clause (4) of this subsection shall be effective

on the first day of the month following the month in which

application is made and, if on the effective date there is no

surviving child who would be eligible for an annuity provided under

clause (2) of section 1434(a), or under section 1434(b), of this

title if the elector died, no deduction shall be made for such an

annuity to, or on behalf of, a child from the elector's retired or

retainer pay for that month or any subsequent month. No amounts by

which a member's retired or retainer pay is reduced prior to the

effective date of a reduction of annuity, withdrawal, change of

election, or election under this subsection may be refunded to, or

credited on behalf of, the member by virtue of an application made

by him under this subsection.

-SOURCE-

(Aug. 10, 1956, ch. 1041, 70A Stat. 110; Pub. L. 87-381, Sec. 4,

Oct. 4, 1961, 75 Stat. 811; Pub. L. 90-207, Sec. 2(a)(3), Dec. 16,

1967, 81 Stat. 653; Pub. L. 90-485, Sec. 1(6), Aug. 13, 1968, 82

Stat. 753; Pub. L. 92-425, Sec. 1(2)(A), Sept. 21, 1972, 86 Stat.

706; Pub. L. 104-106, div. A, title XV, Sec. 1505(c), Feb. 10,

1996, 110 Stat. 514.)

-MISC1-

Historical and Revision Notes

---------------------------------------------------------------------

Revised section Source (U.S. Code) Source (Statutes at

Large)

---------------------------------------------------------------------

1436 37:373(c). Aug. 8, 1953, ch.

393, Sec. 4(c), 67

Stat. 503.

-------------------------------

The words ''of any person who elects an annuity'' are substituted

for the words ''of an active or retired member who has made an

election''. The words ''in each individual case'' and ''designated

in section 8'' are omitted as surplusage. The words ''and as of

the date of election in the case of a retired member'' are omitted

as executed. 37:373(c) (1st 23 words of last sentence) is omitted

as otherwise covered by the language of the revised section.

AMENDMENTS

1996 - Subsec. (b). Pub. L. 104-106 made technical correction to

directory language of Pub. L. 90-485, Sec. 1(6). See 1968 Amendment

note below.

1972 - Subsec. (a). Pub. L. 92-425 substituted ''subchapter'' for

''chapter''.

1968 - Subsec. (b). Pub. L. 90-485, as amended by Pub. L.

104-106, substituted provisions authorizing the Secretary to allow

the member to reduce the amount of the annuity, allow the member to

withdraw from participation in an annuity program, allow the member

to elect the annuity provided in section 1434(a)(1) in place of the

annuity provided in section 1434(a)(3) under the specified

conditions, and allow the member to elect that a child at least 18,

but under 23, not be eligible for the specified annuities, setting

forth the times when such reduction, withdrawal, or change of

election may take place, and disallowing the refunding or crediting

of any amount previously withheld, for provisions authorizing the

Secretary to allow the member to withdraw from participation in an

annuity program whenever the Secretary considers it necessary

because of the member's severe financial hardship, the absence of

an eligible beneficiary not of itself to be a basis for such

action.

1967 - Subsec. (a). Pub. L. 90-207 inserted ''but without regard

to any increase in that pay to reflect changes in the Consumer

Price Index'' after ''that pay''.

1961 - Pub. L. 87-381 designated existing provisions as subsec.

(a), added subsec. (b), and inserted ''; withdrawal for severe

financial hardship'' in section catchline.

EFFECTIVE DATE OF 1996 AMENDMENT

Section 1505(c) of Pub. L. 104-106 provided that the amendment

made by that section is effective Aug. 13, 1968, and as if included

in Pub. L. 90-485 as originally enacted.

EFFECTIVE DATE OF 1968 AMENDMENT

Amendment by Pub. L. 90-485 effective Aug. 13, 1968, see section

6 of Pub. L. 90-485, set out as a note under section 1431 of this

title.

EFFECTIVE DATE OF 1967 AMENDMENT

Amendment by Pub. L. 90-207 effective Oct. 1, 1967, see section 7

of Pub. L. 90-207, set out as a note under section 203 of Title 37,

Pay and Allowances of the Uniformed Services.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1434 of this title.

-CITE-

10 USC Sec. 1436a 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN

-HEAD-

Sec. 1436a. Coverage paid up at 30 years and age 70

-STATUTE-

Effective October 1, 2008, a reduction under this subchapter in

the retired or retainer pay of a person electing an annuity under

this subchapter may not be made for any month after the later of -

(1) the month that is the 360th month for which that person's

retired or retainer pay is reduced pursuant to such an election;

and

(2) the month during which that person attains 70 years of age.

-SOURCE-

(Added Pub. L. 106-65, div. A, title VI, Sec. 655(a), Oct. 5,

1999, 113 Stat. 667.)

-CITE-

10 USC Sec. 1437 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN

-HEAD-

Sec. 1437. Payment of annuity

-STATUTE-

(a) Except as provided in subsections (b) and (c), each annuity

payable under this subchapter accrues as of the first day of the

month in which the person upon whose pay the annuity is based

dies. Payments shall be made in equal installments and not later

than the fifteenth day of each month following that month.

However, no annuity accrues for the month in which entitlement

thereto ends. The monthly amount of an annuity payable under this

subchapter, if not a multiple of $1, shall be rounded to the next

lower multiple of $1.

(b) Each annuity payable to or on behalf of an eligible child

(other than a child who is incapable of supporting himself because

of a mental defect or physical incapacity existing before his

eighteenth birthday) as defined in section 1435(2)(B) of this title

who is at least eighteen years of age and pursuing a full-time

course of study or training at a recognized educational

institution, accrues -

(1) as of the first day of the month in which the member upon

whose pay the annuity is based dies, if the eligible child's

eighteenth birthday occurs in the same or a preceding month.

(2) as of the first day of the month in which the eighteenth

birthday of an eligible child occurs, if the member upon whose

pay the annuity is based died in a preceding month.

(3) as of the first day of the month in which a child first

becomes or again becomes eligible, if that eligible child's

eighteenth birthday and the death of the member upon whose pay

the annuity is based both occurred in a preceding month or

months.

However, no such annuity is payable or accrues for any month before

November 1, 1968.

(c)(1) Upon application of the beneficiary of a member entitled

to retired or retainer pay whose retired or retainer pay has been

suspended because the member has been determined to be missing, the

Secretary concerned may determine for purposes of this subchapter

that the member is presumed dead. Any such determination shall be

made in accordance with regulations prescribed under section

1444(a) of this title. The Secretary concerned may not make a

determination for purposes of this subchapter that a member is

presumed dead unless he finds -

(A) that the member has been missing for at least 30 days; and

(B) that the circumstances under which the member is missing

would lead a reasonably prudent person to conclude that the

member is dead.

(2) Upon a determination under paragraph (1) with respect to a

member, an annuity otherwise payable under this subchapter shall be

paid as if the member died on the date as of which the retired or

retainer pay of the member was suspended.

(3)(A) If, after a determination under paragraph (1), the

Secretary concerned determines that the member is alive, any

annuity being paid under this subchapter by reason of this

subsection shall be promptly terminated and the total amount of any

annuity payments made by reason of this subsection shall constitute

a debt to the United States which may be collected or offset -

(i) from any retired or retainer pay otherwise payable to the

member;

(ii) if the member is entitled to compensation under chapter 11

of title 38, from that compensation; or

(iii) if the member is entitled to any other payment from the

United States, from that payment.

(B) If the member dies before the full recovery of the amount of

annuity payments described in subparagraph (A) has been made by the

United States, the remaining amount of such annuity payments may be

collected from the member's beneficiary under this subchapter if

that beneficiary was the recipient of the annuity payments made by

reason of this subsection.

-SOURCE-

(Aug. 10, 1956, ch. 1041, 70A Stat. 110; Pub. L. 90-485, Sec. 1(7),

Aug. 13, 1968, 82 Stat. 753; Pub. L. 92-425, Sec. 1(2)(A), Sept.

21, 1972, 86 Stat. 706; Pub. L. 96-513, title V, Sec. 511(57), Dec.

12, 1980, 94 Stat. 2925; Pub. L. 98-94, title IX, Sec.

922(a)(14)(A), Sept. 24, 1983, 97 Stat. 642; Pub. L. 98-525, title

VI, Sec. 642(a)(1), Oct. 19, 1984, 98 Stat. 2545; Pub. L. 99-145,

title XIII, Sec. 1303(a)(9), Nov. 8, 1985, 99 Stat. 739.)

-MISC1-

Historical and Revision Notes

---------------------------------------------------------------------

Revised section Source (U.S. Code) Source (Statutes at

Large)

---------------------------------------------------------------------

1437 37:379. Aug. 8, 1953, ch.

393, Sec. 10, 67

Stat. 504.

-------------------------------

The words ''the person upon whose reduced pay the annuity is

based'' are substituted for the words ''the retired member'' since

persons other than retired members may elect an annuity. The words

''due and'' and ''or be paid'' are omitted as surplusage.

AMENDMENTS

1985 - Subsec. (c)(3)(A). Pub. L. 99-145 struck out

''(notwithstanding section 144 of this title)'' after ''which''.

1984 - Subsec. (a). Pub. L. 98-525, Sec. 642(a)(1)(A),

substituted ''subsections (b) and (c),'' for ''subsection (b)''.

Subsec. (c). Pub. L. 98-525, Sec. 642(a)(1)(B), added subsec.

(c).

1983 - Subsec. (a). Pub. L. 98-94 inserted ''The monthly amount

of an annuity payable under this subchapter, if not a multiple of

$1, shall be rounded to the next lower multiple of $1.''

1980 - Subsec. (b). Pub. L. 96-513 substituted ''before November

1, 1968'' for ''prior to the effective date of this subsection''.

1972 - Subsec. (a). Pub. L. 92-425 substituted ''subchapter'' for

''chapter''.

1968 - Pub. L. 90-485 designated existing provisions as subsec.

(a), inserted ''Except as provided in subsection (b)'', substituted

''whose pay'' for ''whose reduced pay'', and added subsec. (b).

EFFECTIVE DATE OF 1983 AMENDMENT

Amendment by Pub. L. 98-94 effective Oct. 1, 1983, see section

922(e) of Pub. L. 98-94, set out as a note under section 1401 of

this title.

EFFECTIVE DATE OF 1980 AMENDMENT

Amendment by Pub. L. 96-513 effective Dec. 12, 1980, see section

701(b)(3) of Pub. L. 96-513, set out as a note under section 101 of

this title.

EFFECTIVE DATE OF 1968 AMENDMENT

For effective date of amendment by Pub. L. 90-485, see section 6

of Pub. L. 90-485, set out as a note under section 1431 of this

title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1440 of this title.

-CITE-

10 USC Sec. 1438 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN

-HEAD-

Sec. 1438. Deposits for amounts not deducted

-STATUTE-

If, for any period, a person who has been retired or has become

entitled to retired or retainer pay, and who has elected an annuity

under this subchapter, is not entitled to retired or retainer pay,

he must deposit in the Treasury the amount that would otherwise

have been deducted from his pay for that period to provide the

annuity.

-SOURCE-

(Aug. 10, 1956, ch. 1041, 70A Stat. 110; Pub. L. 92-425, Sec.

1(2)(A), Sept. 21, 1972, 86 Stat. 706.)

-MISC1-

Historical and Revision Notes

---------------------------------------------------------------------

Revised section Source (U.S. Code) Source (Statutes at

Large)

---------------------------------------------------------------------

1438 37:374. Aug. 8, 1953, ch.

393, Sec. 5, 67

Stat. 504.

-------------------------------

The words ''a person who has been retired or has become entitled

to retired or retainer pay, and who has elected an annuity under

this chapter'' are substituted for the words ''a retired member of

a uniformed service who has made the election specified in section

372 of this title'', since the revised chapter applies to persons

who are receiving retired pay as well as retired members. The word

''otherwise'' is substituted for the words ''had he been receiving

that pay''. The words ''to provide the annuity'' are inserted for

clarity.

AMENDMENTS

1972 - Pub. L. 92-425 substituted ''subchapter'' for ''chapter''.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 5 sections 8311, 8316; title

26 section 122.

-CITE-

10 USC Sec. 1439 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN

-HEAD-

Sec. 1439. Refund of amounts deducted from retired pay

-STATUTE-

If a person whose name is on the temporary disability retired

list of an armed force, and who has elected an annuity under this

subchapter, has his name removed from that list for any reason

other than retirement or grant of retired pay, he is entitled to a

refund of the difference between the amount by which his retired

pay was reduced to provide the annuity and the cost of an amount of

term insurance equal to the protection provided for his dependents

during the period that he was on that list.

-SOURCE-

(Aug. 10, 1956, ch. 1041, 70A Stat. 111; Pub. L. 92-425, Sec.

1(2)(A), Sept. 21, 1972, 86 Stat. 706.)

-MISC1-

Historical and Revision Notes

---------------------------------------------------------------------

Revised section Source (U.S. Code) Source (Statutes at

Large)

---------------------------------------------------------------------

1439 37:373(d). Aug. 8, 1953, ch.

393, Sec. 4(d), 67

Stat. 503.

-------------------------------

The words ''person whose name is on'' are substituted for the

words ''Any active member or former member on the''. The words

''is entitled to a refund'' are substituted for the words ''shall

have refunded to him''. The words ''permanent'', ''a sum which

represents'', and ''in accordance with his election under section

372 of this title'' are omitted as surplusage. The words

''retirement or grant of retired pay'' are substituted for the

words ''permanent retirement'', since under chapter 67 of this

title a member of the Army or Air Force may be granted retired pay

without being retired.

AMENDMENTS

1972 - Pub. L. 92-425 substituted ''subchapter'' for ''chapter''.

-CITE-

10 USC Sec. 1440 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN

-HEAD-

Sec. 1440. Annuities not subject to legal process

-STATUTE-

Except as provided in section 1437(c)(3)(B) of this title, no

annuity payable under this subchapter is assignable or subject to

execution, levy, attachment, garnishment, or other legal process.

-SOURCE-

(Aug. 10, 1956, ch. 1041, 70A Stat. 111; Pub. L. 92-425, Sec.

1(2)(A), Sept. 21, 1972, 86 Stat. 706; Pub. L. 98-525, title VI,

Sec. 642(a)(2), Oct. 19, 1984, 98 Stat. 2546; Pub. L. 99-145, title

XIII, Sec. 1303(a)(10), Nov. 8, 1985, 99 Stat. 739.)

-MISC1-

Historical and Revision Notes

---------------------------------------------------------------------

Revised section Source (U.S. Code) Source (Statutes at

Large)

---------------------------------------------------------------------

1440 37:378. Aug. 8, 1953, ch.

393, Sec. 9, 67

Stat. 504.

-------------------------------

The words ''either in law or equity'' are omitted as surplusage.

AMENDMENTS

1985 - Pub. L. 99-145 substituted ''1437(c)(3)(B)'' for

''1437(c)(3)''.

1984 - Pub. L. 98-525 substituted ''Except as provided in section

1437(c)(3) of this title, no'' for ''No''.

1972 - Pub. L. 92-425 substituted ''subchapter'' for ''chapter''.

-CITE-

10 USC Sec. 1441 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN

-HEAD-

Sec. 1441. Annuities in addition to other payments

-STATUTE-

An annuity under this subchapter is in addition to any pension or

other payment to which the beneficiary is entitled under any other

provision of law, and may not be considered as income under any law

administered by the Department of Veterans Affairs.

-SOURCE-

(Aug. 10, 1956, ch. 1041, 70A Stat. 111; Pub. L. 85-857, Sec.

13(v)(1), Sept. 2, 1958, 72 Stat. 1266; Pub. L. 85-861, Sec.

1(31B), Sept. 2, 1958, 72 Stat. 1452; Pub. L. 86-211, Sec. 8(a),

Aug. 29, 1959, 73 Stat. 436; Pub. L. 91-588, Sec. 8(b), Dec. 24,

1970, 84 Stat. 1584; Pub. L. 92-425, Sec. 1(2)(A), Sept. 21, 1972,

86 Stat. 706; Pub. L. 101-189, div. A, title XVI, Sec. 1621(a)(1),

Nov. 29, 1989, 103 Stat. 1602.)

-MISC1-

Historical and Revision Notes

1956 Act

---------------------------------------------------------------------

Revised section Source (U.S. Code) Source (Statutes at

Large)

---------------------------------------------------------------------

1441 37:380. Aug. 8, 1953, ch.

393, Sec. 11, 67

Stat. 504.

-------------------------------

The word ''is'' is substituted for the words ''may now or

hereafter be''.

1958 Act

---------------------------------------------------------------------

Revised section Source (U.S. Code) Source (Statutes at

Large)

---------------------------------------------------------------------

1441 37:380. Aug. 1, 1956, ch.

837, Sec. 501(1),

70 Stat. 884.

-------------------------------

The change is made to reflect the amendment made by section

501(1) of the Servicemen's and Veterans' Survivor Benefits Act (70

Stat. 884) to section 11 of the Uniform Services Contingency Option

Act of 1953 (restated in section 1441 of title 10).

AMENDMENTS

1989 - Pub. L. 101-189 substituted ''Department of Veterans

Affairs'' for ''Veterans' Administration''.

1972 - Pub. L. 92-425 substituted ''subchapter'' for ''chapter''.

1970 - Pub. L. 91-588 struck out ''except section 415(g) and

chapter 15 of title 38'' after ''Veterans' Administration''.

1959 - Pub. L. 86-211 inserted reference to chapter 15 of title

38.

1958 - Pub. L. 85-861 inserted ''except section 1115 of title

38'' after ''Administration''.

Pub. L. 85-857 substituted ''section 415(g) of title 38'' for

''section 1115 of title 38''.

EFFECTIVE DATE OF 1970 AMENDMENT

Amendment by Pub. L. 91-588 effective Jan. 1, 1971, see section

10 of Pub. L. 91-588, set out as a note under section 1521 of Title

38, Veterans' Benefits.

EFFECTIVE DATE OF 1959 AMENDMENT

Amendment by Pub. L. 86-211 effective July 1, 1960, see section

10 of Pub. L. 86-211, set out as a note under section 1506 of Title

38, Veterans' Benefits.

EFFECTIVE DATE OF 1958 AMENDMENT

Amendment by Pub. L. 85-857 effective Jan. 1, 1959, see section 2

of Pub. L. 85-857, set out as a note preceding Part I of Title 38,

Veterans' Benefits.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 1446 of this title.

-CITE-

10 USC Sec. 1442 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN

-HEAD-

Sec. 1442. Recovery of annuity erroneously paid

-STATUTE-

In addition to other methods of recovery provided by law, the

Secretary concerned may authorize the recovery, by deduction from

later payments to a person, of any amount erroneously paid to him

under this subchapter. However, recovery is not required if, in

the judgment of the Secretary concerned, there has been no fault by

the person to whom the amount was erroneously paid and recovery

would be contrary to the purposes of this subchapter or against

equity and good conscience.

-SOURCE-

(Aug. 10, 1956, ch. 1041, 70A Stat. 111; Pub. L. 92-425, Sec.

1(2)(A), Sept. 21, 1972, 86 Stat. 706; Pub. L. 104-316, title I,

Sec. 105(a), Oct. 19, 1996, 110 Stat. 3830.)

-MISC1-

Historical and Revision Notes

---------------------------------------------------------------------

Revised section Source (U.S. Code) Source (Statutes at

Large)

---------------------------------------------------------------------

1442 37:376. Aug. 8, 1953, ch.

393, Sec. 7, 67

Stat. 504.

-------------------------------

The words ''In addition to other methods of recovery provided by

law, the Secretary concerned may'' are substituted for 37:376(a)

(1st 15 words of 1st sentence). The words ''from later payments to

an annuitant'' are substituted for 37:376(a) (2d sentence).

AMENDMENTS

1996 - Pub. L. 104-316 struck out ''and the Comptroller General''

after ''judgment of the Secretary concerned''.

1972 - Pub. L. 92-425 substituted ''subchapter'' for ''chapter''.

-CITE-

10 USC Sec. 1443 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN

-HEAD-

(Sec. 1443. Repealed. Pub. L. 92-425, Sec. 1(2)(B), Sept. 21, 1972,

86 Stat. 706)

-MISC1-

Section, act Aug. 10, 1956, ch. 1041, 70A Stat. 111, related to

Board of Actuaries, composed of Government Actuary, Chief Actuary

of Social Security Administration, and an actuary who was a member

of Society of Actuaries.

-CITE-

10 USC Sec. 1444 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN

-HEAD-

Sec. 1444. Regulations; determinations

-STATUTE-

(a) The President shall prescribe regulations to carry out this

subchapter. Those regulations shall, so far as practicable, be

uniform for the armed forces, the National Oceanic and Atmospheric

Administration, and the Public Health Service.

(b) Determinations and certifications of eligibility for, and

payments of, annuities and other payments or refunds under this

subchapter shall be made by the department concerned. However, in

the case of a department other than a military department, payments

shall be made through the disbursing facilities of the Department

of the Treasury.

-SOURCE-

(Aug. 10, 1956, ch. 1041, 70A Stat. 111; Pub. L. 87-381, Sec. 5,

Oct. 4, 1961, 75 Stat. 811; Pub. L. 89-718, Sec. 8(a), Nov. 2,

1966, 80 Stat. 1117; Pub. L. 92-425, Sec. 1(2)(A), (C), Sept. 21,

1972, 86 Stat. 706; Pub. L. 96-513, title V, Sec. 511(58), Dec. 12,

1980, 94 Stat. 2925.)

-MISC1-

Historical and Revision Notes

---------------------------------------------------------------------

Revised section Source (U.S. Code) Source (Statutes at

Large)

---------------------------------------------------------------------

1444(a) 1444(b) 37:377 (1st Aug. 8, 1953, ch.

1444(c) sentence). 37:377 393, Sec. 6, 8 (1st

(2d sentence). and 2d sentences),

37:375. 67 Stat. 504.

-------------------------------

AMENDMENTS

1980 - Subsec. (a). Pub. L. 96-513, Sec. 511(58)(A), substituted

''National Oceanic and Atmospheric Administration'' for

''Environmental Science Services Administration''.

Subsecs. (b), (c). Pub. L. 96-513, Sec. 511(58)(B), redesignated

subsec. (c) as (b).

1972 - Pub. L. 92-425, Sec. 1(2)(C), struck out ''reports to

Congress'' in section catchline.

Subsec. (a). Pub. L. 92-425, Sec. 1(2)(A), substituted

''subchapter'' for ''chapter''.

Subsec. (b). Pub. L. 92-425, Sec. 1(2)(C), struck out subsec. (b)

which required President to submit annual reports to Congress on

administration of this chapter.

Subsec. (c). Pub. L. 92-425, Sec. 1(2)(A), substituted

''subchapter'' for ''chapter''.

1966 - Subsec. (a). Pub. L. 89-718 substituted ''Environmental

Science Services Administration'' for ''Coast and Geodetic

Survey''.

1961 - Subsec. (b). Pub. L. 87-381 required report to contain a

detailed account, including an actuarial analysis, of cases in

which relief is granted under sections 1436(b) and 1552 of this

title, or any other statutory or administrative procedure.

EFFECTIVE DATE OF 1980 AMENDMENT

Amendment by Pub. L. 96-513 effective Dec. 12, 1980, see section

701(b)(3) of Pub. L. 96-513, set out as a note under section 101 of

this title.

REPEALS

The directory language of, but not the amendment made by, Pub. L.

89-718, Sec. 8(a), Nov. 2, 1966, 80 Stat. 1117, cited as a credit

to this section, was repealed by Pub. L. 97-295, Sec. 6(b), Oct.

12, 1982, 96 Stat. 1314.

-TRANS-

TRANSFER OF FUNCTIONS

For transfer of functions of Public Health Service, see note

under section 802 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1434, 1436, 1437, 1444a,

1445 of this title.

-CITE-

10 USC Sec. 1444a 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN

-HEAD-

Sec. 1444a. Regulations regarding payment of annuity to a

representative payee

-STATUTE-

(a) The regulations prescribed pursuant to section 1444(a) of

this title shall provide procedures for the payment of an annuity

under this subchapter in the case of -

(1) a person for whom a guardian or other fiduciary has been

appointed; and

(2) a minor, mentally incompetent, or otherwise legally

disabled person for whom a guardian or other fiduciary has not

been appointed.

(b) Those regulations may include the provisions set out in

section 1455(d)(2) of this title.

(c) An annuity paid to a person on behalf of an annuitant in

accordance with the regulations prescribed pursuant to subsection

(a) discharges the obligation of the United States for payment to

the annuitant of the amount of the annuity so paid.

-SOURCE-

(Added Pub. L. 102-190, div. A, title VI, Sec. 654(b)(1), Dec. 5,

1991, 105 Stat. 1390; amended Pub. L. 105-85, div. A, title X,

Sec. 1073(a)(26), Nov. 18, 1997, 111 Stat. 1901.)

-MISC1-

AMENDMENTS

1997 - Subsec. (b). Pub. L. 105-85 substituted ''section

1455(d)(2)'' for ''section 1455(c)''.

-CITE-

10 USC Sec. 1445 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN

-HEAD-

Sec. 1445. Correction of administrative deficiencies

-STATUTE-

Whenever he considers it necessary, the Secretary concerned may,

under regulations prescribed under section 1444(a) of this title,

correct any election, or any change or revocation of an election,

under this subchapter when he considers it necessary to correct an

administrative error. Except when procured by fraud, a correction

under this section is final and conclusive on all officers of the

United States.

-SOURCE-

(Added Pub. L. 87-381, Sec. 6(1), Oct. 4, 1961, 75 Stat. 811;

amended Pub. L. 92-425, Sec. 1(2)(A), Sept. 21, 1972, 86 Stat.

706.)

-MISC1-

AMENDMENTS

1972 - Pub. L. 92-425 substituted ''subchapter'' for ''chapter''.

-CITE-

10 USC Sec. 1446 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN

-HEAD-

Sec. 1446. Restriction on participation

-STATUTE-

(a) Notwithstanding section 1441 of this title, if a person -

(1) has made an election under this subchapter; and

(2) is retired for physical disability before he completes 19

years of service for which he is entitled to credit in the

computation of his basic pay;

and thereafter dies, his beneficiaries are not entitled to the

annuities provided under this subchapter until they give proof to

the department concerned that they are not eligible for benefits

under chapter 11 or 13 of title 38. If the beneficiaries are not

eligible for benefits under chapter 11 or 13 of title 38, the

annuity shall begin on the first day of the month in which the

death occurs.

(b) Whenever the beneficiaries on whose behalf the election was

made are restricted, under subsection (a), from participating in

the annuities provided under this subchapter, the amount withheld

from the elector's retired or retainer pay as a result of an

election under this subchapter shall be refunded to the

beneficiaries, less the amount of any annuities paid under this

subchapter, and in either case without interest.

-SOURCE-

(Added Pub. L. 87-381, Sec. 6(1), Oct. 4, 1961, 75 Stat. 811;

amended Pub. L. 90-485, Sec. 1(8), Aug. 13, 1968, 82 Stat. 754;

Pub. L. 92-425, Sec. 1(2)(A), Sept. 21, 1972, 86 Stat. 706.)

-MISC1-

AMENDMENTS

1972 - Pub. L. 92-425 substituted ''subchapter'' for ''chapter''

wherever appearing.

1968 - Subsec. (a)(2). Pub. L. 90-485 substituted ''19'' for

''18''.

EFFECTIVE DATE OF 1968 AMENDMENT

Amendment by Pub. L. 90-485 effective on first day of third

calendar month following Aug. 13, 1968, see section 6 of Pub. L.

90-485, set out as a note under section 1431 of this title.

-CITE-

10 USC SUBCHAPTER II - SURVIVOR BENEFIT PLAN 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

SUBCHAPTER II - SURVIVOR BENEFIT PLAN

.

-HEAD-

SUBCHAPTER II - SURVIVOR BENEFIT PLAN

-MISC1-

Sec.

1447. Definitions.

1448. Application of Plan.

1448a. Election to discontinue participation: one-year opportunity

after second anniversary of commencement of payment of retired

pay.

1449. Mental incompetency of member.

1450. Payment of annuity: beneficiaries.

1451. Amount of annuity.

1452. Reduction in retired pay.

1453. Recovery of amounts erroneously paid.

1454. Correction of administrative errors.

1455. Regulations.

AMENDMENTS

1997 - Pub. L. 105-85, div. A, title VI, Sec. 641(a)(2), Nov.

18, 1997, 111 Stat. 1798, added item 1448a.

1996 - Pub. L. 104-201, div. A, title VI, Sec. 634, Sept. 23,

1996, 110 Stat. 2551, amended analysis generally, reenacting items

1447 to 1452, 1454, and 1455 without change and substituting

''Recovery of amounts'' for ''Recovery of annuity'' in item 1453.

1989 - Pub. L. 101-189, div. A, title XIV, Sec. 1407(a)(10)(B),

Nov. 29, 1989, 103 Stat. 1589, substituted ''errors'' for

''deficiencies'' in item 1454.

1985 - Pub. L. 99-145, title VII, Sec. 719(8)(B), Nov. 8, 1985,

99 Stat. 676, struck out ''or retainer'' after ''retired'' in item

1452.

1972 - Pub. L. 92-424, Sec. 1(3), Sept. 21, 1972, 86 Stat. 706,

added subchapter II heading and items 1447 to 1455.

-SECREF-

SUBCHAPTER REFERRED TO IN OTHER SECTIONS

This subchapter is referred to in sections 1460a, 12731 of this

title.

-CITE-

10 USC Sec. 1447 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

SUBCHAPTER II - SURVIVOR BENEFIT PLAN

-HEAD-

Sec. 1447. Definitions

-STATUTE-

In this subchapter:

(1) Plan. - The term ''Plan'' means the Survivor Benefit Plan

established by this subchapter.

(2) Standard annuity. - The term ''standard annuity'' means an

annuity provided by virtue of eligibility under section

1448(a)(1)(A) of this title.

(3) Reserve-component annuity. - The term ''reserve-component

annuity'' means an annuity provided by virtue of eligibility

under section 1448(a)(1)(B) of this title.

(4) Retired pay. - The term ''retired pay'' includes retainer

pay paid under section 6330 of this title.

(5) Reserve-component retired pay. - The term

''reserve-component retired pay'' means retired pay under chapter

1223 of this title (or under chapter 67 of this title as in

effect before the effective date of the Reserve Officer Personnel

Management Act).

(6) Base amount. - The term ''base amount'' means the

following:

(A) Full amount under standard annuity. - In the case of a

person who dies after becoming entitled to retired pay, such

term means the amount of monthly retired pay (determined

without regard to any reduction under section 1409(b)(2) of

this title) to which the person -

(i) was entitled when he became eligible for that pay; or

(ii) later became entitled by being advanced on the retired

list, performing active duty, or being transferred from the

temporary disability retired list to the permanent disability

retired list.

(B) Full amount under reserve-component annuity. - In the

case of a person who would have become eligible for

reserve-component retired pay but for the fact that he died

before becoming 60 years of age, such term means the amount of

monthly retired pay for which the person would have been

eligible -

(i) if he had been 60 years of age on the date of his

death, for purposes of an annuity to become effective on the

day after his death in accordance with a designation made

under section 1448(e) of this title; or

(ii) upon becoming 60 years of age (if he had lived to that

age), for purposes of an annuity to become effective on the

60th anniversary of his birth in accordance with a

designation made under section 1448(e) of this title.

(C) Reduced amount. - Such term means any amount less than

the amount otherwise applicable under subparagraph (A) or (B)

with respect to an annuity provided under the Plan but which is

not less than $300 and which is designated by the person (with

the concurrence of the person's spouse, if required under

section 1448(a)(3) of this title) providing the annuity on or

before -

(i) the first day for which he becomes eligible for retired

pay, in the case of a person providing a standard annuity, or

(ii) the end of the 90-day period beginning on the date on

which he receives the notification required by section

12731(d) of this title that he has completed the years of

service required for eligibility for reserve-component

retired pay, in the case of a person providing a

reserve-component annuity.

(7) Widow. - The term ''widow'' means the surviving wife of a

person who, if not married to the person at the time he became

eligible for retired pay -

(A) was married to him for at least one year immediately

before his death; or

(B) is the mother of issue by that marriage.

(8) Widower. - The term ''widower'' means the surviving husband

of a person who, if not married to the person at the time she

became eligible for retired pay -

(A) was married to her for at least one year immediately

before her death; or

(B) is the father of issue by that marriage.

(9) Surviving spouse. - The term ''surviving spouse'' means a

widow or widower.

(10) Former spouse. - The term ''former spouse'' means the

surviving former husband or wife of a person who is eligible to

participate in the Plan.

(11) Dependent child. -

(A) In general. - The term ''dependent child'' means a person

who -

(i) is unmarried;

(ii) is (I) under 18 years of age, (II) at least 18, but

under 22, years of age and pursuing a full-time course of

study or training in a high school, trade school, technical

or vocational institute, junior college, college, university,

or comparable recognized educational institution, or (III)

incapable of self support because of a mental or physical

incapacity existing before the person's eighteenth birthday

or incurred on or after that birthday, but before the

person's twenty-second birthday, while pursuing such a

full-time course of study or training; and

(iii) is the child of a person to whom the Plan applies,

including (I) an adopted child, and (II) a stepchild, foster

child, or recognized natural child who lived with that person

in a regular parent-child relationship.

(B) Special rules for college students. - For the purpose of

subparagraph (A), a child whose twenty-second birthday occurs

before July 1 or after August 31 of a calendar year, and while

regularly pursuing such a course of study or training, is

considered to have become 22 years of age on the first day of

July after that birthday. A child who is a student is

considered not to have ceased to be a student during an interim

between school years if the interim is not more than 150 days

and if the child shows to the satisfaction of the Secretary of

Defense that the child has a bona fide intention of continuing

to pursue a course of study or training in the same or a

different school during the school semester (or other period

into which the school year is divided) immediately after the

interim.

(C) Foster children. - A foster child, to qualify under this

paragraph as the dependent child of a person to whom the Plan

applies, must, at the time of the death of that person, also

reside with, and receive over one-half of his support from,

that person, and not be cared for under a social agency

contract. The temporary absence of a foster child from the

residence of that person, while a student as described in this

paragraph, shall not be considered to affect the residence of

such a foster child.

(12) Court. - The term ''court'' has the meaning given that

term by section 1408(a)(1) of this title.

(13) Court order. -

(A) In general. - The term ''court order'' means a court's

final decree of divorce, dissolution, or annulment or a court

ordered, ratified, or approved property settlement incident to

such a decree (including a final decree modifying the terms of

a previously issued decree of divorce, dissolution, annulment,

or legal separation, or of a court ordered, ratified, or

approved property settlement agreement incident to such

previously issued decree).

(B) Final decree. - The term ''final decree'' means a decree

from which no appeal may be taken or from which no appeal has

been taken within the time allowed for the taking of such

appeals under the laws applicable to such appeals, or a decree

from which timely appeal has been taken and such appeal has

been finally decided under the laws applicable to such appeals.

(C) Regular on its face. - The term ''regular on its face'',

when used in connection with a court order, means a court order

that meets the conditions prescribed in section 1408(b)(2) of

this title.

-SOURCE-

(Added Pub. L. 92-425, Sec. 1(3), Sept. 21, 1972, 86 Stat. 706;

amended Pub. L. 94-496, Sec. 1(1), Oct. 14, 1976, 90 Stat. 2375;

Pub. L. 95-397, title II, Sec. 201, Sept. 30, 1978, 92 Stat. 843;

Pub. L. 96-402, Sec. 2, Oct. 9, 1980, 94 Stat. 1705; Pub. L.

97-252, title X, Sec. 1003(a), Sept. 8, 1982, 96 Stat. 735; Pub. L.

98-94, title IX, Sec. 941(c)(1), Sept. 24, 1983, 97 Stat. 653; Pub.

L. 99-145, title VII, Sec. 719(1), (2), 721(b), Nov. 8, 1985, 99

Stat. 675, 676; Pub. L. 99-348, title III, Sec. 301(a)(1), July 1,

1986, 100 Stat. 702; Pub. L. 99-661, div. A, title XIII, Sec.

1343(a)(8)(A), Nov. 14, 1986, 100 Stat. 3992; Pub. L. 100-180,

div. A, title XII, Sec. 1231(17), Dec. 4, 1987, 101 Stat. 1161;

Pub. L. 101-189, div. A, title XIV, Sec. 1407(a)(1)-(3), Nov. 29,

1989, 103 Stat. 1588; Pub. L. 101-510, div. A, title XIV, Sec.

1484(l)(4)(C)(i), Nov. 5, 1990, 104 Stat. 1720; Pub. L. 103-337,

div. A, title XVI, Sec. 1671(d), Oct. 5, 1994, 108 Stat. 3014;

Pub. L. 104-201, div. A, title VI, Sec. 634, Sept. 23, 1996, 110

Stat. 2551.)

-REFTEXT-

REFERENCES IN TEXT

Chapter 67 of this title as in effect before the effective date

of the Reserve Officer Personnel Management Act, referred to in

par. (5), means chapter 67 (Sec. 1331 et seq.) of this title prior

to its transfer to part II of subtitle E of this title, its

renumbering as chapter 1223, and its general revision by section

1662(j)(1) of Pub. L. 103-337. A new chapter 67 (Sec. 1331) of this

title was added by section 1662(j)(7) of Pub. L. 103-337. For

effective date of the Reserve Officer Personnel Management Act

(Pub. L. 103-337, title XVI), see section 1691 of Pub. L. 103-337,

set out as an Effective Date note under section 10001 of this

title.

-MISC2-

AMENDMENTS

1996 - Pub. L. 104-201 amended section generally, making changes

in the order, style, and substance of definitions of terms used in

this subchapter and adding definition of ''surviving spouse''.

1994 - Par. (2)(C). Pub. L. 103-337, Sec. 1671(d)(2), substituted

''12731(d)'' for ''1331(d)''.

Par. (14). Pub. L. 103-337, Sec. 1671(d)(1), substituted

''chapter 1223 of this title (or under chapter 67 of this title as

in effect before the effective date of the Reserve Officer

Personnel Management Act)'' for ''chapter 67 of this title''.

1990 - Par. (5). Pub. L. 101-510 made technical correction to

directory language of Pub. L. 101-189, Sec. 1407(a)(1)(A), see 1989

Amendment note below.

1989 - Par. (2)(B). Pub. L. 101-189, Sec. 1407(a)(2), substituted

''reserve-component retired pay'' for ''retired pay under chapter

67 of this title''.

Par. (2)(C)(i). Pub. L. 101-189, Sec. 1407(a)(3), struck out ''or

retainer'' after ''eligible for retired''.

Par. (2)(C)(ii). Pub. L. 101-189, Sec. 1407(a)(2), substituted

''reserve-component retired pay'' for ''retired pay under chapter

67 of this title''.

Pars. (3), (4). Pub. L. 101-189, Sec. 1407(a)(3), struck out ''or

retainer'' after ''eligible for retired''.

Par. (5). Pub. L. 101-189, Sec. 1407(a)(1)(A), as amended by Pub.

L. 101-510, substituted ''this paragraph'' for ''this clause'' in

three places in concluding provisions.

Par. (11). Pub. L. 101-189, Sec. 1407(a)(1)(B), inserted ''paid

under section 6330 of this title'' after ''retainer pay''.

Par. (14). Pub. L. 101-189, Sec. 1407(a)(1)(C), added par. (14).

1987 - Pub. L. 100-180 inserted ''The term'' after each par.

designation and revised first word in quotes in pars. (2) to (13)

to make initial letter of such word lowercase.

1986 - Par. (2)(A). Pub. L. 99-661 substituted ''retired pay''

for ''retired or retainer pay'' in two places in provisions

preceding cl. (i).

Pub. L. 99-348 inserted ''(determined without regard to any

reduction under section 1409(b)(2) of this title)''.

1985 - Par. (2)(C). Pub. L. 99-145, Sec. 721(b), inserted ''(with

the concurrence of the person's spouse, if required under section

1448(a)(3) of this title)'' after ''designated by the person''.

Par. (2)(C)(i). Pub. L. 99-145, Sec. 719(2)(A), substituted ''a

standard annuity'' for ''an annuity by virtue of eligibility under

section 1448(a)(1)(A) of this title''.

Par. (2)(C)(ii). Pub. L. 99-145, Sec. 719(2)(B), substituted ''a

reserve-component annuity'' for ''an annuity by virtue of

eligibility under section 1448(a)(1)(B) of this title''.

Pars. (11) to (13). Pub. L. 99-145, Sec. 719(1), added pars. (11)

to (13).

1983 - Par. (8). Pub. L. 98-94 substituted ''or annulment'' for

''annulment, or legal separation,'' in two places.

1982 - Pars. (6) to (10). Pub. L. 97-252 added pars. (6) to (10).

1980 - Par. (2). Pub. L. 96-402 inserted in subpar. (C) ''but

which is not less than $300'' after ''under the Plan'', substituted

a period at end of subpar. (C) for '', but not less than $300;'',

and struck out following subpar. (C) ''as increased from time to

time under section 1401a of this title.''

1978 - Par. (2). Pub. L. 95-397 inserted ''in the case of a

person who dies after becoming entitled to retired or retainer

pay'' before ''the amount'' and substituted ''pay to which the

person'' for ''pay to which a person'' in subpar. (A), substituted

''in the case of a person who would have become eligible for

retired pay under chapter 67 of this title but for the fact that he

died before becoming 60 years of age, the amount of monthly retired

pay for which the person would have been eligible - '' for ''any

amount less than that described by clause (A) designated by that

person on or before the first day for which he became eligible for

retired or retainer pay, but not less than $300'' in subpar. (B),

and added subpars. (B)(i), (ii) and (C).

1976 - Pars. (3)(A), (4)(A). Pub. L. 94-496 substituted ''one

year'' for ''two years''.

EFFECTIVE DATE OF 1994 AMENDMENT

Amendment by Pub. L. 103-337 effective Dec. 1, 1994, except as

otherwise provided, see section 1691 of Pub. L. 103-337, set out as

an Effective Date note under section 10001 of this title.

EFFECTIVE DATE OF 1990 AMENDMENT

Section 1484(l)(4)(C) of Pub. L. 101-510 provided that the

amendment made by that section is effective Nov. 29, 1989.

EFFECTIVE DATE OF 1985 AMENDMENT

Section 731 of title VII of Pub. L. 99-145 provided that:

''(a) Effective Date. - Except as otherwise provided in this

title, the amendments made by this title (see Short Title of 1985

Amendment note below) shall take effect on the first day of the

first month beginning more than 90 days after the date of the

enactment of this Act (Nov. 8, 1985).

''(b) Prospective Benefits Only. - No benefit shall accrue to any

person by reason of the enactment of this title for any period

before the effective date under subsection (a).''

EFFECTIVE DATE OF 1982 AMENDMENT; TRANSITION PROVISIONS

Amendment by Pub. L. 97-252 effective Feb. 1, 1983, and

applicable to persons becoming eligible to participate in Survivor

Benefit Plan provided for in this subchapter before, on, or after

Feb. 1, 1983, see section 1006 of Pub. L. 97-252, set out as an

Effective Date; Transition Provisions note under section 1408 of

this title.

EFFECTIVE DATE OF 1980 AMENDMENT

Section 7 of Pub. L. 96-402 provided that: ''The amendments made

by sections 2, 3, and 4 of this Act (amending this section and

sections 1451 and 1452 of this title) and the provisions of section

5 of this Act (set out as a note under section 1448 of this title)

shall be effective on the first day of the second calendar month

following the month in which this Act is enacted (October 1980) and

shall apply to annuities payable by virtue of such amendments and

provisions for months beginning on or after such date. No benefits

shall accrue to any person by virtue of the enactment of this Act

(Pub. L. 96-402) for any period before the date of the enactment of

this Act (Oct. 9, 1980).''

EFFECTIVE DATE OF 1978 AMENDMENT

Section 210 of title II of Pub. L. 95-397 provided that:

''(a) Except as provided in subsection (b), the provisions of

this title (amending this section and sections 1331 (now 12731) and

1448 to 1452 of this title and enacting provisions set out as notes

under this section and section 1448 of this title) and the

amendments made by this title shall take effect on October 1, 1978,

or on the date of the enactment of this Act (Sept. 30, 1978),

whichever is later, and shall apply to annuities payable by virtue

of such amendments for months beginning on or after such date.

''(b) The amendment made by section 206 (amending section 1331

(now 12731) of this title) shall apply to notifications under

section 1331(d) (now 12731(d)) of title 10, United States Code,

after the date of the enactment of this Act (Sept. 30, 1978).''

EFFECTIVE DATE OF 1976 AMENDMENT

Section 3 of Pub. L. 94-496 provided that: ''This Act (amending

this section and sections 1448, 1450, 1451, and 1452 of this title,

and amending provisions set out as a note under section 1448 of

this title) shall be effective as of September 21, 1972. No pay

shall accrue to any person by virtue of the enactment of this Act

for any period prior to October 1, 1976.''

SHORT TITLE OF 1989 AMENDMENT

Section 1401 of title XIV of Pub. L. 101-189 provided that:

''This title (enacting subchapter III of this chapter, amending

this section and sections 1331 (now 12731), 1448 to 1452, and 1454

of this title and section 3101 (now 5301) of Title 38, Veterans'

Benefits, and enacting provisions set out as notes under sections

1448, 1451, 1452, 1456, and 12731 of this title) may be cited as

the 'Military Survivor Benefits Improvement Act of 1989'.''

SHORT TITLE OF 1985 AMENDMENT

Section 701 of title VII of Pub. L. 99-145 provided that: ''This

title (amending this section and sections 1448, 1450 to 1452, and

1455 of this title, enacting provisions set out as notes under this

section and sections 1448 and 1452 of this title, and repealing a

provision set out as a note under section 1451 of this title) may

be cited as the 'Survivor Benefit Plan Amendments of 1985'.''

SHORT TITLE OF 1980 AMENDMENT

Section 1 of Pub. L. 96-402 provided: ''That this Act (amending

this section and sections 1451 and 1452 of this title, enacting

provisions set out as notes under this section and section 1448 of

this title, and amending provisions set out as a note under section

1448 of this title) may be cited as the 'Uniformed Services

Survivor Benefits Amendments of 1980'.''

END OF 90-DAY PERIOD WITH RESPECT TO CERTAIN INDIVIDUALS

Section 208 of Pub. L. 95-397, as amended by Pub. L. 96-107,

title VIII, Sec. 816, Nov. 9, 1979, 93 Stat. 818, provided that the

90-day period referred to in former sections 1447(2)(C) and

1448(a)(2) and (4)(B) of this title was to be considered to end on

Mar. 31, 1980, for an individual who would have been eligible for

retired pay under former chapter 67 of this title on the effective

date of title II of Pub. L. 95-397 (see Effective Date of 1978

Amendment note above), but for the fact such individual was under

60 years of age, or for an individual who received before Jan. 1,

1980, a notification that such individual had completed the years

of service required for eligibility for such retired pay.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1078a, 1456 of this

title.

-CITE-

10 USC Sec. 1448 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

SUBCHAPTER II - SURVIVOR BENEFIT PLAN

-HEAD-

Sec. 1448. Application of Plan

-STATUTE-

(a) General Rules for Participation in the Plan. -

(1) Name of plan; eligible participants. - The program

established by this subchapter shall be known as the Survivor

Benefit Plan. The following persons are eligible to participate

in the Plan:

(A) Persons entitled to retired pay.

(B) Persons who would be eligible for reserve-component

retired pay but for the fact that they are under 60 years of

age.

(2) Participants in the plan. - The Plan applies to the

following persons, who shall be participants in the Plan:

(A) Standard annuity participants. - A person who is eligible

to participate in the Plan under paragraph (1)(A) and who is

married or has a dependent child when he becomes entitled to

retired pay, unless he elects (with his spouse's concurrence,

if required under paragraph (3)) not to participate in the Plan

before the first day for which he is eligible for that pay.

(B) Reserve-component annuity participants. - A person who

(i) is eligible to participate in the Plan under paragraph

(1)(B), and (ii) is married or has a dependent child when he is

notified under section 12731(d) of this title that he has

completed the years of service required for eligibility for

reserve-component retired pay, unless the person elects (with

his spouse's concurrence, if required under paragraph (3)) not

to participate in the Plan before the end of the 90-day period

beginning on the date on which he receives that notification.

A person who elects under subparagraph (B) not to participate in

the Plan remains eligible, upon reaching 60 years of age and

otherwise becoming entitled to retired pay, to participate in the

Plan in accordance with eligibility under paragraph (1)(A).

(3) Elections. -

(A) Spousal consent for certain elections respecting standard

annuity. - A married person who is eligible to provide a

standard annuity may not without the concurrence of the

person's spouse elect -

(i) not to participate in the Plan;

(ii) to provide an annuity for the person's spouse at less

than the maximum level; or

(iii) to provide an annuity for a dependent child but not

for the person's spouse.

(B) Spousal consent for certain elections respecting

reserve-component annuity. - A married person who is eligible

to provide a reserve-component annuity may not without the

concurrence of the person's spouse elect -

(i) not to participate in the Plan;

(ii) to designate under subsection (e)(2) the effective

date for commencement of annuity payments under the Plan in

the event that the member dies before becoming 60 years of

age to be the 60th anniversary of the member's birth (rather

than the day after the date of the member's death);

(iii) to provide an annuity for the person's spouse at less

than the maximum level; or

(iv) to provide an annuity for a dependent child but not

for the person's spouse.

(C) Exception when spouse unavailable. - A person may make an

election described in subparagraph (A) or (B) without the

concurrence of the person's spouse if the person establishes to

the satisfaction of the Secretary concerned -

(i) that the spouse's whereabouts cannot be determined; or

(ii) that, due to exceptional circumstances, requiring the

person to seek the spouse's consent would otherwise be

inappropriate.

(D) Construction with former spouse election provisions. -

This paragraph does not affect any right or obligation to elect

to provide an annuity for a former spouse (or for a former

spouse and dependent child) under subsection (b)(2).

(E) Notice to spouse of election to provide former spouse

annuity. - If a married person who is eligible to provide a

standard annuity elects to provide an annuity for a former

spouse (or for a former spouse and dependent child) under

subsection (b)(2), that person's spouse shall be notified of

that election.

(4) Irrevocability of elections. -

(A) Standard annuity. - An election under paragraph (2)(A) is

irrevocable if not revoked before the date on which the person

first becomes entitled to retired pay.

(B) Reserve-component annuity. - An election under paragraph

(2)(B) is irrevocable if not revoked before the end of the

90-day period referred to in that paragraph.

(5) Participation by person marrying after retirement, etc. -

(A) Election to participate in plan. - A person who is not

married and has no dependent child upon becoming eligible to

participate in the Plan but who later marries or acquires a

dependent child may elect to participate in the Plan.

(B) Manner and time of election. - Such an election must be

written, signed by the person making the election, and received

by the Secretary concerned within one year after the date on

which that person marries or acquires that dependent child.

(C) Limitation on revocation of election. - Such an election

may not be revoked except in accordance with subsection (b)(3).

(D) Effective date of election. - The election is effective

as of the first day of the first calendar month following the

month in which the election is received by the Secretary

concerned.

(E) Designation if rcsbp election. - In the case of a person

providing a reserve-component annuity, such an election shall

include a designation under subsection (e).

(6) Election out of plan by person with spouse coverage who

remarries. -

(A) General rule. - A person -

(i) who is a participant in the Plan and is providing

coverage under the Plan for a spouse (or a spouse and child);

(ii) who does not have an eligible spouse beneficiary under

the Plan; and

(iii) who remarries,

may elect not to provide coverage under the Plan for the

person's spouse.

(B) Effect of election on retired pay. - If such an election

is made, reductions in the retired pay of that person under

section 1452 of this title shall not be made.

(C) Terms and conditions of election. - An election under

this paragraph -

(i) is irrevocable;

(ii) shall be made within one year after the person's

remarriage; and

(iii) shall be made in such form and manner as may be

prescribed in regulations under section 1455 of this title.

(D) Notice to spouse. - If a person makes an election under

this paragraph -

(i) not to participate in the Plan;

(ii) to provide an annuity for the person's spouse at less

than the maximum level; or

(iii) to provide an annuity for a dependent child but not

for the person's spouse,

the person's spouse shall be notified of that election.

(E) Construction with former spouse election provisions. -

This paragraph does not affect any right or obligation to elect

to provide an annuity to a former spouse under subsection (b).

(b) Insurable Interest and Former Spouse Coverage. -

(1) Coverage for person with insurable interest. -

(A) General rule. - A person who is not married and does not

have a dependent child upon becoming eligible to participate in

the Plan may elect to provide an annuity under the Plan to a

natural person with an insurable interest in that person. In

the case of a person providing a reserve-component annuity,

such an election shall include a designation under subsection

(e).

(B) Termination of coverage. - An election under subparagraph

(A) for a beneficiary who is not the former spouse of the

person providing the annuity may be terminated. Any such

termination shall be made by a participant by the submission to

the Secretary concerned of a request to discontinue

participation in the Plan, and such participation in the Plan

shall be discontinued effective on the first day of the first

month following the month in which the request is received by

the Secretary concerned. Effective on such date, the Secretary

concerned shall discontinue the reduction being made in such

person's retired pay on account of participation in the Plan

or, in the case of a person who has been required to make

deposits in the Treasury on account of participation in the

Plan, such person may discontinue making such deposits

effective on such date.

(C) Form for discontinuation. - A request under subparagraph

(B) to discontinue participation in the Plan shall be in such

form and shall contain such information as may be required

under regulations prescribed by the Secretary of Defense.

(D) Withdrawal of request for discontinuation. - The

Secretary concerned shall furnish promptly to each person who

submits a request under subparagraph (B) to discontinue

participation in the Plan a written statement of the advantages

and disadvantages of participating in the Plan and the possible

disadvantages of discontinuing participation. A person may

withdraw the request to discontinue participation if withdrawn

within 30 days after having been submitted to the Secretary

concerned.

(E) Consequences of discontinuation. - Once participation is

discontinued, benefits may not be paid in conjunction with the

earlier participation in the Plan and premiums paid may not be

refunded. Participation in the Plan may not later be resumed

except through a qualified election under paragraph (5) of

subsection (a).

(2) Former spouse coverage upon becoming a participant in the

plan. -

(A) General rule. - A person who has a former spouse upon

becoming eligible to participate in the Plan may elect to

provide an annuity to that former spouse.

(B) Effect of former spouse election on spouse or dependent

child. - In the case of a person with a spouse or a dependent

child, such an election prevents payment of an annuity to that

spouse or child (other than a child who is a beneficiary under

an election under paragraph (4)), including payment under

subsection (d).

(C) Designation if more than one former spouse. - If there is

more than one former spouse, the person shall designate which

former spouse is to be provided the annuity.

(D) Designation if rcsbp election. - In the case of a person

providing a reserve-component annuity, such an election shall

include a designation under subsection (e).

(3) Former spouse coverage by persons already participating in

plan. -

(A) Election of coverage. -

(i) Authority for election. - A person -

(I) who is a participant in the Plan and is providing

coverage for a spouse or a spouse and child (even though

there is no beneficiary currently eligible for such

coverage), and

(II) who has a former spouse who was not that person's

former spouse when that person became eligible to

participate in the Plan,

may (subject to subparagraph (B)) elect to provide an annuity

to that former spouse.

(ii) Termination of previous coverage. - Any such election

terminates any previous coverage under the Plan.

(iii) Manner and time of election. - Any such election must

be written, signed by the person making the election, and

received by the Secretary concerned within one year after the

date of the decree of divorce, dissolution, or annulment.

(B) Limitation on election. - A person may not make an

election under subparagraph (A) to provide an annuity to a

former spouse who that person married after becoming eligible

for retired pay unless -

(i) the person was married to that former spouse for at

least one year, or

(ii) that former spouse is the parent of issue by that

marriage.

(C) Irrevocability, etc. - An election under this paragraph

may not be revoked except in accordance with section 1450(f) of

this title. This paragraph does not provide the authority to

change a designation previously made under subsection (e).

(D) Notice to spouse. - If a person who is married makes an

election to provide an annuity to a former spouse under this

paragraph, that person's spouse shall be notified of the

election.

(E) Effective date of election. - An election under this

paragraph is effective as of -

(i) the first day of the first month following the month in

which the election is received by the Secretary concerned; or

(ii) in the case of a person required (as described in

section 1450(f)(3)(B) of this title) to make the election by

reason of a court order or filing the date of which is after

October 16, 1998, the first day of the first month which

begins after the date of that court order or filing.

(4) Former spouse and child coverage. - A person who elects to

provide an annuity for a former spouse under paragraph (2) or (3)

may, at the time of the election, elect to provide coverage under

that annuity for both the former spouse and a dependent child, if

the child resulted from the person's marriage to that former

spouse.

(5) Disclosure of whether election of former spouse coverage is

required. - A person who elects to provide an annuity to a former

spouse under paragraph (2) or (3) shall, at the time of making

the election, provide the Secretary concerned with a written

statement (in a form to be prescribed by that Secretary and

signed by such person and the former spouse) setting forth -

(A) whether the election is being made pursuant to the

requirements of a court order; or

(B) whether the election is being made pursuant to a written

agreement previously entered into voluntarily by such person as

a part of, or incident to, a proceeding of divorce,

dissolution, or annulment and (if so) whether such voluntary

written agreement has been incorporated in, or ratified or

approved by, a court order.

(c) Persons on Temporary Disability Retired List. - The

application of the Plan to a person whose name is on the temporary

disability retired list terminates when his name is removed from

that list and he is no longer entitled to disability retired pay.

(d) Coverage for Survivors of Members Who Die on Active Duty. -

(1) Surviving spouse annuity. - The Secretary concerned shall

pay an annuity under this subchapter to the surviving spouse of -

(A) a member who dies while on active duty after -

(i) becoming eligible to receive retired pay;

(ii) qualifying for retired pay except that the member has

not applied for or been granted that pay; or

(iii) completing 20 years of active service but before the

member is eligible to retire as a commissioned officer

because the member has not completed 10 years of active

commissioned service; or

(B) a member not described in subparagraph (A) who dies in

line of duty while on active duty.

(2) Dependent child annuity. - The Secretary concerned shall

pay an annuity under this subchapter to the dependent child of a

member described in paragraph (1) if there is no surviving spouse

or if the member's surviving spouse subsequently dies.

(3) Mandatory former spouse annuity. - If a member described in

paragraph (1) is required under a court order or spousal

agreement to provide an annuity to a former spouse upon becoming

eligible to be a participant in the Plan or has made an election

under subsection (b) to provide an annuity to a former spouse,

the Secretary -

(A) may not pay an annuity under paragraph (1) or (2); but

(B) shall pay an annuity to that former spouse as if the

member had been a participant in the Plan and had made an

election under subsection (b) to provide an annuity to the

former spouse, or in accordance with that election, as the case

may be, if the Secretary receives a written request from the

former spouse concerned that the election be deemed to have

been made in the same manner as provided in section 1450(f)(3)

of this title.

(4) Priority. - An annuity that may be provided under this

subsection shall be provided in preference to an annuity that may

be provided under any other provision of this subchapter on

account of service of the same member.

(5) Computation. - The amount of an annuity under this

subsection is computed under section 1451(c) of this title.

(e) Designation for Commencement of Reserve-Component Annuity. -

In any case in which a person is required to make a designation

under this subsection, the person shall designate whether, in the

event he dies before becoming 60 years of age, the annuity provided

shall become effective on -

(1) the day after the date of his death; or

(2) the 60th anniversary of his birth.

(f) Coverage of Survivors of Persons Dying When Eligible To Elect

Reserve-Component Annuity. -

(1) Surviving spouse annuity. - The Secretary concerned shall

pay an annuity under this subchapter to the surviving spouse of a

person who is eligible to provide a reserve-component annuity and

who dies -

(A) before being notified under section 12731(d) of this

title that he has completed the years of service required for

eligibility for reserve-component retired pay; or

(B) during the 90-day period beginning on the date he

receives notification under section 12731(d) of this title that

he has completed the years of service required for eligibility

for reserve-component retired pay if he had not made an

election under subsection (a)(2)(B) to participate in the Plan.

(2) Dependent child annuity. - The Secretary concerned shall

pay an annuity under this subchapter to the dependent child of a

person described in paragraph (1) if there is no surviving spouse

or if the person's surviving spouse subsequently dies.

(3) Mandatory former spouse annuity. - If a person described in

paragraph (1) is required under a court order or spousal

agreement to provide an annuity to a former spouse upon becoming

eligible to be a participant in the Plan or has made an election

under subsection (b) to provide an annuity to a former spouse,

the Secretary -

(A) may not pay an annuity under paragraph (1) or (2); but

(B) shall pay an annuity to that former spouse as if the

person had been a participant in the Plan and had made an

election under subsection (b) to provide an annuity to the

former spouse, or in accordance with that election, as the case

may be, if the Secretary receives a written request from the

former spouse concerned that the election be deemed to have

been made in the same manner as provided in section 1450(f)(3)

of this title.

(4) Computation. - The amount of an annuity under this

subsection is computed under section 1451(c) of this title.

(g) Election To Increase Coverage Upon Remarriage. -

(1) Election. - A person -

(A) who is a participant in the Plan and is providing

coverage under subsection (a) for a spouse or a spouse and

child, but at less than the maximum level; and

(B) who remarries,

may elect, within one year of such remarriage, to increase the

level of coverage provided under the Plan to a level not in

excess of the current retired pay of that person.

(2) Payment required. - Such an election shall be contingent on

the person paying to the United States the amount determined

under paragraph (3) plus interest on such amount at a rate

determined under regulations prescribed by the Secretary of

Defense.

(3) Amount to be paid. - The amount referred to in paragraph

(2) is the amount equal to the difference between -

(A) the amount that would have been withheld from such

person's retired pay under section 1452 of this title if the

higher level of coverage had been in effect from the time the

person became a participant in the Plan; and

(B) the amount of such person's retired pay actually

withheld.

(4) Manner of making election. - An election under paragraph

(1) shall be made in such manner as the Secretary shall prescribe

and shall become effective upon receipt of the payment required

by paragraph (2).

(5) Disposition of payments. - A payment received under this

subsection by the Secretary of Defense shall be deposited into

the Department of Defense Military Retirement Fund. Any other

payment received under this subsection shall be deposited in the

Treasury as miscellaneous receipts.

-SOURCE-

(Added Pub. L. 92-425, Sec. 1(3), Sept. 21, 1972, 86 Stat. 707;

amended Pub. L. 94-496, Sec. 1(2), Oct. 14, 1976, 90 Stat. 2375;

Pub. L. 95-397, title II, Sec. 202, Sept. 30, 1978, 92 Stat. 844;

Pub. L. 97-252, title X, Sec. 1003(b), Sept. 8, 1982, 96 Stat. 735;

Pub. L. 97-295, Sec. 1(18), Oct. 12, 1982, 96 Stat. 1290; Pub. L.

98-94, title IX, Sec. 941(a)(1), (2), (c)(2), Sept. 24, 1983, 97

Stat. 652, 653; Pub. L. 99-145, title V, Sec. 513(b), title VII,

Sec. 712(a), 713(a), 715, 716(a), 719(3), (8)(A), 721(a), Nov. 8,

1985, 99 Stat. 628, 670, 671, 673-676; Pub. L. 99-661, div. A,

title VI, Sec. 641(b)(1), 642(a), title XIII, Sec. 1343(a)(8)(B),

Nov. 14, 1986, 100 Stat. 3885, 3886, 3992; Pub. L. 101-189, div.

A, title XIV, Sec. 1407(a)(2), (3), Nov. 29, 1989, 103 Stat. 1588;

Pub. L. 103-337, div. A, title VI, Sec. 638, title XVI, Sec.

1671(d)(2), Oct. 5, 1994, 108 Stat. 2791, 3015; Pub. L. 104-201,

div. A, title VI, Sec. 634, Sept. 23, 1996, 110 Stat. 2553; Pub.

L. 105-85, div. A, title X, Sec. 1073(a)(27), Nov. 18, 1997, 111

Stat. 1901; Pub. L. 105-261, div. A, title VI, Sec. 643(a), Oct.

17, 1998, 112 Stat. 2047; Pub. L. 106-65, div. A, title X, Sec.

1066(a)(12), Oct. 5, 1999, 113 Stat. 771; Pub. L. 106-398, Sec. 1

((div. A), title VI, Sec. 655(a)-(c)(3), title X, Sec.

1087(a)(10)), Oct. 30, 2000, 114 Stat. 1654, 1654A-165, 1654A-166,

1654A-290; Pub. L. 107-107, div. A, title VI, Sec. 642(a), (c)(1),

Dec. 28, 2001, 115 Stat. 1151, 1152.)

-MISC1-

AMENDMENTS

2001 - Subsec. (d). Pub. L. 107-107 struck out

''Retirement-Eligible'' before ''Members'' in heading and amended

par. (1) generally. Prior to amendment, par. (1) read as follows:

''(1) Surviving spouse annuity. - The Secretary concerned shall

pay an annuity under this subchapter to the surviving spouse of a

member who dies on active duty after -

''(A) becoming eligible to receive retired pay;

''(B) qualifying for retired pay except that he has not applied

for or been granted that pay; or

''(C) completing 20 years of active service but before he is

eligible to retire as a commissioned officer because he has not

completed 10 years of active commissioned service.''

2000 - Subsec. (a)(2). Pub. L. 106-398, Sec. 1 ((div. A), title

VI, Sec. 655(c)(1)), substituted ''who elects under subparagraph

(B) not to participate in the Plan'' for ''described in clauses (i)

and (ii) of subparagraph (B) who does not elect to participate in

the Plan before the end of the 90-day period referred to in that

clause'' in concluding provisions.

Subsec. (a)(2)(B). Pub. L. 106-398, Sec. 1 ((div. A), title VI,

Sec. 655(a)), amended heading and text of subpar. (B) generally.

Prior to amendment, text read as follows: ''A person who (i) is

eligible to participate in the Plan under paragraph (1)(B), (ii) is

married or has a dependent child when he is notified under section

12731(d) of this title that he has completed the years of service

required for eligibility for reserve-component retired pay, and

(iii) elects to participate in the Plan (and makes a designation

under subsection (e)) before the end of the 90-day period beginning

on the date he receives such notification.''

Subsec. (a)(3)(B). Pub. L. 106-398, Sec. 1 ((div. A), title VI,

Sec. 655(b)), substituted ''who is eligible to provide'' for ''who

elects to provide'' in introductory provisions, added cls. (i) and

(ii), and redesignated former cls. (i) and (ii) as (iii) and (iv),

respectively.

Subsec. (a)(4)(A). Pub. L. 106-398, Sec. 1 ((div. A), title VI,

Sec. 655(c)(2)(A)), struck out ''not to participate in the Plan''

after ''election under paragraph (2)(A)''.

Subsec. (a)(4)(B). Pub. L. 106-398, Sec. 1 ((div. A), title VI,

Sec. 655(c)(2)(B)), struck out ''to participate in the Plan'' after

''under paragraph (2)(B)''.

Subsec. (b)(3)(E)(ii). Pub. L. 106-398, Sec. 1 ((div. A), title

X, Sec. 1087(a)(10)), struck out second comma after ''October 16,

1998''.

Subsec. (e). Pub. L. 106-398, Sec. 1 ((div. A), title VI, Sec.

655(c)(3)), substituted ''a person is required to make a

designation under this subsection, the person'' for ''a person

electing to participate in the Plan is required to make a

designation under this subsection, the person making such

election'' in introductory provisions.

1999 - Subsec. (b)(3)(E)(ii). Pub. L. 106-65 substituted ''after

October 16, 1998,'' for ''on or after the date of the enactment of

the subparagraph''.

1998 - Subsec. (b)(3)(C). Pub. L. 105-261, Sec. 643(a)(1), struck

out ''effective date,'' after ''Irrevocability,'' in heading and

''Such an election is effective as of the first day of the first

calendar month following the month in which it is received by the

Secretary concerned.'' after ''section 1450(f) of this title.'' in

text.

Subsec. (b)(3)(E). Pub. L. 105-261, Sec. 643(a)(2), added subpar.

(E).

1997 - Pub. L. 105-85 substituted ''Plan'' for ''plan'' in

section catchline.

1996 - Pub. L. 104-201 amended section generally, revising and

restating provisions relating to application of the Plan and

inserting subsec., par., and subpar. headings.

1994 - Subsec. (a)(2)(B). Pub. L. 103-337, Sec. 1671(d)(2),

substituted ''12731(d)'' for ''1331(d)''.

Subsec. (b)(1). Pub. L. 103-337, Sec. 638, designated existing

provisions as subpar. (A) and added subpars. (B) to (E).

Subsec. (f)(1). Pub. L. 103-337, Sec. 1671(d)(2), substituted

''12731(d)'' for ''1331(d)'' in subpars. (A) and (B).

1989 - Subsec. (a)(1)(B), (2)(B). Pub. L. 101-189, Sec.

1407(a)(2), substituted ''reserve-component retired pay'' for

''retired pay under chapter 67 of this title''.

Subsec. (a)(4)(A). Pub. L. 101-189, Sec. 1407(a)(3), struck out

''or retainer'' after ''entitled to retired''.

Subsec. (f)(1)(A), (B). Pub. L. 101-189, Sec. 1407(a)(2),

substituted ''reserve-component retired pay'' for ''retired pay

under chapter 67 of this title''.

1986 - Subsec. (a)(5). Pub. L. 99-661, Sec. 1343(a)(8)(B),

substituted ''a reserve-component annuity'' for ''an annuity by

virtue of eligibility under paragraph (1)(B)''.

Subsec. (b)(5). Pub. L. 99-661, Sec. 641(b)(1), inserted ''(A)

whether the election is being made pursuant to the requirements of

a court order, or (B)''.

Subsec. (d)(2). Pub. L. 99-661, Sec. 642(a)(1), substituted ''if

there is no surviving spouse or if the member's surviving spouse

subsequently dies'' for ''if the member and the member's spouse die

as a result of a common accident''.

Subsec. (f)(2). Pub. L. 99-661, Sec. 642(a)(2), substituted ''if

there is no surviving spouse or if the person's surviving spouse

subsequently dies'' for ''if the person and the person's spouse die

as a result of a common accident''.

1985 - Subsec. (a)(1)(A). Pub. L. 99-145, Sec. 719(8)(A),

substituted ''retired pay'' for ''retired or retainer pay''.

Subsec. (a)(2)(A). Pub. L. 99-145, Sec. 721(a)(1), inserted

''(with his spouse's concurrence, if required under paragraph

(3))'' after ''unless he elects''.

Pub. L. 99-145, Sec. 719(8)(A), substituted ''retired pay'' for

''retired or retainer pay''.

Subsec. (a)(3). Pub. L. 99-145, Sec. 721(a)(2), amended par. (3)

generally. Prior to amendment, par. (3) read as follows:

''(A) If a person who is eligible under paragraph (1)(A) to

participate in the Plan and who is married elects not to

participate in the Plan at the maximum level, or elects to provide

an annuity for a dependent child but not for his spouse, or elects

to provide an annuity for a former spouse under subsection (b)(2),

that person's spouse shall be notified of that election.

''(B) If a person who is eligible under paragraph (1)(B) to

participate in the Plan and who is married does not elect to

participate in the Plan at the maximum level, or elects to provide

an annuity for a dependent child but not for his spouse, or elects

to provide an annuity for a former spouse under subsection (b)(2),

that person's spouse shall be notified of that action.''

Subsec. (a)(6). Pub. L. 99-149, Sec. 715(a), added par. (6).

Subsec. (b)(1). Pub. L. 99-145, Sec. 719(3), substituted ''a

reserve-component annuity'' for ''an annuity under this paragraph

by virtue of eligibility under subsection (a)(1)(B)''.

Subsec. (b)(2). Pub. L. 99-145, Sec. 719(3), substituted ''a

reserve-component annuity'' for ''an annuity under this paragraph

by virtue of eligibility under subsection (a)(1)(B)''.

Pub. L. 99-145, Sec. 716(a)(1), inserted ''(other than a child

who is a beneficiary under an election under paragraph (4))'' after

''that spouse or child'' in second sentence.

Subsec. (b)(3)(B). Pub. L. 99-145, Sec. 719(8)(A), substituted

''retired pay'' for ''retired or retainer pay''.

Subsec. (b)(4), (5). Pub. L. 99-145, Sec. 716(a)(2), (3), added

par. (4) and redesignated former par. (4) as (5).

Subsec. (c). Pub. L. 99-145, Sec. 513(b), inserted ''disability''

before ''retired pay''.

Subsec. (d). Pub. L. 99-145, Sec. 712(a), amended subsec. (d)

generally. Prior to amendment, subsec. (d) read as follows: ''If a

member of an armed force dies on active duty after he has become

entitled to retired or retainer pay, or after he has qualified for

that pay except that he has not applied for or been granted that

pay, and his spouse is eligible for dependency and indemnity

compensation under section 411(a) of title 38 in an amount that is

less than the annuity the spouse would have received under this

subchapter if it had applied to the member when he died, the

Secretary concerned shall pay to the spouse an annuity equal to the

difference between that amount of compensation and 55 percent of

the retired or retainer pay to which the otherwise eligible spouse

described in section 1450(a)(1) of this title would have been

entitled if the member had been entitled to that pay based upon his

years of active service when he died.''

Subsec. (f). Pub. L. 99-145, Sec. 713(a), added subsec. (f).

Subsec. (g). Pub. L. 99-145, Sec. 715(b), added subsec. (g).

1983 - Subsec. (a)(3). Pub. L. 98-94, Sec. 941(c)(2), substituted

''provide an annuity for a former spouse under subsection (b)(2),''

for ''provide an annuity under subsection (b)(2) of this section,''

in subpars. (A) and (B).

Subsec. (a)(5). Pub. L. 98-94, Sec. 941(a)(1), inserted ''except

in accordance with subsection (b)(3)''.

Subsec. (b). Pub. L. 98-94, Sec. 941(a)(2), amended subsec. (b)

generally. Prior to amendment subsec. (b) read as follows:

''(1) A person who is not married and does not have a dependent

child when he becomes eligible to participate in the Plan may elect

to provide an annuity to a natural person with an insurable

interest in that person or to provide an annuity to a former

spouse.

''(2) A person who is married, or has a dependent child may elect

to provide an annuity to a former spouse instead of providing an

annuity to a spouse or dependent child if the election is made in

order to carry out the terms of a written agreement entered into

voluntarily with the former spouse (without regard to whether such

agreement is included in or approved by a court order).

''(3) In the case of a person electing to provide an annuity

under paragraph (1) or (2) of this subsection by virtue of

eligibility under subsection (a)(1)(B), the election shall include

a designation under subsection (e).

''(4) Any person who elects under paragraph (1) or (2) to provide

an annuity to a former spouse shall, at the time of making such

election, provide the Secretary concerned with a written statement,

in a form to be prescribed by that Secretary, signed by such person

and the former spouse setting forth whether the election is being

made pursuant to a voluntary written agreement previously entered

into by such person as a part of or incident to a proceeding of

divorce, dissolution, annulment, or legal separation, and if so,

whether such voluntary written agreement has been incorporated in

or ratified or approved by a court order.''

1982 - Pub. L. 97-295, Sec. 1(18), substituted ''Plan'' for

''plan'' in section catchline.

Subsec. (a)(3). Pub. L. 97-252, Sec. 1003(b)(1), inserted in

subpars. (A) and (B) identical text ''or elects to provide an

annuity under subsection (b)(2) of this section,'' after ''for his

spouse,''.

Subsec. (b). Pub. L. 97-252, Sec. 1003(b)(2), designated existing

first sentence as par. (1), authorized an election to provide an

annuity to a former spouse, added pars. (2) and (4), designated

existing second sentence as par. (3), and substituted ''person

electing to provide an annuity under paragraph (1) or (2) of this

subsection'' for ''person providing an annuity under this

subsection'' and ''the election'' for ''such an election''.

1978 - Subsec. (a). Pub. L. 95-397, Sec. 202(a), amended subsec.

(a) generally, primarily inserting provision that this subchapter

shall be known as the Survivor Benefit Plan and provisions of pars.

(1)(B), (2)(B) and concluding sentence, (3)(B), (4)(B), and last

sentence of (5).

Subsec. (b). Pub. L. 95-397, Sec. 202(b), substituted ''entitled

to retired or retainer pay'' for ''eligible to participate in the

Plan'' and inserted provisions relating to the inclusion in an

election a designation under subsection (e) by persons providing an

annuity under this subsection by virtue of eligibility under

subsection (a)(1)(B).

Subsec. (e). Pub. L. 95-397, Sec. 202(c), added subsec. (e).

1976 - Subsec. (a). Pub. L. 94-496 inserted ''or elects to

provide an annuity for a dependent child but not for his spouse''

after ''maximum level''.

EFFECTIVE DATE OF 2001 AMENDMENT

Pub. L. 107-107, div. A, title VI, Sec. 642(d), Dec. 28, 2001,

115 Stat. 1152, provided that: ''The amendments made by this

section (amending this section and section 1451 of this title)

shall take effect as of September 10, 2001, and shall apply with

respect to deaths of members of the Armed Forces occurring on or

after that date.''

EFFECTIVE DATE OF 2000 AMENDMENT

Pub. L. 106-398, Sec. 1 ((div. A), title VI, Sec. 655(d)), Oct.

30, 2000, 114 Stat. 1654, 1654A-166, provided that: ''The

amendments made by this section (amending this section and section

1450 of this title) apply only with respect to a notification under

section 12731(d) of title 10, United States Code, made after

January 1, 2001, that a member of a reserve component has completed

the years of service required for eligibility for reserve-component

retired pay.''

EFFECTIVE DATE OF 1994 AMENDMENT

Amendment by section 1671(d)(2) of Pub. L. 103-337 effective Dec.

1, 1994, except as otherwise provided, see section 1691 of Pub. L.

103-337, set out as an Effective Date note under section 10001 of

this title.

EFFECTIVE DATE OF 1986 AMENDMENT

Amendment by section 641 of Pub. L. 99-661 applicable to court

orders issued on or after Nov. 14, 1986, see section 641(c) of Pub.

L. 99-661, set out as a note under section 1450 of this title.

Section 642(c) of Pub. L. 99-661 provided that: ''The amendments

made by subsection (a) (amending this section) shall apply only to

claims arising on or after March 1, 1986. The amendments made by

subsection (b) (amending section 1451 of this title) shall apply to

payments for periods after February 28, 1986.''

EFFECTIVE DATE OF 1985 AMENDMENT

Amendment by title VII of Pub. L. 99-145 effective Mar. 1, 1986,

with prohibition against accrual of benefits to any person by

reason of the enactment of such title VII for any period before

Mar. 1, 1986, see section 731 of Pub. L. 99-145, set out as a note

under section 1447 of this title.

EFFECTIVE DATE OF 1983 AMENDMENT

Section 941(b) of Pub. L. 98-94 provided that: ''In the case of a

person who on the date of the enactment of this Act (Sept. 24,

1983) is a person described in subparagraph (A) of subsection

(b)(3) of section 1448 of title 10, United States Code (as amended

by subsection (a)(2)), such subsection shall apply to that person

as if the one-year period provided for in subparagraph (A) of such

subsection began on the date of the enactment of this Act.''

EFFECTIVE DATE OF 1982 AMENDMENT; TRANSITION PROVISIONS

Amendment by Pub. L. 97-252 effective Feb. 1, 1983, and

applicable to persons becoming eligible to participate in Survivor

Benefit Plan provided for in this subchapter before, on, or after

Feb. 1, 1983, see section 1006 of Pub. L. 97-252, set out as an

Effective Date; Transition Provisions note under section 1408 of

this title.

EFFECTIVE DATE OF 1978 AMENDMENT

Amendment by Pub. L. 95-397 effective Oct. 1, 1978, and

applicable to annuities payable by virtue of amendment for months

beginning on or after such date, see section 210 of Pub. L. 95-397,

set out as a note under section 1447 of this title.

EFFECTIVE DATE OF 1976 AMENDMENT

Amendment by Pub. L. 94-496 effective Sept. 21, 1972, see section

3 of Pub. L. 94-496, set out as a note under section 1447 of this

title.

EFFECTIVE DATE OF 1997 AMENDMENTS BY SECTION 645 OF PUB. L. 105-85

Section 645(c) of Pub. L. 105-85 provided that: ''The amendments

made by this section (amending section 4(e)(1) of Pub. L. 92-425

and section 653(d) of Pub. L. 100-456, set out below) take effect

on the first day of the first month beginning after the date of the

enactment of this Act (Nov. 18, 1997) and shall apply with respect

to payments of benefits for months beginning on or after that date,

except that the Secretary of Veterans Affairs may provide, if

necessary for administrative implementation, that such amendments

shall apply beginning with a later month, not later than the first

month beginning more than 180 days after the date of the enactment

of this Act.''

OPEN ENROLLMENT PERIOD FOR SURVIVOR BENEFIT PLAN COMMENCING MARCH

1, 1999

Pub. L. 105-261, div. A, title VI, Sec. 642, Oct. 17, 1998, 112

Stat. 2045, as amended by Pub. L. 106-65, div. A, title VI, Sec.

654, Oct. 5, 1999, 113 Stat. 667, provided that:

''(a) Persons Not Currently Participating in Survivor Benefit

Plan. -

''(1) Election of sbp coverage. - An eligible retired or former

member may elect to participate in the Survivor Benefit Plan

during the open enrollment period specified in subsection (d).

''(2) Election of supplemental annuity coverage. - An eligible

retired or former member who elects under paragraph (1) to

participate in the Survivor Benefit Plan may also elect during

the open enrollment period to participate in the Supplemental

Survivor Benefit Plan.

''(3) Eligible retired or former member. - For purposes of

paragraphs (1) and (2), an eligible retired or former member is a

member or former member of the uniformed services who on the day

before the first day of the open enrollment period is not a

participant in the Survivor Benefit Plan and -

''(A) is entitled to retired pay; or

''(B) would be entitled to retired pay under chapter 1223 of

title 10, United States Code (or chapter 67 (now 1223) of such

title as in effect before October 5, 1994), but for the fact

that such member or former member is under 60 years of age.

''(4) Status under sbp of persons making elections. -

''(A) Standard annuity. - A person making an election under

paragraph (1) by reason of eligibility under paragraph (3)(A)

shall be treated for all purposes as providing a standard

annuity under the Survivor Benefit Plan.

''(B) Reserve-component annuity. - A person making an

election under paragraph (1) by reason of eligibility under

paragraph (3)(B) shall be treated for all purposes as providing

a reserve-component annuity under the Survivor Benefit Plan.

''(b) Manner of Making Elections. -

''(1) In general. - An election under this section must be made

in writing, signed by the person making the election, and

received by the Secretary concerned before the end of the open

enrollment period. Except as provided in paragraph (2), any such

election shall be made subject to the same conditions, and with

the same opportunities for designation of beneficiaries and

specification of base amount, that apply under the Survivor

Benefit Plan or the Supplemental Survivor Benefit Plan, as the

case may be. A person making an election under subsection (a) to

provide a reserve-component annuity shall make a designation

described in section 1448(e) of title 10, United States Code.

''(2) Election must be voluntary. - An election under this

section is not effective unless the person making the election

declares the election to be voluntary. An election to

participate in the Survivor Benefit Plan under this section may

not be required by any court. An election to participate or not

to participate in the Survivor Benefit Plan is not subject to the

concurrence of a spouse or former spouse of the person.

''(c) Effective Date for Elections. - Any such election shall be

effective as of the first day of the first calendar month following

the month in which the election is received by the Secretary

concerned.

''(d) Open Enrollment Period Defined. - The open enrollment

period is the 1-year period beginning on March 1, 1999.

''(e) Effect of Death of Person Making Election Within Two Years

of Making Election. - If a person making an election under this

section dies before the end of the 2-year period beginning on the

effective date of the election, the election is void and the amount

of any reduction in retired pay of the person that is attributable

to the election shall be paid in a lump sum to the person who would

have been the deceased person's beneficiary under the voided

election if the deceased person had died after the end of such

2-year period.

''(f) Applicability of Certain Provisions of Law. - The

provisions of sections 1449, 1453, and 1454 of title 10, United

States Code, are applicable to a person making an election, and to

an election, under this section in the same manner as if the

election were made under the Survivor Benefit Plan or the

Supplemental Survivor Benefit Plan, as the case may be.

''(g) Premiums for Open Enrollment Election. -

''(1) Premiums to be charged. - The Secretary of Defense shall

prescribe in regulations premiums which a person electing under

this section shall be required to pay for participating in the

Survivor Benefit Plan pursuant to the election. The total amount

of the premiums to be paid by a person under the regulations

shall be equal to the sum of -

''(A) the total amount by which the retired pay of the person

would have been reduced before the effective date of the

election if the person had elected to participate in the

Survivor Benefit Plan (for the same base amount specified in

the election) at the first opportunity that was afforded the

member to participate under chapter 73 of title 10, United

States Code;

''(B) interest on the amounts by which the retired pay of the

person would have been so reduced, computed from the dates on

which the retired pay would have been so reduced at such rate

or rates and according to such methodology as the Secretary of

Defense determines reasonable; and

''(C) any additional amount that the Secretary determines

necessary to protect the actuarial soundness of the Department

of Defense Military Retirement Fund against any increased risk

for the fund that is associated with the election.

''(2) Premiums to be credited to retirement fund. - Premiums

paid under the regulations shall be credited to the Department of

Defense Military Retirement Fund.

''(h) Credit Toward Paid-Up Coverage. - Upon payment of the total

amount of the premiums charged a person under subsection (g), the

retired pay of a person participating in the Survivor Benefit Plan

pursuant to an election under this section shall be treated, for

the purposes of subsection (j) of section 1452 of title 10, United

States Code, as having been reduced under such section 1452 for the

months in the period for which the person's retired pay would have

been reduced if the person had elected to participate in the

Survivor Benefit Plan at the first opportunity that was afforded

the person to participate.

''(i) Definitions. - In this section:

''(1) The term 'Survivor Benefit Plan' means the program

established under subchapter II of chapter 73 of title 10, United

States Code.

''(2) The term 'Supplemental Survivor Benefit Plan' means the

program established under subchapter III of chapter 73 of title

10, United States Code.

''(3) The term 'retired pay' includes retainer pay paid under

section 6330 of title 10, United States Code.

''(4) The terms 'uniformed services' and 'Secretary concerned'

have the meanings given those terms in section 101 of title 37,

United States Code.

''(5) The term 'Department of Defense Military Retirement Fund'

means the Department of Defense Military Retirement Fund

established under section 1461(a) of title 10, United States

Code.''

ANNUITIES FOR CERTAIN MILITARY SURVIVING SPOUSES

Pub. L. 105-85, div. A, title VI, Sec. 644, Nov. 18, 1997, 111

Stat. 1800, as amended by Pub. L. 106-65, div. A, title VI, Sec.

656(a), (b), title X, Sec. 1066(c)(3), Oct. 5, 1999, 113 Stat. 668,

773; Pub. L. 107-314, div. A, title VI, Sec. 634, Dec. 2, 202, 116

Stat. 2573, provided that:

''(a) Survivor Annuity. - (1) The Secretary concerned shall pay

an annuity to the qualified surviving spouse of each member of the

uniformed services who -

''(A) became entitled to retired or retainer pay before

September 21, 1972, died before March 21, 1974, and was entitled

to retired or retainer pay on the date of death; or

''(B) died before October 1, 1978, and at the time of his death

would have been entitled to retired pay under chapter 67 (now

1223) of title 10, United States Code (as in effect before

December 1, 1994), but for the fact that he was under 60 years of

age.

''(2) A qualified surviving spouse for purposes of this section

is a surviving spouse who has not remarried.

''(b) Amount of Annuity. - (1) An annuity under this section

shall be paid at the rate of $185.58 per month, as adjusted from

time to time under paragraph (3).

''(2) The amount of an annuity to which a surviving spouse is

entitled under this section for any period shall be reduced (but

not below zero) by any amount paid to that surviving spouse for the

same period under any of the following provisions of law:

''(A) Section 1311(a) of title 38, United States Code (relating

to dependency and indemnity compensation payable by the Secretary

of Veterans Affairs).

''(B) Chapter 73 of title 10, United States Code.

''(C) Section 4 of Public Law 92-425 (10 U.S.C. 1448 note).

''(3) Whenever after May 1, 2002, retired or retainer pay is

increased under section 1401a(b)(2) of title 10, United States

Code, each annuity that is payable under this section shall be

increased at the same time and by the same total percent.

''(c) Application Required. - No benefit shall be paid to any

person under this section unless an application for such benefit is

filed with the Secretary concerned by or on behalf of such person.

''(d) Definitions. - For purposes of this section:

''(1) The terms 'uniformed services' and 'Secretary concerned'

have the meanings given such terms in section 101 of title 37,

United States Code.

''(2) The term 'surviving spouse' has the meaning given such

term in paragraph (9) of section 1447 of title 10, United States

Code.

''(e) Prospective Applicability. - (1) Annuities under this

section shall be paid for months beginning after November 1997.

''(2) No benefit shall accrue to any person by reason of the

enactment of this section for any period before December 1997.''

(Pub. L. 106-65, div. A, title VI, Sec. 656(c), Oct. 5, 1999,

113 Stat. 668, provided that: ''The amendment made by subsection

(a) (amending section 644 of Pub. L. 105-85, set out above) shall

apply with respect to annuities payable for months beginning after

September 30, 1999.'')

AUTHORITY FOR RELIEF FROM PREVIOUS OVERPAYMENTS UNDER MINIMUM

INCOME WIDOWS PROGRAM

Pub. L. 104-106, div. A, title VI, Sec. 635, Feb. 10, 1996, 110

Stat. 366, provided that:

''(a) Authority. - The Secretary of Defense may waive recovery by

the United States of any overpayment by the United States described

in subsection (b). In the case of any such waiver, any debt to the

United States arising from such overpayment is forgiven.

''(b) Covered Overpayments. - Subsection (a) applies in the case

of an overpayment by the United States that -

''(1) was made before the date of the enactment of this Act

(Feb. 10, 1996) under section 4 of Public Law 92-425 (10 U.S.C.

1448 note); and

''(2) is attributable to failure by the Department of Defense

to apply the eligibility provisions of subsection (a) of such

section in the case of the person to whom the overpayment was

made.''

OPEN ENROLLMENT PERIOD FOR SURVIVOR BENEFIT PLAN COMMENCING APRIL

1, 1992

Section 1405 of Pub. L. 101-189, as amended by Pub. L. 101-510,

div. A, title VI, Sec. 631(2), title XIV, Sec. 1484(l)(4)(B), Nov.

5, 1990, 104 Stat. 1580, 1720; Pub. L. 102-190, div. A, title VI,

Sec. 653(a)(1), (c)(2), Dec. 5, 1991, 105 Stat. 1388, 1389; Pub. L.

102-484, div. A, title VI, Sec. 643, Oct. 23, 1992, 106 Stat.

2425, provided that:

''(a) Persons Not Currently Participating in Survivor Benefit

Plan. -

''(1) Election of sbp coverage. - An eligible retired or former

member may elect to participate in the Survivor Benefit Plan

during the open enrollment period specified in subsection (f).

''(2) Election of supplemental annuity coverage. - An eligible

retired or former member who elects under paragraph (1) to

participate in the Survivor Benefit Plan at the maximum level may

also elect during the open enrollment period to participate in

the Supplemental Survivor Benefit Plan established under

subchapter III of chapter 73 of title 10, United States Code, as

added by section 1404.

''(3) Eligible retired or former member. - For purposes of

paragraphs (1) and (2), an eligible retired or former member is a

member or former member of the uniformed services who on the day

before the first day of the open enrollment period is not a

participant in the Survivor Benefit Plan and -

''(A) is entitled to retired pay; or

''(B) would be entitled to retired pay under chapter 67 (now

1223) of title 10, United States Code, but for the fact that

such member or former member is under 60 years of age.

''(4) Status under sbp of persons making elections. -

''(A) Standard annuity. - A person making an election under

paragraph (1) by reason of eligibility under paragraph (3)(A)

shall be treated for all purposes as providing a standard

annuity under the Survivor Benefit Plan.

''(B) Reserve-component annuity. - A person making an

election under paragraph (1) by reason of eligibility under

paragraph (3)(B) shall be treated for all purposes as providing

a reserve-component annuity under the Survivor Benefit Plan.

''(b) Election To Increase Coverage Under SBP. - A person who on

the day before the first day of the open enrollment period is a

participant in the Survivor Benefit Plan but is not participating

at the maximum base amount or is providing coverage under the Plan

for a dependent child and not for the person's spouse or former

spouse may, during the open enrollment period elect to -

''(1) participate in the Plan at a higher base amount (not in

excess of the participant's retired pay); or

''(2) provide annuity coverage under the Plan for the person's

spouse or former spouse at a base amount not less than the base

amount provided for the dependent child.

''(c) Election for Current SBP Participants To Participate in

Supplemental SBP. -

''(1) Election. - A person who is eligible to make an election

under this paragraph may elect during the open enrollment period

to participate in the Supplemental Survivor Benefit Plan

established under subchapter III of chapter 73 of title 10,

United States Code, as added by section 1404.

''(2) Persons eligible. - Except as provided in paragraph (3),

a person is eligible to make an election under paragraph (1) if

on the day before the first day of the open enrollment period the

person is a participant in the Survivor Benefit Plan at the

maximum level, or during the open enrollment period the person

increases the level of such participation to the maximum level

under subsection (b) of this section, and under that Plan is

providing annuity coverage for the person's spouse or a former

spouse.

''(3) Limitation on eligibility for certain sbp participants

not affected by two-tier annuity computation. - A person is not

eligible to make an election under paragraph (1) if (as

determined by the Secretary concerned) the annuity of a spouse or

former spouse beneficiary of that person under the Survivor

Benefit Plan will be computed under section 1451(e) of title 10,

United States Code. However, such a person may during the open

enrollment period waive the right to have that annuity computed

under such section. Any such election is irrevocable. A person

making such a waiver may make an election under paragraph (1) as

in the case of any other participant in the Survivor Benefit

Plan.

''(d) Manner of Making Elections. - An election under this

section must be made in writing, signed by the person making the

election, and received by the Secretary concerned before the end of

the open enrollment period. Any such election shall be made

subject to the same conditions, and with the same opportunities for

designation of beneficiaries and specification of base amount, that

apply under the Survivor Benefit Plan or the Supplemental Survivor

Benefit Plan, as the case may be. A person making an election

under subsection (a) to provide a reserve-component annuity shall

make a designation described in section 1448(e) of title 10, United

States Code.

''(e) Effective Date for Elections. - Any such election shall be

effective as of the first day of the first calendar month following

the month in which the election is received by the Secretary

concerned.

''(f) Open Enrollment Period Defined. - The open enrollment

period is the one-year period beginning on April 1, 1992.

''(g) Effect of Death of Person Making Election Within Two Years

of Making Election. - (1) If a person making an election under this

section dies before the end of the two-year period beginning on the

effective date of the election, the election is void and the amount

of any reduction in retired pay of the person that is attributable

to the election shall be paid in a lump sum to the person who would

have been the deceased person's beneficiary under the voided

election if the deceased person had died after the end of such

two-year period.

''(2) Paragraph (1) does not apply in the case of the death of a

person making an election under subsection (a) if the beneficiary

of that person under the election is the person's spouse and that

spouse was entitled, before November 1, 1990, to receive dependency

and indemnity compensation benefits from the Department of Veterans

Affairs based on a previous marriage to another member or former

member of the uniformed services.

''(h) Applicability of Certain Provisions of Law. - The

provisions of sections 1449, 1453, and 1454 of title 10, United

States Code, are applicable to a person making an election, and to

an election, under this section in the same manner as if the

election were made under the Survivor Benefit Plan or the

Supplemental Survivor Benefit Plan, as the case may be.

''(i) Report Concerning Open Season. - Not later than June 1,

1990, the Secretary of Defense shall submit to the Committees on

Armed Services of the Senate and House of Representatives a report

on the open season authorized by this section for the Survivor

Benefit Plan. The report shall include -

''(1) a description of the Secretary's plans for implementation

of the open season;

''(2) the Secretary's estimates of the costs associated with

the open season, including any anticipated effect of the open

season on the actuarial status of the Department of Defense

Military Retirement Fund; and

''(3) any recommendation by the Secretary for further

legislative action.

''(j) Additional Premium. - The Secretary of Defense may require

that the SBP premium for a person making an election under

subsection (a)(1) or (b) include, in addition to the amount

required under section 1452(a) of title 10, United States Code, an

amount determined under regulations prescribed by the Secretary of

Defense for the purposes of this subsection. Any such amount shall

be stated as a percentage of the base amount of the person making

the election and shall reflect the number of years that have

elapsed since the person retired, but may not exceed 4.5 percent of

that person's base amount.''

DEFINITIONS FOR 1989 AMENDMENTS

Section 1406 of title XIV of div. A of Pub. L. 101-189, as

amended by Pub. L. 102-190, div. A, title VI, Sec. 653(a)(2), Dec.

5, 1991, 105 Stat. 1388, provided that: ''For the purpose of this

title (see Short Title of 1989 Amendment note set out under section

1447 of this title):

''(1) The term 'Survivor Benefit Plan' means the program

established under subchapter II of chapter 73 of title 10, United

States Code.

''(2) The term 'retired pay' includes retainer pay paid under

section 6330 of title 10, United States Code.

''(3) The terms 'uniformed services' and 'Secretary concerned'

have the meanings given those terms in section 101 of title 37,

United States Code.

''(4) The term 'SBP premium' means the reduction in retired pay

required as a condition of providing an annuity under the

Survivor Benefit Plan.

''(5) The term 'base amount' has the meaning given that term in

section 1447(2) (see 1447(6)) of title 10, United States Code.''

ANNUITY FOR SURVIVING SPOUSES OF MEMBERS WHO DIED BEFORE NOVEMBER

1, 1953, AND WHO WERE ENTITLED TO RETIRED OR RETAINER PAY ON DATE

OF DEATH

Pub. L. 100-456, div. A, title VI, Sec. 653, Sept. 29, 1988, 102

Stat. 1991, as amended by Pub. L. 103-337, div. A, title X, Sec.

1070(d)(3), Oct. 5, 1994, 108 Stat. 2858; Pub. L. 105-85, div. A,

title VI, Sec. 645(a), Nov. 18, 1997, 111 Stat. 1801, provided

that:

''(a) Annuity. - (1) The Secretary concerned shall pay an annuity

to the qualified surviving spouse of each member of the uniformed

services who -

''(A) died before November 1, 1953; and

''(B) was entitled to retired or retainer pay on the date of

death.

''(2) A qualified surviving spouse for purposes of this section

is a surviving spouse who has not remarried and who is eligible for

an annuity under section 4 of Public Law 92-425 (10 U.S.C. 1448

note).

''(b) Amount of Annuity. - (1) An annuity payable under this

section shall be paid at the rate of $165 per month, as adjusted

from time to time under subsection (c).

''(2) An annuity paid to a surviving spouse under this section

shall be reduced by the amount of dependency and indemnity

compensation (DIC) to which the surviving spouse is entitled under

section 1311(a) of title 38, United States Code.

''(c) Cost-of-Living Increases. - Whenever retired or retainer

pay is increased under section 1401a(b)(2) of title 10, United

States Code, each annuity that is payable under this section shall

be increased at the same time and by the same total percent. The

amount of the increase shall be based on the monthly annuity

payable before any reduction under this section.

''(d) Relationship to Other Programs. - (1) An annuity paid to a

surviving spouse under this section is in addition to any pension

to which the surviving spouse is entitled under subchapter III of

chapter 15 of title 38, United States Code, or section 306 of the

Veterans' and Survivors' Pension Improvement Act of 1978 (38 U.S.C.

1521 note), and any payment made under the provisions of section 4

of Public Law 92-425. An annuity paid under this section shall not

be considered as income for the purposes of eligibility for any

such pension.

''(2) Payment of annuities under this section shall be made by

the Secretary of Veterans Affairs. In making such payments, the

Secretary shall combine the payment under this section with the

payment of any amount due the same person under section 4 of Public

Law 92-425 (10 U.S.C. 1448 note), as provided in subsection (e)(1)

of that section. The Secretary concerned shall transfer amounts

for payments under this section to the Secretary of Veterans

Affairs in the same manner as is provided under subsection (e)(2)

of section 4 of Public Law 92-425 for payments under that section.

''(e) Definitions. - For purposes of this section:

''(1) The terms 'uniformed services' and 'Secretary concerned'

have the meanings given those terms in section 101 of title 37,

United States Code.

''(2) The term 'surviving spouse' has the meaning given the

terms 'widow' and 'widower' in paragraphs (3) and (4),

respectively, of section 1447 (see 1447(7), (8)) of title 10,

United States Code.

''(f) Effective Date. - Annuities under this section shall be

paid for months beginning after the month in which this Act is

enacted (September 1988). No benefit shall accrue to any person by

reason of the enactment of this section for any period before the

first month referred to in the preceding sentence. No benefit

shall be paid to any person under this section unless an

application for such benefit has been filed with the Secretary

concerned by or on behalf of such person.''

AUTHORITY FOR CERTAIN REMARRIED SURVIVOR BENEFIT PLAN PARTICIPANTS

TO WITHDRAW FROM PLAN

Pub. L. 100-180, div. A, title VI, Sec. 631, Dec. 4, 1987, 101

Stat. 1104, provided that:

''(a) Authority To Withdraw. - (1) An individual who is a

participant in the Survivor Benefit Plan under subchapter II of

chapter 73 of title 10, United States Code, and is described in

paragraph (2) may, with the consent of such individual's spouse,

withdraw from participation in the Plan.

''(2) An individual referred to in paragraph (1) is an individual

who -

''(A) is providing coverage for a spouse or for a spouse and

child under the Plan; and

''(B) remarried before March 1, 1986, and at a time when such

individual was a participant in the Plan but did not have an

eligible spouse beneficiary under the Plan.

''(b) Applicable Provisions. - An election under subsection (a)

shall be subject to subparagraphs (B) and (D) (see (E)) of section

1448(a)(6) of title 10, United States Code, except that in applying

such subparagraph (B) to subsection (a), the one-year period

referred to in clause (ii) of such subparagraph shall extend until

the end of the one-year period beginning 90 days after the date of

the enactment of this Act (Dec. 4, 1987).

''(c) Treatment of Prior Contributions. - No refund of amounts by

which the retired pay of a participant in the Survivor Benefit Plan

has been reduced by reason of section 1452 of title 10, United

States Code, may be made to an individual who withdraws from the

Survivor Benefit Plan under subsection (a).''

OPTION FOR CERTAIN PARTICIPANTS TO WITHDRAW FROM SURVIVOR BENEFIT

PLAN

Section 711(c) of Pub. L. 99-145 provided that person who during

period Oct. 19, 1984, to Nov. 8, 1985, became participant in

Survivor Benefit Plan under this subchapter could withdraw from

Plan before end of one-year period beginning on Nov. 8, 1985, and

receive refund of contributions plus interest.

PERSONS COVERED UNDER SUBSECTIONS (D) AND (F)

Section 712(b) of Pub. L. 99-145 provided that:

''(1) Section 1448(d) of title 10, United States Code, as amended

by subsection (a), applies to the surviving spouse and dependent

children of a person who dies on active duty after September 20,

1972, and the former spouse of a person who dies after September 7,

1982.

''(2) In the case of the surviving spouse and children of a

person who dies during the period beginning on September 21, 1972,

and ending on October 1, 1985, the Secretary concerned shall take

appropriate steps to locate persons eligible for an annuity under

section 1448(d) of title 10, United States Code, as amended by

subsection (a). Any such person must submit an application to the

Secretary for such an annuity before October 1, 1988, to be

eligible to receive such annuity. Any such annuity shall be

effective only for months after the month in which the Secretary

receives such application.''

Section 713(c) of Pub. L. 99-145 provided that:

''(1) Section 1448(f) of title 10, United States Code, as added

by subsection (a), shall apply to the surviving spouse and

dependent children of any person who dies after September 30, 1978,

and the former spouse of a person who dies after September 7, 1982.

''(2) In the case of the surviving spouse and dependents of a

person who dies during the period beginning on September 30, 1978,

and ending on October 1, 1985, the Secretary concerned shall take

appropriate steps to locate persons eligible for an annuity under

section 1448(f) of title 10, United States Code, as added by

subsection (a). Any such person must submit an application to the

Secretary for such an annuity before October 1, 1988, to be

eligible to receive such annuity. Any such annuity shall be

effective only for months after the month in which the Secretary

receives such application.''

REVISION FOR FORMER SPOUSE COVERAGE ALREADY IN EFFECT

Section 716(b) of Pub. L. 99-145, as amended by Pub. L. 99-661,

div. A, title VI, Sec. 645, Nov. 14, 1986, 100 Stat. 3887,

provided that person who before Mar. 1, 1986, made election under

subsec. (b) of this section to provide annuity for former spouse

could change that election to provide annuity for former spouse and

dependent children, even though former spouse had died, but such

election had to be made not later than Mar. 1, 1987, in case of

person who made election before Nov. 8, 1985, and not later than

end of one-year period beginning on Nov. 14, 1986, in case of

person who made election during period of Nov. 8, 1985, to Feb. 28,

1986.

ONE-YEAR OPEN PERIOD TO SWITCH COMPUTATION OF SBP ANNUITY

Section 723(c) of Pub. L. 99-145 provided that person who, before

effective date of title VII of Pub. L. 99-145 (see Effective Date

of 1985 Amendment note set out under section 1447 of this title)

participated in Survivor Benefit Plan under this subchapter, and

had elected to provide annuity to former spouse could, with

concurrence of such former spouse, elect to terminate such annuity

and provide annuity to such former spouse under section 1450(a)(1)

of this title, and any such election was to be made before end of

12-month period beginning on Nov. 8, 1985.

ONE-YEAR OPEN PERIOD FOR NEW FORMER SPOUSE COVERAGE

Section 723(d) of Pub. L. 99-145 provided that person who before

effective date of part B of title VII of Pub. L. 99-145 (see

Effective Date of 1985 Amendment note set out under section 1447 of

this title) was participant in Survivor Benefit Plan and did not

elect to provide annuity to former spouse could elect to provide

annuity to former spouse under Plan, and that any such election was

to be made before end of 12-month period beginning on Nov. 8, 1985.

OPEN ENROLLMENT PERIOD FOR SURVIVOR BENEFIT PLAN

Pub. L. 97-35, title II, Sec. 212, Aug. 13, 1981, 95 Stat. 383,

as amended by Pub. L. 97-252, title XI, Sec. 1119, Sept. 8, 1982,

96 Stat. 753, provided that certain members or former members of

the uniformed services who, on Aug. 13, 1981, were not participants

in the Survivor Benefit Plan established under this subchapter or

were not participants in the Plan at the maximum level, could elect

to participate in the Plan or to participate in the Plan at a

higher level, during an open enrollment period beginning Oct. 1,

1981, and ending Sept. 30, 1982, for members and former members

entitled to retired or retainer pay on Aug. 13, 1981, or beginning

on Oct. 1, 1982, and ending on Sept. 30, 1983, for members or

former members who on Aug. 13, 1981, would have been entitled to

retired pay, but for the fact they were under 60 years of age on

that date.

SURVIVING SPOUSE; ANNUITY PAYMENT AND REDUCTION PROVISIONS;

ELECTION OF ANNUITY; DEFINITIONS; EFFECTIVE DATE

Pub. L. 96-402, Sec. 5, Oct. 9, 1980, 94 Stat. 1707, provided

that:

''(a)(1) The Secretary concerned shall pay an annuity to any

individual who is the surviving spouse of a member of the uniformed

services who -

''(A) died before September 21, 1972;

''(B) was serving on active duty in the uniformed services at

the time of his death and had served on active duty for a period

of not less than 20 years; and

''(C) was at the time of his death entitled to retired or

retainer pay or would have been entitled to that pay except that

he had not applied for or been granted that pay.

''(2) An annuity under paragraph (1) shall be paid under the

provisions of subchapter II of chapter 73 of title 10, United

States Code, in the same manner as if such member had died on or

after September 21, 1972.

''(b)(1) The amount of retired or retainer pay to be used as the

basis for the computation of an annuity under subsection (a) is the

amount of the retired or retainer pay to which the member would

have been entitled if the member had been entitled to that pay

based upon his years of active service when he died, adjusted by

the overall percentage increase in retired and retainer pay under

section 1401a of title 10, United States Code (or any prior

comparable provision of law), during the period beginning on the

date of the member's death and ending on the day before the

effective date of this section.

''(2) In addition to any reduction required under the provisions

of subchapter II of chapter 73 of title 10, United States Code, the

annuity paid to any surviving spouse under this section shall be

reduced by any amount such surviving spouse is entitled to receive

as an annuity under subchapter I of such chapter.

''(c) If an individual entitled to an annuity under this section

is also entitled to an annuity under subchapter II of chapter 73 of

title 10, United States Code, based upon a subsequent marriage, the

individual may not receive both annuities but must elect which to

receive.

''(d) As used in this section:

''(1) The term 'uniformed services' means the Armed Forces and

the commissioned corps of the Public Health Service and of the

National Oceanic and Atmospheric Administration.

''(2) The term 'surviving spouse' has the meaning given the

terms 'widow' and 'widower' in section 1447 of title 10, United

States Code.

''(3) The term 'Secretary concerned' has the meaning given such

term in section 101(8) of title 10, United States Code, and

includes the Secretary of Commerce, with respect to matters

concerning the National Oceanic and Atmospheric Administration,

and the Secretary of Health and Human Services, with respect to

matters concerning the Public Health Service.''

Provision effective Dec. 1, 1980, applicable to annuities payable

for months beginning on or after such date, and prohibiting accrual

of benefits for any period before Oct. 9, 1980, see section 7 of

Pub. L. 96-402, set out as a note under section 1447 of this title.

ELECTION TO PARTICIPATE IN THE SURVIVOR BENEFIT PLAN AND WITHDRAW

FROM THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN

Section 3 of Pub. L. 92-425, as amended by Pub. L. 93-155, title

VIII, Sec. 804, Nov. 16, 1973, 87 Stat. 615, provided that:

''(a) The Survivor Benefit Plan established pursuant to clause

(3) of the first section of this Act (this subchapter) applies to

any person who initially becomes entitled to retired or retainer

pay on or after the effective date of this Act (Sept. 21, 1972). An

election made before that date by such a person under section 1431

of title 10, United States Code, is canceled. However, a person

who initially becomes entitled to retired or retainer pay within

180 days after the effective date of this Act (Sept. 21, 1972) may,

within 180 days after becoming so entitled, elect -

''(1) not to participate in such Survivor Benefit Plan if he is

married or has a dependent child; or

''(2) to participate in that Plan, if he is a person covered by

section 1448(b) of title 10, United States Code.

''(b) Any person who is entitled to retired or retainer pay on

the effective date of this Act (Sept. 21, 1972) may elect to

participate in the Survivor Benefit Plan established pursuant to

clause (3) of the first section of this Act (this subchapter) at

any time within eighteen months after such date. However, such a

person who is receiving retired or retainer pay reduced under

section 1436(a) of title 10, United States Code, or who is

depositing amounts under section 1438 of that title, may elect at

any time within eighteen months after the effective date of this

Act (Sept. 21, 1972) -

''(1) to participate in the Plan and continue his participation

under chapter 73 of that title (this chapter) as in effect on the

day before the effective date of this Act (Sept. 21, 1972),

except that the total of the annuities elected may not exceed 100

percent of his retired or retainer pay; or

''(2) to participate in the Plan and, notwithstanding section

1436(b) of that title, terminate his participation under chapter

73 of that title (this chapter) as in effect on the day before

the effective date of this Act (Sept. 21, 1972).

A person who elects under clause (2) of this subsection is not

entitled to a refund of amounts previously deducted from his

retired or retainer pay under chapter 73 of title 10, United States

Code (this chapter), as in effect on the day before the effective

date of this Act (Sept. 21, 1972), or any payments made thereunder

on his behalf. A person who is not married or does not have a

dependent child on the first anniversary of the effective date of

this Act (Sept. 21, 1972), but who later marries or acquires a

dependent child, may elect to participate in the Plan under the

fourth sentence of section 1448(a) of that title (former subsec.

(a) of this section).

''(c) Notwithstanding the provisions of the Survivor Benefit Plan

established pursuant to clause (3) of the first section of this Act

(this subchapter), and except as otherwise provided in this

section, subchapter I of chapter 73 of title 10, United States Code

(subchapter I of this chapter) (other than the last two sentences

of section 1436(a), section 1443, and section 1444(b)), as in

effect on the day before the effective date of this Act (Sept. 21,

1972), shall continue to apply in the case of persons, and their

beneficiaries, who have elected annuities under section 1431 or

1432 of that title and who have not elected under subsection (b)(2)

of this section to participate in that Plan.

''(d) In this section, 'base amount' means -

''(1) the monthly retired or retainer pay to which a person -

''(A) is entitled on the effective date of this Act (Sept.

21, 1972); or

''(B) later becomes entitled by being advanced on the retired

list, performing active duty, or being transferred from the

temporary disability retired list to the permanent disability

retired list; or

''(2) any amount less than that described in clause (1)

designated by that person at the time he makes an election under

subsection (a)(2) or (b) of this section, but not less than $300;

as increased from time to time under section 1401a of title 10,

United States Code.

''(e) An election made under subsection (a) or (b) of this

section is effective on the date it is received by the Secretary

concerned, as defined in section 101(5) of title 37, United States

Code.

''(f) Sections 1449, 1453, and 1454 of title 10, United States

Code, as added by clause (3) of the first section of this Act (as

part of this subchapter), are applicable to persons covered by this

section.''

INCOME SUPPLEMENT FOR CERTAIN WIDOWS OF RETIRED MEMBERS OF THE

UNIFORMED FORCES; SPECIAL ANNUITY FOR WIDOWS OF COMMISSIONED

PERSONNEL OF THE PUBLIC HEALTH SERVICE AND NATIONAL OCEANIC AND

ATMOSPHERIC ADMINISTRATION IN LIEU OF VA PENSION

Section 4 of Pub. L. 92-425, as amended by Pub. L. 94-496, Sec.

2, Oct. 14, 1976, 90 Stat. 2375; Pub. L. 95-397, title II, Sec.

209, Sept. 30, 1978, 92 Stat. 848; Pub. L. 96-402, Sec. 6, Oct. 9,

1980, 94 Stat. 1708; Pub. L. 98-94, title IX, Sec. 942(a), Sept.

24, 1983, 97 Stat. 654; Pub. L. 102-40, title IV, Sec. 402(d)(2),

May 7, 1991, 105 Stat. 239; Pub. L. 103-337, div. A, title X, Sec.

1070(d)(4), Oct. 5, 1994, 108 Stat. 2858; Pub. L. 104-201, div. A,

title VI, Sec. 638(a)-(c), Sept. 23, 1996, 110 Stat. 2581; Pub. L.

105-85, div. A, title VI, Sec. 645(b), Nov. 18, 1997, 111 Stat.

1801, provided that:

''(a) A person -

''(1) who, on September 21, 1972, was, or during the period

beginning on September 22, 1972, and ending on March 20, 1974,

became, a widow of a person who was entitled to retired or

retainer pay when he died;

''(2) who is eligible for a pension under subchapter III of

chapter 15 of title 38, United States Code, or section 306 of the

Veterans' and Survivors' Pension Improvement Act of 1978 (set out

as note under section 1521 of Title 38); and

''(3) whose annual income, as determined in establishing that

eligibility, is less than the maximum annual rate of pension in

effect under section 1541(b) of title 38, United States Code;

shall be paid an annuity by the Secretary concerned unless she is

eligible to receive an annuity under the Survivor Benefit Plan

established pursuant to clause (3) of the first section of this Act

(this subchapter). However, such a person who is the widow of a

retired officer of the Public Health Service or the National

Oceanic and Atmospheric Administration, and who would otherwise be

eligible for an annuity under this section except that she does not

qualify for the pension described in clause (2) of this subsection

because the service of her deceased spouse is not considered active

duty under section 101(21) of title 38, United States Code, is

entitled to an annuity under this section.

''(b) The annuity under subsection (a) of this section shall be

in an amount which when added to the widow's income determined

under subsection (a)(3) of this section, plus the amount of any

annuity being received under sections 1431-1436 of title 10, United

States Code, but exclusive of a pension described in subsection

(a)(2) of this section, equals the maximum annual rate of pension

in effect under section 1541(b) of title 38, United States Code. In

addition, the Secretary concerned shall pay to the widow, described

in the last sentence of subsection (a) of this section, an amount

equal to the pension she would otherwise have been eligible to

receive under subchapter III of chapter 15 of title 38, United

States Code, if the service of her deceased spouse was considered

active duty under section 101(21) of that title.

''(c) The amount of an annuity payable under this section,

although counted as income in determining the amount of any pension

described in subsection (a)(2) of this section, shall not be

considered to affect the eligiblity of the recipient of such

annuity for such pension, even though, as a result of including the

amount of the annuity as income, no amount of such pension is due.

''(d) Subsection 1450(i) and section 1453 as added to title 10,

United States Code, by clause 3 of the first section of this Act,

are applicable to persons covered by this section.

''(e)(1) Payment of annuities under this section shall be made by

the Secretary of Veterans Affairs. In making such payments, the

Secretary shall combine with the payment under this section payment

of any amount due the same person under section 653(d) of the

National Defense Authorization Act, Fiscal Year 1989 (Pub. L.

100-456) (10 U.S.C. 1448 note). If appropriate for administrative

convenience (or otherwise determined appropriate by the Secretary

of Veterans Affairs), that Secretary may combine a payment to any

person for any month under this section (and, if applicable, under

section 653(d) of the National Defense Authorization Act, Fiscal

Year 1989) with any other payment for that month under laws

administered by the Secretary so as to provide that person with a

single payment for that month.

''(2) The Secretary concerned shall annually transfer to the

Secretary of Veterans Affairs such amounts as may be necessary for

payments by the Secretary of Veterans Affairs under this section

and for costs of the Secretary of Veterans Affairs in administering

this section. Such transfers shall be made from amounts that would

otherwise be used for payment of annuities by the Secretary

concerned under this section. The authority to make such a

transfer is in addition to any other authority of the Secretary

concerned to transfer funds for a purpose other than the purpose

for which the funds were originally made available. In the case of

a transfer by the Secretary of a military department, the

provisions of section 2215 of title 10, United States Code, do not

apply.

''(3) The Secretary concerned shall promptly notify the Secretary

of Veterans Affairs of any change in beneficiaries under this

section.''

(Section 638(d) of Pub. L. 104-201 provided that: ''The

amendments made by this section (amending section 4 of Pub. L.

92-425, set out above) take effect on July 1, 1997, and apply with

respect to payments of benefits for any month after June 1997.'')

(Section 942(b) of Pub. L. 98-94 provided that: ''Any annuity

payable by reason of subsection (a) (amending section 4(a)(1) of

Pub. L. 92-425, set out above) shall be payable only for months

after September 1983.'')

END OF 90-DAY PERIOD WITH RESPECT TO CERTAIN INDIVIDUALS

The 90-day period, referred to in subsec. (a)(2), (4)(B), with

respect to certain individuals shall be considered to end on Mar.

31, 1980, see section 208 of Pub. L. 95-397, set out as a note

under section 1447 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 1076c, 1447, 1448a, 1449,

1450, 1451, 1452, 1455, 1458 of this title; title 38 section 1318.

-CITE-

10 USC Sec. 1448a 01/06/03

-EXPCITE-

TITLE 10 - ARMED FORCES

Subtitle A - General Military Law

PART II - PERSONNEL

CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

SUBCHAPTER II - SURVIVOR BENEFIT PLAN

-HEAD-

Sec. 1448a. Election to discontinue participation: one-year

opportunity after second anniversary of commencement of payment

of retired pay

-STATUTE-

(a) Authority. - A participant in the Plan may, subject to the

provisions of this section, elect to discontinue participation in

the Plan at any time during the one-year period beginning on the

second anniversary of the date on which payment of retired pay to

the participant commences.

(b) Concurrence of Spouse. -

(1) Concurrence required. - A married participant may not

(except as provided in paragraph (2)) make an election under

subsection (a) without the concurrence of the participant's

spouse.

(2) Exceptions. - A participant may make such an election

without the concurrence of the participant's spouse by

establishing to the satisfaction of the Secretary concerned that

one of the conditions specified in section 1448(a)(3)(C) of this

title exists.

(3) Form of concurrence. - The concurrence of a spouse under

paragraph (1) shall be made in such written form and shall

contain such information as may be required under regulations

prescribed by the Secretary of Defense.

(c) Limitation on Election When Former Spouse Coverage in Effect.

- The limitation set forth in section 1450(f)(2) of this title

applies to an election to discontinue participation in the Plan

under subsection (a).

(d) Withdrawal of Election To Discontinue. - Section

1448(b)(1)(D) of this title applies to an election under subsection

(a).

(e) Consequences of Discontinuation. - Section 1448(b)(1)(E) of

this title applies to an election under subsection (a).

(f) Notice to Affected Beneficiaries. - The Secretary concerned

shall notify any former spouse or other natural person previously

designated under section 1448(b) of this title of an election to

discontinue participation under subsection (a).

(g) Effective Date of Election. - An election under subsection

(a) is effective as of the first day of the first calendar month

following t