Legislación
US (United States) Code. Title 10. Subtitle A: General Military. Part II. Chapter 71: Computation of retired pay
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10 USC CHAPTER 71 - COMPUTATION OF RETIRED PAY 01/06/03
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TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 71 - COMPUTATION OF RETIRED PAY
.
-HEAD-
CHAPTER 71 - COMPUTATION OF RETIRED PAY
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Sec.
1401. Computation of retired pay.
1401a. Adjustment of retired pay and retainer pay to reflect
changes in Consumer Price Index.
1402. Recomputation of retired or retainer pay to reflect later
active duty of members who first became members before September
8, 1980.
1402a. Recomputation of retired or retainer pay to reflect later
active duty of members who first became members after September
7, 1980.
1403. Disability retired pay: treatment under Internal Revenue Code
of 1986.
1404. Applicability of section 8301 of title 5.
1405. Years of service.
1406. Retired pay base for members who first became members before
September 8, 1980: final basic pay.
1407. Retired pay base for members who first became members after
September 7, 1980: high-36 month average.
1408. Payment of retired or retainer pay in compliance with court
orders.
1409. Retired pay multiplier.
1410. Restoral of full retirement amount at age 62 for certain
members entering on or after August 1, 1986.
1411. Rules of construction.
1412. Rounding to next lower dollar.
1413. Special compensation for certain severely disabled uniformed
services retirees.
1413a. Special compensation for certain combat-related disabled
uniformed services retirees.
1414. Members eligible for retired pay who have service-connected
disabilities: payment of retired pay and veterans' disability
compensation; contingent authority.
AMENDMENTS
2002 - Pub. L. 107-314, div. A, title VI, Sec. 636(a)(3), Dec.
2, 2002, 116 Stat. 2576, added item 1413a.
2001 - Pub. L. 107-107, div. A, title VI, Sec. 641(c), Dec. 28,
2001, 115 Stat. 1150, added item 1414.
1999 - Pub. L. 106-65, div. A, title VI, Sec. 643(b)(3)(B),
658(a)(2), Oct. 5, 1999, 113 Stat. 664, 669, inserted ''certain''
before ''members'' in item 1410 and added item 1413.
1987 - Pub. L. 100-26, Sec. 7(h)(2)(B), Apr. 21, 1987, 101 Stat.
282, substituted colon for semicolon and ''Internal Revenue Code of
1986'' for ''Internal Revenue Code of 1954'' in item 1403.
1986 - Pub. L. 99-348, title III, Sec. 304(b)(2), July 1, 1986,
100 Stat. 703, inserted ''of members who first became members
before September 8, 1980'' in item 1402, substituted ''Retired pay
base for members who first became members before September 8, 1980:
final basic pay'' for ''Limitations on revocation of retired pay''
in item 1406 and ''Retired pay base for members who first became
members after September 7, 1980: high-36 month average'' for
''Retired pay base'' in item 1407, and added items 1409 to 1412.
1982 - Pub. L. 97-252, title X, Sec. 1002(b), Sept. 8, 1982, 96
Stat. 735, added item 1408.
1980 - Pub. L. 96-513, title V, Sec. 511(51)(C), (52)(C), Dec.
12, 1980, 94 Stat. 2924, 2925, substituted ''of members who first
became members after September 7, 1980'' for ''in case of members
who first became members after the enactment of the Department of
Defense Authorization Act, 1981'' in item 1402a, and substituted
''Internal Revenue Code of 1954'' for ''title 26'' in item 1403.
Pub. L. 96-342, title VIII, Sec. 813(a)(2), (b)(3)(B), 94 Stat.
1101, 1104, added items 1402a and 1407.
1966 - Pub. L. 89-718, Sec. 3, Nov. 2, 1966, 80 Stat. 1115,
substituted ''8301'' for ''47a'' in item 1404.
Pub. L. 89-652, Sec. 2(2), Oct. 14, 1966, 80 Stat. 902, added
item 1406.
1963 - Pub. L. 88-132, Sec. 5(g)(2), Oct. 2, 1963, 77 Stat. 214,
added item 1401a.
1958 - Pub. L. 85-422, Sec. 11(a)(1)(B), May 20, 1958, 72 Stat.
131, added item 1405.
-SECREF-
CHAPTER REFERRED TO IN OTHER SECTIONS
This chapter is referred to in sections 642, 1275, 1315 of this
title; title 4 section 114; title 33 section 3071; title 42 section
213a.
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10 USC Sec. 1401 01/06/03
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TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 71 - COMPUTATION OF RETIRED PAY
-HEAD-
Sec. 1401. Computation of retired pay
-STATUTE-
(a) Disability, Non-Regular Service, Warrant Officer, and DOPMA
Retirement. - The monthly retired pay of a person entitled thereto
under this subtitle is computed according to the following table.
For each case covered by a section of this title named in the
column headed ''For sections'', retired pay is computed by taking,
in order, the steps prescribed opposite it in columns 1, 2, 3, and
4, as modified by the applicable footnotes.
--------------------------------------
Formula No.
1
For sections: 1201 1204
Column 1 Take: Retired pay base as computed under section 1406(b)
or 1407.
Column 2 Multiply by: As member elects - (1) 2 1/2% of years of
service credited to him under section 1208; (FOOTNOTE 1) or (2)
the percentage of disability on date when retired.
Column 3 Add:
Column 4 Subtract: Excess over 75% of retired pay base upon which
computation is based.
---------
2
---------
4
1202 1205: 580 1263 1293 1305
Retired pay base as computed under section 1406(b) or 1407.:
Retired pay base as computed under section 1406(b) or 1407.
As member elects - (1) 2 1/2% of years of service credited to him
under section 1208; (FOOTNOTE 1) or (2) the percentage of
disability on date wh: The retired pay multiplier prescribed in
section 1409(a) for the years of service credited to him under
section 1405.
Amount necessary to increase product of columns 1 and 2 to 50% of
retired pay base upon which computation is based.:
Excess over 75% of retired pay base upon which computation is
based.:
---------
5
(FOOTNOTE 1) Before applying percentage factor, credit each
full month of service that is in addition to the number of full
years of service creditable to the member as one-twelfth of a year
and disregard any remaining fractional part of a month.
THE FOLLOWING DATA ARE NOT AVAILABLE
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(b) Use of Most Favorable Formula. - If a person would otherwise
be entitled to retired pay computed under more than one formula of
the table in subsection (a) or of any other provision of law, the
person is entitled to be paid under the applicable formula that is
most favorable to him.
-SOURCE-
(Aug. 10, 1956, ch. 1041, 70A Stat. 106; Pub. L. 85-422, Sec. 6(7),
11(a)(2), May 20, 1958, 72 Stat. 129, 131; Pub. L. 88-132, Sec.
5(h)(1), Oct. 2, 1963, 77 Stat. 214; Pub. L. 89-132, Sec. 6, Aug.
21, 1965, 79 Stat. 547; Pub. L. 90-207, Sec. 3(1), Dec. 16, 1967,
81 Stat. 653; Pub. L. 92-455, Sec. 1, Oct. 2, 1972, 86 Stat. 761;
Pub. L. 96-342, title VIII, Sec. 813(b)(1), Sept. 8, 1980, 94 Stat.
1102; Pub. L. 96-513, title I, Sec. 113(a), title V, Sec. 511(49),
Dec. 12, 1980, 94 Stat. 2876, 2924; Pub. L. 98-94, title IX, Sec.
922(a)(1), 923(a)(1), (2)(A), Sept. 24, 1983, 97 Stat. 641, 642;
Pub. L. 98-557, Sec. 35(b), Oct. 30, 1984, 98 Stat. 2877; Pub. L.
99-348, title II, Sec. 201(a), July 1, 1986, 100 Stat. 691; Pub. L.
102-484, div. A, title X, Sec. 1052(18), Oct. 23, 1992, 106 Stat.
2500; Pub. L. 103-337, div. A, title XVI, Sec. 1662(j)(2), Oct. 5,
1994, 108 Stat. 3004.)
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Historical and Revision Notes
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Revised section Source (U.S. Code) Source (Statutes at
Large)
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1401 Introductory 10:600l(f) (1st June 29, 1948, ch.
clause 1401(1) sentence, less 708, Sec. 303 (1st
applicability to 91 words and 1st
retired grade). proviso), 62 Stat.
34:430(f) (1st 1088. Oct. 12,
sentence, less 1949, ch. 681, Sec.
applicability to 402(d) (less 30th
retired grade). through 55th words;
37:272(d) (less 1st less 104th through
55 words; less 128th words, as
104th through 128th applicable to
words, as retired grade; and
applicable to less 2d, 5th, and
retired grade; and last provisos),
less 1st, 2d, 4th, 402(e) (1st proviso
5th, and last of last sentence),
provisos). 63 Stat. 818, 819.
37:272(e) (1st
proviso of last
sentence).
1401(2) 1401(3) 37:272(d) (1st 29, May 29, 1954, ch.
and 51st through 249, Sec. 14(d)
55th, words, and (less 1st
4th proviso). sentence), (f) (1st
10:1036b (1st 91 sentence, less
words and 1st applicability to
proviso). 34:440j retired grade; and
(1st 91 words and last sentence), 68
1st proviso). Stat. 163, 164.
1401(4) 10:600l(d) (2d
sentence).
10:600l(f) (last
sentence).
34:430(d) (2d
sentence).
34:430(f) (last
sentence).
1401, footnote 1. (No source).
1401, footnote 2. (No source).
1401, footnote 3. 37:272(d) (1st
proviso);
10:600l(d) (less
1st and 2d
sentences).
34:430(d) (less 1st
and 2d sentences).
-------------------------------
In the introductory paragraph, the applicability of the rule
stated in the third sentence to situations not expressly covered by
the laws named in the source statutes above is a practical
construction that the rule must be reciprocally applied in all
cases.
In formula No. 1, the words ''whichever is earlier'', in
37:272(d) (clause (2)), are omitted, since they are contrary to the
rule stated in 37:272(e) (1st proviso of last sentence).
In formula No. 3, the computation is based on monthly pay instead
of annual pay to conform to the other formulas of the revised
section. The words ''basic pay'' are substituted for the words
''base and longevity pay'' to conform to the terminology of the
Career Compensation Act of 1949 (37 U.S.C. 231 et seq.). The words
''which he would receive if serving, at the time granted such pay,
on active duty'' are omitted as surplusage and to conform to the
other formulas of the revised section, since the effect of these
words is covered by footnote 1. The words ''at any time'' are
substituted for the words ''during his entire period of service''.
Footnotes 1 and 2 reflect the long-standing construction of those
provisions dealing with computation of retired pay which do not
specifically provide that the member is entitled to compute his
retired pay on the basis of the monthly basic pay to which he would
be entitled if he were on active duty in his retired grade. The
pertinent basic computation provisions for such retirement either
provide for computation of retired pay on the same basis as the
provisions dealing with higher retired grade, or the basic
retirement provisions were enacted after the provisions authorizing
higher retired grade. The words ''at rates applicable on date of
retirement * * * and adjust to reflect later changes in permanent
rates'', in footnote 1; and all of footnote 2; are based on the
source statutes incorporated in the formulas to which footnotes 1
and 2 apply, as interpreted in an opinion of the Judge Advocate
General of the Army (1953/4120, 14 May 1953).
In footnote 3, the words ''and disregard a part of a year that is
less than six months'' are made applicable to formulas Nos. 1 and
2. The legislative history of the Career Compensation Act of 1949
(Hearings before the Committee on Armed Services of the Senate on
H.R. 5007, 81st Congress, First Session, page 313, July 6, 1949)
indicates that the provisions, upon which formulas Nos. 1 and 2 are
based, should be construed to require that a fraction of less than
one-half of a year be disregarded. It also indicates that other
retirement laws that are also silent on this point should be
similarly construed.
AMENDMENTS
1994 - Subsec. (a). Pub. L. 103-337 in table struck out formula
number 3 which provided formula for computing retired pay under
former section 1331 of this title.
1992 - Subsec. (a). Pub. L. 102-484 substituted ''580'' for
''564'' in column in table under heading ''For sections''.
1986 - Subsec. (a). Pub. L. 99-348, Sec. 201(a)(1), (2),
designated existing provision as subsec. (a), added heading, and
struck out third, fourth, and fifth sentences which read as
follows: ''The amount computed, if not a multiple of $1, shall be
rounded to the next lower multiple of $1. However, if a person
would otherwise be entitled to retired pay computed under more than
one pay formula of this table or of any other provision of law, he
is entitled to be paid under the applicable formula that is most
favorable to him. Section references below are to sections of this
title.''
Pub. L. 99-348, Sec. 201(a)(3), amended column 1 of table
generally by substituting provisions that retired pay be computed
by taking the retired pay base as computed under section 1406(b) or
1407 of this title for provisions that retired pay be computed for
a person who first became a member of a uniformed service, as
defined in section 1407(a)(2) of this title, after Sept. 7, 1980,
by taking the monthly retired pay base as computed under section
1407(b) of this title, and for all others, by taking the monthly
basic pay to which the member was entitled under various
circumstances.
Pub. L. 99-348, Sec. 201(a)(4), substituted in column 2 of table
a multiplier of the retired pay multiplier prescribed in section
1409(a) for the years of service credited to him under section 1405
for a multiplier of 2 1/2% of years of service credited under
section 1405 for formulas 4 and 5 and struck out ''Excess over 75%
of pay upon which computation is based.'' in column 4 of table for
formulas 4 and 5.
Pub. L. 99-348, Sec. 201(a)(5), in columns 3 and 4 substituted
''retired pay base'' for ''pay'' wherever appearing.
Pub. L. 99-348, Sec. 201(a)(6), redesignated footnote 3 as 1, and
struck out former footnote 1 which provided computation at rates
applicable on date of retirement or date when the member's name was
placed on temporary disability retired list, as the case may be,
footnote 2 which provided computation at rates applicable on the
date when retired pay is granted, footnote 4 which provided
computation at the highest rates of basic pay applicable to an
officer who served as Chairman of the Joint Chiefs of Staff, Chief
of Staff of the Army, Chief of Naval Operations, chief of Staff of
the Air Force, Commandant of the Marine Corps, or Commandant of the
Coast Guard, while so serving in that office and computation at the
highest rate of basic pay applicable to an enlisted person who has
served as sergeant major of the Army, master chief petty officer of
the Navy, chief master sergeant of the Air Force, sergeant major of
the Marine Corps, or master chief petty officer of the Coast Guard,
while he served if that rate is higher than the rate authorized by
the table, and footnote 5 which provided for purposes of this
section that an officer's retired grade be determined as if
sections 3962(b) and 8962(b) did not apply.
Pub. L. 99-348, Sec. 201(a)(7), in column 2 of table substituted
footnote 1 designation for footnote 3 designation wherever
appearing.
Subsec. (b). Pub. L. 99-348, Sec. 201(a)(8), added subsec. (b).
1984 - Pub. L. 98-557 inserted reference to Commandant of the
Coast Guard in footnote 4 of table.
1983 - Pub. L. 98-94, Sec. 922(a)(1), inserted ''The amount
computed, if not a multiple of $1, shall be rounded to the next
lower multiple of $1.''
Pub. L. 98-94, Sec. 923(a)(1), (2)(A), in footnote 3 of table,
substituted ''Before applying percentage factor, credit each full
month of service that is in addition to the number of full years of
service creditable to the member as one-twelfth of a year and
disregard any remaining fractional part of a month'' for ''Before
applying percentage factor, credit a part of a year that is six
months or more as a whole year, and disregard a part of a year that
is less than six months''.
1980 - Pub. L. 96-513, Sec. 113(a), inserted formula 5 in table
of formulae set out in the section and added footnote 5.
Pub. L. 96-513, Sec. 511(49), in formula 4 table of sections
struck out reference to section 1255, in heading for Column 1
substituted reference to Sept. 7, 1980, for reference to date of
enactment of Department of Defense Authorization Act, 1981, and in
footnote 4 substituted reference to master chief petty officer of
the Navy, for reference to senior enlisted advisor of the Navy.
Pub. L. 96-342 in heading for column 1 of table inserted
provisions respecting applicability to persons becoming members
after the date of the enactment of the Department of Defense
Authorization Act, 1981.
1972 - Pub. L. 92-455 substituted in second sentence of footnote
4 of table ''chief master sergeant of the Air Force, sergeant major
of the Marine Corps, or master chief petty officer of the Coast
Guard,'' for ''chief master sergeant of the Air Force, or sergeant
major of the Marine Corps,''.
1967 - Pub. L. 90-207 inserted sentence to footnote 4 of table
requiring the computation of retired pay for an enlisted person who
has served as senior noncommissioned officer of his service at the
highest rate of basic pay applicable to him while he so served, if
that rate is higher than the rate authorized by the table.
1965 - Pub. L. 89-132 struck out ''increased, for members
credited with two or less years of service for basic pay purposes,
by 6%'' from column 1 of formula 1 and column 1 of formula 2.
1963 - Pub. L. 88-132 struck out from footnote 1 of table '', and
adjust to reflect later changes in applicable permanent rates''
after ''as the case may be.''
1958 - Pub. L. 85-422, Sec. 6(7)(A), inserted provisions in
Column 1 of formulas 1 and 2 permitting the taking of the monthly
basic pay to which a member was entitled on the day before
retirement or placement on temporary disability retired list,
increased, for members credited with two or less years of service
for basic pay purposes, by 6 percent.
Pub. L. 85-422, Sec. 11(a)(2), substituted ''under section 1405
of this title'' for ''in computing basic pay'' in column 2 of
formula 4.
Pub. L. 85-422, Sec. 6(7)(B), added footnote 4.
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 1984 AMENDMENT
Section 35(c) of Pub. L. 98-557 provided that: ''The amendments
made by this section (amending this section and provisions set out
as a note under section 1009 of Title 37, Pay and Allowances of the
Uniformed Services) shall become effective on October 1, 1984''.
EFFECTIVE DATE OF 1983 AMENDMENT
Section 922(e) of Pub. L. 98-94 provided that: ''The amendments
made by this section (enacting section 6333 of this title and
amending this section, sections 1401a, 1402, 1402a, 1437, 1451,
3991, 3992, 6151, 6383, 8991, and 8992 of this title, section 423
of Title 14, Coast Guard, section 853o of Title 33, Navigation and
Navigable Waters, section 212 of Title 42, The Public Health and
Welfare) shall take effect on October 1, 1983.''
Amendment by section 923 of Pub. L. 98-94 applicable with respect
to the computation of retired or retainer pay of any individual who
becomes entitled to that pay after Sept. 30, 1983, see section
923(g) of Pub. L. 98-94, set out as a note under section 1174 of
this title.
EFFECTIVE DATE OF 1980 AMENDMENT
Amendment by section 113(a) of Pub. L. 96-513 effective Sept. 15,
1981, but the authority to prescribe regulations under the
amendment by Pub. L. 96-513 effective on Dec. 12, 1980, and
amendment by section 511(49) of Pub. L. 96-513 effective Dec. 12,
1980, see section 701 of Pub. L. 96-513, set out as a note under
section 101 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.
EFFECTIVE DATE OF 1965 AMENDMENT
Amendment by Pub. L. 89-132 effective Sept. 1, 1965, see section
10 of Pub. L. 89-132, set out as a note under section 203 of Title
37, Pay and Allowances of the Uniformed Services.
EFFECTIVE DATE OF 1963 AMENDMENT
Amendment by Pub. L. 88-132 effective Oct. 1, 1963, see section
14 of Pub. L. 88-132, set out as a note under section 201 of Title
37, Pay and Allowances of the Uniformed Services.
EFFECTIVE DATE OF 1958 AMENDMENT
Amendment by Pub. L. 85-422 effective June 1, 1958, see section 9
of Pub. L. 85-422.
SHORT TITLE OF 1986 AMENDMENT
Section 1(a) of Pub. L. 99-348 provided that: ''This Act
(enacting sections 134a, 1406, 1407, and 1409 to 1412 of this
title, redesignating former section 1406 of this title as section
1338 (now 12738) of this title, amending this section, sections
101, 135, 136a, 716, 1040, 1338 (now 12738), 1401a, 1402, 1402a,
1405, 1447, 1451, 1452, 2830, 3925, 3991, 3992, 5083, 5201, 6151,
6322, 6323, 6325, 6326, 6330, 6333, 6383, 8925, 8991, and 8992 of
this title, sections 5313 and 5314 of Title 5, Government
Organization and Employees, sections 46, 47, 51, 288, 291 to 293,
327, 334, 353 to 355, 357, 362, and 421 to 424 of Title 14, Coast
Guard, section 853o of Title 33, Navigation and Navigable Waters,
and sections 211 and 212 of Title 42, The Public Health and
Welfare, repealing former section 1407 and section 6328 of this
title, enacting provisions set out as notes under this section and
sections 135 and 12731 of this title, and repealing provisions set
out as notes under this section and section 6330 of this title) may
be cited as the 'Military Retirement Reform Act of 1986'.''
SHORT TITLE OF 1982 AMENDMENT
Pub. L. 97-252, title X, Sec. 1001, Sept. 8, 1982, 96 Stat. 730,
provided that: ''This title (enacting section 1408 of this title,
amending sections 1072, 1076, 1086, 1447, 1448, and 1450 of this
title, and enacting provisions set out as notes under sections 1408
and 2208 of this title) may be cited as the 'Uniformed Services
Former Spouses' Protection Act'.''
RECOMPUTATION OF RETIRED PAY FOR CERTAIN RECENTLY RETIRED OFFICERS
Pub. L. 106-65, div. A, title VI, Sec. 601(e), Oct. 5, 1999, 113
Stat. 648, provided that: ''In the case of a commissioned officer
of the uniformed services who retired during the period beginning
on April 30, 1999, through December 31, 1999, and who, at the time
of retirement, was in pay grade O-7, O-8, O-9, or O-10, the retired
pay of that officer shall be recomputed, effective as of January 1,
2000, using the rate of basic pay that would have been applicable
to the computation of that officer's retired pay if the provisions
of paragraph (2) of section 203(a) of title 37, United States Code,
as added by subsection (d), had taken effect on April 30, 1999.''
SIX-MONTH ROUNDING RULE
Section 305(b) of Pub. L. 99-348 provided that:
''(1) General rule. - Retired pay or retainer pay may not be paid
to a covered member of the Armed Forces (as defined in paragraph
(3)) for any month in an amount that is greater than the amount
otherwise determined to be payable after such reductions as may be
necessary to reflect adjusting the computation of retired pay or
retainer pay that includes credit for a part of a year of service
to permit credit for a part of a year of service only for such
month or months actually served.
''(2) Exceptions. - The limitation in paragraph (1) does not
apply to a member who before January 1, 1982 -
''(A) applied for retirement or transfer to the Fleet Reserve
or Fleet Marine Corps Reserve;
''(B) was being processed for retirement under the provisions
of chapter 61 of title 10, United States Code, or who was on the
temporary disability retired list and thereafter retired under
the provisions of section 1210(c) or 1210(d) of such title; or
''(C) was retired or in an inactive status and would have been
eligible for retired pay under the provisions of chapter 67 (now
1223) of such title, but for the fact that the person was under
60 years of age.
''(3) Definition of covered member. - For the purposes of this
subsection, the term 'covered member of the Armed Forces' means a
member of the Armed Forces who became entitled to retired or
retainer pay during the period beginning on January 1, 1982, and
ending on September 30, 1983.
''(4) Repeal of source law. - Section 8054 of the Department of
Defense Appropriations Act, 1985 (as contained in section 101(h) of
Public Law 98-473) (formerly set out as a note below), is repealed.
''(5) Cross reference. - For the effective date of October 1,
1983, for provisions making permanent programmatic changes in law
to accomplish the policy provided in such section 8054 (and prior
provisions of law), see section 923(h) of the Department of Defense
Authorization Act, 1984 (Public Law 98-94) (probably means section
923(g) of Pub. L. 98-94, set out as an Effective Date of 1983
Amendment note under section 1174 of this title).''
LIMITATION ON PAYMENT OF RETIRED OR RETAINER PAY TO REFLECT
FRACTIONAL YEAR ADJUSTMENTS
Pub. L. 98-473, title I, Sec. 101(h) (title VIII, Sec. 8054),
Oct. 12, 1984, 98 Stat. 1904, 1933, prohibited, with certain
exceptions, payment of retired pay or retainer pay of a member of
the Armed Forces for any month who, on or after January 1, 1982,
became entitled to retired or retainer pay, in an amount greater
than the amount otherwise determined payable after reductions
necessary to reflect adjusting the computation of retired pay or
retainer pay that includes credit for part of a year of service to
permit credit for a part of a year of service only for such month
or months actually served, prior to repeal by Pub. L. 99-348, title
III, Sec. 305(b)(4), July 1, 1986, 100 Stat. 705.
INCREASE IN PAY AND ALLOWANCES OF CERTAIN PERSONS WHO SERVED AS
GENERALS OF THE ARMY, FLEET ADMIRALS OF THE NAVY, GENERAL OF THE
MARINE CORPS, OR ADMIRAL IN THE COAST GUARD
Section 5 of Pub. L. 90-207 provided that: ''Notwithstanding any
other provision of law, a member of an armed force who is entitled
to pay and allowances under any of the following provisions of law
on September 30, 1967, shall continue to receive the pay and
allowances to which he was entitled on that day plus an increase of
4.5 per centum in the total of his pay and allowances:
''(1) The Act of March 23, 1946, chapter 112 (60 Stat. 59).
''(2) The Act of June 26, 1948, chapter 677 (62 Stat. 1052).
''(3) The Act of September 18, 1950, chapter 952 (64 Stat.
A224).''
INCREASE IN RETIRED OR RETAINER PAY OF MEMBERS ENTITLED THERETO ON
OR AFTER OCTOBER 1, 1967
Section 6 of Pub. L. 90-207 provided that: ''Notwithstanding any
other provision of law, a member or former member of a uniformed
service who initially becomes entitled to retired pay or retainer
pay on or after October 1, 1967, shall be entitled to have that pay
computed using the rates of basic pay prescribed by the first
section of this Act (amending section 203(a) of Title 37).''
INCREASES IN RETIRED OR RETAINER PAY
Pub. L. 89-501, title III, Sec. 303, July 13, 1966, 80 Stat. 278,
provided that: ''Notwithstanding any other provision of law, a
member or former member of a uniformed service who initially
becomes entitled to retired pay or retainer pay on the effective
date of this title shall be entitled to have that pay computed
using the rates of basic pay prescribed by the first section of
this title (amending section 203(a) of Title 37).''
Effective date of section 303 of Pub. L. 89-501 as the first day
of the first pay period which begins on or after July 1, 1966, see
section 304 of Pub. L. 89-501, set out as Effective Date of 1966
Amendments note under section 203 of Title 37, Pay and Allowances
of the Uniformed Services.
Section 5(a) of Pub. L. 89-132 provided that: ''The retired pay
or retainer pay of a member or former member of a uniformed service
who is entitled to that pay computed under rates of basic pay in
effect before the effective date of this Act (Sept. 1, 1965) shall
be increased, effective that date, by the per centum (adjusted to
the nearest one-tenth of 1 per centum) that the Consumer Price
Index (all items - United States city average), published by the
Bureau of Labor Statistics, for the calendar month immediately
preceding the effective date of this Act has increased over the
average monthly index for calendar year 1962.''
CONTINUATION OF PAY AND ALLOWANCES OF CERTAIN PERSONS WHO SERVED AS
GENERALS OF THE ARMY, FLEET ADMIRALS OF THE NAVY, GENERAL OF THE
MARINE CORPS, OR ADMIRAL IN THE COAST GUARD
Section 7 of Pub. L. 89-132 provided that: ''Notwithstanding any
other provision of law, a member of an armed force who was entitled
to pay and allowances under any of the following provisions of law
on the day before the effective date of this Act (Sept. 1, 1965)
shall continue to receive the pay and allowances to which he was
entitled on that day:
''(1) The Act of March 23, 1946, chapter 112 (60 Stat. 59).
''(2) The Act of June 26, 1948, chapter 677 (62 Stat. 1052).
''(3) The Act of September 18, 1950, chapter 952 (64 Stat.
A224).''
INCREASE IN RETIRED PAY TO PERSONS RETIRED BEFORE JUNE 1, 1958
Section 4 of Pub. L. 85-422, as amended by Pub. L. 85-855, Sec.
1(a), Aug. 28, 1958, 72 Stat. 1104, provided that:
''(a) Except for members covered by section 7 of this Act,
members and former members of the uniformed services who are
entitled to retired pay, retirement pay, retainer pay, or
equivalent pay, on the day before the effective date of this Act
(June 1, 1958), shall be entitled to an increase of 6 per centum of
that pay to which they were entitled on that date.
''(b) Notwithstanding any other provision of law, a member of a
uniformed service retired under any provision of law, or
transferred to the Fleet Reserve or Fleet Marine Corps Reserve, on
the effective date of this Act (June 1, 1958) shall have his
retired pay or retainer pay computed on the basis of the rates of
basic pay set forth in the Career Compensation Act of 1949, as
amended by this Act, or on the rates of basic pay set forth in the
Career Compensation Act of 1949 on the day before the effective
date of this Act, plus 6 per centum of that pay, whichever is
greater.
''(c) Section 5 of the Career Incentive Act of 1955 (69 Stat. 22)
does not apply to any person who is retired, or to whom retired
pay, retirement pay, retainer pay, or equivalent pay (including
temporary disability retired pay) is granted, on or after the
effective date of this Act (June 1, 1958)''.
Section 1(b) of Pub. L. 85-855 provided that the amendment of
section 4(a) of Pub. L. 85-422, which eliminated the words ''and
persons with two or less years of service for basic pay purposes
who were retired for physical disability or placed on the temporary
disability retired list'' preceding ''members and former members''
should be effective June 1, 1958.
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 580, 1201, 1202, 1204,
1205, 1210, 1403, 3991, 8991 of this title; title 5 section 5532;
title 42 section 213a.
-CITE-
10 USC Sec. 1401a 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 71 - COMPUTATION OF RETIRED PAY
-HEAD-
Sec. 1401a. Adjustment of retired pay and retainer pay to reflect
changes in Consumer Price Index
-STATUTE-
(a) Prohibition on Recomputation To Reflect Increases in Basic
Pay. - Unless otherwise specifically provided by law, the retired
pay of a member or former member of an armed force may not be
recomputed to reflect any increase in the rates of basic pay for
members of the armed forces.
(b) Cost-of-Living Adjustments Based on CPI Increases. -
(1) Increase required. - Effective on December 1 of each year,
the Secretary of Defense shall increase the retired pay of
members and former members entitled to that pay in accordance
with paragraphs (2) and (3).
(2) Percentage increase. - Except as otherwise provided in this
subsection, the Secretary shall increase the retired pay of each
member and former member by the percent (adjusted to the nearest
one-tenth of 1 percent) by which -
(A) the price index for the base quarter of that year,
exceeds
(B) the base index.
(3) Reduced percentage for certain post-august 1, 1986 members.
- If the percent determined under paragraph (2) is greater than 1
percent, the Secretary shall increase the retired pay of each
member and former member who first became a member on or after
August 1, 1986, and has elected to receive a bonus under section
322 of title 37, by the difference between -
(A) the percent determined under paragraph (2); and
(B) 1 percent.
(4) Special rule for paragraph (3). - If in any case in which
an increase in retired pay that would otherwise be made under
paragraph (3) is not made by reason of law (other than any
provision of this section), then (unless otherwise provided by
law) when the next increase in retired pay is made under this
subsection, the increase under paragraph (3) shall be carried out
so as to achieve the same net increase in retired pay under that
paragraph that would have been the case if that law had not been
enacted.
(5) Regulations. - Any increase in retired pay under this
subsection shall be made in accordance with regulations
prescribed by the Secretary of Defense.
(c) First COLA Adjustment for Members With Retired Pay Computed
Using Final Basic Pay. -
(1) First adjustment with intervening increase in basic pay. -
Notwithstanding subsection (b) but subject to subsection (f)(2),
if a person described in paragraph (3) becomes entitled to
retired pay based on rates of monthly basic pay that became
effective after the last day of the calendar quarter of the base
index, the retired pay of the member or former member shall be
increased on the effective date of the next adjustment of retired
pay under subsection (b) only by the percent (adjusted to the
nearest one-tenth of 1 percent) by which -
(A) the price index for the base quarter of that year,
exceeds
(B) the price index for the calendar quarter immediately
before the calendar quarter in which the rates of monthly basic
pay on which the retired pay is based became effective.
(2) First adjustment with no intervening increase in basic pay.
- If a person described in paragraph (3) becomes entitled to
retired pay on or after the effective date of an adjustment in
retired pay under subsection (b) but before the effective date of
the next increase in the rates of monthly basic pay, the retired
pay of the member or former member shall be increased (subject to
subsection (f)(2) as applied to other members whose retired pay
is computed on the current rates of basic pay in the most recent
adjustment under this section), effective on the date the member
becomes entitled to that pay, by the percent (adjusted to the
nearest one-tenth of 1 percent) by which -
(A) the base index, exceeds
(B) the price index for the calendar quarter immediately
before the calendar quarter in which the rates of monthly basic
pay on which the retired pay is based became effective.
(3) Members covered. - Paragraphs (1) and (2) apply to a member
or former member of an armed force who first became a member of a
uniformed service before August 1, 1986, and whose retired pay
base is determined under section 1406 of this title.
(d) First COLA Adjustment for Members With Retired Pay Computed
Using High-Three. - Notwithstanding subsection (b) but subject to
subsection (f)(2), the retired pay of a member or former member of
an armed force who first became a member of a uniformed service
before August 1, 1986, or on or after August 1, 1986, if the member
or former member did not elect to receive a bonus under section 322
of title 37 and whose retired pay base is determined under section
1407 of this title shall be increased on the effective date of the
first adjustment of retired pay under subsection (b) after the
member or former member becomes entitled to retired pay by the
percent (adjusted to the nearest one-tenth of 1 percent) equal to
the difference between the percent by which -
(1) the price index for the base quarter of that year, exceeds
(2) the price index for the calendar quarter immediately before
the calendar quarter during which the member became entitled to
retired pay.
(e) Pro Rating of Initial Adjustment. - Notwithstanding
subsection (b) but subject to subsection (f)(2), the retired pay of
a member or former member of an armed force who first became a
member of a uniformed service on or after August 1, 1986, and
elected to receive a bonus under section 322 of title 37 shall be
increased on the effective date of the first adjustment of retired
pay under subsection (b) after the member or former member becomes
entitled to retired pay by the percent (adjusted to the nearest
one-tenth of 1 percent) equal to the difference between -
(1) the percent by which -
(A) the price index for the base quarter of that year,
exceeds
(B) the price index for the calendar quarter immediately
before the calendar quarter during which the member became
entitled to retired pay; and
(2) one-fourth of 1 percent for each calendar quarter from the
quarter described in paragraph (1)(B) to the quarter described in
paragraph (1)(A).
If in any case the percent described in paragraph (2) exceeds the
percent determined under paragraph (1), such an increase shall not
be made.
(f) Prevention of Pay Inversions
(1) Prevention of retired pay inversions. - Notwithstanding any
other provision of law, the monthly retired pay of a member or a
former member of an armed force who initially became entitled to
that pay on or after January 1, 1971, may not be less than the
monthly retired pay to which he would be entitled if he had
become entitled to retired pay at an earlier date based on the
grade in which the member is retired, adjusted to reflect any
applicable increases in such pay under this section. In
computing the amount of retired pay to which such a member or
former member would have been entitled on that earlier date, the
computation shall be based on his grade, length of service, and
the rate of basic pay applicable to him at that time, except that
such computation may not be based on a rate of basic pay for a
grade higher than the grade in which the member is retired. This
subsection does not authorize any increase in the monthly retired
pay to which a member was entitled for any period before October
7, 1975.
(2) Prevention of cola inversions. - The percentage of the
first adjustment under this section in the retired pay of any
person, as determined under subsection (c)(1), (c)(2), (d), or
(e), may not exceed the percentage increase in retired pay
determined under subsection (b)(2) that is effective on the same
date as the effective date of such first adjustment.
(g) Definitions. - In this section:
(1) The term ''price index'' means the Consumer Price Index
(all items, United States city average) published by the Bureau
of Labor Statistics.
(2) The term ''base quarter'' means the calendar quarter ending
on September 30 of each year.
(3) The term ''base index'' means the price index for the base
quarter for the most recent adjustment under subsection (b).
(4) The term ''retired pay'' includes retainer pay.
(h) Price Index for a Quarter. - For purposes of this section,
the price index for a calendar quarter is the arithmetical mean of
the price index for the three months comprising that quarter.
-SOURCE-
(Added Pub. L. 88-132, Sec. 5(g)(1), Oct. 2, 1963, 77 Stat. 213;
amended Pub. L. 89-132, Sec. 5(b), Aug. 21, 1965, 79 Stat. 547;
Pub. L. 90-207, Sec. 2(a)(1), Dec. 16, 1967, 81 Stat. 652; Pub. L.
91-179, Sec. 1, Dec. 30, 1969, 83 Stat. 837; Pub. L. 94-106, title
VIII, Sec. 806, Oct. 7, 1975, 89 Stat. 538; Pub. L. 94-361, title
VIII, Sec. 801(a), July 14, 1976, 90 Stat. 929; Pub. L. 94-440,
title XIII, Sec. 1306(d)(1), Oct. 1, 1976, 90 Stat. 1462; Pub. L.
96-342, title VIII, Sec. 812(b)(1), Sept. 8, 1980, 94 Stat. 1098;
Pub. L. 98-94, title IX, Sec. 921(a)(1), (b), 922(a)(2), Sept. 24,
1983, 97 Stat. 640, 641; Pub. L. 98-525, title XIV, Sec. 1405(26),
Oct. 19, 1984, 98 Stat. 2623; Pub. L. 99-348, title I, Sec. 102,
July 1, 1986, 100 Stat. 683; Pub. L. 100-180, div. A, title XII,
Sec. 1231(21), Dec. 4, 1987, 101 Stat. 1161; Pub. L. 100-224, Sec.
1, Dec. 30, 1987, 101 Stat. 1536; Pub. L. 100-456, div. A, title
VI, Sec. 622(a), Sept. 29, 1988, 102 Stat. 1983; Pub. L. 101-189,
div. A, title VI, Sec. 651(b)(1), Nov. 29, 1989, 103 Stat. 1460;
Pub. L. 103-66, title II, Sec. 2001, Aug. 10, 1993, 107 Stat. 335;
Pub. L. 103-160, div. A, title XI, Sec. 1182(e), Nov. 30, 1993,
107 Stat. 1773; Pub. L. 103-335, title VIII, Sec. 8114A(b)(1),
Sept. 30, 1994, 108 Stat. 2648; Pub. L. 103-337, div. A, title VI,
Sec. 633(a), Oct. 5, 1994, 108 Stat. 2787; Pub. L. 104-106, div.
A, title VI, Sec. 631(a), (c), Feb. 10, 1996, 110 Stat. 364, 365;
Pub. L. 104-201, div. A, title VI, Sec. 631(a), 632(a), Sept. 23,
1996, 110 Stat. 2549; Pub. L. 106-65, div. A, title VI, Sec.
641(b), 643(b)(1), title X, Sec. 1066(a)(10), Oct. 5, 1999, 113
Stat. 662, 663, 771; Pub. L. 107-314, div. A, title VI, Sec. 633,
Dec. 2, 2002, 116 Stat. 2572.)
-MISC1-
AMENDMENTS
2002 - Subsec. (c)(1). Pub. L. 107-314, Sec. 633(a)(1), inserted
''but subject to subsection (f)(2)'' after ''Notwithstanding
subsection (b)'' in introductory provisions.
Subsec. (c)(2). Pub. L. 107-314, Sec. 633(a)(2), inserted
''(subject to subsection (f)(2) as applied to other members whose
retired pay is computed on the current rates of basic pay in the
most recent adjustment under this section)'' after ''shall be
increased'' in introductory provisions.
Subsec. (d). Pub. L. 107-314, Sec. 633(a)(1), (b)(1), in
introductory provisions, inserted ''but subject to subsection
(f)(2)'' after ''Notwithstanding subsection (b)'' and ''or on or
after August 1, 1986, if the member or former member did not elect
to receive a bonus under section 322 of title 37'' after ''August
1, 1986,''.
Subsec. (e). Pub. L. 107-314, Sec. 633(a)(1), (b)(2), in
introductory provisions, inserted ''but subject to subsection
(f)(2)'' after ''Notwithstanding subsection (b)'' and ''and elected
to receive a bonus under section 322 of title 37'' after ''August
1, 1986,''.
Subsec. (f). Pub. L. 107-314, Sec. 633(a)(3), designated existing
provisions as par. (1), inserted par. heading, realigned margins,
and added par. (2).
1999 - Subsec. (b)(1). Pub. L. 106-65, Sec. 643(b)(1)(A),
substituted ''Increase required'' for ''In general'' in heading.
Subsec. (b)(2). Pub. L. 106-65, Sec. 1066(a)(10), struck out
subpar. (A) designation and heading ''General rule'', redesignated
cls. (i) and (ii) as subpars. (A) and (B), respectively, and
realigned their margins, and struck out former subpars. (B) and (C)
which read as follows:
''(B) Special rule for fiscal year 1996. - In the case of the
increase in retired pay that, pursuant to paragraph (1), becomes
effective on December 1, 1995, the initial month for which such
increase is payable as part of such retired pay shall
(notwithstanding such December 1 effective date) be March 1996.
''(C) Inapplicability to disability retirees. - Subparagraph (B)
does not apply with respect to the retired pay of a member retired
under chapter 61 of this title.''
Pub. L. 106-65, Sec. 643(b)(1)(B), substituted ''Percentage
increase'' for ''Pre-august 1, 1986 members'' in heading.
Pub. L. 106-65, Sec. 641(b)(1), substituted ''Except as otherwise
provided in this subsection, the Secretary shall increase the
retired pay of each member and former member'' for ''The Secretary
shall increase the retired pay of each member and former member who
first became a member of a uniformed service before August 1,
1986,''.
Subsec. (b)(3). Pub. L. 106-65, Sec. 643(b)(1)(C), substituted
''Reduced percentage for certain post-august 1, 1986 members'' for
''Post-august 1, 1986 members'' in heading.
Pub. L. 106-65, Sec. 641(b)(2), inserted ''and has elected to
receive a bonus under section 322 of title 37,'' after ''August 1,
1986,''.
1996 - Subsec. (b)(2)(B). Pub. L. 104-201, Sec. 631(a),
substituted ''Special rule for fiscal year 1996'' for ''Special
rules for fiscal years 1996 and 1998'' as subpar. heading, struck
out cl. (i) designation and heading ''Fiscal year 1996'' before
''In the case of'', and struck out cl. (ii) which read as follows:
''Fiscal year 1998. - In the case of the increase in retired pay
that, pursuant to paragraph (1), becomes effective on December 1,
1997, the initial month for which such increase is payable as part
of such retired pay shall (notwithstanding such December 1
effective date) be September 1998.''
Pub. L. 104-106, Sec. 631(c), repealed Pub. L. 103-335, Sec.
8114A(b)(1). See 1994 Amendment note below.
Pub. L. 104-106, Sec. 631(a), amended subpar. (B) generally.
Prior to amendment, subpar. (B) read as follows: ''Special rules
for fiscal years 1994 through 1998. -
''(i) Fiscal year 1994. - In the case of an increase in retired
pay that, pursuant to paragraph (1), becomes effective on
December 1, 1993, the initial month for which such increase is
payable as part of such retired pay shall (notwithstanding such
December 1 effective date) be March 1994.
''(ii) Fiscal years 1995 through 1998. - In the case of an
increase in retired pay that, pursuant to paragraph (1), becomes
effective on December 1 of 1994, 1995, 1996, or 1997, the initial
month for which such increase is payable as part of such retired
pay shall (notwithstanding such December 1 effective date) be
September of the following year.''
Subsec. (c). Pub. L. 104-201, Sec. 632(a), added subsec. (c) and
struck out former subsec. (c) which read as follows: ''Rule for
First Adjustment After Retirement With Intervening Increase in
Basic Pay. - Notwithstanding subsection (b), if a member or former
member of an armed force who first became a member of a uniformed
service before August 1, 1986, becomes entitled to retired pay
based on rates of monthly basic pay that became effective after the
last day of the calendar quarter of the base index, the retired pay
of the member or former member shall be increased on the effective
date of the next adjustment of retired pay under subsection (b)
only by the percent (adjusted to the nearest one-tenth of 1
percent) by which -
''(1) the price index for the base quarter of that year,
exceeds
''(2) the price index for the calendar quarter immediately
before the calendar quarter in which the rates of monthly basic
pay on which the retired pay is based became effective.''
Subsec. (d). Pub. L. 104-201, Sec. 632(a), added subsec. (d) and
struck out former subsec. (d) which read as follows: ''Rule for
First Adjustment After Retirement With No Intervening Increase in
Basic Pay. - If a member or former member of an armed force who
first became a member of a uniformed service before August 1, 1986,
becomes entitled to retired pay on or after the effective date of
an adjustment in retired pay under subsection (b) but before the
effective date of the next increase in the rates of monthly basic
pay, the retired pay of the member or former member shall be
increased, effective on the date the member becomes entitled to
that pay, by the percent (adjusted to the nearest one-tenth of 1
percent) by which -
''(1) the base index, exceeds
''(2) the price index for the calendar quarter immediately
before the calendar quarter in which the rates of monthly basic
pay on which the retired pay is based became effective.''
1994 - Subsec. (b)(2)(B). Pub. L. 103-335, Sec. 8114A(b)(1),
which directed substituting, in heading, ''through 1996'' for
''through 1998'' and substituting, in cl. (ii), ''and 1996'' for
''through 1998'', ''of 1994 or 1995'' for ''of 1994, 1995, 1996, or
1997'', and ''March'' for ''September'', was repealed by Pub. L.
104-106, Sec. 631(c).
Subsec. (f). Pub. L. 103-337 inserted ''based on the grade in
which the member is retired'' after ''at an earlier date'' in first
sentence and '', except that such computation may not be based on a
rate of basic pay for a grade higher than the grade in which the
member is retired'' before period at end of second sentence and
struck out after second sentence ''However, in the case of a member
who, after initially becoming eligible for retired pay, is reduced
in grade pursuant to a sentence of a court-martial, such
computation may not be based on a grade higher than the grade in
which the member is retired.''
1993 - Subsec. (b)(2). Pub. L. 103-160, Sec. 1182(e)(1), amended
par. (2) generally. Prior to amendment, par. (2) read as follows:
''Except as provided in paragraph (6), the Secretary shall increase
the retired pay of each member and former member who first became a
member of a uniformed service before August 1, 1986, by the percent
(adjusted to the nearest one-tenth of 1 percent) by which -
''(A) the price index for the base quarter of that year,
exceeds
''(B) the base index.''
Pub. L. 103-66, Sec. 2001(1), substituted ''Except as provided in
paragraph (6), the Secretary'' for ''The Secretary''.
Subsec. (b)(6). Pub. L. 103-160, Sec. 1182(e)(2), struck out par.
(6) which read as follows: ''Special rules for paragraph (2) for
fiscal years 1994 through 1998. -
''(A) Fiscal year 1994. - In the case of an increase in the
retired pay of a member or former member referred to in paragraph
(2) that, pursuant to paragraph (1), becomes effective on
December 1, 1993, the initial month for which such increase is
payable as part of such retired pay shall (notwithstanding such
December 1 effective date) be March 1994.
''(B) Fiscal years 1995 through 1998. - In the case of an
increase in retired pay of a member or former member referred to
in paragraph (2) that, pursuant to paragraph (1), becomes
effective on December 1 of 1994, 1995, 1996, or 1997, the initial
month for which such increase is payable as part of such retired
pay shall (notwithstanding such December 1 effective date) be
September of the following year.
''(C) Inapplicability to disability retirees. - Subparagraphs
(A) and (B) do not apply with respect to the retired pay of a
member retired under chapter 61 of this title.''
Pub. L. 103-66, Sec. 2001(2), added par. (6).
1989 - Subsec. (b)(3). Pub. L. 101-189, Sec. 651(b)(1)(A),
inserted ''and former member'' after first reference to ''member''.
Subsec. (e). Pub. L. 101-189, Sec. 651(b)(1)(B), inserted ''or
former member'' after first and third reference to ''member''.
Subsec. (f). Pub. L. 101-189, Sec. 651(b)(1)(C), inserted ''or
former member'' after ''member'' in second sentence.
1988 - Subsec. (f). Pub. L. 100-456 inserted after second
sentence ''However, in the case of a member who, after initially
becoming eligible for retired pay, is reduced in grade pursuant to
a sentence of a court-martial, such computation may not be based on
a grade higher than the grade in which the member is retired.''
1987 - Subsec. (a). Pub. L. 100-180 struck out ''pay'' after
''the retired pay''.
Subsec. (b)(4), (5). Pub. L. 100-224, Sec. 1(a), added par. (4)
and redesignated former par. (4) as (5).
Subsec. (e). Pub. L. 100-224, Sec. 1(b), substituted ''by the
percent (adjusted to the nearest one-tenth of 1 percent) equal to
the difference between -
''(1) the percent by which -
''(A) the price index for the base quarter of that year,
exceeds
''(B) the price index for the calendar quarter immediately
before the calendar quarter during which the member became
entitled to retired pay; and
''(2) one-fourth of 1 percent for each calendar quarter from
the quarter described in paragraph (1)(B) to the quarter
described in paragraph (1)(A).
If in any case the percent described in paragraph (2) exceeds the
percent determined under paragraph (1), such an increase shall not
be made.'' for ''only by the percent (adjusted to the nearest
one-tenth of 1 percent) by which -
''(1) the price index for the base quarter of that year,
exceeds
''(2) the price index for the calendar quarter immediately
before the calendar quarter in which the member became entitled
to retired pay.''
1986 - Subsec. (a). Pub. L. 99-348, Sec. 102(b)(1), (c)(1),
inserted heading, struck out ''or retainer'' after ''retired pay'',
and struck out sentence defining ''Index'' in this section as
meaning the Consumer Price Index (all items, United States city
average) published by the Bureau of Labor Statistics.
Subsecs. (b) to (d). Pub. L. 99-348, Sec. 102(a), added subsecs.
(b) to (d) and struck out former subsecs. (b) to (d) which read as
follows:
''(b) Each time that an increase is made under section 8340(b) of
title 5 in annuities paid under subchapter III of chapter 83 of
such title, the Secretary of Defense shall at the same time
increase the retired and retainer pay of members and former members
of the armed forces by the same percent as the percentage by which
annuities are increased under such section.
''(c) Notwithstanding subsection (b), if a member or former
member of an armed force becomes entitled to retired pay or
retainer pay based on rates of monthly basic pay prescribed by
section 203 of title 37 that became effective after the last day of
the month of the base index, his retired pay or retainer pay shall
be increased on the effective date of the next adjustment of
retired pay and retainer pay under subsection (b) only by the
percent (adjusted to the nearest one-tenth of 1 percent) that the
new base index exceeds the index for the calendar month immediately
before that in which the rates of monthly basic pay on which his
retired pay or retainer pay is based became effective.
''(d) If a member or former member of an armed force becomes
entitled to retired pay or retainer pay on or after the effective
date of an adjustment of retired pay and retainer pay under
subsection (b) but before the effective date of the next increase
in the rates of monthly basic pay prescribed by section 203 of
title 37, his retired pay or retainer pay shall be increased,
effective on the date he becomes entitled to that pay, by the
percent (adjusted to the nearest one-tenth of 1 percent) that the
base index exceeds the index for the calendar month immediately
before that in which the rates of monthly basic pay on which his
retired pay or retainer pay is based became effective.''
Subsec. (e). Pub. L. 99-348, Sec. 102(a), added subsec. (e).
Subsec. (f). Pub. L. 99-348, Sec. 102(c)(2), inserted heading and
struck out ''or retainer'' after ''retired'' wherever appearing.
Subsecs. (g), (h). Pub. L. 99-348, Sec. 102(b)(2), added subsecs.
(g) and (h) and struck out former subsec. (g) which provided that
the retired or retainer pay of a member or former member of an
armed force as adjusted under this section, if not a multiple of
$1, would be rounded to the next lower multiple of $1.
1984 - Subsec. (f). Pub. L. 98-525 substituted ''before October
7, 1975'' for ''prior to the effective date of this subsection''.
1983 - Subsec. (e). Pub. L. 98-94, Sec. 921(a)(1), struck out
subsec. (e) which provided that: ''Notwithstanding subsections (c)
and (d), the adjusted retired pay or retainer pay of a member or
former member of an armed force retired on or after October 1,
1967, may not be less than it would have been had he become
entitled to retired pay or retainer pay based on the same pay
grade, years of service for pay, years of service for retired or
retainer pay purposes, and percent of disability, if any, on the
day before the effective date of the rates of monthly basic pay on
which his retired pay or retainer pay is based.''
Subsec. (f). Pub. L. 98-94, Sec. 921(b), struck out '', subject
to subsection (e) of this section,'' after ''the computation
shall''.
Subsec. (g). Pub. L. 98-94, Sec. 922(a)(2), added subsec. (g).
1980 - Subsec. (b). Pub. L. 96-342 substituted provisions
directing the Secretary of Defense to increase the retired and
retainer pay of members and former members of the armed forces each
time that an increase is made under section 8340(b) of title 5 in
annuities paid under subchapter III of chapter 83 of title 5, with
such increase to be by the same percent as the percentage by which
the annuities are increased for provisions under which the
Secretary of Defense had been authorized and directed to increase
the retired pay and retainer pay of members and former members of
the armed forces on March 1 and September 1 depending upon
determinations which the Secretary was directed to make on January
1 and July 1 of each year with regards to the percentage change in
the index published for June or December of the previous year.
1976 - Subsec. (b). Pub. L. 94-440 substituted provisions that
Secretary of Defense shall determine the percent change in the
index on Jan. 1 and July 1 of each year and effective Mar. 1 and
Sept. 1, retired and retainer pay shall be increased by the
computed percent change adjusted to the nearest 1/10 of 1 percent,
for provisions that the Secretary of Defense shall determine on a
monthly basis the percent by which the index has increased over
that used as a basis for the most recent adjustment of retired and
retainer pay and if Secretary determines for 3 consecutive months
that the amount of increase is at least 3 percent over the base
index, retired and retainer pay shall be increased by adding 1
percent and the highest percent increase in the index during those
months adjusted to the nearest 1/10 of 1 percent.
Pub. L. 94-361 struck out ''the per centum obtained by adding 1
per centum and'' before ''the highest per centum of increase in the
index''.
1975 - Subsec. (f). Pub. L. 94-106 added subsec. (f).
1969 - Subsec. (b). Pub. L. 91-179 provided for a 1 percent
addition in computing increases in retired and retainer pay of
present and former members of the armed forces, whenever the
Secretary made such adjustments to effect increases in the consumer
index over the base index.
1967 - Subsec. (a). Pub. L. 90-207 substituted ''may not be
recomputed'' for ''shall not be recomputed'', struck out ''if that
increase becomes effective after the effective date of this
section'' after ''armed forces'' and inserted sentence defining
''Index''.
Subsec. (b). Pub. L. 90-207 revised subsec. (b) generally and,
among other changes, substituted provisions requiring the Secretary
of Defense to determine monthly the percent by which the index has
increased over that used as the basis for the most recent
adjustment of retired and retainer pay under this subsection for
provisions which required the Secretary of Defense to determine the
per centum that the index for each calendar month after the
calendar month immediately preceding the effective date of Pub. L.
89-132 has increased over the base index (that for the calendar
month immediately preceding the effective date of Pub. L. 89-132
or, if later, that used as the basis for the most recent adjustment
of retired and retainer pay under this subsection).
Subsecs. (c) to (e). Pub. L. 90-207 added subsecs. (c) to (e).
1965 - Subsec. (b). Pub. L. 89-132 substituted provisions
requiring the Secretary of Defense to determine the per centum for
each calendar month that the Consumer Price Index has increased
over the base Consumer Price Index, and if the index has shown an
increase of at least 3 per centum over the base index for three
consecutive calendar months to increase the retired or retainer pay
by the highest per centum of increase in the index, for provisions
which required a determination of the increase over the preceding
calendar year and permitted an increase in the retired or retainer
pay if the index advanced 3 per centum or more for a full calendar
year.
EFFECTIVE DATE OF 1999 AMENDMENT
Pub. L. 106-65, div. A, title VI, Sec. 644, Oct. 5, 1999, 113
Stat. 664, provided that: ''The amendments made by sections 641,
642, and 643 (enacting section 322 of Title 37, Pay and Allowances
of the Uniformed Services, and amending this section and sections
1409, 1410, 1451, and 1452 of this title) shall take effect on
October 1, 1999.''
EFFECTIVE DATE OF 1996 AMENDMENT
Section 632(b) of Pub. L. 104-201 provided that: ''The amendment
made by subsection (a) (amending this section) shall apply only to
adjustments of retired and retainer pay effective after the date of
the enactment of this Act (Sept. 23, 1996).''
EFFECTIVE DATE OF 1994 AMENDMENT
Section 633(b) of Pub. L. 103-337 provided that: ''The amendments
made by subsection (a) (amending this section) shall apply with
respect to the computation of the retired pay of a member of the
Armed Forces who retires on or after the date of the enactment of
this Act (Oct. 5, 1994).''
EFFECTIVE DATE OF 1988 AMENDMENT
Section 622(b) of Pub. L. 100-456 provided that: ''The amendment
made by subsection (a) (amending this section) shall take effect on
the first day of the first month that begins after the date of the
enactment of this Act (Sept. 29, 1988) and shall apply to the
computation of the retired or retainer pay of members who initially
become entitled to such pay on or after such effective date.''
EFFECTIVE DATE OF 1983 AMENDMENT
Section 921(a)(2) of Pub. L. 98-94 provided that:
''(A) Notwithstanding the repeal of such subsection (subsec. (e)
of this section), the provisions of such subsection shall apply in
the case of any member or former member of the Armed Forces
eligible to retire on the date of the enactment of this Act (Sept.
24, 1983) for a period of three years after such date in the same
manner such provisions would have applied had they not been
repealed.
''(B) The amount of retired or retainer pay of any member or
former member of the Armed Forces who was eligible to retire on the
date of the enactment of this Act (Sept. 24, 1983) and who becomes
entitled to such pay at any time after the end of the three-year
period beginning on the date of the enactment of this Act may not
be less than it would have been had he become entitled to retired
or retainer pay on the day before the end of such three-year
period.''
Amendment by section 922 of 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
Section 812(b)(1) of Pub. L. 96-342, set out below, provided that
the amendment made by that section is effective Aug. 31, 1981, but
subject to certain conditions.
EFFECTIVE DATE OF 1976 AMENDMENT
Section 1306(d)(2) of Pub. L. 94-440 provided that: ''The
amendment made by subsection (1) (amending this section) shall
apply to any increase in retired pay or retainer pay after the date
of enactment of this Act (Oct. 1, 1976), except that with respect
to the first date after the date of enactment of this Act on which
the Secretary of Defense is to determine a percent change, such
percent change shall be determined by computing the change in the
index published for the month immediately preceding such first date
over the index for the last month preceding the date of enactment
of this Act used as the basis for the most recent adjustment of
retired pay and retainer pay under section 1401a(b) of title 10,
United States Code (subsec. (b) of this section), as in effect
immediately prior to the date of enactment of this Act (Oct. 1,
1976).''
EFFECTIVE DATE OF 1969 AMENDMENT
Section 2 of Pub. L. 91-179 provided that: ''The provisions of
this Act (amending this section) become effective on October 31,
1969.''
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.
EFFECTIVE DATE OF 1965 AMENDMENT
Amendment by Pub. L. 89-132 effective Sept. 1, 1965, see section
10 of Pub. L. 89-132, set out as a note under section 203 of Title
37, Pay and Allowances of the Uniformed Services.
EFFECTIVE DATE
Section effective Oct. 1, 1963, see section 14 of Pub. L. 88-132,
set out as an Effective Date of 1963 Amendment note under section
201 of Title 37, Pay and Allowances of the Uniformed Services.
CONTINGENT ALTERNATIVE DATE FOR FISCAL YEAR 1998
Section 631(b) of Pub. L. 104-106 provided that if a civil
service retiree COLA that becomes effective during fiscal year 1998
becomes effective on a date other than the date on which a military
retiree COLA during that fiscal year is specified to become
effective under subsec. (b)(2)(B) of this section, then the
increase in military retired and retainer pay would become payable
as part of such retired and retainer pay effective on the same date
on which such civil service retiree COLA was to become effective,
prior to repeal by Pub. L. 104-201, div. A, title VI, Sec. 631(b),
Sept. 23, 1996, 110 Stat. 2549.
ELIMINATION OF DISPARITY BETWEEN EFFECTIVE DATES FOR MILITARY AND
CIVILIAN RETIREE COST-OF-LIVING ADJUSTMENTS FOR FISCAL YEAR 1995
Section 631 of Pub. L. 103-337 provided that:
''(a) In General. - The fiscal year 1995 increase in military
retired pay shall (notwithstanding subparagraph (B) of section
1401a(b)(2) of title 10, United States Code) first be payable as
part of such retired pay for the month of March 1995.
''(b) Definitions. - For the purposes of subsection (a):
''(1) The term 'fiscal year 1995 increase in military retired
pay' means the increase in retired pay that, pursuant to
paragraph (1) of section 1401a(b) of title 10, United States
Code, becomes effective on December 1, 1994.
''(2) The term 'retired pay' includes retainer pay.
''(c) Limitation. - Subsection (a) shall be effective only if
there is appropriated to the Department of Defense Military
Retirement Fund (in an Act making appropriations for the Department
of Defense for fiscal year 1995 that is enacted before March 1,
1995) such amount as is necessary to offset increased outlays to be
made from that fund during fiscal year 1995 by reason of the
provisions of subsection (a).
''(d) Authorization of Appropriations. - There is authorized to
be appropriated for fiscal year 1995 to the Department of Defense
Military Retirement Fund the sum of $376,000,000 to offset
increased outlays to be made from that fund during fiscal year 1995
by reason of the provisions of subsection (a).''
SENSE OF CONGRESS ON EQUAL TREATMENT OF EFFECTIVE DATES FOR FUTURE
COST-OF-LIVING ADJUSTMENTS FOR MILITARY AND CIVILIAN RETIREES
Section 632 of Pub. L. 103-337 provided that:
''(a) Findings. - Congress makes the following findings:
''(1) Congress, in the Omnibus Budget Reconciliation Act of
1993 (Pub. L. 103-66, see Tables for classification), changed the
effective dates for future cost-of-living adjustments for
military retired pay and for Federal civilian retirement
annuities, which (before that Act) were provided by law to be
made effective on December 1 each year.
''(2) The timing, and the percentage of increase, of military
and Federal civilian retirees' cost-of-living adjustments have
been linked for decades.
''(3) The effect of the enactment of the Omnibus Budget
Reconciliation Act of 1993 was to abandon the longstanding
congressional practice of treating military and Federal civilian
retirees identically in matters related to cost-of-living
adjustments.
''(b) Sense of Congress. - In light of the findings in subsection
(a), it is the sense of Congress that -
''(1) as a matter of simple equity and fairness, it is
imperative that cost-of-living adjustments in retirement benefits
for military and Federal civilian retirees be returned to an
identical schedule as soon as possible, but not later than
January 1, 1999;
''(2) if after October 1, 1998, there is, by law, a difference
between the date on which a cost-of-living adjustment for Federal
civilian retirees takes effect and the date on which a
cost-of-living adjustment for military retirees takes effect,
then the difference in those effective dates should be eliminated
by requiring that cost-of-living adjustments for both classes of
retirees become effective on the earlier of the two dates; and
''(3) if after October 1, 1998, there is, by law, a difference
between the first month for which a cost-of-living adjustment for
civilian retirees is payable and the first month for which a
cost-of-living adjustment for military retirees is payable, then
the difference in the months for which those adjustments are
first payable should be eliminated by requiring that the
cost-of-living adjustments for both classes of retirees first
become payable for the earlier of the two months.''
WAIVER OF ADMINISTRATIVE TIME-IN-GRADE REQUIREMENTS TO PREVENT PAY
INVERSIONS IN RETIRED PAY OF CERTAIN MILITARY RETIREES
Section 634 of Pub. L. 103-337 provided that:
''(a) Authority. - The Secretary concerned may, for purposes of
the computation under section 1401a(f) of title 10, United States
Code, of the retired pay of military retirees described in
subsection (b), waive any administrative time-in-grade regulation
(as described in subsection (d)) that would otherwise apply to such
computation. Any such waiver may be made retroactive, in the case
of any such retiree, to the date on which that retiree initially
became entitled to retired pay.
''(b) Covered Retirees. - This section applies to any military
retiree -
''(1) who initially became entitled to retired pay on or after
January 1, 1971, and before the date of the enactment of this Act
(Oct. 5, 1994);
''(2) whose retired pay, by reason of the provisions of section
1401a(f) of title 10, United States Code (the so-called 'Tower
amendment'), was initially computed as an amount greater than
would have been the case but for that section; and
''(3) who, as of the earlier computation date applicable to
that retiree -
''(A) in the case of an individual retired in an enlisted
grade, had served in the grade in which the retiree retired for
a period that was less than the period prescribed by the
applicable administrative time-in-grade requirement described
in subsection (d); and
''(B) in the case of an individual retired in an officer
grade -
''(i) was subject to an administrative time-in-grade
requirement described in subsection (d) that established a
time-in-grade requirement that was longer than the statutory
time-in-grade requirement applicable to that member; and
''(ii) had served in the grade in which the retiree retired
for a period that was less than the period prescribed by such
administrative time-in-grade requirement but not less than
the statutory time-in-grade requirement applicable to that
member.
''(c) Earlier Computation Date. - For purposes of subsection
(b)(3), the earlier computation date applicable to a military
retiree is the date that (under such section 1401a(f) as in effect
on the date of the member's retirement) was the 'earlier date' that
was used as the basis for the computation of the retiree's retired
pay.
''(d) Regulations Subject to Waiver. - A regulation that may be
waived under subsection (a) is any regulation (not required by law)
that establishes a minimum period of time that a member of the
Armed Forces must have served in a grade on active duty in order to
be eligible to retire in that grade.
''(e) Scope of Waiver Authority. - The Secretary concerned may
exercise the authority provided in subsection (a) in the case of an
individual military retiree or for any group of military retirees.
''(f) Military Retiree Defined. - For purposes of this section,
the term 'military retiree' means a member or former member of the
Armed Forces who is entitled to retired pay.
''(g) Secretary Concerned. - For purposes of this section, the
term 'Secretary concerned' has the meaning given such term in
section 101 of title 10, United States Code.''
FISCAL YEAR 1995 COST-OF-LIVING ADJUSTMENTS FOR MILITARY RETIREES
Pub. L. 103-335, title VIII, Sec. 8114A, Sept. 30, 1994, 108
Stat. 2648, as amended by Pub. L. 104-106, div. A, title VI, Sec.
631(c), Feb. 10, 1996, 110 Stat. 365, provided that:
''(a) Fiscal Year 1995 Cost-of-Living Adjustment for Military
Retirees. - (1) The fiscal year 1995 increase in military retired
pay shall (notwithstanding subparagraph (B) of section 1401a(b)(2)
of title 10, United States Code) first be payable as part of such
retired pay for the month of March 1995.
''(2) For the purposes of subsection (a):
''(A) The term 'fiscal year 1995 increase in military retired
pay' means the increase in retired pay that, pursuant to
paragraph (1) of section 1401a(b) of title 10, United States
Code, becomes effective on December 1, 1994.
''(B) The term 'retired pay' includes retainer pay.
''(b) (Repealed. Pub. L. 104-106, div. A, title VI, Sec. 631(c),
Feb. 10, 1996, 110 Stat. 365.)''
CONTINGENT ONCE-A-YEAR ADJUSTMENT OF RETIRED AND RETAINER PAY
Pub. L. 96-342, title VIII, Sec. 812, Sept. 8, 1980, 94 Stat.
1098, as amended by Pub. L. 97-35, title II, Sec. 211(b), Aug. 13,
1981, 95 Stat. 383, provided that:
''(a)(1) The increase in the retired and retainer pay of members
and former members of the uniformed services which but for this
section would be made effective September 1, 1980, under the
provisions of paragraph (2)(B) of section 1401a(b) of title 10,
United States Code, shall not be made.
''(2)(A) In making the determination required by the provisions
of paragraph (1)(A) of section 1401a(b) of title 10, United States
Code, to be made on January 1, 1981, or within a reasonable time
thereafter, the Secretary of Defense shall determine the percent
change in the index (as such term is defined in section 1401a(a) of
title 10, United States Code) published for December 1980 over the
index published for December 1979 (rather than over the index
published for June 1980).
''(B) The increase in the retired and retainer pay of members and
former members of the uniformed services to be made effective March
1, 1981, under the provisions of paragraph (2)(A) of such section
shall, in lieu of the increase prescribed by such paragraph, be the
percent change computed under subparagraph (A), adjusted to the
nearest 1/10 of one percent.
''(3) The President shall by Executive order provide for only one
cost-of-living adjustment in the annuities paid under the Central
Intelligence Agency (Retirement) Act of 1964 for Certain Employees
(50 U.S.C. 403 note) during the period beginning on September 1,
1980, and ending on August 31, 1981. Such adjustment shall be
effective March 1, 1981, and shall be made in the same manner and
percentage as the adjustment provided for in paragraphs (1) and (2)
for the retired and retainer pay of members and former members of
the uniformed services.
''(4) Paragraphs (1), (2), and (3) shall not take effect unless
similar legislation is enacted which provides for only one
cost-of-living increase in annuities paid under subchapter III of
chapter 83 of title 5, United States Code, during the period
beginning on September 1, 1980, and ending on August 31, 1981.
''(b)(1) Effective August 31, 1981, but subject to paragraph (2),
section 1401a(b), of title 10, United States Code, relating to
adjustment of retired pay and retainer pay to reflect changes in
the Consumer Price Index, is amended to read as follows:
'(b) Each time that an increase is made under section 8340(b)
of title 5 in annuities paid under subchapter III of chapter 83
of such title, the Secretary of Defense shall at the same time
increase the retired and retainer pay of members and former
members of the armed forces by the same percent as the percentage
by which annuities are increased under such section.'.
''(2) The amendment made by paragraph (1) shall not take effect
unless legislation is enacted which provides for the adjustment of
annuities paid under subchapter III of chapter 83 of title 5,
United States Code, on a once-a-year basis. In the event such
legislation is enacted, such amendment shall become effective with
respect to adjustments in the retired pay and retainer pay of
members and former members of the uniformed services at the same
time that the legislation providing for such a once-a-year
adjustment of annuities paid under subchapter III of chapter 83 of
title 5, United States Code, becomes effective.
''(3) If legislation described in paragraph (2) is enacted to
provide for the adjustment of annuities paid under subchapter III
of chapter 83 of title 5, United States Code, on a once-a-year
basis, the President shall exercise the authority vested in him
under section 292 of the Central Intelligence Agency (Retirement)
Act of 1964 for Certain Employees (50 U.S.C. 403 note) to provide
for cost-of-living adjustments in the annuities paid under such Act
on an identical basis.
''(4) If at the time the first adjustment in retired and retainer
pay is made under section 1401a(b) of title 10, United States Code,
as amended by paragraph (1) of this subsection, the period upon
which the most recent adjustment in such retired and retainer pay
was computed is not identical to the period upon which the most
recent adjustment in annuities under subchapter III of chapter 83
of title 5, United States Code, was computed, then the percentage
increase to be made under such section 1401a(b) at the time of the
first such adjustment shall be computed in the same manner as the
percentage increase made at the same time in annuities under
subchapter III of chapter 83 of title 5, United States Code, is
computed, but shall be based on the period beginning on the last
day of the period upon which the most recent adjustment in such
retired and retainer pay was computed and ending on the last day of
the period upon which the adjustment being made at the same time in
annuities under such subchapter III is computed. The President
shall by Executive order provide for a similar computation of the
adjustment in annuities paid under the Central Intelligence Agency
(Retirement) Act of 1964 for Certain Employees (50 U.S.C. 403 note)
which is made at the same time as the increase in retired and
retainer pay to which the preceeding (preceding) sentence is
applicable.
''(c) For the purposes of this section, the term 'uniformed
services' means -
''(1) the Armed Forces; and
''(2) the commissioned corps of the National Oceanic and
Atmospheric Administration and of the Public Health Service.''
COMPUTATION OF RETIRED PAY OF SERGEANT MAJORS OF MARINE CORPS WHO
COMPLETED SERVICE PRIOR TO DECEMBER 16, 1967
Pub. L. 95-581, Nov. 2, 1978, 92 Stat. 2478, provided: ''That (a)
the retired pay of any individual who served as sergeant major of
the Marine Corps and who completed such service before December 16,
1967, shall be computed based upon a rate of basic pay of the sum
of (1) the highest rate of basic pay to which such individual was
entitled while so serving, and (2) $150.
''(b) For the purpose of computing any adjustment under section
1401a of title 10, United States Code, in the retired pay of any
individual whose retired pay is affected by subsection (a), the
rate of basic pay provided under such subsection for the purpose of
computing the retired pay of such individual shall be considered to
have been the rate of basic pay applicable to such individual at
the time of his retirement, and any adjustment under such section
1401a in the retired pay of such individual before September 30,
1978, shall be readjusted to reflect such rate of basic pay.
''Sec. 2. (a) Any change in the retired pay of any individual by
reason of the enactment of this Act shall be effective for months
beginning after September 30, 1978.
''(b) The enactment of this Act shall not reduce the retired pay
of any individual.''
(The Central Intelligence Agency Retirement Act of 1964 for
Certain Employees, referred to in Pub. L. 96-342, set out above, is
Pub. L. 88-643, Oct. 13, 1964, 78 Stat. 1043, which was revised
generally by Pub. L. 102-496, title VIII, Sec. 802, Oct. 24, 1992,
106 Stat. 3196, is known as the Central Intelligence Agency
Retirement Act and is classified generally to chapter 38 (Sec. 2001
et seq.) of Title 50, War and National Defense.)
COST-OF-LIVING ADJUSTMENT OF RETIRED PAY OR RETAINER PAY OF MEMBERS
AND FORMER MEMBERS OF ARMED FORCES AND COMMISSIONED OFFICERS OF
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION AND PUBLIC HEALTH
SERVICE; EFFECTIVE DATE OF 1976 AMENDMENT
Section 801(c) of Pub. L. 94-361 provided that:
''(1) The amendments made by subsections (a) (to subsec. (b) of
this section) and (b) (to provisions formerly set out as a note
under section 403 of title 50) shall not become effective unless
legislation is enacted repealing the so-called 1 per centum add-on
provision applicable to the cost-of-living adjustment of annuities
paid under chapter 83 of title 5, United States Code. In the event
such legislation is enacted, such amendments shall become effective
with respect to the cost-of-living adjustment of the retired pay
and retainer pay of members and former members of the Armed Forces
and the cost-of-living adjustment of annuities paid under the
Central Intelligence Agency (Retirement) Act of 1964 for Certain
Employees at the same time the repeal of such 1 per centum add-on
provision becomes effective with respect to such cost-of-living
adjustment of annuities paid under such chapter 83.
''(2) If any change other than the repeal of the so-called 1 per
centum add-on provision referred to in paragraph (1) is made in the
method of computing the cost-of-living adjustment of annuities paid
under chapter 83 of title 5, United States Code, the President
shall make the same change in the cost-of-living adjustment of
retired pay and retainer pay of members and former members of the
Armed Forces and the cost-of-living adjustment of annuities paid
under the Central Intelligence Agency (Retirement) Act of 1964 for
Certain Employees. Any change made under this paragraph shall have
the same effective date as the effective date applicable to such
change made in annuities under chapter 83 of title 5, United States
Code.
''(3) The provisions of paragraphs (1) and (2) relating to any
change in the method of computing the cost-of-living adjustment of
the retired pay or retainer pay of members and former members of
the Armed Forces shall be applicable to the computation of
cost-of-living adjustments of the retired pay of commissioned
officers of the National Oceanic and Atmospheric Administration and
the retired pay of commissioned officers of the Public Health
Service.''
(The Central Intelligence Agency Retirement Act of 1964 for
Certain Employees, referred to in Pub. L. 94-361, set out above, is
Pub. L. 88-643, Oct. 13, 1964, 78 Stat. 1043, which was revised
generally by Pub. L. 102-496, title VIII, Sec. 802, Oct. 24, 1992,
106 Stat. 3196, is known as the Central Intelligence Agency
Retirement Act and is classified generally to chapter 38 (Sec. 2001
et seq.) of Title 50, War and National Defense.)
INCREASE IN CERTAIN ARMED FORCE MEMBERS' PAY AND ALLOWANCES NOT
OTHERWISE TIED TO CONSUMER PRICE INDEX
Pub. L. 93-210, Sec. 2, Dec. 28, 1973, 87 Stat. 908, provided
that:
''(a) Notwithstanding any other provision of law, effective on
the date of enactment of this Act (Dec. 28, 1973), the pay and
allowances of members of the Armed Forces to whom this Act applies
shall be increased to amounts equal to the amounts such pay and
allowances would have been increased if the pay and allowances of
such members had been increased, under section 1401a(b) of title
10, United States Code, by the same percentage rates, consecutively
compounded, that the retired pay or retainer pay of members and
former members of the Armed Forces entitled to retired pay or
retainer pay since October 1, 1967, has been increased, and such
member shall, on and after the date of enactment of this Act (Dec.
28, 1973), have his pay and allowances increased effective the same
day and by the same percentage rate that the retired pay or
retainer pay of members and former members of the Armed Forces is
increased under such section 1401a(b).
''(b) This section applies to members of the Armed Forces
entitled to pay and allowances under either of the following
provisions of law:
''(1) The Act of June 26, 1948, chapter 677 (62 Stat. 1052)
(which authorized the appointment of one officer in the Regular
Army in the permanent grade of general, one officer in the
Regular Air Force in the permanent grade of general, and one
officer in the Regular Navy in the permanent grade of admiral).
''(2) The Act of September 18, 1950, chapter 952 (64 Stat.
A224) (which authorized the appointment of Omar N. Bradley to the
permanent grade of General of the Army).
''(c) No amounts shall be paid, as the result of the enactment of
this section, for any period prior to the date of enactment of this
section (Dec. 28, 1973).''
RETROACTIVE ADJUSTMENT OF RETIRED OR RETAINER PAY OF PERSONS
ENTITLED THERETO AFTER NOVEMBER 30, 1966, BUT PRIOR TO EFFECTIVE
DATE OF NEXT INCREASE AFTER JULY 1, 1966
Section 2(b) of Pub. L. 90-207 provided that: ''Notwithstanding
section 1401a(d) of title 10, United States Code, a person who is a
member or former member of an armed force on the date of enactment
of this Act (Dec. 16, 1967) and who initially became, or hereafter
initially becomes, entitled to retired pay or retainer pay after
November 30, 1966, but before the effective date of the next
increase after July 1, 1966, in the rates of monthly basic pay
prescribed by section 203 of title 37, United States Code, is
entitled to have his retired pay or retainer pay increased by 3.7
percent, effective as of the date of his entitlement to that pay.''
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1402, 1402a, 1408, 1410,
1434, 1451, 1452 of this title; title 24 section 414; title 37
section 322.
-CITE-
10 USC Sec. 1402 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 71 - COMPUTATION OF RETIRED PAY
-HEAD-
Sec. 1402. Recomputation of retired or retainer pay to reflect
later active duty of members who first became members before
September 8, 1980
-STATUTE-
(a) A member of an armed force who first became a member of a
uniformed service before September 8, 1980, and who has become
entitled to retired pay or retainer pay, and who thereafter serves
on active duty (other than for training), is entitled to recompute
his retired pay or retainer pay upon his release from that duty
according to the following table.
---------------------------------------------------------------------
Column 1 Take Column 2 Multiply by Column 3 Subtract
---------------------------------------------------------------------
Monthly basic pay 2 1/2 percent of the Excess over 75
(FOOTNOTE 1) of sum of - (1) the percent of pay upon
the grade in which years of service which computation
he would be that may be is based.
eligible - (1) to credited to him in
retire if he were computing retired
retiring upon that pay or retainer
release from active pay; and (2) his
duty; or (2) to years of active
transfer to the service after
Fleet Reserve or becoming entitled
Fleet Marine Corps to retired pay or
Reserve if he were retainer pay.
transferring to (FOOTNOTE 2)
either upon that
release from active
duty.
-------------------------------
(FOOTNOTE 1) For a member who has been entitled, for continuous
period of at least two years, to basic pay under the rates of basic
pay in effect upon that release from active duty, compute under
those rates. For a member who has been entitled to basic pay for a
continuous period of at least two years upon that release from
active duty, but who is not covered by the preceding sentence,
compute under the rates of basic pay replaced by those in effect
upon that release from active duty. For any other member, compute
under the rates of basic pay under which the member's retired pay
or retainer pay was computed when he entered on that active duty.
(FOOTNOTE 2) Before applying percentage factor, credit each full
month of service that is in addition to the number of full years of
service creditable to the member as one-twelfth of a year and
disregard any remaining fractional part of a month.
However, an officer who was ordered to active duty (other than for
training) in the grade that he holds on the retired list under
former section 6150 of this title, or under any other law that
authorized advancement on the retired list based upon a special
commendation for the performance of duty in actual combat, may have
his retired pay recomputed under this subsection on the basis of
the rate of basic pay applicable to that grade upon his release
from that active duty only if he has been entitled, for a
continuous period of at least three years, to basic pay at that
rate. If, upon his release from that active duty, he has been
entitled to the basic pay of that grade for a continuous period of
at least three years, but he does not qualify under the preceding
sentence, he may have his retired pay recomputed under this
subsection on the basis of the rate of basic pay prescribed for
that grade by the rates of basic pay replaced by those in effect
upon his release from that duty.
(b) A member of an armed force who first became a member of a
uniformed service before September 8, 1980, and who has been
retired other than for physical disability, and who while on active
duty incurs a physical disability of at least 30 percent for which
he would otherwise be eligible for retired pay under chapter 61 of
this title, is entitled, upon his release from active duty, to
retired pay under subsection (d).
(c) A member of an armed force who first became a member of a
uniformed service before September 8, 1980, and who -
(1) was retired for physical disability under section 1201 or
1204 of this title or any other law or whose name is on the
temporary disability retired list;
(2) incurs, while on active duty after retirement or after his
name was placed on that list, a physical disability that is in
addition to or that aggravates the physical disability for which
he was retired or for which his name was placed on the temporary
disability retired list; and
(3) is qualified under section 1201, 1202, 1204, or 1205 of
this title;
is entitled, upon his release from active duty, to retired pay
under subsection (d).
(d) A member of an armed force covered by subsection (b) or (c)
may elect to receive either (1) the retired pay to which he became
entitled when he retired, increased by any applicable adjustments
in that pay under section 1401a of this title after he initially
became entitled to that pay, or (2) retired pay computed according
to the following table.
---------------------------------------------------------------------
Column 1 Take :Column 2 :Column 3 Add :Column 4
: Multiply by : : Subtract
---------------------------------------------------------------------
Highest monthly:As member :Add amount :Excess over 75%
basic pay that: elects - (1): necessary to : of pay upon
member : 2 1/2% of : increase : which
received while: years of : product of : computation is
on active duty: service : columns 1 and : based.
after : credited under: 2 to 50% of :
retirement or : section 1208 : pay upon which:
after date : of this title;: computation is:
when his name : (FOOTNOTE 1) : based, if :
was placed on : or (2) the : member is on :
temporary : highest : temporary :
disability : percentage of : disability :
retired list, : disability : retired list :
as the case : attained while: :
may be. : on active duty: :
: after : :
: retirement or : :
: after the date: :
: when his name : :
: was placed on : :
: temporary : :
: disability : :
: retired list, : :
: as the case : :
: may be. : :
: (FOOTNOTE 1) : :
-------------------------------
(FOOTNOTE 1) Before applying percentage factor, credit each full
month of service that is in addition to the number of full years of
service creditable to the member as one-twelfth of a year and
disregard any remaining fractional part of a month.
If, while on active duty after retirement or after his name was
placed on the temporary disability retired list, a member covered
by this subsection was promoted to a higher grade in which he
served satisfactorily, as determined by the Secretary concerned, he
is entitled to retired pay based on the monthly basic pay to which
he would be entitled if he were on active duty in that higher
grade.
(e) Notwithstanding subsection (a), a member covered by that
subsection may elect, upon his release from active duty, to have
his retired pay or retainer pay -
(1) computed according to the formula set forth in subsection
(a) but using the rate of basic pay under which his retired pay
or retainer pay was computed when he entered on active duty; and
(2) increased by any applicable adjustments in that pay under
section 1401a of this title after he initially became entitled to
that pay.
(f)(1) In the case of a member who is entitled to recompute
retired pay under this section upon release from active duty served
after retiring under section 3914 or 8914 of this title, the
member's retired pay as recomputed under another provision of this
section shall be increased by 10 percent of the amount so
recomputed if the member has been credited by the Secretary
concerned with extraordinary heroism in the line of duty during any
period of active duty service in the armed forces.
(2) The amount of the retired pay as recomputed under another
provision of this section and as increased under paragraph (1) may
not exceed the amount equal to 75 percent of the monthly rate of
basic pay upon which the recomputation of such retired pay is
based.
(3) The determination of the Secretary concerned as to
extraordinary heroism is conclusive for all purposes.
-SOURCE-
(Aug. 10, 1956, ch. 1041, 70A Stat. 107; Pub. L. 86-559, Sec. 1(5),
June 30, 1960, 74 Stat. 265; Pub. L. 88-132, Sec. 5(l)(1), Oct. 2,
1963, 77 Stat. 214; Pub. L. 90-207, Sec. 2(a)(2), Dec. 16, 1967, 81
Stat. 653; Pub. L. 96-342, title VIII, Sec. 813(b)(2), Sept. 8,
1980, 94 Stat. 1102; Pub. L. 96-513, title V, Sec. 511(50), Dec.
12, 1980, 94 Stat. 2924; Pub. L. 98-94, title IX, Sec. 922(a)(3),
(4), 923(a)(1), (2)(B), (C), Sept. 24, 1983, 97 Stat. 641, 642;
Pub. L. 99-348, title II, Sec. 201(b)(3), title III, Sec.
304(a)(3), (b)(3), July 1, 1986, 100 Stat. 694, 703; Pub. L.
102-484, div. A, title VI, Sec. 642(a), Oct. 23, 1992, 106 Stat.
2424.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Revised section Source (U.S. Code) Source (Statutes at
Large)
---------------------------------------------------------------------
1402(a) 1402(b), (c) 37:316. 37:272(d) Oct. 12, 1949, ch.
(1st 128 words of 681, Sec. 402(d)
last proviso, less (last proviso, less
applicability to applicability to
retired grade). retired grade),
516, 63 Stat. 819,
832.
1402(d) 37:272(d) (last
proviso, less 1st
128 words, and less
applicability to
retired grade).
-------------------------------
In subsection (a), columns 1 and 2 of the table are based on
37:316 (1st proviso). Column 4 is based on 37:316 (last proviso).
Footnote 1 is based on 37:316 (2d proviso). 37:316 (3d proviso) is
omitted as operationally obsolete.
In subsections (a) and (d), the words ''and disregard a part of a
year that is less than six months'' are added to footnote 1 to
conform to footnote 3 of section 1401 of this title.
In subsection (b), the words ''for which he would otherwise be
eligible for retired pay under chapter 61 of this title'' are
substituted for the words ''in accordance with the standard
schedule of rating disabilities in current use by the Veterans'
Administration'' and ''if qualified''.
In subsection (c), the requirement that the physical disability
incurred be 30 percent or more is omitted as surplusage, since it
is also required that the member be qualified for physical
disability retirement under section 1201 or 1204 of this title.
In subsection (d), the rules stated in 37:316 (2d and last
provisos) are repeated in column 4 of the table and the footnote to
the table, since they apply to all cases of increased pay for
active duty performed after retirement.
-COD-
CODIFICATION
Another section 304(b)(3) of Pub. L. 99-348 amended the table of
sections at the beginning of chapter 571 of this title.
-MISC3-
AMENDMENTS
1992 - Subsec. (f). Pub. L. 102-484 added subsec. (f).
1986 - Pub. L. 99-348, Sec. 304(b)(3), inserted ''of members who
first became members before September 8, 1980'' in section
catchline.
Subsec. (a). Pub. L. 99-348, Sec. 201(b)(3), 304(a)(3), struck
out ''(as defined in section 1407(a)(2) of this title)'' after
''uniformed service'' and struck out provision that if the amount
recomputed is not a multiple of $1, it be rounded to the next lower
multiple of $1. See section 1412 of this title.
Subsecs. (b), (c). Pub. L. 99-348, Sec. 304(a)(3), struck out
''(as defined in section 1407(a)(2) of this title)'' after
''uniformed service''.
Subsec. (d). Pub. L. 99-348, Sec. 201(b)(3), struck out provision
that if the amount recomputed is not a multiple of $1, it be
rounded to the next lower multiple of $1. See section 1412 of this
title.
1983 - Subsec. (a). Pub. L. 98-94, Sec. 922(a)(3), substituted
''according to the following table. The amount recomputed, if not
a multiple of $1, shall be rounded to the next lower multiple of
$1.'' for ''as follows:''.
Pub. L. 98-94, Sec. 923(a)(1), (2)(B), in footnote 2 of table,
substituted ''Before applying percentage factor, credit each full
month of service that is in addition to the number of full years of
service creditable to the member as one-twelfth of a year and
disregard any remaining fractional part of a month'' for ''Before
applying percentage factor, credit a part of a year that is six
months or more as a whole year, and disregard a part of a year that
is less than six months''.
Subsec. (d). Pub. L. 98-94, Sec. 922(a)(4), substituted
''according to the following table. The amount computed, if not a
multiple of $1, shall be rounded to the next lower multiple of
$1.'' for ''as follows:''.
Pub. L. 98-94, Sec. 923(a)(1), (2)(C), in footnote 1 of table,
substituted ''Before applying percentage factor, credit each full
month of service that is in addition to the number of full years of
service creditable to the member as one-twelfth of a year and
disregard any remaining fractional part of a month'' for ''Before
applying percentage factor, credit a part of a year that is six
months or more as a whole year, and disregard a part of a year that
is less than six months''.
1980 - Subsecs. (a) to (c). Pub. L. 96-513 substituted ''a
uniformed service (as defined in section 1407(a)(2) of this title)
before September 8, 1980'' for ''the armed forces before the date
of the enactment of the Department of Defense Appropriation Act,
1981'' wherever appearing.
Pub. L. 96-342 inserted ''who first became a member of the armed
forces before the date of the enactment of the Department of
Defense Authorization Act, 1981, and'' after ''of an armed force''
wherever appearing.
1967 - Subsec. (d). Pub. L. 90-207, Sec. 2(a)(2)(A), inserted
''increased by any applicable adjustments in that pay under section
1401a of this title after he initially became entitled to that
pay'' after ''retired,''.
Subsec. (e). Pub. L. 90-207, Sec. 2(a)(2)(B), added subsec. (e).
1963 - Subsec. (a). Pub. L. 88-132 substituted in introductory
clause ''who has become entitled to retired pay or retainer pay''
for ''who has been retired or has become entitled to retainer pay''
and ''to recompute his retired pay or retainer pay upon his release
from that duty'' for '', upon release from that duty, to recompute
his retired or retainer pay'' and inserted in such clause ''(other
than for training)'' after ''active duty''; substituted in column 1
of table ''Monthly basic pay'' for ''Monthly basic pay or base and
longevity pay, as the case may be,'', designated existing
provisions as (1) and added (2); substituted in (1) of column 2 of
the table ''retired pay or retainer pay'' for ''retired or retainer
pay'' and in (2) of such column 2 ''after becoming entitled to
retired pay or retainer pay'' for ''after retirement or becoming
entitled to retainer pay'', struck out column 3 relating to
addition and redesignated column 4 as 3; added footnote 1 to the
table and redesignated former footnote 1 as 2; and inserted
provisions for recomputation of retired pay upon release from
active duty of officers ordered to active duty in a higher grade
based upon special commendation for performance of duty in actual
combat.
1960 - Subsec. (a). Pub. L. 86-559 prohibited recomputation of
retired pay under subsec. (a) on the basis of any period of active
duty that was of less than six consecutive months' duration or on
the basis of any active duty for training for a reserve officer who
is or has been retired under section 3911, 6323, or 8911 of this
title or under section 232 of title 14.
EFFECTIVE DATE OF 1983 AMENDMENT
Amendment by section 922 of 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.
Amendment by section 923 of Pub. L. 98-94 applicable with respect
to (1) the computation of retired or retainer pay of any individual
who becomes entitled to that pay after Sept. 30, 1983, and (2) the
recomputation of retired pay under this section, of any individual
who after Sept. 30, 1983, becomes entitled to recompute retired pay
under this section, see section 923(g) of Pub. L. 98-94, set out as
a note under section 1174 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 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.
EFFECTIVE DATE OF 1963 AMENDMENT
Amendment by Pub. L. 88-132 effective Oct. 1, 1963, see section
14 of Pub. L. 88-132, set out as a note under section 201 of Title
37, Pay and Allowances of the Uniformed Services.
ACCRUAL OF BENEFITS; PROSPECTIVE APPLICABILITY
Section 642(c) of Pub. L. 102-484 provided that: ''No benefits
shall accrue for months beginning before the date of the enactment
of this Act (Oct. 23, 1992) by reason of the amendments made by
this section (amending this section and section 1402a of this
title).''
RECOMPUTATION OF RETIRED PAY OF CERTAIN RECALLED RETIREES
Pub. L. 98-525, title VI, Sec. 655, Oct. 19, 1984, 98 Stat. 2552,
provided that:
''(a) Notwithstanding the second sentence of footnote 1 of the
table contained in section 1402(a) of title 10, United States Code
(relating to recomputation of retired pay to reflect later active
duty), in the case of a member of the Armed Forces who -
''(1) was voluntarily called or ordered to active duty during
the period beginning on October 1, 1963, and ending on September
30, 1971;
''(2) was at the time of such call or order entitled to retired
pay or retainer pay;
''(3) served on such active duty under such call or order for a
continuous period of at least two years; and
''(4) was released from such active duty before October 1,
1973,
the retired or retainer pay of such member shall be recomputed, as
provided in subsection (b), under the rates of basic pay in effect
at the time of that release from active duty.
''(b) The retired or retainer pay of a member of the Armed Forces
described in subsection (a) shall be the amount determined under
section 1402(a) of title 10, United States Code (as modified with
respect to such member by subsection (a)), and increased by the
amount by which the member's retired or retainer pay would have
been increased during the period beginning on the date of the
member's release from active duty referred to in subsection (a)(4)
and ending on the day before the day on which this section becomes
effective had subsection (a) applied in the case of the member at
the time of that release from active duty.
''(c) This section shall apply only with respect to retired pay
and retainer pay payable for months beginning after September 30,
1984, or on or after the date of the enactment of this Act (Oct.
19, 1984), whichever is later.''
RETIRED PAY AND RETAINER PAY; PROHIBITION AGAINST RECOMPUTATION
UNDER 1963 PAY RATES; EXCEPTIONS; INCREMENTS BASED ON THE GREATER
OF A 5 PERCENT INCREASE OR RECOMPUTATION UNDER 1958 PAY RATES FOR
MEMBERS RETIRED PRIOR TO OCTOBER 1949 FOR REASONS OTHER THAN
PHYSICAL DISABILITY, MEMBERS RECEIVING RETIRED PAY UNDER CAREER
COMPENSATION ACT OF 1949 AND FORMER CHIEFS OF STAFF; ADDITIONAL 5
PERCENT INCREASE FOR OTHER RETIRED MEMBERS; EXCLUSION FROM INCREASE
OF OFFICERS RETIRED UNDER CERTAIN PROVISIONS
Section 5(a)-(f) of Pub. L. 88-132 provided that:
''(a) Except as provided in section 1402 of title 10, United
States Code, the changes made by this Act (see Short Title note
under section 201 of Title 37) in the rates of basic pay of members
of the uniformed services do not increase the retired pay or
retainer pay to which a member or former member of the uniformed
services was entitled on the day before the effective date of this
Act (Oct. 1, 1963). However, except for a member covered by section
6331 of title 10, United States Code who became entitled to
retainer pay before April 1, 1963, and subject to subsection (j) of
this section (set out as a note below), a member or former member
of a uniformed service who became entitled to retired pay or
retainer pay after March 31, 1963, but before the effective date of
this Act (Oct. 1, 1963), is entitled -
''(1) to have the retired pay or retainer pay to which he was
entitled on the day before the effective date of this Act (Oct.
1, 1963) recomputed under the rates of basic pay prescribed by
section 2 of this Act (amending section 203 of Title 37); or
''(2) to continue to have that pay computed under the rates of
basic pay that were in effect under section 203 of title 37,
United States Code, on the day before the effective date of this
Act (Oct. 1, 1963), plus the percentage increase provided by
subsection (e) of this section;
whichever pay is the greater. For the purposes of the preceding
sentence, a member or former member who became entitled to retired
pay on April 1, 1963, by virtue of section 1 of the Act of April
23, 1930, ch. 209, as amended (5 U.S.C. 47a) (section 8301 of Title
5), shall be considered as having become entitled to that pay
before April 1, 1963.
''(b) A member or former member of a uniformed service who was
retired other than for physical disability and who, in accordance
with section 511 of the Career Compensation Act of 1949 (63 Stat.
829) (10 U.S.C. 580 note), is entitled to retired pay or retainer
pay computed by 'method' (a) of that section using rates of basic
pay that were in effect before October 1, 1949, is entitled -
''(1) to have pay recomputed by 'method' (b) of that section
using the rates of basic pay that were in effect under that Act
on the day before the effective date of this Act (Oct. 1, 1963);
or
''(2) to an increase of 5 percent in the retired pay or
retainer pay to which he was entitled on the day before the
effective date of this Act (Oct. 1, 1963);
whichever pay is the greater.
''(c) A member or former member of a uniformed service who is
entitled to retired pay or retainer pay computed under the rates of
basic pay that were in effect under the Career Compensation Act of
1949 before June 1, 1958, including a member or former member who
is entitled to retired pay under section 7 (b) or (c) of the Act of
May 20, 1958, Public Law 85-422 (72 Stat. 130), is entitled -
''(1) to have that pay recomputed under the rates of basic pay
that were in effect under that Act on the day before the
effective date of this Act (Oct. 1, 1963); or
''(2) to an increase of 5 percent in the retired pay or
retainer pay to which he was entitled on the day before the
effective date of this Act (Oct. 1, 1963);
whichever pay is the greater.
''(d) A member or former member of a uniformed service who was
entitled to retired pay on the day before the effective date of
this Act (Oct. 1, 1963) and who served as Chief of Staff of the
Army, Chief of Naval Operations, Chief of Staff of the Air Force,
or Commandant of the Marine Corps is entitled -
''(1) to have his retired pay recomputed under the formula for
computing retired pay applicable to him -
''(A) when he retired; or
''(B) if he served on active duty after he retired and his
retired pay was recomputed by reason of that service, when his
retired pay was so recomputed;
using as his rate of basic pay the rate of basic pay prescribed
for officers serving on active duty in those positions on June 1,
1958, by footnote 1 to table for commissioned officers in section
201(a) of the Career Compensation Act of 1949, as amended (72
Stat. 122) (see section 203 of Title 37); or
''(2) to an increase of 5 percent in the retired pay to which
he was entitled on the day before the effective date of this Act
(Oct. 1, 1963);
whichever pay is the greater.
''(e) A member or former member of a uniformed service who was
entitled to retired pay or retainer pay on the day before the
effective date of this Act (Oct. 1, 1963), other than a member or
former member who is covered by subsection (b), (c), or (d) of this
section, is entitled to an increase of 5 percent in the retired or
retainer pay to which he was entitled on the day before the
effective date of this Act (Oct. 1, 1963).
''(f) Notwithstanding any other provision of law, a member of an
armed force who was entitled to pay and allowances under any of the
following provisions of law on the day before the effective date of
this Act (Oct. 1, 1963) shall continue to receive the pay and
allowances to which he was entitled on that day:
''(1) The Act of March 23, 1946, chapter 112 (60 Stat. 59).
''(2) The Act of June 26, 1948, chapter 677 (62 Stat. 1052).
''(3) The Act of September 18, 1950, chapter 952 (64 Stat.
A224).''
RETIRED PAY AND RETAINER PAY; RETROACTIVE EFFECT
Section 5(j) of Pub. L. 88-132 provided that: ''A member or
former member of a uniformed service is not entitled to an increase
in his retired pay or retainer pay because of the enactment of this
Act (see Short Title note set out under section 201 of Title 37)
for any period before the effective date of this Act (Oct. 1,
1963).''
SAVINGS PROVISION
Section 5(l)(2) of Pub. L. 88-132 provided that:
''Notwithstanding paragraph (1) of this subsection (amending this
section), and unless otherwise entitled to higher retired pay or
retainer pay, a member of a uniformed service who is on active duty
(other than for training) on the effective date of this Act (Oct.
1, 1963), who was entitled to retired pay or retainer pay before he
entered on that duty, and who is released from that duty on or
after the effective date of this Act after having served on that
duty for a continuous period of at least one year shall, upon that
release from active duty, be entitled to recompute his retired pay
or retainer pay under the table in section 1402 of title 10, United
States Code (this section), subject to section 6483(c) of title 10,
as that table and that section were in effect on the day before the
effective date of this Act, using rates of basic pay prescribed by
this Act (section 203 of Title 37).''
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1373, 1403, 1406, 6330 of
this title; title 37 section 205.
-CITE-
10 USC Sec. 1402a 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 71 - COMPUTATION OF RETIRED PAY
-HEAD-
Sec. 1402a. Recomputation of retired or retainer pay to reflect
later active duty of members who first became members after
September 7, 1980
-STATUTE-
(a) In General. - A member of an armed force -
(1) who first became a member of a uniformed service after
September 7, 1980;
(2) who has become entitled to retired pay or retainer pay; and
(3) who thereafter serves on active duty (other than for
training),
is entitled to recompute his retired pay or retainer pay upon
release from that duty according to the following table.
---------------------------------------------------------------------
Column 1 Take Column 2 Multiply by
---------------------------------------------------------------------
Retired pay base or retainer pay The retired pay multiplier or
base under section 1407 which he retainer pay multiplier
would be entitled to use if - prescribed in section 1409 for
the sum of -
(1) he were retiring upon (1) the years of service that
release from that active duty; may be credited to him in
or computing retired pay or
retainer pay; and
(2) he were transferring to the (2) his years of active service
Fleet Reserve or Fleet Marine after becoming entitled to
Corps Reserve upon that release retired pay or retainer pay.
from active duty.
-------------------------------
(b) New Disability Incurred During Later Active Duty. - A member
of an armed force who first became a member of a uniformed service
after September 7, 1980, who has been retired other than for
physical disability and who while on active duty incurs a physical
disability of at least 30 percent for which he would otherwise be
eligible for retired pay under chapter 61 of this title, is
entitled, upon his release from active duty, to retired pay under
subsection (d).
(c) Additional or Aggravated Disability Incurred During Later
Active Duty. - A member of an armed force who first became a member
of a uniformed service after September 7, 1980, and who -
(1) was retired for physical disability under section 1201 or
1204 of this title or any other law or whose name is on the
temporary disability retired list;
(2) incurs, while on active duty after retirement or after his
name was placed on the temporary disability retired list, a
physical disability that is in addition to or that aggravates the
physical disability for which he was retired or for which his
name was placed on that list; and
(3) is qualified under section 1201, 1202, 1204, or 1205 of
this title;
is entitled, upon his release from active duty, to retired pay
under subsection (d).
(d) Computation for Later Disability. - A member of an armed
force covered by subsection (b) or (c) may elect to receive either
(1) the retired pay to which he became entitled when he retired,
increased by any applicable adjustments in that pay under section
1401a of this title after he initially became entitled to that pay,
or (2) retired pay computed according to the following table.
---------------------------------------------------------------------
Column 1 Take :Column 2 :Column 3 Add :Column 4
: Multiply by : : Subtract
---------------------------------------------------------------------
The retired pay:As member :Amount :Excess over 75
base computed : elects - (1): necessary to : percent of
under section : 2 1/2 percent : increase : retired or
1407(b) of : of years of : product of : retainer pay
this title. : service : columns 1 and : base upon
: credited under: 2 to 50 : which
: section 1208 : percent of pay: computation is
: of this title;: upon which : based.
: (FOOTNOTE 1) : computation is:
: or (2) the : based, if :
: highest : member is on :
: percentage of : temporary :
: disability : disability :
: attained while: retired list :
: on active duty: :
: after : :
: retirement or : :
: after the date: :
: when his name : :
: was placed on : :
: temporary : :
: disability : :
: retired list, : :
: as the case : :
: may be. : :
-------------------------------
(FOOTNOTE 1) Before applying percentage factor, credit each full
month of service that is in addition to the number of full years of
service creditable to the member as one-twelfth of a year and
disregard any remaining fractional part of a month.
(e) Alternative Recomputation to Subsection (a) Formula. -
Notwithstanding subsection (a), a member covered by that subsection
may elect, upon his release from that active duty, to have his
retired pay or retainer pay -
(1) computed according to the formula set forth in subsection
(a) but using the monthly retired pay base under which his
retired pay or retainer pay was computed when he entered on that
active duty; and
(2) increased by any applicable adjustments in that pay under
section 1401a of this title after he initially became entitled to
that pay.
(f) Additional 10 Percent for Certain Enlisted Members Credited
With Extraordinary Heroism. - (1) In the case of a member who is
entitled to recompute retired pay under this section upon release
from active duty served after retiring under section 3914 or 8914
of this title, the member's retired pay as recomputed under another
provision of this section shall be increased by 10 percent of the
amount so recomputed if the member has been credited by the
Secretary concerned with extraordinary heroism in the line of duty
during any period of active duty service in the armed forces.
(2) The amount of the retired pay as recomputed under another
provision of this section and as increased under paragraph (1) may
not exceed the amount equal to 75 percent of the retired pay base
upon which the recomputation of such retired pay is based.
(3) The determination of the Secretary concerned as to
extraordinary heroism is conclusive for all purposes.
-SOURCE-
(Added Pub. L. 96-342, title VIII, Sec. 813(b)(3)(A), Sept. 8,
1980, 94 Stat. 1102; amended Pub. L. 96-513, title V, Sec.
511(51)(A), (B), Dec. 12, 1980, 94 Stat. 2924; Pub. L. 98-94, title
IX, Sec. 922(a)(5), (6), 923(a)(1), (2)(D), (E), Sept. 24, 1983, 97
Stat. 641, 642; Pub. L. 99-348, title II, Sec. 201(b)(1), (2), July
1, 1986, 100 Stat. 693; Pub. L. 102-484, div. A, title VI, Sec.
642(b), Oct. 23, 1992, 106 Stat. 2425.)
-MISC1-
AMENDMENTS
1992 - Subsec. (f). Pub. L. 102-484 added subsec. (f).
1986 - Subsec. (a). Pub. L. 99-348, Sec. 201(b)(1), amended
subsec. (a) generally. Prior to the amendment, subsec. (a) read as
follows: ''A member of an armed force who first became a member of
a uniformed service (as defined in section 1407(a)(2) of this
title) after September 7, 1980, who has become entitled to retired
pay or retainer pay, and who thereafter serves on active duty
(other than for training), is entitled to recompute his retired pay
or retainer pay upon his release from that duty according to the
following table. The amount recomputed, if not a multiple of $1,
shall be rounded to the next lower multiple of $1.''
Subsec. (b). Pub. L. 99-348, Sec. 201(b)(2)(A), inserted heading.
Subsec. (c). Pub. L. 99-348, Sec. 201(b)(2)(B), inserted heading.
Subsec. (d). Pub. L. 99-348, Sec. 201(b)(2)(C), inserted heading,
struck out provision that if the amount recomputed is not a
multiple of $1, it be rounded to the next lower multiple of $1, and
in column 1 of table struck out ''monthly'' before ''retired pay''
and in column 4 of table struck out ''monthly'' before ''retired
or''.
Subsec. (e). Pub. L. 99-348, Sec. 201(b)(2)(D), inserted heading.
1983 - Subsec. (a). Pub. L. 98-94, Sec. 922(a)(5), substituted
''according to the following table. The amount recomputed, if not
a multiple of $1, shall be rounded to the next lower multiple of
$1.'' for ''as follows:''.
Pub. L. 98-94, Sec. 923(a)(1), (2)(D), in footnote 1 of table,
substituted ''Before applying percentage factor, credit each full
month of service that is in addition to the number of full years of
service creditable to the member as one-twelfth of a year and
disregard any remaining fractional part of a month'' for ''Before
applying percentage factor, credit a part of a year that is six
months or more as a whole year, and disregard a part of a year that
is less than six months''.
Subsec. (d). Pub. L. 98-94, Sec. 922(a)(6), substituted
''according to the following table. The amount computed, if not a
multiple of $1, shall be rounded to the next lower multiple of
$1.'' for ''as follows:''.
Pub. L. 98-94, Sec. 923(a)(1), (2)(E), in footnote 1 of table,
substituted ''Before applying percentage factor, credit each full
month of service that is in addition to the number of full years of
service creditable to the member as one-twelfth of a year and
disregard any remaining fractional part of a month'' for ''Before
applying percentage factor, credit a part of a year that is six
months or more as a whole year, and disregard a part of a year that
is less than six months''.
1980 - Pub. L. 96-513, Sec. 511(51)(B), substituted ''of members
who first became members after September 7, 1980'' for ''in case of
members who first became members after the enactment of the
Department of Defense Authorization Act, 1981'' in section
catchline.
Subsecs. (a) to (c). Pub. L. 96-513, Sec. 511(51)(A), substituted
''after September 7, 1980'' for ''on or after the date of the
enactment of the Department of Defense Authorization Act, 1981''
wherever appearing.
EFFECTIVE DATE OF 1983 AMENDMENT
Amendment by section 922 of 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.
Amendment by section 923 of Pub. L. 98-94 applicable with respect
to (1) the computation of retired or retainer pay of any individual
who becomes entitled to that pay after Sept. 30, 1983, and (2) the
recomputation of retired pay under this section, of any individual
who after Sept. 30, 1983, becomes entitled to recompute retired pay
under this section, see section 923(g) of Pub. L. 98-94, set out as
a note under section 1174 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.
ACCRUAL OF BENEFITS; PROSPECTIVE APPLICABILITY
No benefits to accrue for months beginning before Oct. 23, 1992,
by reason of the amendment by Pub. L. 102-484, see section 642(c)
of Pub. L. 102-484, set out as a note under section 1402 of this
title.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1373, 1403, 6330 of this
title; title 37 section 205.
-CITE-
10 USC Sec. 1403 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 71 - COMPUTATION OF RETIRED PAY
-HEAD-
Sec. 1403. Disability retired pay: treatment under Internal Revenue
Code of 1986
-STATUTE-
That part of the retired pay of a member of an armed force,
computed under formula No. 1 or 2 of section 1401, or under section
1402(d) or 1402a(d) of this title on the basis of years of service,
which exceeds the retired pay that he would receive if it were
computed on the basis of percentage of disability is not considered
as a pension, annuity, or similar allowance for personal injury, or
sickness, resulting from active service in the armed forces, under
section 104(a) of the Internal Revenue Code of 1986.
-SOURCE-
(Aug. 10, 1956, ch. 1041, 70A Stat. 108; Pub. L. 96-342, title
VIII, Sec. 813(b)(3)(C), Sept. 8, 1980, 94 Stat. 1104; Pub. L.
96-513, title V, Sec. 511(52)(A), (B), Dec. 12, 1980, 94 Stat.
2925; Pub. L. 100-26, Sec. 7(h)(1), (2)(A), Apr. 21, 1987, 101
Stat. 282.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Revised section Source (U.S. Code) Source (Statutes at
Large)
---------------------------------------------------------------------
1403 37:272(h). Oct. 12, 1949, ch.
681, Sec. 402(h),
63 Stat. 820.
-------------------------------
-REFTEXT-
REFERENCES IN TEXT
The Internal Revenue Code of 1986, referred to in text, is set
out in Title 26, Internal Revenue Code.
-MISC2-
AMENDMENTS
1987 - Pub. L. 100-26 substituted ''Internal Revenue Code of
1986'' for ''Internal Revenue Code of 1954'' in section catchline
and text.
1980 - Pub. L. 96-513 substituted ''the Internal Revenue Code of
1954'' for ''title 26'' in section catchline and text.
Pub. L. 96-342 inserted reference to section 1402a(d) 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.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in title 26 section 104.
-CITE-
10 USC Sec. 1404 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 71 - COMPUTATION OF RETIRED PAY
-HEAD-
Sec. 1404. Applicability of section 8301 of title 5
-STATUTE-
The retirement provisions of this title are subject to section
8301 of title 5.
-SOURCE-
(Aug. 10, 1956, ch. 1041, 70A Stat. 108; Pub. L. 89-718, Sec. 3,
Nov. 2, 1966, 80 Stat. 1115.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Revised section Source (U.S. Code) Source (Statutes at
Large)
---------------------------------------------------------------------
1404 (No source). (No source).
-------------------------------
The effect of the act of April 23, 1930 (5 U.S.C. 47a), in
temporarily deferring retirement dates otherwise specifically fixed
by law is reflected in the sections of the proposed text that name
those dates. This section is inserted to make clear that under
that act such deferments have no effect on the applicability of the
specific rates that are to be used in computing retired pay.
AMENDMENTS
1966 - Pub. L. 89-718 substituted ''8301'' for ''47a'' in section
catchline and text.
-CITE-
10 USC Sec. 1405 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 71 - COMPUTATION OF RETIRED PAY
-HEAD-
Sec. 1405. Years of service
-STATUTE-
(a) In General. - For the purposes of the computation of the
years of service of a member of the armed forces under a provision
of this title providing for such computation to be made under this
section, the years of service of the member are computed by adding
-
(1) his years of active service;
(2) the years of service, not included in clause (1), with
which he was entitled to be credited on May 31, 1958, in
computing his basic pay; and
(3) the years of service, not included in clause (1) or (2),
with which he would be entitled to be credited under section
12733 of this title if he were entitled to retired pay under
section 12731 of this title.
(b) Fractional Years of Service. - In determining a member's
years of service under subsection (a) -
(1) each full month of service that is in addition to the
number of full years of service creditable to the member shall be
credited as 1/12 of a year; and
(2) any remaining fractional part of a month shall be
disregarded.
(c) Exclusion of Time Required To Be Made Up or Excluded. - (1)
Time required to be made up by an enlisted member of the Army or
Air Force under section 972(a) of this title, or required to be
made up by an enlisted member of the Navy, Marine Corps, or Coast
Guard under that section with respect to a period of time after
October 5, 1994, may not be counted in determining years of service
under subsection (a).
(2) Section 972(b) of this title excludes from computation of an
officer's years of service for purposes of this section any time
identified with respect to that officer under that section.
-SOURCE-
(Added Pub. L. 85-422, Sec. 11(a)(1)(A), May 20, 1958, 72 Stat.
130; amended Pub. L. 85-861, Sec. 1(31A), Sept. 2, 1958, 72 Stat.
1451; Pub. L. 87-649, Sec. 6(f)(4), Sept. 7, 1962, 76 Stat. 494;
Pub. L. 87-651, title I, Sec. 109, Sept. 7, 1962, 76 Stat. 509;
Pub. L. 90-130, Sec. 1(7), Nov. 8, 1967, 81 Stat. 374; Pub. L.
96-513, title I, Sec. 113(b), Dec. 12, 1980, 94 Stat. 2877; Pub. L.
97-295, Sec. 1(17), Oct. 12, 1982, 96 Stat. 1290; Pub. L. 99-348,
title I, Sec. 106, July 1, 1986, 100 Stat. 691; Pub. L. 103-337,
div. A, title VI, Sec. 635(d), title XVI, Sec. 1662(j)(3), Oct. 5,
1994, 108 Stat. 2789, 3004; Pub. L. 104-106, div. A, title V, Sec.
561(d)(1), Feb. 10, 1996, 110 Stat. 322; Pub. L. 104-201, div. A,
title X, Sec. 1074(b)(1), Sept. 23, 1996, 110 Stat. 2660; Pub. L.
107-107, div. A, title X, Sec. 1048(c)(7), Dec. 28, 2001, 115
Stat. 1226.)
-MISC1-
Historical and Revision Notes
1958 Act
---------------------------------------------------------------------
Revised section Source (U.S. Code) Source (Statutes at
Large)
---------------------------------------------------------------------
1405 (No source). (No source).
-------------------------------
The amendment reflects section 11 of the Act of May 20, 1958,
Pub. L. 85-422 (72 Stat. 130).
1962 ACT
The change corrects a typographical error.
1982 ACT
This amends 10:1405 to correct an inadvertent error in the
codification of title 10 in 1956 relating to retirement pay of
warrant officers advanced on the retired list. Under provisions of
law first enacted in 1948 through the codification of title 10 in
1956 and until 1965, warrant officers advanced on the retired list
received credit for inactive service in the computation of
retirement pay. The Comptroller General in 1965 (B-156576) held in
effect that computation of such retirement pay was governed by the
wording of new title 10 that based the computation on years of
active service only even though this had the result of making a
substantive change. The Armed Services Committee of the House of
Representatives concurs that an error was made in the codification
of title 10 and has indicated that corrective legislative action is
properly a responsibility of the House Judiciary Committee. See,
also, the amendments to 10:3992 and 8992 made by sections 1(40) and
1(52), respectively.
AMENDMENTS
2001 - Subsec. (c)(1). Pub. L. 107-107 substituted ''October 5,
1994,'' for ''the date of the enactment of the National Defense
Authorization Act for Fiscal Year 1995,''.
1996 - Subsec. (c). Pub. L. 104-106, as amended by Pub. L.
104-201, substituted ''Made Up or Excluded'' for ''Made Up'' in
heading, designated existing provisions as par. (1), substituted
''section 972(a) of this title, or required to be made up by an
enlisted member of the Navy, Marine Corps, or Coast Guard under
that section with respect to a period of time after the date of the
enactment of the National Defense Authorization Act for Fiscal Year
1995,'' for ''section 972 of this title'', and added par. (2).
1994 - Subsec. (a)(3). Pub. L. 103-337, Sec. 1662(j)(3),
substituted ''12733'' for ''1333'' and ''12731'' for ''1331''.
Subsec. (c). Pub. L. 103-337, Sec. 635(d), added subsec. (c).
1986 - Pub. L. 99-348 designated existing provision as subsec.
(a), inserted heading, and in provision preceding par. (1)
substituted ''the computation of the years of service of a member
of the armed forces under a provision of this title providing for
such computation to be made under this section, the years of
service of the member'' for ''section 1401 (formulas 4 and 5), 3991
(formula A), 3992 (formula B), 6151(b), 6323(e), 6325(a)(2) and
(b)(2), 6383(c)(2), 8991 (formula A), or 8992 (formula B) of this
title, the years of service of a member of the armed forces'', and
added subsec. (b).
1982 - Pub. L. 97-295, Sec. 1(17), substituted ''3991 (formula
A), 3992 (formula B)'' for ''3991 (formula B)'', struck out ''or''
first time appearing, and substituted ''8991 (formula A), or 8992
(formula B)'' for ''8991 (formula B)''.
1980 - Pub. L. 96-513 struck out provisions that permitted the
crediting of certain periods of constructive service in computing
the retired pay of medical and dental officers and provided that
members would compute their years of service for retirement pay by
adding (1) years of active service, (2) years of service not
otherwise counted with which the member was entitled to be credited
on May 31, 1958, and (3) years of service not otherwise counted
with which he would be credited under section 1333 if he were
entitled to retired pay under section 1331.
1967 - Pub. L. 90-130 struck out references to section 6399(c)(2)
of this title.
1962 - Pub. L. 87-651 struck out references to sections 6391(h)
and 6394(g)(2) of this title and inserted a reference to section
6394(h) of this title.
Pub. L. 87-649 substituted ''section 205(a)(7) and (8) of title
37'' for ''section 233(a)(7) of title 37'' in cl. (2).
1958 - Pub. L. 85-861 inserted references to sections 6323(e) and
6391(h) of this title.
EFFECTIVE DATE OF 1996 AMENDMENT
Amendment by Pub. L. 104-106 effective Feb. 10, 1996, and
applicable to any period of time covered by section 972 of this
title that occurs after that date, see section 561(e) of Pub. L.
104-106, set out as a note under section 972 of this title.
EFFECTIVE DATE OF 1994 AMENDMENT
Section 635(e) of Pub. L. 103-337 provided that: ''This section
(amending this section and sections 3925, 3991, 3992, 6333, 8925,
8991, and 8992 of this title) shall apply to -
''(1) the computation of the retired pay of any enlisted member
who retires on or after the date of the enactment of this Act
(Oct. 5, 1994);
''(2) the computation of the retainer pay of any enlisted
member who is transferred to the Fleet Reserve or the Fleet
Marine Corps Reserve on or after the date of the enactment of
this Act; and
''(3) the recomputation of the retired pay of any enlisted
member who is advanced on the retired list on or after the date
of the enactment of this Act.''
Amendment by section 1662(j)(3) 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 1980 AMENDMENT
Amendment by Pub. L. 96-513 effective Sept. 15, 1981, but the
authority to prescribe regulations under the amendment by Pub. L.
96-513 effective on Dec. 12, 1980, see section 701 of Pub. L.
96-513, set out as a note under section 101 of this title.
EFFECTIVE DATE OF 1962 AMENDMENT
Amendment by Pub. L. 87-649 effective Nov. 1, 1962, see section
15 of Pub. L. 87-649, set out as a note preceding section 101 of
Title 37, Pay and Allowances of the Uniformed Services.
EFFECTIVE DATE
Section effective June 1, 1958, see section 9 of Pub. L. 85-422.
-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-
TRANSITION PROVISIONS UNDER DEFENSE OFFICER PERSONNEL MANAGEMENT
ACT
For provisions to prevent extinction or premature termination of
rights, duties, penalties, or proceedings that existed or were
begun prior to the effective date of Pub. L. 96-513 and otherwise
to allow for an orderly transition to the system of officer
personnel management put in place under Pub. L. 96-513, see section
601 et seq. of Pub. L. 96-513, set out as a note under section 611
of this title.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1175, 1401, 1414, 3991,
3992, 6151, 6333, 6334 of this title; title 14 section 423; title
33 section 3045; title 37 section 322.
-CITE-
10 USC Sec. 1406 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 71 - COMPUTATION OF RETIRED PAY
-HEAD-
Sec. 1406. Retired pay base for members who first became members
before September 8, 1980: final basic pay
-STATUTE-
(a) Use of Retired Pay Base in Computing Retired Pay. -
(1) General rule. - The retired pay or retainer pay of any
person entitled to that pay who first became a member of a
uniformed service before September 8, 1980, is computed using the
retired pay base or retainer pay base determined under this
section.
(2) Exception for recomputation. - Recomputation of retired or
retainer pay to reflect later active duty is provided for under
section 1402 of this title without reference to a retired pay
base or retainer pay base.
(b) Retirement Under Subtitle A or E. -
(1) Disability, warrant officer, and dopma retirement. - In the
case of a person whose retired pay is computed under this
subtitle, the retired pay base is determined in accordance with
the following table.
---------------------------------------------------------------------
For a member entitled to retired The retired pay base is:
pay under section:
---------------------------------------------------------------------
1201 1202 1204 1205 Monthly basic pay (FOOTNOTE 1)
of grade to which member is
entitled under section 1372 or
to which he was entitled on day
before retirement or placement
on temporary disability retired
list, whichever is higher.
----------------------------------------------------------------
580 1263 1293 1305 Monthly basic pay to which member
would have been entitled if he
had served on active duty in his
retired grade on day before
retirement, or if the pay of
that grade is less than the pay
of any warrant grade
satisfactorily held by him on
active duty, the monthly basic
pay of that warrant officer
grade.
----------------------------------------------------------------
633 634 635 636 1251 Monthly basic pay (FOOTNOTE 2)
of member's retired grade.
(FOOTNOTE 3)
-------------------------------
(FOOTNOTE 1) Compute at rates applicable on date of retirement or
date when member's name was placed on temporary disability retired
list, as the case may be.
(FOOTNOTE 2) Compute at rates applicable on date of retirement.
(FOOTNOTE 3) For the purposes of this subsection, determine
member's retired grade as if sections 3962 and 8962 did not apply.
(2) Non-regular service retirement. - In the case of a person
who is entitled to retired pay under section 12731 of this title,
the retired pay base is the monthly basic pay, determined at the
rates applicable on the date when retired pay is granted, of the
highest grade held satisfactorily by the person at any time in
the armed forces. For purposes of the preceding sentence, the
highest grade in which a person served satisfactorily as an
officer shall be determined in accordance with section 1370(d) of
this title.
(c) Voluntary Retirement for Members of the Army. -
(1) In general. - In the case of a member whose retired pay is
computed under section 3991 of this title or who is entitled to
retired pay computed under section 3992 of this title, the
retired pay base is determined in accordance with the following
table.
---------------------------------------------------------------------
For a member entitled to retired The retired pay base is:
pay under section:
---------------------------------------------------------------------
3911 3918 3920 3924 Monthly basic pay of member's
retired grade. (FOOTNOTE 1)
----------------------------------------------------------------
3914 3917 Monthly basic pay to which member
was entitled on day before he
retired.
----------------------------------------------------------------
3992 Monthly basic pay of grade to
which member is advanced on
retired list.
-------------------------------
(FOOTNOTE 1) For the purposes of this subsection, determine
member's retired grade as if section 3962 did not apply.
(2) Rate of basic pay to be used. - The rate of basic pay to be
used under paragraph (1) is the rate applicable on the date of
the member's retirement.
(d) Retirement for Members of the Navy and Marine Corps. - In the
case of a member whose retired pay is computed under section 6333
of this title, who is advanced on the retired list under section
6151 or 6334 of this title, or who is entitled to retainer pay
under section 6330 of this title, the retired pay base or retainer
pay base is determined in accordance with the following table.
---------------------------------------------------------------------
For a member entitled to retired The retired pay base or retainer
or retainer pay under section: pay base is:
---------------------------------------------------------------------
6323 6325(a) 6383 Basic pay of the grade in which
the member retired. (FOOTNOTE 1)
----------------------------------------------------------------
6325(b) Basic pay of the grade the
officer would hold if he had not
received an appointment
described in section 6325(b).
----------------------------------------------------------------
6326 Basic pay of the pay grade in
which the member was serving on
the day before retirement.
----------------------------------------------------------------
6330 Basic pay that the member
received at the time of transfer
to the Fleet Reserve or Fleet
Marine Corps Reserve.
----------------------------------------------------------------
6151 Basic pay of the grade to which
the member is advanced under
section 6151.
----------------------------------------------------------------
6334 Basic pay of the grade to which
the member is advanced under
section 6334.
-------------------------------
(FOOTNOTE 1) If the rate specified is less than the pay of any
warrant officer grade satisfactorily held by the member on active
duty, use the monthly basic pay of that warrant officer grade.
(e) Voluntary Retirement for Members of the Air Force. -
(1) In general. - In the case of a member whose retired pay is
computed under section 8991 of this title or who is entitled to
retired pay computed under section 8992 of this title, the
retired pay base is determined in accordance with the following
table.
---------------------------------------------------------------------
For a member entitled to retired The retired pay base is:
pay under section:
---------------------------------------------------------------------
8911 8918 8920 8924 Monthly basic pay of member's
retired grade. (FOOTNOTE 1)
----------------------------------------------------------------
8914 8917 Monthly basic pay to which member
was entitled on day before he
retired.
----------------------------------------------------------------
8992 Monthly basic pay of grade to
which member is advanced on
retired list.
-------------------------------
(FOOTNOTE 1) For the purposes of this subsection, determine
member's retired grade as if section 8962 did not apply.
(2) Rate of basic pay to be used. - The rate of basic pay to be
used under paragraph (1) is the rate applicable on the date of
the member's retirement.
(f) Coast Guard. - In the case of a member who is retired under
any section of title 14, the member's retired pay is computed under
section 423(a) of title 14 in the manner provided in that section.
(g) Commissioned Corps of National Oceanic and Atmospheric
Administration. - In the case of an officer whose retired pay is
computed under section 305 (FOOTNOTE 1) of the National Oceanic and
Atmospheric Administration Commissioned Officers Act of 2002, the
retired pay base is the basic pay of the rank with which the
officer retired.
(FOOTNOTE 1) See References in Text note below.
(h) Commissioned Corps of Public Health Service. - In the case of
an officer who is retired under section 210(g) or 211(a) of the
Public Health Service Act (42 U.S.C. 211(g), 212(a)), the retired
pay base is determined as follows:
(1) Mandatory retirement. - If the officer is retired under
section 210(g) of such Act, the retired pay base is the basic pay
of the permanent grade held by the officer at the time of
retirement.
(2) Voluntary retirement. - If the officer is retired under
section 211(a) of such Act, the retired pay base is the basic pay
of the highest grade held by the officer and in which, in the
case of a temporary promotion to such grade, the officer has
performed active duty for not less than six months.
(i) Special Rule for Former Chairmen and Vice Chairmen of the
JCS, Chiefs of Service, and Senior Enlisted Members. -
(1) In general. - For the purposes of subsections (b) through
(e), in determining the rate of basic pay to apply in the
determination of the retired pay base of a member who has served
as Chairman or Vice Chairman of the Joint Chiefs of Staff, as a
Chief of Service, or as the senior enlisted member of an armed
force, the highest rate of basic pay applicable to the member
while serving in that position shall be used, if that rate is
higher than the rate otherwise authorized by this section.
(2) Exception for members reduced in grade or who do not serve
satisfactorily. - Paragraph (1) does not apply in the case of a
member who, while or after serving in a position specified in
that paragraph and by reason of conduct occurring after October
16, 1998 -
(A) in the case of an enlisted member, is reduced in grade as
the result of a court-martial sentence, nonjudicial punishment,
or other administrative process; or
(B) in the case an officer, is not certified by the Secretary
of Defense under section 1370(c) of this title as having served
on active duty satisfactorily in the grade of general or
admiral, as the case may be, while serving in that position.
(3) Definitions. - In this subsection:
(A) The term ''Chief of Service'' means any of the following:
(i) Chief of Staff of the Army.
(ii) Chief of Naval Operations.
(iii) Chief of Staff of the Air Force.
(iv) Commandant of the Marine Corps.
(v) Commandant of the Coast Guard.
(B) The term ''senior enlisted member'' means any of the
following:
(i) Sergeant Major of the Army.
(ii) Master Chief Petty Officer of the Navy.
(iii) Chief Master Sergeant of the Air Force.
(iv) Sergeant Major of the Marine Corps.
(v) Master Chief Petty Officer of the Coast Guard.
-SOURCE-
(Added Pub. L. 99-348, title I, Sec. 104(b), July 1, 1986, 100
Stat. 686; amended Pub. L. 100-180, div. A, title V, Sec.
512(d)(2), title XIII, Sec. 1314(b)(6), Dec. 4, 1987, 101 Stat.
1090, 1175; Pub. L. 100-456, div. A, title XII, Sec. 1233(c),
Sept. 29, 1988, 102 Stat. 2057; Pub. L. 102-190, div. A, title XI,
Sec. 1131(7), Dec. 5, 1991, 105 Stat. 1506; Pub. L. 103-337, div.
A, title XVI, Sec. 1662(j)(4), Oct. 5, 1994, 108 Stat. 3004; Pub.
L. 105-85, div. A, title X, Sec. 1073(a)(23), Nov. 18, 1997, 111
Stat. 1901; Pub. L. 105-261, div. A, title VI, Sec. 646, Oct. 17,
1998, 112 Stat. 2050; Pub. L. 106-65, div. A, title X, Sec.
1066(a)(11), Oct. 5, 1999, 113 Stat. 771; Pub. L. 107-372, title
II, Sec. 272(a), Dec. 19, 2002, 116 Stat. 3094.)
-REFTEXT-
REFERENCES IN TEXT
Section 305 of the National Oceanic and Atmospheric
Administration Commissioned Officers Act of 2002, referred to in
subsec. (g), probably means section 245 of title II of Pub. L.
107-372, known as the National Oceanic and Atmospheric
Administration Commissioned Officers Act of 2002, which is
classified to section 3045 of Title 33, Navigation and Navigable
Waters. That Act does not contain a section 305, and section 245
relates to computation of retired pay.
-MISC2-
PRIOR PROVISIONS
A prior section 1406 was renumbered section 12738 of this title.
AMENDMENTS
2002 - Subsec. (g). Pub. L. 107-372 substituted ''section 305 of
the National Oceanic and Atmospheric Administration Commissioned
Officers Act of 2002'' for ''section 16 of the Coast and Geodetic
Survey Commissioned Officers' Act of 1948 (33 U.S.C. 853o)''
1999 - Subsec. (i)(2). Pub. L. 106-65 substituted ''after October
16, 1998'' for ''on or after the date of the enactment of the Strom
Thurmond National Defense Authorization Act for Fiscal Year 1999''
in introductory provisions.
1998 - Subsec. (i)(2), (3). Pub. L. 105-261 added par. (2) and
redesignated former par. (2) as (3).
1997 - Subsec. (b)(1). Pub. L. 105-85 substituted ''3962 and
8962'' for ''3962(b) and 8962(b)'' in footnote 3 in table.
Subsec. (c)(1). Pub. L. 105-85, Sec. 1073(a)(23)(A), substituted
''3962'' for ''3962(b)'' in footnote 1 in table.
Subsec. (e)(1). Pub. L. 105-85, Sec. 1073(a)(23)(B), substituted
''8962'' for ''8962(b)'' in footnote 1 in table.
1994 - Subsec. (b). Pub. L. 103-337 substituted ''Subtitle A or
E'' for ''Subtitle A'' in subsec. heading, designated existing
provisions as par. (1), inserted par. (1) heading, in table struck
out item for section 1331 which related to monthly basic pay of
highest grade held satisfactorily by person at any time in armed
forces, renumbered footnotes 3 and 4 as 2 and 3, respectively, and
struck out former footnote 2 which provided for computations at
rates applicable on date when retired pay is granted, and added
par. (2).
1991 - Subsec. (b). Pub. L. 102-190 substituted ''580'' for
''564'' in table.
1988 - Subsec. (b). Pub. L. 100-456 substituted ''satisfactorily
by person'' for ''satisfactory by person'' in item relating to
section 1331 in table.
1987 - Subsec. (d). Pub. L. 100-180, Sec. 512(d)(2), inserted
''or 6334'' after ''6151'' in text, and inserted item relating to
section 6334 at end of table.
Subsec. (i). Pub. L. 100-180, Sec. 1314(b)(6), inserted ''and
Vice Chairmen'' after ''Chairmen'' in heading and inserted ''or
Vice Chairman'' after ''Chairman'' in par. (1).
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 1991 AMENDMENT
Amendment by Pub. L. 102-190 effective Feb. 1, 1992, see section
1132 of Pub. L. 102-190, set out as a note under section 521 of
this title.
-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-
GRADE ON TRANSFER TO RETIRED RESERVE
Section 1688 of title XVI of Pub. L. 103-337 provided that: ''In
determining the highest grade held satisfactorily by a person at
any time in the Armed Forces for the purposes of paragraph (2) of
section 1406(b) of title 10, United States Code, as added by this
title, the requirement for satisfactory service on the reserve
active-status list contained in section 1370(d) of title 10, United
States Code, as added by this title, shall apply only to reserve
commissioned officers who are promoted to a higher grade as a
result of selection for promotion under chapter 36 of that title or
under chapter 1405 of that title, as added by this title, or having
been found qualified for Federal recognition in a higher grade
under chapter 3 of title 32, United States Code, after the
effective date of this title (see Effective Date note set out under
section 10001 of this title).''
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1401, 1401a, 1407, 3991,
3992, 6151, 6333, 6334, 8991, 8992, 12739 of this title; title 33
section 3045; title 42 section 211.
-CITE-
10 USC Sec. 1407 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 71 - COMPUTATION OF RETIRED PAY
-HEAD-
Sec. 1407. Retired pay base for members who first became members
after September 7, 1980: high-36 month average
-STATUTE-
(a) Use of Retired Pay Base in Computing Retired Pay. - The
retired pay or retainer pay of any person entitled to that pay who
first became a member of a uniformed service after September 7,
1980, is computed using the retired pay base or retainer pay base
determined under this section.
(b) High-Three Average. - Except as provided in subsection (f),
the retired pay base or retainer pay base of a person under this
section is the person's high-three average determined under
subsection (c) or (d).
(c) Computation of High-Three Average for Members Entitled to
Retired or Retainer Pay for Regular Service. -
(1) General rule. - The high-three average of a member entitled
to retired or retainer pay under any provision of law other than
section 1204 or 1205 or section 12731 of this title is the amount
equal to -
(A) the total amount of monthly basic pay to which the member
was entitled for the 36 months (whether or not consecutive) out
of all the months of active service of the member for which the
monthly basic pay to which the member was entitled was the
highest, divided by
(B) 36.
(2) Special rule for short-term disability retirees. - In the
case of a member who is entitled to retired pay under section
1201 or 1202 of this title and who has completed less than 36
months of active service, the member's high-three average
(notwithstanding paragraph (1)) is the amount equal to -
(A) the total amount of basic pay to which the member was
entitled during the period of the member's active service,
divided by
(B) the number of months (including any fraction thereof) of
the member's active service.
(d) Computation of High-Three Average for Members and Former
Members Entitled to Retired Pay for Nonregular Service. -
(1) Retired pay under chapter 1223. - The high-three average of
a member or former member entitled to retired pay under section
12731 of this title is the amount equal to -
(A) the total amount of monthly basic pay to which the member
or former member was entitled during the member or former
member's high-36 months (or to which the member or former
member would have been entitled if the member or former member
had served on active duty during the entire period of the
member or former member's high-36 months), divided by
(B) 36.
(2) Nonregular service disability retired pay. - The high-three
average of a member entitled to retired pay under section 1204 or
1205 of this title is the amount equal to -
(A) the total amount of monthly basic pay to which the member
was entitled during the member's high-36 months (or to which
the member would have been entitled if the member had served on
active duty during the entire period of the member's high-36
months), divided by
(B) 36.
(3) Special rule for short-term disability retirees. - In the
case of a member who is entitled to retired pay under section
1204 or 1205 of this title and who was a member for less than 36
months before being retired under that section, the member's
high-three average (notwithstanding paragraph (2)) is the amount
equal to -
(A) the total amount of basic pay to which the member was
entitled during the entire period the member was a member of a
uniformed service before being so retired (or to which the
member would have been entitled if the member had served on
active duty during the entire period the member was a member of
a uniformed service before being so retired), divided by
(B) the number of months (including any fraction thereof)
which the member was a member before being so retired.
(4) High-36 months. - The high-36 months of a member or former
member whose retired pay is covered by paragraph (1) or (2) are
the 36 months (whether or not consecutive) out of all the months
before the member or former member became entitled to retired pay
for which the monthly basic pay to which the member or former
member was entitled (or would have been entitled if serving on
active duty during those months) was the highest. In the case of
a former member, only months during which the former member was a
member of a uniformed service may be used for purposes of the
preceding sentence.
(e) Limitation for Enlisted Members Retiring With Less Than 30
Years' Service. - In the case of a member who is retired under
section 3914 or 8914 of this title or who is transferred to the
Fleet Reserve or Fleet Marine Corps Reserve under section 6330 of
this title, the member's high-36 average shall be computed using
only rates of basic pay applicable to months of active duty of the
member as an enlisted member.
(f) Exception for Enlisted Members Reduced in Grade and Officers
Who Do Not Serve Satisfactorily in Highest Grade Held. -
(1) Computation based on pre-high-three rules. - In the case of
a member or former member described in paragraph (2), the retired
pay base or retainer pay base is determined under section 1406 of
this title in the same manner as if the member or former member
first became a member of a uniformed service before September 8,
1980.
(2) Affected members. - A member or former member referred to
in paragraph (1) is a member or former member who by reason of
conduct occurring after October 30, 2000 -
(A) in the case of a member retired in an enlisted grade or
transferred to the Fleet Reserve or Fleet Marine Corps Reserve,
was at any time reduced in grade as the result of a
court-martial sentence, nonjudicial punishment, or an
administrative action, unless the member was subsequently
promoted to a higher enlisted grade or appointed to a
commissioned or warrant grade; and
(B) in the case of an officer, is retired in a grade lower
than the highest grade in which served by reason of denial of a
determination or certification under section 1370 of this title
that the officer served on active duty satisfactorily in that
grade.
(3) Special rule for enlisted members. - In the case of a
member who retires within three years after having been reduced
in grade as described in paragraph (2)(A), who retires in an
enlisted grade that is lower than the grade from which reduced,
and who would be subject to paragraph (1) but for a subsequent
promotion to a higher enlisted grade or a subsequent appointment
to a warrant or commissioned grade, the rates of basic pay used
in the computation of the member's high-36 average for the period
of the member's service in a grade higher than the grade in which
retired shall be the rates of pay that would apply if the member
had been serving for that period in the grade in which retired.
-SOURCE-
(Added Pub. L. 99-348, title I, Sec. 104(b), July 1, 1986, 100
Stat. 689; amended Pub. L. 101-189, div. A, title VI, Sec. 651(a),
(b)(2), Nov. 29, 1989, 103 Stat. 1459, 1460; Pub. L. 103-337, div.
A, title XVI, Sec. 1662(j)(5), Oct. 5, 1994, 108 Stat. 3004; Pub.
L. 104-106, div. A, title XV, Sec. 1501(c)(15), Feb. 10, 1996, 110
Stat. 499; Pub. L. 106-398, Sec. 1 ((div. A), title VI, Sec. 651),
Oct. 30, 2000, 114 Stat. 1654, 1654A-163; Pub. L. 107-107, div. A,
title X, Sec. 1048(c)(8), Dec. 28, 2001, 115 Stat. 1226.)
-MISC1-
PRIOR PROVISIONS
A prior section 1407, added Pub. L. 96-342, title VIII, Sec.
813(a)(1), Sept. 8, 1980, 94 Stat. 1100; amended Pub. L. 96-513,
title I, Sec. 113(c), title V, Sec. 501(21), 511(53), Dec. 12,
1980, 94 Stat. 2877, 2908, 2925, related to determination of
retired base pay, prior to repeal by Pub. L. 99-348, Sec. 104(b).
AMENDMENTS
2001 - Subsec. (f)(2). Pub. L. 107-107 substituted ''October 30,
2000 - '' for ''the date of the enactment of this subsection - ''
in introductory provisions.
2000 - Subsec. (b). Pub. L. 106-398, Sec. 1 ((div. A), title VI,
Sec. 651(1)), substituted ''Except as provided in subsection (f),
the retired pay base'' for ''The retired pay base''.
Subsec. (f). Pub. L. 106-398, Sec. 1 ((div. A), title VI, Sec.
651(2)), added subsec. (f).
1996 - Subsec. (c)(1). Pub. L. 104-106, Sec. 1501(c)(15)(A),
substituted ''section 12731'' for ''section 1331''.
Subsec. (d)(1). Pub. L. 104-106 substituted in heading ''chapter
1223'' for ''chapter 67'' and in text ''section 12731'' for
''section 1331''.
1994 - Subsec. (c)(2)(B). Pub. L. 103-337, Sec. 1662(j)(5)(A),
which directed substitution of ''chapter 1223'' for ''chapter 67'',
could not be executed because the words ''chapter 67'' did not
appear subsequent to amendment by Pub. L. 101-189, Sec. 651(a)(2),
(4). See 1989 Amendment note below.
Subsec. (f)(2). Pub. L. 103-337, Sec. 1662(j)(5)(B), which
directed amendment of subsec. (f)(2) by substituting ''Chapter
1223'' for ''Chapter 67'' in heading and ''section 12731'' for
''section 1331'' in text, could not be executed because of previous
repeal of subsec. (f) by Pub. L. 101-189, Sec. 651(a)(2). See 1989
Amendment note below.
1989 - Subsec. (b). Pub. L. 101-189, Sec. 651(a)(1), (b)(2),
substituted ''person'' for ''member'', ''person's'' for
''member's'', and ''subsection (c) or (d)'' for ''subsection (c)''.
Subsec. (c). Pub. L. 101-189, Sec. 651(a)(2), (4), added subsec.
(c) and struck out former subsec. (c) which related to computation
of high-three average.
Subsec. (d). Pub. L. 101-189, Sec. 651(a)(4), added subsec. (d).
Former subsec. (d) redesignated (e).
Subsec. (e). Pub. L. 101-189, Sec. 651(a)(2), (3), redesignated
subsec. (d) as (e) and struck out former subsec. (e) which related
to special rules for short-term disability retirees.
Subsecs. (f), (g). Pub. L. 101-189, Sec. 651(a)(2), struck out
subsec. (f) which related to special rule for members retiring with
non-regular service, and subsec. (g) which defined the term ''years
of creditable service''.
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 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.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1401, 1401a, 1402a, 3991,
3992, 6151, 6333, 6334, 8991, 8992, 12739 of this title; title 14
sections 357, 423, 424; title 33 section 3045; title 42 sections
211, 212.
-CITE-
10 USC Sec. 1408 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 71 - COMPUTATION OF RETIRED PAY
-HEAD-
Sec. 1408. Payment of retired or retainer pay in compliance with
court orders
-STATUTE-
(a) Definitions. - In this section:
(1) The term ''court'' means -
(A) any court of competent jurisdiction of any State, the
District of Columbia, the Commonwealth of Puerto Rico, Guam,
American Samoa, the Virgin Islands, the Northern Mariana
Islands, and the Trust Territory of the Pacific Islands;
(B) any court of the United States (as defined in section 451
of title 28) having competent jurisdiction;
(C) any court of competent jurisdiction of a foreign country
with which the United States has an agreement requiring the
United States to honor any court order of such country; and
(D) any administrative or judicial tribunal of a State
competent to enter orders for support or maintenance (including
a State agency administering a program under a State plan
approved under part D of title IV of the Social Security Act),
and, for purposes of this subparagraph, the term ''State''
includes the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, and American Samoa.
(2) The term ''court order'' means a final decree of divorce,
dissolution, annulment, or legal separation issued by a court, 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 a court ordered, ratified, or
approved property settlement incident to such previously issued
decree), or a support order, as defined in section 453(p) of the
Social Security Act (42 U.S.C. 653(p)), which -
(A) is issued in accordance with the laws of the jurisdiction
of that court;
(B) provides for -
(i) payment of child support (as defined in section
459(i)(2) of the Social Security Act (42 U.S.C. 659(i)(2)));
(ii) payment of alimony (as defined in section 459(i)(3) of
the Social Security Act (42 U.S.C. 659(i)(3))); or
(iii) division of property (including a division of
community property); and
(C) in the case of a division of property, specifically
provides for the payment of an amount, expressed in dollars or
as a percentage of disposable retired pay, from the disposable
retired pay of a member to the spouse or former spouse of that
member.
(3) 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 taking 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.
(4) The term ''disposable retired pay'' means the total monthly
retired pay to which a member is entitled less amounts which -
(A) are owed by that member to the United States for previous
overpayments of retired pay and for recoupments required by law
resulting from entitlement to retired pay;
(B) are deducted from the retired pay of such member as a
result of forfeitures of retired pay ordered by a court-martial
or as a result of a waiver of retired pay required by law in
order to receive compensation under title 5 or title 38;
(C) in the case of a member entitled to retired pay under
chapter 61 of this title, are equal to the amount of retired
pay of the member under that chapter computed using the
percentage of the member's disability on the date when the
member was retired (or the date on which the member's name was
placed on the temporary disability retired list); or
(D) are deducted because of an election under chapter 73 of
this title to provide an annuity to a spouse or former spouse
to whom payment of a portion of such member's retired pay is
being made pursuant to a court order under this section.
(5) The term ''member'' includes a former member entitled to
retired pay under section 12731 of this title.
(6) The term ''spouse or former spouse'' means the husband or
wife, or former husband or wife, respectively, of a member who,
on or before the date of a court order, was married to that
member.
(7) The term ''retired pay'' includes retainer pay.
(b) Effective Service of Process. - For the purposes of this
section -
(1) service of a court order is effective if -
(A) an appropriate agent of the Secretary concerned
designated for receipt of service of court orders under
regulations prescribed pursuant to subsection (i) or, if no
agent has been so designated, the Secretary concerned, is
personally served or is served by facsimile or electronic
transmission or by mail;
(B) the court order is regular on its face;
(C) the court order or other documents served with the court
order identify the member concerned and include, if possible,
the social security number of such member; and
(D) the court order or other documents served with the court
order certify that the rights of the member under the Soldiers'
and Sailors' Civil Relief Act of 1940 (50 U.S.C. App. 501 et
seq.) were observed; and
(2) a court order is regular on its face if the order -
(A) is issued by a court of competent jurisdiction;
(B) is legal in form; and
(C) includes nothing on its face that provides reasonable
notice that it is issued without authority of law.
(c) Authority for Court To Treat Retired Pay as Property of the
Member and Spouse. - (1) Subject to the limitations of this
section, a court may treat disposable retired pay payable to a
member for pay periods beginning after June 25, 1981, either as
property solely of the member or as property of the member and his
spouse in accordance with the law of the jurisdiction of such
court. A court may not treat retired pay as property in any
proceeding to divide or partition any amount of retired pay of a
member as the property of the member and the member's spouse or
former spouse if a final decree of divorce, dissolution, annulment,
or legal separation (including a court ordered, ratified, or
approved property settlement incident to such decree) affecting the
member and the member's spouse or former spouse (A) was issued
before June 25, 1981, and (B) did not treat (or reserve
jurisdiction to treat) any amount of retired pay of the member as
property of the member and the member's spouse or former spouse.
(2) Notwithstanding any other provision of law, this section does
not create any right, title, or interest which can be sold,
assigned, transferred, or otherwise disposed of (including by
inheritance) by a spouse or former spouse. Payments by the
Secretary concerned under subsection (d) to a spouse or former
spouse with respect to a division of retired pay as the property of
a member and the member's spouse under this subsection may not be
treated as amounts received as retired pay for service in the
uniformed services.
(3) This section does not authorize any court to order a member
to apply for retirement or retire at a particular time in order to
effectuate any payment under this section.
(4) A court may not treat the disposable retired pay of a member
in the manner described in paragraph (1) unless the court has
jurisdiction over the member by reason of (A) his residence, other
than because of military assignment, in the territorial
jurisdiction of the court, (B) his domicile in the territorial
jurisdiction of the court, or (C) his consent to the jurisdiction
of the court.
(d) Payments by Secretary Concerned to (or for Benefit of) Spouse
or Former Spouse. - (1) After effective service on the Secretary
concerned of a court order providing for the payment of child
support or alimony or, with respect to a division of property,
specifically providing for the payment of an amount of the
disposable retired pay from a member to the spouse or a former
spouse of the member, the Secretary shall make payments (subject to
the limitations of this section) from the disposable retired pay of
the member to the spouse or former spouse (or for the benefit of
such spouse or former spouse to a State disbursement unit
established pursuant to section 454B of the Social Security Act or
other public payee designated by a State, in accordance with part D
of title IV of the Social Security Act, as directed by court order,
or as otherwise directed in accordance with such part D) in an
amount sufficient to satisfy the amount of child support and
alimony set forth in the court order and, with respect to a
division of property, in the amount of disposable retired pay
specifically provided for in the court order. In the case of a
spouse or former spouse who, pursuant to section 408(a)(3) of the
Social Security Act (42 U.S.C. 608(a)(4)), assigns to a State the
rights of the spouse or former spouse to receive support, the
Secretary concerned may make the child support payments referred to
in the preceding sentence to that State in amounts consistent with
that assignment of rights. In the case of a member entitled to
receive retired pay on the date of the effective service of the
court order, such payments shall begin not later than 90 days after
the date of effective service. In the case of a member not
entitled to receive retired pay on the date of the effective
service of the court order, such payments shall begin not later
than 90 days after the date on which the member first becomes
entitled to receive retired pay.
(2) If the spouse or former spouse to whom payments are to be
made under this section was not married to the member for a period
of 10 years or more during which the member performed at least 10
years of service creditable in determining the member's eligibility
for retired pay, payments may not be made under this section to the
extent that they include an amount resulting from the treatment by
the court under subsection (c) of disposable retired pay of the
member as property of the member or property of the member and his
spouse.
(3) Payments under this section shall not be made more frequently
than once each month, and the Secretary concerned shall not be
required to vary normal pay and disbursement cycles for retired pay
in order to comply with a court order.
(4) Payments from the disposable retired pay of a member pursuant
to this section shall terminate in accordance with the terms of the
applicable court order, but not later than the date of the death of
the member or the date of the death of the spouse or former spouse
to whom payments are being made, whichever occurs first.
(5) If a court order described in paragraph (1) provides for a
division of property (including a division of community property)
in addition to an amount of child support or alimony or the payment
of an amount of disposable retired pay as the result of the court's
treatment of such pay under subsection (c) as property of the
member and his spouse, the Secretary concerned shall pay (subject
to the limitations of this section) from the disposable retired pay
of the member to the spouse or former spouse of the member, any
part of the amount payable to the spouse or former spouse under the
division of property upon effective service of a final court order
of garnishment of such amount from such retired pay.
(6) In the case of a court order for which effective service is
made on the Secretary concerned on or after August 22, 1996, and
which provides for payments from the disposable retired pay of a
member to satisfy the amount of child support set forth in the
order, the authority provided in paragraph (1) to make payments
from the disposable retired pay of a member to satisfy the amount
of child support set forth in a court order shall apply to payment
of any amount of child support arrearages set forth in that order
as well as to amounts of child support that currently become due.
(7)(A) The Secretary concerned may not accept service of a court
order that is an out-of-State modification, or comply with the
provisions of such a court order, unless the court issuing that
order has jurisdiction in the manner specified in subsection (c)(4)
over both the member and the spouse or former spouse involved.
(B) A court order shall be considered to be an out-of-State
modification for purposes of this paragraph if the order -
(i) modifies a previous court order under this section upon
which payments under this subsection are based; and
(ii) is issued by a court of a State other than the State of
the court that issued the previous court order.
(e) Limitations. - (1) The total amount of the disposable retired
pay of a member payable under all court orders pursuant to
subsection (c) may not exceed 50 percent of such disposable retired
pay.
(2) In the event of effective service of more than one court
order which provide for payment to a spouse and one or more former
spouses or to more than one former spouse, the disposable retired
pay of the member shall be used to satisfy (subject to the
limitations of paragraph (1)) such court orders on a first-come,
first-served basis. Such court orders shall be satisfied (subject
to the limitations of paragraph (1)) out of that amount of
disposable retired pay which remains after the satisfaction of all
court orders which have been previously served.
(3)(A) In the event of effective service of conflicting court
orders under this section which assert to direct that different
amounts be paid during a month to the same spouse or former spouse
of the same member, the Secretary concerned shall -
(i) pay to that spouse from the member's disposable retired pay
the least amount directed to be paid during that month by any
such conflicting court order, but not more than the amount of
disposable retired pay which remains available for payment of
such court orders based on when such court orders were
effectively served and the limitations of paragraph (1) and
subparagraph (B) of paragraph (4);
(ii) retain an amount of disposable retired pay that is equal
to the lesser of -
(I) the difference between the largest amount required by any
conflicting court order to be paid to the spouse or former
spouse and the amount payable to the spouse or former spouse
under clause (i); and
(II) the amount of disposable retired pay which remains
available for payment of any conflicting court order based on
when such court order was effectively served and the
limitations of paragraph (1) and subparagraph (B) of paragraph
(4); and
(iii) pay to that member the amount which is equal to the
amount of that member's disposable retired pay (less any amount
paid during such month pursuant to legal process served under
section 459 of the Social Security Act (42 U.S.C. 659) and any
amount paid during such month pursuant to court orders
effectively served under this section, other than such
conflicting court orders) minus -
(I) the amount of disposable retired pay paid under clause
(i); and
(II) the amount of disposable retired pay retained under
clause (ii).
(B) The Secretary concerned shall hold the amount retained under
clause (ii) of subparagraph (A) until such time as that Secretary
is provided with a court order which has been certified by the
member and the spouse or former spouse to be valid and applicable
to the retained amount. Upon being provided with such an order,
the Secretary shall pay the retained amount in accordance with the
order.
(4)(A) In the event of effective service of a court order under
this section and the service of legal process pursuant to section
459 of the Social Security Act (42 U.S.C. 659), both of which
provide for payments during a month from the same member,
satisfaction of such court orders and legal process from the
retired pay of the member shall be on a first-come, first-served
basis. Such court orders and legal process shall be satisfied out
of moneys which are subject to such orders and legal process and
which remain available in accordance with the limitations of
paragraph (1) and subparagraph (B) of this paragraph during such
month after the satisfaction of all court orders or legal process
which have been previously served.
(B) Notwithstanding any other provision of law, the total amount
of the disposable retired pay of a member payable by the Secretary
concerned under all court orders pursuant to this section and all
legal processes pursuant to section 459 of the Social Security Act
(42 U.S.C. 659) with respect to a member may not exceed 65 percent
of the amount of the retired pay payable to such member that is
considered under section 462 of the Social Security Act (42 U.S.C.
662) to be remuneration for employment that is payable by the
United States.
(5) A court order which itself or because of previously served
court orders provides for the payment of an amount which exceeds
the amount of disposable retired pay available for payment because
of the limit set forth in paragraph (1), or which, because of
previously served court orders or legal process previously served
under section 459 of the Social Security Act (42 U.S.C. 659),
provides for payment of an amount that exceeds the maximum amount
permitted under paragraph (1) or subparagraph (B) of paragraph (4),
shall not be considered to be irregular on its face solely for that
reason. However, such order shall be considered to be fully
satisfied for purposes of this section by the payment to the spouse
or former spouse of the maximum amount of disposable retired pay
permitted under paragraph (1) and subparagraph (B) of paragraph
(4).
(6) Nothing in this section shall be construed to relieve a
member of liability for the payment of alimony, child support, or
other payments required by a court order on the grounds that
payments made out of disposable retired pay under this section have
been made in the maximum amount permitted under paragraph (1) or
subparagraph (B) of paragraph (4). Any such unsatisfied obligation
of a member may be enforced by any means available under law other
than the means provided under this section in any case in which the
maximum amount permitted under paragraph (1) has been paid and
under section 459 of the Social Security Act (42 U.S.C. 659) in any
case in which the maximum amount permitted under subparagraph (B)
of paragraph (4) has been paid.
(f) Immunity of Officers and Employees of United States. - (1)
The United States and any officer or employee of the United States
shall not be liable with respect to any payment made from retired
pay to any member, spouse, or former spouse pursuant to a court
order that is regular on its face if such payment is made in
accordance with this section and the regulations prescribed
pursuant to subsection (i).
(2) An officer or employee of the United States who, under
regulations prescribed pursuant to subsection (i), has the duty to
respond to interrogatories shall not be subject under any law to
any disciplinary action or civil or criminal liability or penalty
for, or because of, any disclosure of information made by him in
carrying out any of his duties which directly or indirectly pertain
to answering such interrogatories.
(g) Notice to Member of Service of Court Order on Secretary
Concerned. - A person receiving effective service of a court order
under this section shall, as soon as possible, but not later than
30 days after the date on which effective service is made, send a
written notice of such court order (together with a copy of such
order) to the member affected by the court order at his last known
address.
(h) Benefits for Dependents Who Are Victims of Abuse by Members
Losing Right to Retired Pay. - (1) If, in the case of a member or
former member of the armed forces referred to in paragraph (2)(A),
a court order provides (in the manner applicable to a division of
property) for the payment of an amount from the disposable retired
pay of that member or former member (as certified under paragraph
(4)) to an eligible spouse or former spouse of that member or
former member, the Secretary concerned, beginning upon effective
service of such court order, shall pay that amount in accordance
with this subsection to such spouse or former spouse.
(2) A spouse or former spouse of a member or former member of the
armed forces is eligible to receive payment under this subsection
if -
(A) the member or former member, while a member of the armed
forces and after becoming eligible to be retired from the armed
forces on the basis of years of service, has eligibility to
receive retired pay terminated as a result of misconduct while a
member involving abuse of a spouse or dependent child (as defined
in regulations prescribed by the Secretary of Defense or, for the
Coast Guard when it is not operating as a service in the Navy, by
the Secretary of Homeland Security); and
(B) the spouse or former spouse -
(i) was the victim of the abuse and was married to the member
or former member at the time of that abuse; or
(ii) is a natural or adopted parent of a dependent child of
the member or former member who was the victim of the abuse.
(3) The amount certified by the Secretary concerned under
paragraph (4) with respect to a member or former member of the
armed forces referred to in paragraph (2)(A) shall be deemed to be
the disposable retired pay of that member or former member for the
purposes of this subsection.
(4) Upon the request of a court or an eligible spouse or former
spouse of a member or former member of the armed forces referred to
in paragraph (2)(A) in connection with a civil action for the
issuance of a court order in the case of that member or former
member, the Secretary concerned shall determine and certify the
amount of the monthly retired pay that the member or former member
would have been entitled to receive as of the date of the
certification -
(A) if the member or former member's eligibility for retired
pay had not been terminated as described in paragraph (2)(A); and
(B) if, in the case of a member or former member not in receipt
of retired pay immediately before that termination of eligibility
for retired pay, the member or former member had retired on the
effective date of that termination of eligibility.
(5) A court order under this subsection may provide that whenever
retired pay is increased under section 1401a of this title (or any
other provision of law), the amount payable under the court order
to the spouse or former spouse of a member or former member
described in paragraph (2)(A) shall be increased at the same time
by the percent by which the retired pay of the member or former
member would have been increased if the member or former member
were receiving retired pay.
(6) Notwithstanding any other provision of law, a member or
former member of the armed forces referred to in paragraph (2)(A)
shall have no ownership interest in, or claim against, any amount
payable under this section to a spouse or former spouse of the
member or former member.
(7)(A) If a former spouse receiving payments under this
subsection with respect to a member or former member referred to in
paragraph (2)(A) marries again after such payments begin, the
eligibility of the former spouse to receive further payments under
this subsection shall terminate on the date of such marriage.
(B) A person's eligibility to receive payments under this
subsection that is terminated under subparagraph (A) by reason of
remarriage shall be resumed in the event of the termination of that
marriage by the death of that person's spouse or by annulment or
divorce. The resumption of payments shall begin as of the first
day of the month in which that marriage is so terminated. The
monthly amount of the payments shall be the amount that would have
been paid if the continuity of the payments had not been
interrupted by the marriage.
(8) Payments in accordance with this subsection shall be made out
of funds in the Department of Defense Military Retirement Fund
established by section 1461 of this title or, in the case of the
Coast Guard, out of funds appropriated to the Department of
Homeland Security for payment of retired pay for the Coast Guard.
(9)(A) A spouse or former spouse of a member or former member of
the armed forces referred to in paragraph (2)(A), while receiving
payments in accordance with this subsection, shall be entitled to
receive medical and dental care, to use commissary and exchange
stores, and to receive any other benefit that a spouse or a former
spouse of a retired member of the armed forces is entitled to
receive on the basis of being a spouse or former spouse, as the
case may be, of a retired member of the armed forces in the same
manner as if the member or former member referred to in paragraph
(2)(A) was entitled to retired pay.
(B) A dependent child of a member or former member referred to in
paragraph (2)(A) who was a member of the household of the member or
former member at the time of the misconduct described in paragraph
(2)(A) shall be entitled to receive medical and dental care, to use
commissary and exchange stores, and to have other benefits provided
to dependents of retired members of the armed forces in the same
manner as if the member or former member referred to in paragraph
(2)(A) was entitled to retired pay.
(C) If a spouse or former spouse or a dependent child eligible or
entitled to receive a particular benefit under this paragraph is
eligible or entitled to receive that benefit under another
provision of law, the eligibility or entitlement of that spouse or
former spouse or dependent child to such benefit shall be
determined under such other provision of law instead of this
paragraph.
(10)(A) For purposes of this subsection, in the case of a member
of the armed forces who has been sentenced by a court-martial to
receive a punishment that will terminate the eligibility of that
member to receive retired pay if executed, the eligibility of that
member to receive retired pay may, as determined by the Secretary
concerned, be considered terminated effective upon the approval of
that sentence by the person acting under section 860(c) of this
title (article 60(c) of the Uniform Code of Military Justice).
(B) If each form of the punishment that would result in the
termination of eligibility to receive retired pay is later
remitted, set aside, or mitigated to a punishment that does not
result in the termination of that eligibility, a payment of
benefits to the eligible recipient under this subsection that is
based on the punishment so vacated, set aside, or mitigated shall
cease. The cessation of payments shall be effective as of the
first day of the first month following the month in which the
Secretary concerned notifies the recipient of such benefits in
writing that payment of the benefits will cease. The recipient may
not be required to repay the benefits received before that
effective date (except to the extent necessary to recoup any amount
that was erroneous when paid).
(11) In this subsection, the term ''dependent child'', with
respect to a member or former member of the armed forces referred
to in paragraph (2)(A), means an unmarried legitimate child,
including an adopted child or a stepchild of the member or former
member, who -
(A) is under 18 years of age;
(B) is incapable of self-support because of a mental or
physical incapacity that existed before becoming 18 years of age
and is dependent on the member or former member for over one-half
of the child's support; or
(C) if enrolled in a full-time course of study in an
institution of higher education recognized by the Secretary of
Defense for the purposes of this subparagraph, is under 23 years
of age and is dependent on the member or former member for over
one-half of the child's support.
(i) Certification Date. - It is not necessary that the date of a
certification of the authenticity or completeness of a copy of a
court order for child support received by the Secretary concerned
for the purposes of this section be recent in relation to the date
of receipt by the Secretary.
(j) Regulations. - The Secretaries concerned shall prescribe
uniform regulations for the administration of this section.
(k) Relationship to Other Laws. - In any case involving an order
providing for payment of child support (as defined in section
459(i)(2) of the Social Security Act) by a member who has never
been married to the other parent of the child, the provisions of
this section shall not apply, and the case shall be subject to the
provisions of section 459 of such Act.
-SOURCE-
(Added Pub. L. 97-252, title X, Sec. 1002(a), Sept. 8, 1982, 96
Stat. 730; amended Pub. L. 98-525, title VI, Sec. 643(a)-(d), Oct.
19, 1984, 98 Stat. 2547; Pub. L. 99-661, div. A, title VI, Sec.
644(a), Nov. 14, 1986, 100 Stat. 3887; Pub. L. 100-26, Sec. 3(3),
7(h)(1), Apr. 21, 1987, 101 Stat. 273, 282; Pub. L. 101-189, div.
A, title VI, Sec. 653(a)(5), title XVI, Sec. 1622(e)(6), Nov. 29,
1989, 103 Stat. 1462, 1605; Pub. L. 101-510, div. A, title V, Sec.
555(a)-(d), (f), (g), Nov. 5, 1990, 104 Stat. 1569, 1570; Pub. L.
102-190, div. A, title X, Sec. 1061(a)(7), Dec. 5, 1991, 105 Stat.
1472; Pub. L. 102-484, div. A, title VI, Sec. 653(a), Oct. 23,
1992, 106 Stat. 2426; Pub. L. 103-160, div. A, title V, Sec.
555(a), (b), title XI, Sec. 1182(a)(2), Nov. 30, 1993, 107 Stat.
1666, 1771; Pub. L. 104-106, div. A, title XV, Sec. 1501(c)(16),
Feb. 10, 1996, 110 Stat. 499; Pub. L. 104-193, title III, Sec.
362(c), 363(c)(1)-(3), Aug. 22, 1996, 110 Stat. 2246, 2249; Pub. L.
104-201, div. A, title VI, Sec. 636, Sept. 23, 1996, 110 Stat.
2579; Pub. L. 105-85, div. A, title X, Sec. 1073(a)(24), (25),
Nov. 18, 1997, 111 Stat. 1901; Pub. L. 107-107, div. A, title X,
Sec. 1048(c)(9), Dec. 28, 2001, 115 Stat. 1226; Pub. L. 107-296,
title XVII, Sec. 1704(b)(1), Nov. 25, 2002, 116 Stat. 2314.)
-REFTEXT-
REFERENCES IN TEXT
The Social Security Act, referred to in subsecs. (a)(1)(D) and
(d)(1), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended.
Part D of title IV of the Act is classified generally to part D
(Sec. 651 et seq.) of subchapter IV of chapter 7 of Title 42, The
Public Health and Welfare. Section 454B of the Act is classified to
section 654b of Title 42. For complete classification of this Act
to the Code, see section 1305 of Title 42 and Tables.
The Soldiers' and Sailors' Civil Relief Act, referred to in
subsec. (b)(1)(D), is act Oct. 17, 1940, ch. 888, 54 Stat. 1178, as
amended, which is classified to section 501 et seq. of the Appendix
to Title 50, War and National Defense. For complete classification
of this Act to the Code, see section 501 of the Appendix to Title
50 and Tables.
-MISC2-
AMENDMENTS
2002 - Subsec. (h)(2)(A), (8). Pub. L. 107-296 substituted ''of
Homeland Security'' for ''of Transportation''.
2001 - Subsec. (d)(6). Pub. L. 107-107 substituted ''August 22,
1996,'' for ''the date of the enactment of this paragraph''.
1997 - Subsec. (d). Pub. L. 105-85, Sec. 1073(a)(24)(A),
substituted ''to'' for ''To'' in heading.
Subsec. (d)(6). Pub. L. 105-85, Sec. 1073(a)(24)(B), redesignated
par. (6), relating to court order which is out-of-State
modification, as (7).
Subsec. (d)(7). Pub. L. 105-85, Sec. 1073(a)(24)(B), redesignated
par. (6), relating to court order which is out-of-State
modification, as (7).
Subsec. (d)(7)(A). Pub. L. 105-85, Sec. 1073(a)(24)(C),
substituted ''out-of-State'' for ''out-of State''.
Subsec. (g). Pub. L. 105-85, Sec. 1073(a)(25), in heading,
substituted ''to'' for ''To'' and ''on'' for ''On''.
1996 - Subsec. (a)(1)(D). Pub. L. 104-193, Sec. 362(c)(1), added
subpar. (D).
Subsec. (a)(2). Pub. L. 104-193, Sec. 362(c)(2)(A), inserted ''or
a support order, as defined in section 453(p) of the Social
Security Act (42 U.S.C. 653(p)),'' before ''which - ''.
Subsec. (a)(2)(B)(i). Pub. L. 104-193, Sec. 362(c)(2)(B),
substituted ''(as defined in section 459(i)(2) of the Social
Security Act (42 U.S.C. 659(i)(2)))'' for ''(as defined in section
462(b) of the Social Security Act (42 U.S.C. 662(b)))''.
Subsec. (a)(2)(B)(ii). Pub. L. 104-193, Sec. 362(c)(2)(C),
substituted ''(as defined in section 459(i)(3) of the Social
Security Act (42 U.S.C. 659(i)(3)))'' for ''(as defined in section
462(c) of the Social Security Act (42 U.S.C. 662(c)))''.
Subsec. (a)(5). Pub. L. 104-106 substituted ''section 12731'' for
''section 1331''.
Subsec. (b)(1)(A). Pub. L. 104-201, Sec. 636(a), substituted
''facsimile or electronic transmission or by mail'' for ''certified
or registered mail, return receipt requested''.
Subsec. (d). Pub. L. 104-193, Sec. 362(c)(3)(A), inserted ''(or
for benefit of)'' before ''Spouse or'' in heading.
Subsec. (d)(1). Pub. L. 104-193, Sec. 363(c)(2), inserted after
first sentence ''In the case of a spouse or former spouse who,
pursuant to section 408(a)(3) of the Social Security Act (42 U.S.C.
608(a)(4)), assigns to a State the rights of the spouse or former
spouse to receive support, the Secretary concerned may make the
child support payments referred to in the preceding sentence to
that State in amounts consistent with that assignment of rights.''
Pub. L. 104-193, Sec. 362(c)(3)(B), in first sentence, inserted
''(or for the benefit of such spouse or former spouse to a State
disbursement unit established pursuant to section 454B of the
Social Security Act or other public payee designated by a State, in
accordance with part D of title IV of the Social Security Act, as
directed by court order, or as otherwise directed in accordance
with such part D)'' before ''in an amount sufficient''.
Subsec. (d)(6). Pub. L. 104-201, Sec. 636(b), added par. (6)
relating to court order which is out-of-State modification.
Pub. L. 104-193, Sec. 363(c)(3), added par. (6) relating to use
of disposable retired pay of member to satisfy amount of child
support set forth in court order.
Subsec. (i). Pub. L. 104-193, Sec. 363(c)(1), added subsec. (i).
Former subsec. (i) redesignated (j).
Subsec. (j). Pub. L. 104-193, Sec. 363(c)(1), redesignated
subsec. (j) as (k).
Pub. L. 104-193, Sec. 362(c)(4), added subsec. (j).
Subsec. (k). Pub. L. 104-193, Sec. 363(c)(1), redesignated
subsec. (j) as (k).
1993 - Subsecs. (b)(1)(A), (f)(1), (2). Pub. L. 103-160, Sec.
1182(a)(2)(A), substituted ''subsection (i)'' for ''subsection
(h)''.
Subsec. (h)(2)(A). Pub. L. 103-160, Sec. 555(b)(1), inserted
''or, for the Coast Guard when it is not operating as a service in
the Navy, by the Secretary of Transportation'' after ''Secretary of
Defense''.
Subsec. (h)(4)(B). Pub. L. 103-160, Sec. 1182(a)(2)(B), inserted
''of'' after ''of that termination''.
Subsec. (h)(8). Pub. L. 103-160, Sec. 555(b)(2), inserted before
period at end ''or, in the case of the Coast Guard, out of funds
appropriated to the Department of Transportation for payment of
retired pay for the Coast Guard''.
Subsec. (h)(10), (11). Pub. L. 103-160, Sec. 555(a), added par.
(10) and redesignated former par. (10) as (11).
1992 - Subsecs. (h), (i). Pub. L. 102-484 added subsec. (h) and
redesignated former subsec. (h) as (i).
1991 - Pub. L. 102-190 inserted ''or retainer'' after ''retired''
in section catchline.
1990 - Pub. L. 101-510, Sec. 555(f)(2), substituted ''retired
pay'' for ''retired or retainer pay'' in section catchline.
Subsec. (a). Pub. L. 101-510, Sec. 555(g)(1), inserted heading.
Subsec. (a)(2)(C). Pub. L. 101-510, Sec. 555(f)(2), substituted
''retired pay'' for ''retired or retainer pay'' wherever appearing.
Subsec. (a)(4). Pub. L. 101-510, Sec. 555(f)(2), substituted
''retired pay'' for ''retired or retainer pay'' wherever appearing
in introductory provisions and in subpar. (D).
Subsec. (a)(4)(A). Pub. L. 101-510, Sec. 555(b)(1), inserted
before semicolon at end ''for previous overpayments of retired pay
and for recoupments required by law resulting from entitlement to
retired pay''.
Subsec. (a)(4)(B). Pub. L. 101-510, Sec. 555(b)(2), added subpar.
(B) and struck out former subpar. (B) which read as follows: ''are
required by law to be and are deducted from the retired or retainer
pay of such member, including fines and forfeitures ordered by
courts-martial, Federal employment taxes, and amounts waived in
order to receive compensation under title 5 or title 38;''.
Subsec. (a)(4)(C) to (F). Pub. L. 101-510, Sec. 555(b)(3), (4),
redesignated subpars. (E) and (F) as (C) and (D), respectively, and
struck out former subpars. (C) and (D) which read as follows:
''(C) are properly withheld for Federal, State, or local income
tax purposes, if the withholding of such amounts is authorized or
required by law and to the extent such amounts withheld are not
greater than would be authorized if such member claimed all
dependents to which he was entitled;
''(D) are withheld under section 3402(i) of the Internal Revenue
Code of 1986 if such member presents evidence of a tax obligation
which supports such withholding;''.
Subsec. (a)(7). Pub. L. 101-510, Sec. 555(f)(1), added par. (7).
Subsec. (b). Pub. L. 101-510, Sec. 555(g)(2), inserted heading.
Subsec. (c). Pub. L. 101-510, Sec. 555(g)(3), inserted heading.
Subsec. (c)(1). Pub. L. 101-510, Sec. 555(f)(2), substituted
''retired pay'' for ''retired or retainer pay''.
Pub. L. 101-510, Sec. 555(a), inserted at end ''A court may not
treat retired pay as property in any proceeding to divide or
partition any amount of retired pay of a member as the property of
the member and the member's spouse or former spouse if a final
decree of divorce, dissolution, annulment, or legal separation
(including a court ordered, ratified, or approved property
settlement incident to such decree) affecting the member and the
member's spouse or former spouse (A) was issued before June 25,
1981, and (B) did not treat (or reserve jurisdiction to treat) any
amount of retired pay of the member as property of the member and
the member's spouse or former spouse.''
Subsec. (c)(2). Pub. L. 101-510, Sec. 555(c), inserted at end
''Payments by the Secretary concerned under subsection (d) to a
spouse or former spouse with respect to a division of retired pay
as the property of a member and the member's spouse under this
subsection may not be treated as amounts received as retired pay
for service in the uniformed services.''
Subsec. (c)(4). Pub. L. 101-510, Sec. 555(f)(2), substituted
''retired pay'' for ''retired or retainer pay''.
Subsec. (d). Pub. L. 101-510, Sec. 555(g)(4), inserted heading.
Pub. L. 101-510, Sec. 555(f)(2), substituted ''retired pay'' for
''retired or retainer pay'' wherever appearing.
Subsec. (e). Pub. L. 101-510, Sec. 555(g)(5), inserted heading.
Pub. L. 101-510, Sec. 555(f)(2), substituted ''retired pay'' for
''retired or retainer pay'' wherever appearing.
Subsec. (e)(1). Pub. L. 101-510, Sec. 555(d)(1), substituted
''payable under all court orders pursuant to subsection (c)'' for
''payable under subsection (d)''.
Subsec. (e)(4)(B). Pub. L. 101-510, Sec. 555(d)(2), substituted
''the amount of the retired pay payable to such member that is
considered under section 462 of the Social Security Act (42 U.S.C.
662) to be remuneration for employment that is payable by the
United States'' for ''the disposable retired or retainer pay
payable to such member''.
Subsec. (f). Pub. L. 101-510, Sec. 555(g)(6), inserted heading.
Subsec. (f)(1). Pub. L. 101-510, Sec. 555(f)(2), substituted
''retired pay'' for ''retired or retainer pay''.
Subsec. (g). Pub. L. 101-510, Sec. 555(g)(7), inserted heading.
Subsec. (h). Pub. L. 101-510, Sec. 555(g)(8), inserted heading.
1989 - Subsec. (a)(1), (2). Pub. L. 101-189, Sec. 1622(e)(6),
substituted ''The term 'court'' for '' 'Court'' in introductory
provisions.
Subsec. (a)(3). Pub. L. 101-189, Sec. 1622(e)(6), substituted
''The term 'final'' for '' 'Final''.
Subsec. (a)(4). Pub. L. 101-189, Sec. 1622(e)(6), substituted
''The term 'disposable'' for '' 'Disposable'' in introductory
provisions.
Subsec. (a)(4)(D). Pub. L. 101-189, Sec. 653(a)(5)(A), struck out
''(26 U.S.C. 3402(i))'' after ''Code of 1986''.
Subsec. (a)(5). Pub. L. 101-189, Sec. 653(a)(5)(B), 1622(e)(6),
substituted ''The term 'member'' for '' 'Member'' and inserted
''entitled to retired pay under section 1331 of this title'' after
''a former member''.
Subsec. (a)(6). Pub. L. 101-189, Sec. 1622(e)(6), substituted
''The term 'spouse'' for '' 'Spouse''.
1987 - Subsec. (a)(4). Pub. L. 100-26, Sec. 3(3), made technical
amendment to directory language of Pub. L. 99-661, Sec. 644(a). See
1986 Amendment note below.
Subsec. (a)(4)(D). Pub. L. 100-26, Sec. 7(h)(1), substituted
''Internal Revenue Code of 1986'' for ''Internal Revenue Code of
1954''.
1986 - Subsec. (a)(4). Pub. L. 99-661, Sec. 644(a), as amended by
Pub. L. 100-26, Sec. 3(3), struck out ''(other than the retired pay
of a member retired for disability under chapter 61 of this
title)'' before ''less amounts'' in introductory text, added
subpar. (E), and struck out former subpar. (E) which read as
follows: ''are deducted as Government life insurance premiums (not
including amounts deducted for supplemental coverage); or''.
1984 - Subsec. (a)(2)(C). Pub. L. 98-525, Sec. 643(a), inserted
''in the case of a division of property,''.
Subsec. (b)(1)(C). Pub. L. 98-525, Sec. 643(b), inserted '', if
possible,''.
Subsec. (d)(1). Pub. L. 98-525, Sec. 643(c)(1), substituted
''After effective service on the Secretary concerned of a court
order providing for the payment of child support or alimony or,
with respect to a division of property, specifically providing for
the payment of an amount of the disposable retired or retainer pay
from a member to the spouse or a former spouse of the member, the
Secretary shall make payments (subject to the limitations of this
section) from the disposable retired or retainer pay of the member
to the spouse or former spouse in an amount sufficient to satisfy
the amount of child support and alimony set forth in the court
order and, with respect to a division of property, in the amount of
disposable retired or retainer pay specifically provided for in the
court order'' for ''After effective service on the Secretary
concerned of a court order with respect to the payment of a portion
of the retired or retainer pay of a member to the spouse or a
former spouse of the member, the Secretary shall, subject to the
limitations of this section, make payments to the spouse or former
spouse in the amount of the disposable retired or retainer pay of
the member specifically provided for in the court order''.
Subsec. (d)(5). Pub. L. 98-525, Sec. 643(c)(2), substituted
''child support or alimony or the payment of an amount of
disposable retired or retainer pay as the result of the court's
treatment of such pay under subsection (c) as property of the
member and his spouse, the Secretary concerned shall pay (subject
to the limitations of this section) from the disposable retired or
retainer pay of the member to the spouse or former spouse of the
member, any part'' for ''disposable retired or retainer pay, the
Secretary concerned shall, subject to the limitations of this
section, pay to the spouse or former spouse of the member, from the
disposable retired or retainer pay of the member, any part''.
Subsec. (e)(2). Pub. L. 98-525, Sec. 643(d)(1), substituted '',
the disposable retired or retainer pay of the member'' for ''from
the disposable retired or retainer pay of a member, such pay''
before ''shall be used to satisfy''.
Subsec. (e)(3)(A). Pub. L. 98-525, Sec. 643(d)(2)(A), struck out
''from the disposable retired or retainer pay'' before ''of the
same member''.
Subsec. (e)(3)(A)(i). Pub. L. 98-525, Sec. 643(d)(2)(B),
substituted ''from the member's disposable retired or retainer pay
the least amount'' for ''the least amount of disposable retired or
retainer pay'' before ''directed to be paid''.
Subsec. (e)(2)(A)(ii)(I). Pub. L. 98-525, Sec. 643(d)(2)(C),
struck out ''of retired or retainer pay'' before ''required by any
conflicting''.
Subsec. (e)(4)(A). Pub. L. 98-525, Sec. 643(d)(3), struck out
''the retired or retainer pay of'' before ''the same member'' and
substituted ''satisfaction of such court orders and legal process
from the retired or retainer pay of the members shall be'' for
''such court orders and legal process shall be satisfied''.
Subsec. (e)(5). Pub. L. 98-525, Sec. 643(d)(4), struck out ''of
disposable retired or retainer pay'' after ''payment of an amount''
in two places and substituted ''disposable retired or retainer
pay'' for ''such pay'' before ''available for payment''.
EFFECTIVE DATE OF 2002 AMENDMENT
Amendment by Pub. L. 107-296 effective on the date of transfer of
the Coast Guard to the Department of Homeland Security, see section
1704(g) of Pub. L. 107-296, set out as a note under section 101 of
this title.
EFFECTIVE DATE OF 1996 AMENDMENTS
Amendment by section 362(c) of Pub. L. 104-193 effective six
months after Aug. 22, 1996, see section 362(d) of Pub. L. 104-193,
set out as a note under section 659 of Title 42, The Public Health
and Welfare.
For effective date of amendment by section 363(c)(1)-(3) of Pub.
L. 104-193, see section 395(a)-(c) of Pub. L. 104-193, set out as a
note under section 654 of Title 42.
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 1993 AMENDMENT
Section 555(c) of Pub. L. 103-160 provided that: ''The amendments
made by this section (amending this section) shall take effect as
of October 23, 1992, and shall apply as if the provisions of the
paragraph (10) of section 1408(h) of title 10, United States Code,
added by such subsection were included in the amendment made by
section 653(a)(2) of Public Law 102-484 (106 Stat. 2426) (amending
this section).''
EFFECTIVE DATE OF 1990 AMENDMENT
Section 555(e) of Pub. L. 101-510, as amended by Pub. L. 102-190,
div. A, title X, Sec. 1062(a)(1), Dec. 5, 1991, 105 Stat. 1475,
provided that:
''(1) The amendment made by subsection (a) (amending this
section) shall apply with respect to judgments issued before, on,
or after the date of the enactment of this Act (Nov. 5, 1990). In
the case of a judgment issued before the date of the enactment of
this Act, such amendment shall not relieve any obligation,
otherwise valid, to make a payment that is due to be made before
the end of the two-year period beginning on the date of the
enactment of this Act.
''(2) The amendments made by subsections (b), (c), and (d)
(amending this section) apply with only respect to divorces,
dissolutions of marriage, annulments, and legal separations that
become effective after the end of the 90-day period beginning on
the date of the enactment of this Act.''
EFFECTIVE DATE OF 1987 AMENDMENT
Amendment by section 3(3) of Pub. L. 100-26 applicable as if
included in Pub. L. 99-661 when enacted on Nov. 14, 1986, see
section 12(a) of Pub. L. 100-26, set out as a note under section
776 of this title.
EFFECTIVE DATE OF 1986 AMENDMENT
Section 644(b) of Pub. L. 99-661 provided that: ''The amendments
made by subsection (a) (amending this section) shall apply with
respect to court orders issued after the date of the enactment of
this Act (Nov. 14, 1986).''
EFFECTIVE DATE OF 1984 AMENDMENT
Section 643(e) of Pub. L. 98-525 provided that: ''The amendments
made by this section (amending this section) shall apply with
respect to court orders for which effective service (as described
in section 1408(b)(1) of title 10, United States Code, as amended
by subsection (b) of this section) is made on or after the date of
the enactment of this Act (Oct. 19, 1984).''
EFFECTIVE DATE; TRANSITION PROVISIONS
Section 1006 of title X of Pub. L. 97-252, as amended by Pub. L.
98-94, title IX, Sec. 941(c)(4), Sept. 24, 1983, 97 Stat. 654; Pub.
L. 98-525, title VI, Sec. 645(b), Oct. 19, 1984, 98 Stat. 2549,
provided that:
''(a) The amendments made by this title (amending this section
and sections 1072, 1076, 1086, 1447, 1448, and 1450 of this title
and enacting provisions set out as notes under this section and
section 1401 of this title) shall take effect on the first day of
the first month (February 1983) which begins more than one hundred
and twenty days after the date of the enactment of this title
(Sept. 8, 1982).
''(b) Subsection (d) of section 1408 of title 10, United States
Code, as added by section 1002(a), shall apply only with respect to
payments of retired or retainer pay for periods beginning on or
after the effective date of this title (Feb. 1, 1983, provided in
subsec. (a)), but without regard to the date of any court order.
However, in the case of a court order that became final before June
26, 1981, payments under such subsection may only be made in
accordance with such order as in effect on such date and without
regard to any subsequent modifications.
''(c) The amendments made by section 1003 of this title (amending
sections 1447, 1448, and 1450 of this title) shall apply to persons
who become eligible to participate in the Survivor Benefit Plan
provided for in subchapter II of chapter 73 of title 10, United
States Code (section 1447 et seq. of this title), before, on, or
after the effective date of such amendments.
''(d) The amendments made by section 1004 of this title (amending
sections 1072, 1076, and 1086 of this title) and the provisions of
section 1005 of this title (formerly set out as a note under this
section) shall apply in the case of any former spouse of a member
or former member of the uniformed services whether the final decree
of divorce, dissolution, or annulment of the marriage of the former
spouse and such member or former member is dated before, on, or
after February 1, 1983.
''(e) For the purposes of this section -
''(1) the term 'court order' has the same meaning as provided
in section 1408(a)(2) of title 10, United States Code (as added
by section 1002 of this title);
''(2) the term 'former spouse' has the same meaning as provided
in section 1408(a)(6) of such title (as added by section 1002 of
this title); and
''(3) the term 'uniformed services' has the same meaning as
provided in section 1072 of title 10, United States Code.''
-TRANS-
TERMINATION OF TRUST TERRITORY OF THE PACIFIC ISLANDS
For termination of Trust Territory of the Pacific Islands, see
note set out preceding section 1681 of Title 48, Territories and
Insular Possessions.
-MISC5-
REVIEW OF FEDERAL FORMER SPOUSE PROTECTION LAWS
Section 643 of Pub. L. 105-85 provided that:
''(a) Review Required. - The Secretary of Defense shall carry out
a comprehensive review (including a comparison) of -
''(1) the protections, benefits, and treatment afforded under
Federal law to members and former members of the uniformed
services and former spouses of such persons; and
''(2) the protections, benefits, and treatment afforded under
Federal law to employees and former employees of the Government
and former spouses of such persons.
''(b) Military Personnel Matters To Be Reviewed. - In the case of
members and former members of the uniformed services and former
spouses of such persons, the review under subsection (a) shall
include the following:
''(1) All provisions of law (principally those originally
enacted in the Uniformed Services Former Spouses' Protection Act
(title X of Public Law 97-252) (see Short Title of 1982 Amendment
note set out under section 1401 of this title)) that -
''(A) establish, provide for the enforcement of, or otherwise
protect interests of members and former members of the
uniformed services and former spouses of such persons in
retired or retainer pay of members and former members; or
''(B) provide other benefits for members and former members
of the uniformed services and former spouses of such persons.
''(2) The experience of the uniformed services in administering
those provisions of law, including the adequacy and effectiveness
of the legal assistance provided by the Department of Defense in
matters related to the Uniformed Services Former Spouses'
Protection Act.
''(3) The experience of members and former members of the
uniformed services and former spouses of such persons in the
administration of those provisions of law.
''(4) The experience of members and former members of the
uniformed services and former spouses of such persons in the
application of those provisions of law by State courts.
''(5) The history of State statutes and State court
interpretations of the Uniformed Services Former Spouses'
Protection Act and other provisions of Federal law described in
paragraph (1)(A) and the extent to which those interpretations
follow those laws.
''(c) Civilian Personnel Matters To Be Reviewed. - In the case of
former spouses of employees and former employees of the Government,
the review under subsection (a) shall include the following:
''(1) All provisions of law that -
''(A) establish, provide for the enforcement of, or otherwise
protect interests of employees and former employees of the
Government and former spouses of such persons in annuities of
employees and former employees under Federal employees'
retirement systems; or
''(B) provide other benefits for employees and former
employees of the Government and former spouses of such persons.
''(2) The experience of the Office of Personnel Management and
other agencies of the Government in administering those
provisions of law.
''(3) The experience of employees and former employees of the
Government and former spouses of such persons in the
administration of those provisions of law.
''(4) The experience of employees and former employees of the
Government and former spouses of such persons in the application
of those provisions of law by State courts.
''(d) Sampling Authorized. - The Secretary may use sampling in
carrying out the review under this section.
''(e) Report. - Not later than September 30, 1999, the Secretary
shall submit to the Committee on Armed Services of the Senate and
the Committee on National Security of the House of Representatives
(now Committee on Armed Services of the House of Representatives) a
report on the results of the review under subsection (a). The
report shall include any recommendations for legislation that the
Secretary considers appropriate.''
PAYROLL DEDUCTIONS FOR ENFORCEMENT OF CHILD SUPPORT OBLIGATIONS
Section 363(c)(4) of Pub. L. 104-193 provided that: ''The
Secretary of Defense shall begin payroll deductions within 30 days
after receiving notice of withholding, or for the first pay period
that begins after such 30-day period.''
ACCRUAL OF PAYMENTS; PROSPECTIVE APPLICABILITY
Section 653(c) of Pub. L. 102-484 provided that: ''No payments
under subsection (h) of section 1408 of title 10, United States
Code (as added by subsection (a)), shall accrue for periods before
the date of the enactment of this Act (Oct. 23, 1992).''
STUDY CONCERNING BENEFITS FOR DEPENDENTS WHO ARE VICTIMS OF ABUSE
Section 653(e) of Pub. L. 102-484 provided that:
''(1) The Secretary of Defense shall conduct a study in order to
estimate -
''(A) the number of persons who will become eligible to receive
payments under subsection (h) of section 1408 of title 10, United
States Code (as added by subsection (a)), during each of fiscal
years 1993 through 2000; and
''(B) for each of fiscal years 1993 through 2000, the number of
members of the Armed Forces who, after having completed at least
one, and less than 20, years of service in that fiscal year, will
be approved in that fiscal year for separation from the Armed
Forces as a result of having abused a spouse or dependent child.
''(2) The study shall include a thorough analysis of -
''(A) the effects, if any, of appeals and requests for clemency
in the case of court-martial convictions on the entitlement to
payments in accordance with subsection (h) of section 1408 of
title 10, United States Code (as added by subsection (a));
''(B) the socio-economic effects on the dependents of members
of the Armed Forces described in subsection (h)(2) of such
section that result from terminations of the eligibility of such
members to receive retired or retainer pay; and
''(C) the effects of separations of such members from the Armed
Forces on the mission readiness of the units of assignment of
such members when separated and on the Armed Forces in general.
''(3) Not later than one year after the date of the enactment of
this Act (Oct. 23, 1992), the Secretary shall submit to Congress a
report on the results of the study.''
COMMISSARY AND EXCHANGE PRIVILEGES
Section 1005 of Pub. L. 97-252, which directed Secretary of
Defense to prescribe regulations to provide that an unremarried
former spouse described in 10 U.S.C. 1072(2)(F)(i) is entitled to
commissary and post exchange privileges to the same extent and on
the same basis as the surviving spouse of a retired member of the
uniformed services, was repealed and restated in section 1062 of
this title by Pub. L. 100-370, Sec. 1(c)(1), (5).
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1059, 1078a, 1447, 1461,
1463 of this title; title 5 sections 8332, 8411.
-CITE-
10 USC Sec. 1409 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 71 - COMPUTATION OF RETIRED PAY
-HEAD-
Sec. 1409. Retired pay multiplier
-STATUTE-
(a) Retired Pay Multiplier for Regular-Service Nondisability
Retirement. - In computing -
(1) the retired pay of a member of a uniformed service who is
entitled to that pay under any provision of law other than -
(A) chapter 61 of this title (relating to retirement or
separation for physical disability); or
(B) chapter 1223 of this title (relating to retirement for
non-regular service); or
(2) the retainer pay of a member who is transferred to the
Fleet Reserve or the Fleet Marine Corps Reserve under section
6330 of this title,
the retired pay multiplier (or retainer pay multiplier) is the
percentage determined under subsection (b).
(b) Percentage. -
(1) General rule. - Subject to paragraphs (2) and (3), the
percentage to be used under subsection (a) is the product (stated
as a percentage) of -
(A) 2 1/2, and
(B) the member's years of creditable service (as defined in
subsection (c)).
(2) Reduction applicable to certain new-retirement members with
less than 30 years of service. - In the case of a member who
first became a member of a uniformed service after July 31, 1986,
has elected to receive a bonus under section 322 of title 37, has
less than 30 years of creditable service, and is under the age of
62 at the time of retirement, the percentage determined under
paragraph (1) shall be reduced by -
(A) 1 percentage point for each full year that the member's
years of creditable service are less than 30; and
(B) 1/12 of 1 percentage point for each month by which the
member's years of creditable service (after counting all full
years of such service) are less than a full year.
(3) 75 percent limit. - In the case of a member with more than
30 years of creditable service, the percentage to be used under
subsection (a) is 75 percent.
(c) Years of Creditable Service Defined. - In this section, the
term ''years of creditable service'' means the number of years of
service creditable to a member in computing the member's retired or
retainer pay (including 1/12 of a year for each full month of
service that is in addition to the number of full years of service
of the member).
-SOURCE-
(Added Pub. L. 99-348, title I, Sec. 101, July 1, 1986, 100 Stat.
683; amended Pub. L. 101-189, div. A, title VI, Sec. 651(b)(3),
Nov. 29, 1989, 103 Stat. 1460; Pub. L. 103-337, div. A, title XVI,
Sec. 1662(j)(6), Oct. 5, 1994, 108 Stat. 3005; Pub. L. 106-65,
div. A, title VI, Sec. 641(a), 643(b)(2), Oct. 5, 1999, 113 Stat.
662, 664.)
-MISC1-
AMENDMENTS
1999 - Subsec. (b)(2). Pub. L. 106-65 inserted ''certain'' after
''Reduction applicable to'' in heading and ''has elected to receive
a bonus under section 322 of title 37,'' after ''July 31, 1986,''
in introductory provisions.
1994 - Subsec. (a)(1)(B). Pub. L. 103-337 substituted ''chapter
1223'' for ''chapter 67''.
1989 - Subsec. (a)(1). Pub. L. 101-189 substituted ''who is
entitled to that pay'' for ''who is retired'' in introductory
provisions.
EFFECTIVE DATE OF 1999 AMENDMENT
Amendment by Pub. L. 106-65 effective Oct. 1, 1999, see section
644 of Pub. L. 106-65, set out as a note under section 1401a of
this title.
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.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1401, 1402a, 1410, 1447,
1451, 1452, 3991, 3992, 6151, 6333, 6334, 8991, 8992, 14519 of this
title; title 14 section 423; title 33 section 3045; title 37
section 322; title 42 sections 211, 212.
-CITE-
10 USC Sec. 1410 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 71 - COMPUTATION OF RETIRED PAY
-HEAD-
Sec. 1410. Restoral of full retirement amount at age 62 for certain
members entering on or after August 1, 1986
-STATUTE-
In the case of a member or former member who first became a
member of a uniformed service on or after August 1, 1986, who has
elected to receive a bonus under section 322 of title 37, and who
becomes entitled to retired pay before the age of 62, the retired
pay of such member or former member shall be recomputed, effective
on the first day of the first month beginning after the member or
former member attains 62 years of age, so as to be the amount equal
to the amount of retired pay to which the member or former member
would be entitled on that date if -
(1) increases in the retired pay of the member or former member
under section 1401a(b) of this title had been computed as
provided in paragraph (2) of that section (rather than under
paragraph (3) of that section); and
(2) in the case of a member whose retired pay was subject to
section 1409(b)(2) of this title, no reduction in the member's
retired pay had been made under that section.
-SOURCE-
(Added Pub. L. 99-348, title I, Sec. 103, July 1, 1986, 100 Stat.
685; amended Pub. L. 100-224, Sec. 2, Dec. 30, 1987, 101 Stat.
1536; Pub. L. 101-189, div. A, title VI, Sec. 651(b)(4), Nov. 29,
1989, 103 Stat. 1460; Pub. L. 106-65, div. A, title VI, Sec.
641(c), 643(b)(3)(A), Oct. 5, 1999, 113 Stat. 662, 664.)
-MISC1-
AMENDMENTS
1999 - Pub. L. 106-65 inserted ''certain'' before ''members'' in
section catchline and ''who has elected to receive a bonus under
section 322 of title 37,'' after ''August 1, 1986,'' in
introductory provisions.
1989 - Pub. L. 101-189, Sec. 651(b)(4), in introductory
provisions, inserted ''or former member'' after ''In the case of a
member'', ''the retired pay of such member'', ''after the member'',
and ''to which the member'', and in par. (1), substituted ''retired
pay of the member or former member'' for ''member's retired pay''.
1987 - Pub. L. 100-224 struck out heading ''(a) General rule'',
substituted provisions that the amount equal to the amount of
retired pay to which the member would be entitled on that date if
(1) increases in the member's retired pay under section 1401a(b) of
this title had been computed as provided in paragraph (2) of that
section (rather than under paragraph (3) of that section); and (2)
in the case of a member whose retired pay was subject to section
1409(b)(2) of this title, no reduction in the member's retired pay
had been made under that section, for provisions that the amount
equal to (1) the amount of the member's initial unreduced retired
pay, increased by (2) the percent (adjusted to the nearest
one-tenth of 1 percent) by which (A) the price index for the most
recent base quarter ending more than 31 days before the date the
member attains 62 years of age, exceeds (B) the price index for the
calendar quarter immediately before the date the member first
became entitled to retired pay, and struck out subsec. (b) which
had directed that, in this section, the term ''initial unreduced
retired pay'' meant the amount of retired pay (A) to which the
member was entitled when the member first became entitled to
retired pay; or (B) in the case of a member whose retired pay was
subject to section 1409(b)(2) of this title, to which the member
would have been entitled on the date of the member's retirement
without regard to that section, and that the definitions in
subsection (g), and the provisions of subsection (h), of section
1401a of this title applied to this section.
EFFECTIVE DATE OF 1999 AMENDMENT
Amendment by Pub. L. 106-65 effective Oct. 1, 1999, see section
644 of Pub. L. 106-65, set out as a note under section 1401a of
this title.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1451, 1452 of this title;
title 37 section 322.
-CITE-
10 USC Sec. 1411 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 71 - COMPUTATION OF RETIRED PAY
-HEAD-
Sec. 1411. Rules of construction
-STATUTE-
(a) Construction of ''First Became a Member''. - For purposes of
this chapter and other provisions of law providing for computation
of retired or retainer pay of members of the uniformed services, a
person shall be considered to first become a member of a uniformed
service on the date the person is first enlisted, inducted, or
appointed in a uniformed service.
(b) References in Tables. - Section references in tables in this
chapter are to sections of this title.
-SOURCE-
(Added Pub. L. 99-348, title I, Sec. 105, July 1, 1986, 100 Stat.
691.)
-CITE-
10 USC Sec. 1412 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 71 - COMPUTATION OF RETIRED PAY
-HEAD-
Sec. 1412. Rounding to next lower dollar
-STATUTE-
Amounts computed under this chapter, if not a multiple of $1,
shall be rounded to the next lower multiple of $1.
-SOURCE-
(Added Pub. L. 99-348, title I, Sec. 105, July 1, 1986, 100 Stat.
691.)
-CITE-
10 USC Sec. 1413 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 71 - COMPUTATION OF RETIRED PAY
-HEAD-
Sec. 1413. Special compensation for certain severely disabled
uniformed services retirees
-STATUTE-
(a) Authority. - The Secretary concerned shall pay to each
eligible disabled uniformed services retiree a monthly amount
determined under subsection (b). If the provisions of subsection
(a) of section 1414 of this title become effective in accordance
with subsection (f) of that section, payments under this section
shall be terminated effective as of the month beginning on the
effective date specified in subsection (e) of that section.
(b) Amount. - The amount to be paid to an eligible disabled
uniformed services retiree in accordance with subsection (a) is the
following:
(1) For payments for months beginning with February 2002 and
ending with December 2002, the following:
(A) For any month for which the retiree has a qualifying
service-connected disability rated as total, $300.
(B) For any month for which the retiree has a qualifying
service-connected disability rated as 90 percent, $200.
(C) For any month for which the retiree has a qualifying
service-connected disability rated as 80 percent or 70 percent,
$100.
(D) For any month for which the retiree has a qualifying
service-connected disability rated as 60 percent, $50.
(2) For payments for months beginning with January 2003 and
ending with September 2004, the following:
(A) For any month for which the retiree has a qualifying
service-connected disability rated as total, $325.
(B) For any month for which the retiree has a qualifying
service-connected disability rated as 90 percent, $225.
(C) For any month for which the retiree has a qualifying
service-connected disability rated as 80 percent, $125.
(D) For any month for which the retiree has a qualifying
service-connected disability rated as 70 percent, $100.
(E) For any month for which the retiree has a qualifying
service-connected disability rated as 60 percent, $50.
(3) For payments for months after September 2004, the
following:
(A) For any month for which the retiree has a qualifying
service-connected disability rated as total, $350.
(B) For any month for which the retiree has a qualifying
service-connected disability rated as 90 percent, $250.
(C) For any month for which the retiree has a qualifying
service-connected disability rated as 80 percent, $150.
(D) For any month for which the retiree has a qualifying
service-connected disability rated as 70 percent, $125.
(E) For any month for which the retiree has a qualifying
service-connected disability rated as 60 percent, $50.
(c) Eligible Members. - An eligible disabled uniformed services
retiree referred to in subsection (a) is a member of the uniformed
services in a retired status who -
(1) completed at least 20 years of service in the uniformed
services that are creditable for purposes of computing the amount
of retired pay to which the member is entitled; and
(2) has a qualifying service-connected disability.
(d) Qualifying Service-Connected Disability Defined. - In this
section, the term ''qualifying service-connected disability'' means
a service-connected disability that -
(1) was incurred or aggravated in the performance of duty as a
member of a uniformed service, as determined by the Secretary
concerned; and
(2) is rated as not less than 60 percent disabling -
(A) by the Secretary concerned as of the date on which the
member is retired from the uniformed services; or
(B) by the Secretary of Veterans Affairs within four years
following the date on which the member is retired from the
uniformed services.
(e) Construction with Special Compensation for Combat-Disabled
Uniformed Services Retirees. - (1) An individual who is paid
special compensation under this section may not receive special
compensation under section 1413a of this title.
(2) An individual who is eligible for special compensation under
this section and special compensation under section 1413a of this
title shall elect which special compensation to receive.
(3) The Secretary of Defense shall prescribe in regulations the
manner and form of an election under this subsection.
(f) Status of Payments. - Payments under this section are not
retired pay.
(g) Source of Funds. - Payments under this section for any fiscal
year shall be paid out of funds appropriated for pay and allowances
payable by the Secretary concerned for that fiscal year.
(h) Other Definitions. - In this section:
(1) The term ''service-connected'' has the meaning given that
term in section 101 of title 38.
(2) The term ''disability rated as total'' means -
(A) a disability that is rated as total under the standard
schedule of rating disabilities in use by the Department of
Veterans Affairs; or
(B) a disability for which the scheduled rating is less than
total but for which a rating of total is assigned by reason of
inability of the disabled person concerned to secure or follow
a substantially gainful occupation as a result of
service-connected disabilities.
(3) The term ''retired pay'' includes retainer pay, emergency
officers' retirement pay, and naval pension.
-SOURCE-
(Added Pub. L. 106-65, div. A, title VI, Sec. 658(a)(1), Oct. 5,
1999, 113 Stat. 668; amended Pub. L. 106-398, Sec. 1 ((div. A),
title VI, Sec. 657(a)), Oct. 30, 2000, 114 Stat. 1654, 1654A-166;
Pub. L. 107-107, div. A, title VI, Sec. 641(b), (e)(1), (2), Dec.
28, 2001, 115 Stat. 1150, 1151; Pub. L. 107-314, div. A, title VI,
Sec. 636(b), Dec. 2, 2002, 116 Stat. 2576.)
-MISC1-
AMENDMENTS
2002 - Subsec. (e) to (h). Pub. L. 107-314 added subsec. (e) and
redesignated former subsecs. (e) to (g) as (f) to (h),
respectively.
2001 - Subsec. (a). Pub. L. 107-107, Sec. 641(b), inserted at end
''If the provisions of subsection (a) of section 1414 of this title
become effective in accordance with subsection (f) of that section,
payments under this section shall be terminated effective as of the
month beginning on the effective date specified in subsection (e)
of that section.''
Subsec. (b)(1) to (3). Pub. L. 107-107, Sec. 641(e)(1), added
pars. (1) to (3) and struck out former pars. (1) to (3) which read
as follows:
''(1) For any month for which the retiree has a qualifying
service-connected disability rated as total, $300.
''(2) For any month for which the retiree has a qualifying
service-connected disability rated as 90 percent, $200.
''(3) For any month for which the retiree has a qualifying
service-connected disability rated as 80 percent or 70 percent,
$100.''
Subsec. (d)(2). Pub. L. 107-107, Sec. 641(e)(2), substituted ''60
percent'' for ''70 percent'' in introductory provisions.
2000 - Subsec. (c). Pub. L. 106-398 struck out ''(other than a
member who is retired under chapter 61 of this title)'' after
''retired status'' in introductory provisions.
EFFECTIVE DATE OF 2001 AMENDMENT
Pub. L. 107-107, div. A, title VI, Sec. 641(e)(3), Dec. 28,
2001, 115 Stat. 1151, provided that: ''The amendments made by this
subsection (amending this section) shall take effect on February 1,
2002.''
EFFECTIVE DATE OF 2000 AMENDMENT
Pub. L. 106-398, Sec. 1 ((div. A), title VI, Sec. 657(b)), Oct.
30, 2000, 114 Stat. 1654, 1654A-166, provided that: ''The amendment
made by subsection (a) (amending this section) shall take effect on
October 1, 2001, and shall apply to months that begin on or after
that date. No benefit may be paid under section 1413 of title 10,
United States Code, to any person by reason of the amendment made
by subsection (a) for any period before that date.''
EFFECTIVE DATE
Pub. L. 106-65, div. A, title VI, Sec. 658(b), Oct. 5, 1999, 113
Stat. 669, provided that: ''Section 1413 of title 10, United States
Code, as added by subsection (a), shall take effect on October 1,
1999, and shall apply to months that begin on or after that date.
No benefit may be paid to any person by reason of that section for
any period before that date.''
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 1413a of this title.
-CITE-
10 USC Sec. 1413a 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 71 - COMPUTATION OF RETIRED PAY
-HEAD-
Sec. 1413a. Special compensation for certain combat-related
disabled uniformed services retirees
-STATUTE-
(a) Authority. - The Secretary concerned shall pay to each
eligible combat-related disabled uniformed services retiree who
elects benefits under this section a monthly amount for the
combat-related disability of the retiree determined under
subsection (b).
(b) Amount. -
(1) Determination of monthly amount. - Subject to paragraphs
(2) and (3), the monthly amount to be paid an eligible
combat-related disabled uniformed services retiree for a
combat-related disability under subsection (a) is the monthly
amount of compensation to which the retiree would be entitled
solely for the combat-related disability consistent with chapter
11 of title 38.
(2) Maximum amount. - The amount paid to an eligible
combat-related disabled uniformed services retiree for any month
under paragraph (1) may not exceed the amount of the reduction in
retired pay that is applicable to the retiree for that month
under sections 5304 and 5305 of title 38.
(3) Special rules for chapter 61 disability retirees. - In the
case of an eligible combat-related disabled uniformed services
retiree who is retired under chapter 61 of this title, the amount
of the payment under paragraph (1) for any month shall be reduced
by the amount (if any) by which the amount of the member's
retired pay under chapter 61 of this title exceeds the amount of
retired pay to which the member would have been entitled under
any other provision of law based upon the member's service in the
uniformed services if the member had not been retired under
chapter 61 of this title.
(c) Eligible Retirees. - For purposes of this section, an
eligible combat-related disabled uniformed services retiree
referred to in subsection (a) is a member of the uniformed services
entitled to retired pay who -
(1) has completed at least 20 years of service in the uniformed
services that are creditable for purposes of computing the amount
of retired pay to which the member is entitled; and
(2) has a qualifying combat-related disability.
(d) Procedures. - The Secretary of Defense shall prescribe
procedures and criteria under which a disabled uniformed services
retiree may apply to the Secretary of a military department to be
considered to be an eligible combat-related disabled uniformed
services retiree. Such procedures shall apply uniformly throughout
the Department of Defense.
(e) Qualifying Combat-Related Disability. - In this section, the
term ''qualifying combat-related disability'' means either of the
following:
(1) A disability that -
(A) is attributable to an injury for which the member was
awarded the Purple Heart; and
(B) is rated as not less than 10 percent disabling -
(i) by the Secretary concerned, as of the date on which the
member is retired from the uniformed services, under criteria
prescribed by the Secretary of Defense; or
(ii) by the Secretary of Veterans Affairs.
(2) A service-connected disability that -
(A) was incurred (as determined under criteria prescribed by
the Secretary of Defense) -
(i) as a direct result of armed conflict;
(ii) while engaged in hazardous service;
(iii) in the performance of duty under conditions
simulating war; or
(iv) through an instrumentality of war; and
(B) is rated as not less than 60 percent disabling -
(i) by the Secretary concerned, as of the date on which the
member is retired from the uniformed services, under criteria
prescribed by the Secretary of Defense; or
(ii) by the Secretary of Veterans Affairs.
(f) Construction with Special Compensation for Severely Disabled
Uniformed Services Retirees. -
(1) Single source of compensation. - An individual who is paid
special compensation under this section may not receive special
compensation under section 1413 of this title.
(2) Election of source. - An individual who is eligible for
special compensation under this section and special compensation
under section 1413 of this title shall elect which special
compensation to receive.
(3) Regulations. - The Secretary of Defense shall prescribe in
regulations the manner and form of an election under this
subsection.
(g) Status of Payments. - Payments under this section are not
retired pay.
(h) Source of Payments. - Payments under this section for any
fiscal year shall be paid out of funds appropriated for pay and
allowances payable by the Secretary concerned for that fiscal year.
(i) Other Definitions. - In this section:
(1) The term ''service-connected'' has the meaning given such
term in section 101 of title 38.
(2) The term ''retired pay'' includes retainer pay, emergency
officers' retirement pay, and naval pension.
-SOURCE-
(Added Pub. L. 107-314, div. A, title VI, Sec. 636(a)(1), Dec. 2,
2002, 116 Stat. 2574.)
-MISC1-
EFFECTIVE DATE
Pub. L. 107-314, div. A, title VI, Sec. 636(a)(2), Dec. 2, 2002,
116 Stat. 2576, provided that: ''Section 1413a of title 10, United
States Code, as added by paragraph (1), shall take effect not later
than 180 days after the date of the enactment of this Act (Dec. 2,
2002).''
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 1413 of this title.
-CITE-
10 USC Sec. 1414 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 71 - COMPUTATION OF RETIRED PAY
-HEAD-
Sec. 1414. Members eligible for retired pay who have
service-connected disabilities: payment of retired pay and
veterans' disability compensation; contingent authority
-STATUTE-
(a) Payment of Both Retired Pay and Compensation. - Subject to
subsection (b), a member or former member of the uniformed services
who is entitled to retired pay (other than as specified in
subsection (c)) and who is also entitled to veterans' disability
compensation is entitled to be paid both without regard to sections
5304 and 5305 of title 38, subject to the enactment of qualifying
offsetting legislation as specified in subsection (f).
(b) Special Rule for Chapter 61 Career Retirees. - The retired
pay of a member retired under chapter 61 of this title with 20
years or more of service otherwise creditable under section 1405 of
this title at the time of the member's retirement is subject to
reduction under sections 5304 and 5305 of title 38, but only to the
extent that the amount of the member's retired pay under chapter 61
of this title exceeds the amount of retired pay to which the member
would have been entitled under any other provision of law based
upon the member's service in the uniformed services if the member
had not been retired under chapter 61 of this title.
(c) Exception. - Subsection (a) does not apply to a member
retired under chapter 61 of this title with less than 20 years of
service otherwise creditable under section 1405 of this title at
the time of the member's retirement.
(d) Definitions. - In this section:
(1) The term ''retired pay'' includes retainer pay, emergency
officers' retirement pay, and naval pension.
(2) The term ''veterans' disability compensation'' has the
meaning given the term ''compensation'' in section 101(12) of
title 38.
(e) Effective Date. - If qualifying offsetting legislation (as
defined in subsection (f)) is enacted, the provisions of subsection
(a) shall take effect on -
(1) the first day of the first month beginning after the date
of the enactment of such qualifying offsetting legislation; or
(2) the first day of the fiscal year that begins in the
calendar year in which such legislation is enacted, if that date
is later than the date specified in paragraph (1).
(f) Effectiveness Contingent on Enactment of Offsetting
Legislation. - (1) The provisions of subsection (a) shall be
effective only if -
(A) the President, in the budget for any fiscal year, proposes
the enactment of legislation that, if enacted, would be
qualifying offsetting legislation; and
(B) after that budget is submitted to Congress, there is
enacted qualifying offsetting legislation.
(2) In this subsection:
(A) The term ''qualifying offsetting legislation'' means
legislation (other than an appropriations Act) that includes
provisions that -
(i) offset fully the increased outlays to be made by reason
of the provisions of subsection (a) for each of the first 10
fiscal years beginning after the date of the enactment of such
legislation;
(ii) expressly state that they are enacted for the purpose of
the offset described in clause (i); and
(iii) are included in full on the PayGo scorecard.
(B) The term ''PayGo scorecard'' means the estimates that are
made by the Director of the Congressional Budget Office and the
Director of the Office of Management and Budget under section
252(d) of the Balanced Budget and Emergency Deficit Control Act
of 1985 (2 U.S.C. 902(d)) with respect to the ten fiscal years
following the date of the enactment of the legislation that is
qualifying offsetting legislation for purposes of this section.
-SOURCE-
(Added Pub. L. 107-107, div. A, title VI, Sec. 641(a), Dec. 28,
2001, 115 Stat. 1149.)
-MISC1-
PROHIBITION OF RETROACTIVE BENEFITS
Pub. L. 107-107, div. A, title VI, Sec. 641(d), Dec. 28, 2001,
115 Stat. 1150, provided that: ''If the provisions of subsection
(a) of section 1414 of title 10, United States Code, becomes (sic)
effective in accordance with subsection (f) of that section, no
benefit may be paid to any person by reason of those provisions for
any period before the effective date specified in subsection (e) of
that section.''
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 1413 of this title.
-CITE-
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| Enviado por: | El remitente no desea revelar su nombre |
| Idioma: | inglés |
| País: | Estados Unidos |
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