Legislación
US (United States) Code. Title 10. Subtitle A. Part II. Chapter 73: Annuities based on retired or retainer pay
-CITE-
10 USC CHAPTER 73 - ANNUITIES BASED ON RETIRED OR
RETAINER PAY 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
.
-HEAD-
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
-MISC1-
Subchapter Sec.
I. Retired Serviceman's Family Protection Plan 1431
II. Survivor Benefit Plan 1447
III. Supplemental Survivor Benefit Plan 1456
AMENDMENTS
1990 - Pub. L. 101-510, div. A, title VI, Sec. 631(1), title
XIV, Sec. 1484(l)(4)(A), Nov. 5, 1990, 104 Stat. 1580, 1719,
amended Pub. L. 101-189, Sec. 1404(a)(2), see 1989 Amendment note
below.
1989 - Pub. L. 101-189, div. A, title XIV, Sec. 1404(a)(2), Nov.
29, 1989, 103 Stat. 1586, as amended by Pub. L. 101-510, div. A,
title VI, Sec. 631(1), title XIV, Sec. 1484(l)(4)(A), Nov. 5, 1990,
104 Stat. 1580, 1719, added item for subchapter III, effective Apr.
1, 1992.
1980 - Pub. L. 96-513, title V, Sec. 511(54)(A), Dec. 12, 1980,
94 Stat. 2925, amended chapter heading to read: ''ANNUITIES BASED
ON RETIRED OR RETAINER PAY''.
1972 - Pub. L. 92-425, Sec. 1(1), Sept. 21, 1972, 86 Stat. 706,
added subchapter analysis and amended chapter heading by inserting
''; SURVIVOR BENEFIT PLAN'' after ''PAY'' which could not be
executed as directed in view of amendment by Pub. L. 87-381.
1961 - Pub. L. 87-381, Sec. 1(1), Oct. 4, 1961, 75 Stat. 810,
substituted ''RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN'' for
''ANNUITIES BASED ON RETIRED OR RETAINER PAY'' in chapter heading.
-SECREF-
CHAPTER REFERRED TO IN OTHER SECTIONS
This chapter is referred to in sections 1408, 1461, 1463 of this
title; title 5 sections 5531, 8311, 8317; title 26 sections 72,
122, 6334; title 33 section 3071; title 38 section 5301; title 42
section 213a.
-CITE-
10 USC SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY
PROTECTION PLAN 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
.
-HEAD-
SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
-MISC1-
Sec.
1431. Election of annuity: members of armed forces.
1432. Election of annuity: former members of armed forces.
1433. Mental incompetency of member.
1434. Kinds of annuities that may be elected.
1435. Eligible beneficiaries.
1436. Computation of reduction in retired pay; withdrawal for
severe financial hardship.
1436a. Coverage paid up at 30 years and age 70.
1437. Payment of annuity.
1438. Deposits for amounts not deducted.
1439. Refund of amounts deducted from retired pay.
1440. Annuities not subject to legal process.
1441. Annuities in addition to other payments.
1442. Recovery of annuity erroneously paid.
(1443. Repealed.)
1444. Regulations; determinations.
1444a. Regulations regarding payment of annuity to a representative
payee.
1445. Correction of administrative deficiencies.
1446. Restriction on participation.
AMENDMENTS
1999 - Pub. L. 106-65, div. A, title VI, Sec. 655(b), Oct. 5,
1999, 113 Stat. 667, added item 1436a.
1991 - Pub. L. 102-190, div. A, title VI, Sec. 654(b)(2), Dec.
5, 1991, 105 Stat. 1390, added item 1444a.
1972 - Pub. L. 92-425, Sec. 1(2)(B), (C), Sept. 21, 1972, 86
Stat. 706, struck out item 1443 ''Board of Actuaries'', and struck
out ''reports to Congress'' from item 1444.
1961 - Pub. L. 87-381, Sec. 6(2), (3), Oct. 4, 1961, 75 Stat.
812, inserted ''; withdrawal for severe financial hardship'' in
item 1436, and added items 1445 and 1446.
-SECREF-
SUBCHAPTER REFERRED TO IN OTHER SECTIONS
This subchapter is referred to in title 38 section 1315.
-CITE-
10 USC Sec. 1431 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
-HEAD-
Sec. 1431. Election of annuity: members of armed forces
-STATUTE-
(a) This section applies to all members of the armed forces
except -
(1) members whose names are on a retired list other than a list
maintained under section 12774(a) of this title;
(2) cadets at the United States Military Academy, the United
States Air Force Academy, or the Coast Guard Academy; and
(3) midshipmen.
(b) To provide an annuity under section 1434 of this title, a
person covered by subsection (a) may elect to receive a reduced
amount of the retired pay or retainer pay to which he may become
entitled as a result of service in his armed force. Except as
otherwise provided in this section, unless it is made before he
completes nineteen years of service for which he is entitled to
credit in the computation of his basic pay, the election must be
made at least two years before the first day for which retired pay
or retainer pay is granted. However, if, because of military
operations, a member is assigned to an isolated station or is
missing, interned in a neutral country, captured by a hostile
force, or beleaguered or besieged, and for that reason is unable to
make an election before completing nineteen years of that service,
he may make the election, to become effective immediately, within
one year after he ceases to be assigned to that station or returns
to the jurisdiction of his armed force, as the case may be. A
member to whom retired pay or retainer pay is granted
retroactively, and who is otherwise eligible to make an election,
may make the election within ninety days after receiving notice
that such pay has been granted to him. An election made after
August 13, 1968, is not effective if -
(1) the elector dies during the first thirty-day period he is
entitled to retired pay as a result of a physical condition which
led to his being granted retired pay under chapter 61 of title 10
with a disability of 100 per centum under the standard schedule
of rating disabilities in use by the Department of Veterans
Affairs at the time of the determination of the per centum of his
disability;
(2) the disability was not the result of injury or disease
received in line of duty as a direct result of armed conflict;
and
(3) his surviving spouse or children are entitled to dependency
and indemnity compensation under chapter 13 of title 38 based
upon his death.
(c) An election may be changed or revoked by the elector before
the first day for which retired or retainer pay is granted. Unless
it is made on the basis of restored mental competency under section
1433 of this title, or unless it is made before the elector
completes nineteen years of service for which he is entitled to
credit in the computation of his basic pay (in which case only the
latest change or revocation shall be effective), the change or
revocation is not effective if it is made less than two years
before the first day for which retired or retainer pay is granted.
The elector may, however, before the first day for which retired or
retainer pay is granted, change or revoke his election (provided
the change does not increase the amount of the annuity elected) to
reflect a change in the marital or dependency status of the member
or his family that is caused by death, divorce, annulment,
remarriage, or acquisition of a child, if such change or revocation
of election is made within two years of such change in marital or
dependency status.
(d) If an election made under this section is found to be void
for any reason except fraud or willful intent of the member making
the election, he may make a corrected election at any time within
90 days after he is notified in writing that the election is void.
A corrected election made under this subsection is effective as of
the date of the voided election it replaces.
-SOURCE-
(Aug. 10, 1956, ch. 1041, 70A Stat. 108; Pub. L. 85-861, Sec.
33(a)(11), Sept. 2, 1958, 72 Stat. 1565; Pub. L. 87-381, Sec. 2,
Oct. 4, 1961, 75 Stat. 810; Pub. L. 90-485, Sec. 1(1), (2), Aug.
13, 1968, 82 Stat. 751; Pub. L. 96-513, title V, Sec. 511(55), Dec.
12, 1980, 94 Stat. 2925; Pub. L. 99-145, title XIII, Sec.
1301(a)(2), Nov. 8, 1985, 99 Stat. 735; Pub. L. 101-189, div. A,
title XVI, Sec. 1621(a)(1), Nov. 29, 1989, 103 Stat. 1602; Pub. L.
104-106, div. A, title XV, Sec. 1501(c)(17), Feb. 10, 1996, 110
Stat. 499.)
-MISC1-
Historical and Revision Notes
1956 Act
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Revised section Source (U.S. Code) Source (Statutes at
Large)
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1431(a) 1431(b) 37:371 (less (e) and Aug. 8, 1953, ch.
(f)). 37:372(a) (2d 393, Sec. 2 (less
sentence). (e) and (f)), 3(a)
37:372(a) (less 2d, (less 5th
5th, 6th, and last sentence), (b), 67
sentences). Stat. 501, 502;
37:372(b) (less Apr. 29, 1954, ch.
last sentence). 176, 68 Stat. 64.
1431(c) 37:372(a) (6th and
last sentences).
1431(d) 37:372(b) (last
sentence).
-------------------------------
In subsection (a), the language of the revised subsection is
substituted for 37:371(b) and (c), to make clear that the section
was intended to include enlisted members and members of the Army,
or the Air Force, without component. The words ''the United States
Air Force Academy'' are inserted to reflect its establishment by
the Air Force Academy Act (68 Stat. 47). The words ''retirement
pay'' are omitted as covered by the words ''retired pay''. The
words ''equivalent pay'' are omitted as surplusage. 37:371(c) (less
1st 21 words) is omitted as executed, since the persons described
must have completed 18 years of the required service on the
effective date of the source statute and exercised the option by
180 days after that date. 37:371(a) is omitted, since the revised
chapter applies only to the armed forces. 37:371(d) is omitted,
since the words ''person entitled to retired or retainer pay'', or
their equivalent, are used throughout the revised chapter.
37:371(g) is omitted, since the words ''retired or retainer pay''
are used throughout the revised chapter. 37:371(h) is omitted as
unnecessary in view of the definitions contained in section 101(5),
(7), and (8). 37:372(a) (2d sentence) is omitted as surplusage.
In subsection (b), 37:372(a) (last 28 words of 1st sentence) is
omitted as covered by section 1434 of this title. The words ''or
naval'' are omitted as covered by the word ''military''. The last
sentence is substituted for 37:372(a) (4th sentence, less 61st
through 81st words). 37:372(a) (3d sentence, and 61st through 85th
words of 4th sentence) and 37:372(b) (less last sentence) are
omitted as executed.
In subsection (c), the words ''is retired or becomes entitled to
retired or retainer pay'' are substituted for the words ''his
retirement'' and ''he retires'' since, under sections 1331-1333 of
this title, a person may be granted retired pay without having been
retired. The last eight words are substituted for 37:372(a) (7th
through 17th words of last sentence). 37:372(a) (last sentence,
less 1st 17 words) is omitted as surplusage.
1958 ACT
The change makes clear that section 1431 applies to a person who,
because of military operations, is missing under any circumstances.
AMENDMENTS
1996 - Subsec. (a)(1). Pub. L. 104-106 substituted ''section
12774(a)'' for ''section 1376(a)''.
1989 - Subsec. (b)(1). Pub. L. 101-189 substituted ''Department
of Veterans Affairs'' for ''Veterans' Administration''.
1985 - Subsec. (b)(3). Pub. L. 99-145 substituted ''surviving
spouse'' for ''widow''.
1980 - Subsec. (b). Pub. L. 96-513 substituted ''August 13,
1968,'' for ''the date of enactment of this amendment''.
1968 - Subsec. (b). Pub. L. 90-485, Sec. 1(1), increased from
eighteen to nineteen the number of years of service the annuitant
must complete, decreased from three to two years before eligibility
the time required to make an election, and inserted provisions that
an election made after Aug. 13, 1968 will not be effective if the
conditions of cls. (1) to (3) are satisfied.
Subsec. (c). Pub. L. 90-485, Sec. 1(2), decreased from three to
two years before the first day for which retired or retainer pay is
granted the time required to change or revoke an election when the
ground of restored mental competency is not present, inserted
provision that any change or revocation in an election after the
completion of 19 years of service is effective if made before the
first day for which retired or retainer pay is granted, and
provided for a change or revocation in an election before the first
day for which retired or retainer pay is granted when there is a
change in marital or dependency status, if such change or
revocation of election is made within two years of such change in
marital or dependency status.
1961 - Subsec. (a). Pub. L. 87-381 substituted ''other than a
list maintained under section 1376(a) of this title'' for ''or who
are in the Retired Reserve'', redesignated pars. (4) and (5) as (2)
and (3), and struck out former pars. (2) and (3) which related to
reserves on an inactive status list, and members assigned to the
inactive National Guard, respectively.
Subsec. (b). Pub. L. 87-381 required that unless the election is
made before 18 years of service, it must be made at least three
years before the first day for which retired or retainer pay is
granted, inserted assignment to an isolated station among the
reasons permitting a delayed election, changed the period within
which to make such delayed election from within six months after
return to the jurisdiction of his armed force, to within one year
after he ceases to be assigned to the isolated station or his
return to the jurisdiction of his armed force, and if the member is
retroactively granted retired or retainer pay, and is eligible for
an election, he may elect within 90 days after notice of such
grant.
Subsec. (c). Pub. L. 87-381 substituted ''the first day for which
retired or retainer pay is granted'' for ''his retirement or before
he becomes entitled to retired or retainer pay'', the requirement
that the change or revocation is not effective if made less than 3
years before the first day for which retired or retainer pay is
granted, for a required period of five years after change or
revocation before retirement or becoming entitled to retired or
retainer pay, and deleted ''If he revokes the election, he may not
change or withdraw the revocation.''
Subsec. (d). Pub. L. 87-381 substituted permission to make a
corrected election within 90 days after notice that the election is
void for any reason, except fraud or willful intent of the member
making election, with such election effective as of the date of the
election it replaces, for provisions which denied the ability to
revoke any election by a person retired or granted retired or
retainer pay before Nov. 1, 1953, and who elected within 180 days
after that date to receive reduced pay to provide for an annuity.
1958 - Subsec. (b). Pub. L. 85-861 struck out ''in action'' after
''he is missing''.
EFFECTIVE DATE OF 1996 AMENDMENT
Section 1501(c) of Pub. L. 104-106 provided that the amendment
made by that section is effective as of Dec. 1, 1994, and as if
included as an amendment made by the Reserve Officer Personnel
Management Act, title XVI of Pub. L. 103-337, as originally
enacted.
EFFECTIVE DATE OF 1980 AMENDMENT
Amendment by Pub. L. 96-513 effective Dec. 12, 1980, see section
701(b)(3) of Pub. L. 96-513, set out as a note under section 101 of
this title.
EFFECTIVE DATE OF 1968 AMENDMENT
Section 6 of Pub. L. 90-485 provided in part that: ''Clause (1)
and clause (6) of section 1 (amending this section and section 1436
of this title), and sections 2, 3, and 4 of this Act (amending
section 1331 (now 12731) of this title and enacting material set
out as notes under this section) are effective on the date of
enactment (Aug. 13, 1968). Remaining provisions of this Act
(amending this section and sections 1434, 1435, 1437, and 1446 of
this title, and enacting provisions set out as a note under this
section) are effective on the first day of the third calendar month
following the date of enactment.''
EFFECTIVE DATE OF 1958 AMENDMENT
Amendment by Pub. L. 85-861 effective Aug. 10, 1956, see section
33(g) of Pub. L. 85-861, set out as a note under section 101 of
this title.
SHORT TITLE OF 1978 AMENDMENT
Section 1 of Pub. L. 95-397, Sept. 30, 1978, 92 Stat. 843,
provided: ''That this Act (amending sections 1076, 1331 (now
12731), 1434, and 1447 to 1452 of this title and enacting
provisions set out as notes under sections 1076, 1434, 1447, and
1448 of this title) may be cited as the 'Uniformed Services
Survivors' Benefits Amendments of 1978'.''
-TRANS-
TRANSFER OF FUNCTIONS
For transfer of authorities, functions, personnel, and assets of
the Coast Guard, including the authorities and functions of the
Secretary of Transportation relating thereto, to the Department of
Homeland Security, and for treatment of related references, see
sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic
Security, and the Department of Homeland Security Reorganization
Plan of November 25, 2002, as modified, set out as a note under
section 542 of Title 6.
-MISC5-
PROVISIONS EFFECTIVE FOR CERTAIN MEMBERS ON AUGUST 13, 1968
Section 3 of Pub. L. 90-485 provided that: ''For members to whom
section 1431 of title 10, United States Code (this section),
applies on the date of enactment of this Act (Aug. 13, 1968), the
provisions of section 1434(c) of that title, as amended by this Act
(section 1(3) of Pub. L. 90-485) are effective immediately and
automatically''.
ELECTION OF ANNUITY MADE PRIOR TO AUGUST 13, 1968
Section 4 of Pub. L. 90-485 provided that: ''A retired member who
elected an annuity under chapter 73 of title 10, United States Code
(this chapter), before the date of enactment of this Act (Aug. 13,
1968), but did not make the election that was then provided by
section 1434(c) of that title, may, before the first day of the
thirteenth calendar month beginning after the date of enactment of
this Act, make that election. That election becomes effective on
the first day of the month following the month in which the
election is made. Under regulations prescribed under section
1444(a) of this title, on or before the effective date the retired
member must pay the total additional amount that would otherwise
have been deducted from his retired or retainer pay to reflect such
an election, had it been effective when he retired, plus the
interest which would have accrued on that additional amount up to
the effective date, except that if an undue hardship or financial
burden would otherwise result payment may be made in from two to
twelve monthly installments when the monthly amounts involved are
$25, or less, or in from two to thirty-six monthly installments
when the monthly amounts involved exceed $25. No amounts by which a
member's retired or retainer pay was reduced may be refunded to, or
credited on behalf of, the retired member by virtue of an
application made by him under this section. A retired member
described in the first sentence of this section, who does not make
the election provided under this section, will not be allowed under
section 1436(b) of title 10, to reduce an annuity or withdraw from
participation in an annuity program under that title.''
ELECTIONS SUBJECT TO COST TABLES APPLICABLE ON DATE OF RETIREMENT;
ANNUITIES PAYABLE TO BENEFICIARIES ELIGIBLE UNDER LAW IN EFFECT THE
DAY PRIOR TO AUGUST 13, 1968
Section 5 of Pub. L. 90-485 provided, effective on the first day
of the third calendar month following Aug. 13, 1968, that:
''Notwithstanding any other provision of this Act (see Effective
Date of 1968 Amendment note set out above), elections in effect on
the date of enactment (Aug. 13, 1968) will remain under the cost
tables applicable on the date of retirement, and the annuities
provided thereunder shall be payable to those eligible
beneficiaries prescribed under the law in effect on the day prior
to the date of enactment of this Act.''
APPLICABILITY OF PROVISIONS IN EFFECT ON THE DAY PRIOR TO AUGUST
13, 1968
Section 6 of Pub. L. 90-485 provided in part that:
''Notwithstanding any other provision of this Act (see Effective
Date of 1968 Amendment note set out above), any member to whom
section 1431 of title 10, United States Code (this section),
applies on the date of enactment of this Act (Aug. 13, 1968) may,
before the first day of the thirteenth calendar month beginning
after the date of enactment of this Act, submit a written
application to the Secretary concerned requesting that an election
or a change or revocation of election made by such member prior to
the date of enactment of this Act shall continue to be governed by
the provisions of section 1431(b) or (c) of title 10, United States
Code (subsec. (b) or (c) of this section) as in effect on the day
before the date of enactment of this Act.''
INTERIM AUTHORITY FOR SELECTION OF COMMANDERS AND CAPTAINS FOR
CONTINUATION ON ACTIVE DUTY
Section 3(q) of Pub. L. 88-130 rendered election, change, or
revocation of election under this section effective if made prior
to the convening date of the board which considers Coast Guard
commanders and captains for continuation.
CHANGE OR REVOCATION OF AN ELECTION FILED PRIOR TO OCTOBER 4, 1961
Section 7 of Pub. L. 87-381 provided that: ''Any person who,
before the date of enactment of this Act (Oct. 4, 1961), has filed
a change or revocation, subject to section 1431(c) of title 10,
United States Code (subsec. (c) of this section), of an election
made under section 1431(b) of that title (subsec. (b) of this
section), which change or revocation would be ineffective if the
first day for which retired or retainer pay is granted were to be
the date of enactment of this Act (Oct. 4, 1961), shall have that
change or revocation become effective on that date, or three years
after the date upon which it was filed, whichever is later.''
PROVISIONS APPLICABLE TO CERTAIN PERSONS RETIRING AFTER OCTOBER 4,
1961, FOR DISABILITY
Section 8 of Pub. L. 87-381 provided that: ''Any person who -
''(1) made an election before the date of enactment of this Act
(Oct. 4, 1961), which would be effective if he retired on the day
before such date; and
''(2) hereafter retires for physical disability before
completing 18 years of service for which he is entitled to credit
in the computation of his basic pay -
shall be considered as having applicable to him all of the
provisions of chapter 73 of title 10, United States Code (this
chapter), existing on the date preceding the date of enactment of
this Act (Oct. 4, 1961), except that any revocation or change of an
election is not effective until three years after the date of
filing such revocation or change, or the date of enactment of this
Act (Oct. 4, 1961), whichever is later.''
CHANGE OR REVOCATION OF ELECTION BY CERTAIN COLONELS AND LIEUTENANT
COLONELS
Pub. L. 86-616, Sec. 11, July 12, 1960, 74 Stat. 396, provided
that: ''Notwithstanding section 1431 of title 10, United States
Code (this section), a change or revocation of an election made
under that section by an officer who is retired under section 10 of
this Act (set out as a note under section 3297 of this title) is
effective if made at such a time that it would have been effective
had he been retired on the earliest date prescribed for an officer
of his kind by section 3916, 3921, 8916, or 8921 of title 10, as
appropriate.''
CHANGE OR REVOCATION OF ELECTION BY CERTAIN OFFICERS OF REGULAR
NAVY AND REGULAR MARINE CORPS
Pub. L. 86-616, Sec. 13, July 12, 1960, 74 Stat. 396, provided
that: ''An officer who has been considered but not recommended for
continuation on the active list under section 1 of the Act of
August 11, 1959. Public Law 86-155 (73 Stat. 333) (set out as a
note under section 5701 of this title), and who retired or retires
voluntarily before the second day of the month following the month
in which this Act is enacted (July 1960), may, within six months
following the enactment of this Act (July 12, 1960), affirm a
change or revocation of an election made under section 1431 of
title 10, United States Code (this section), before his retirement,
if the change or revocation would have been effective under section
3 of the Act of August 11, 1959, Public Law 86-155, as amended by
this Act (set out as a note under section 5701 of this title), but
for his voluntary retirement. If an officer takes no action under
this section, his currently valid election under section 1431 of
title 10, United States Code (this section), shall remain
unchanged. The computation of the revised reduction in retired pay
in the case of an officer who affirms a change of election under
this section shall be in accordance with section 1436 of title 10,
United States Code, and according to the conditions that existed on
the day the officer became eligible for retired pay. An
affirmation or revocation made under this section is effective on
the first day of the month in which made. No refund may be made
and no additional payment may be required with respect to any
period before that date.''
ELECTION OF ANNUITY BY CERTAIN PERSONNEL
Pub. L. 86-197, Sec. 4, Aug. 25, 1959, 73 Stat. 426, provided
that: ''Any person who, on the effective date of this Act (August
25, 1959), would not have completed 18 years of service for which
he is entitled to credit in the computation of his basic pay under
the laws in effect prior to the effective date of this Act, and
who, as a result of the enactment of this Act (amending sections
1332 (now 12732), 3683, 3926, 6324, 8683 and 8926 of this title,
and enacting provisions set out as notes under sections 3441 and
12732 of this title), is credited with more than 17 years of such
service, shall be allowed twelve months from the effective date of
this Act to make the election provided by section 1431(b) of title
10, United States Code (subsection (b) of this section),
notwithstanding the requirement of the second sentence of that
section.''
CHANGE OR REVOCATION OF ELECTION BY CERTAIN OFFICERS
Effective date of change or revocation of election by certain
officers, see section 3 of Pub. L. 86-155, Aug. 11, 1959, 73 Stat.
336, set out as a note under section 5701 of this title.
PUBLIC HEALTH SERVICE
Authority vested by this chapter in ''military departments'',
''the Secretary concerned'', or ''the Secretary of Defense'' to be
exercised, with respect to commissioned officers of Public Health
Service, by Secretary of Health and Human Services or his designee,
see section 213a of Title 42, The Public Health and Welfare.
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
Authority vested by this chapter in ''military departments'',
''the Secretary concerned'', or ''the Secretary of Defense'' to be
exercised, with respect to commissioned officer corps of National
Oceanic and Atmospheric Administration, by Secretary of Commerce or
Secretary's designee, see section 3071 of Title 33, Navigation and
Navigable Waters.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1432, 1433, 1434 of this
title.
-CITE-
10 USC Sec. 1432 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
-HEAD-
Sec. 1432. Election of annuity: former members of armed forces
-STATUTE-
A person who was a former member of an armed force on November 1,
1953, and who is granted retired or retainer pay after that date,
may, at the time he is granted that pay, make an election as
provided in section 1431 of this title.
-SOURCE-
(Aug. 10, 1956, ch. 1041, 70A Stat. 109.)
-MISC1-
Historical and Revision Notes
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Revised section Source (U.S. Code) Source (Statutes at
Large)
---------------------------------------------------------------------
1432 37:372(a) (5th Aug. 8, 1953, ch.
sentence). 393, Sec. 3(a) (5th
sentence), 67 Stat.
502.
-------------------------------
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1433, 1434 of this title.
-CITE-
10 USC Sec. 1433 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
-HEAD-
Sec. 1433. Mental incompetency of member
-STATUTE-
If a person who would be entitled to make an election under
section 1431 or 1432 of this title is determined to be mentally
incompetent by medical officers of the armed force concerned or of
the Department of Veterans Affairs, or by a court of competent
jurisdiction, and for that reason cannot make the election within
the prescribed time, the Secretary concerned may make an election
for that person upon the request of his spouse or, if there is no
spouse, of his children who would be eligible to be made
beneficiaries under section 1435 of this title. If the person for
whom the Secretary has made an election is later determined to be
mentally competent by medical officers of the Department of
Veterans Affairs or by a court of competent jurisdiction, he may,
within 180 days after that determination, change or revoke that
election. However, deductions made from his retired or retainer
pay before that date may not be refunded.
-SOURCE-
(Aug. 10, 1956, ch. 1041, 70A Stat. 109; Pub. L. 101-189, div. A,
title XVI, Sec. 1621(a)(1), Nov. 29, 1989, 103 Stat. 1602.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Revised section Source (U.S. Code) Source (Statutes at
Large)
---------------------------------------------------------------------
1433 37:372 (less (a) and Aug. 8, 1953, ch.
(b)). 393, Sec. 3 (less
(a) and (b)), 67
Stat. 502.
-------------------------------
The first 19 words are substituted for 37:372(c) (1st 9 words).
The words ''who would be eligible to be made beneficiaries under
section 1435 of this title'' are inserted to reflect the
limitations in 37:371(f). The words ''for that reason cannot'' are
substituted for the words ''because of such mental incompetency is
incapable of''. The words ''or is adjudged mentally incompetent'',
''provided for in this section'', and ''where appropriate is
subsequently adjudged mentally competent'' are omitted as
surplusage. The last sentence is substituted for 37:372(c) (last
sentence).
AMENDMENTS
1989 - Pub. L. 101-189 substituted ''Department of Veterans
Affairs'' for ''Veterans' Administration'' in two places.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 1431 of this title.
-CITE-
10 USC Sec. 1434 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
-HEAD-
Sec. 1434. Kinds of annuities that may be elected
-STATUTE-
(a) The annuity that a person is entitled to elect under section
1431 or 1432 of this title shall, in conformance with actuarial
tables selected by the Board of Actuaries under section 1436(a) of
this title, be the amount specified by the elector at the time of
the election, but not more than 50 percent nor less than 12 1/2
percent of his retired or retainer pay, in no case less than $25.
He may make the annuity payable -
(1) to, or on behalf of, the surviving spouse, ending when the
spouse dies or, if the spouse remarries before age 60, when the
spouse remarries;
(2) in equal shares to, or on behalf of, the surviving children
eligible for the annuity at the time each payment is due, ending
when there is no surviving eligible child; or
(3) to, or on behalf of, the surviving spouse, and after the
death of that spouse or the remarriage of that spouse before age
60, in equal shares to, or on behalf of, the surviving eligible
children, ending when there is no surviving eligible child.
(b) A person may elect to provide both the annuity provided in
clause (1) of subsection (a) and that provided in clause (2) of
subsection (a), but the combined amount of the annuities may not be
more than 50 percent nor less than 12 1/2 percent of his retired or
retainer pay but in no case less than $25.
(c) An election of any annuity under clause (1) or (2) of
subsection (a), or any combination of annuities under subsection
(b), shall provide that no deduction may be made from the elector's
retired or retainer pay after the last day of the month in which
there is no beneficiary who would be eligible for the annuity if
the elector died. For the purposes of the preceding sentence, a
child (other than a child who is incapable of supporting himself
because of a mental defect or physical incapacity existing before
his eighteenth birthday) who is at least eighteen, but under
twenty-three years of age, and who is not pursuing a course of
study or training defined in section 1435 of this title, shall be
considered an eligible beneficiary unless the Secretary concerned
approves an application submitted by the member under section
1436(b)(4) of this title. An election of an annuity under clause
(3) of subsection (a) shall provide that no deduction may be made
from the elector's retired or retainer pay after the last day of
the month in which there is no eligible spouse because of death or
divorce.
(d) Under regulations prescribed under section 1444(a) of this
title, a person may, before or after the first day for which
retired or retainer pay is granted, provided for allocating, during
the period of the surviving spouse's eligibility, a part of the
annuity under subsection (a)(3) for payment to those of his
surviving children who are not children of that spouse.
(e) Whenever there is an increase in retired and retainer pay
under section 1401a of this title, each annuity that is payable
under this subchapter on the day before the effective date of that
increase to a spouse or child of a member who died on or before
March 20, 1974, shall be increased by the same percentage as the
percentage of that increase, effective on the effective date of
that increase.
-SOURCE-
(Aug. 10, 1956, ch. 1041, 70A Stat. 109; Pub. L. 87-381, Sec. 3,
Oct. 4, 1961, 75 Stat. 811; Pub. L. 90-485, Sec. 1(3), Aug. 13,
1968, 82 Stat. 751; Pub. L. 95-397, title I, Sec. 101(a), Sept. 30,
1978, 92 Stat. 843; Pub. L. 96-513, title V, Sec. 511(56), Dec. 12,
1980, 94 Stat. 2925.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Revised section Source (U.S. Code) Source (Statutes at
Large)
---------------------------------------------------------------------
1434(a) 1434(b) 37:373(a) (less 4th Aug. 8, 1953, ch.
1434(c) par.). 37:373(b). 393, Sec. 4 (less
37:373(a)(4th (c) and (d)), 67
par.). Stat. 502.
-------------------------------
In subsection (a), the first 17 words are substituted for
37:373(a) (1st 26 words of 1st sentence). The words ''may be 50,
25, or 12 1/2 percent'' are substituted for the words ''in such
amount, expressed as a percentage of the reduced amount of his
retired pay * * * in amounts equal to one-half, one-quarter or
one-eighth''. 37:373(a) (last 53 words of 1st sentence of 2d par.,
and last 53 words of 1st sentence of 3d par.) is omitted as covered
by section 1435(2) of this title. Clause (1) is substituted for
37:373(a)(1). Clause (2) is substituted for 37:373(a)(2) (less last
53 words of 1st sentence). Clause (3) is substituted for
37:373(a)(3) (less last 53 words of 1st sentence). The word
''eligible'' is inserted in clauses (2) and (3) to reflect the
limitations in 37:371(f).
In subsection (c), the first 11 words are substituted for
37:373(a)(4) (1st 24 words). The words ''the annuity'' are
substituted for the words ''an annuity payable under the election
made by him''.
AMENDMENTS
1980 - Subsecs. (a), (b). Pub. L. 96-513 substituted ''percent''
for ''per centum'' wherever appearing.
1978 - Subsec. (a)(1). Pub. L. 95-397, Sec. 101(a)(1),
substituted ''or, if the spouse remarries before age 60, when the
spouse remarries'' for ''or remarries''.
Subsec. (a)(3). Pub. L. 95-397, Sec. 101(a)(2), substituted ''of
that spouse or the remarriage of that spouse before age 60'' for
''or remarriage of that spouse''.
Subsec. (e). Pub. L. 95-397, Sec. 101(a)(3), added subsec. (e).
1968 - Subsec. (a). Pub. L. 90-485 substituted provisions
allowing election of an annuity amount, in conformance with the
selected actuarial tables, of not more than 50 percent nor less
than 12 1/2 percent of retired or retired or retainer pay, but in
no case less than $25, for provisions allowing election of an
annuity amount of 50, 25, or 12 1/2 percent of reduced retired or
retainer pay.
Subsec. (b). Pub. L. 90-485 substituted provisions that the
combined amount of annuities may not be more than 50 percent nor
less than 12 1/2 percent of retired or retainer pay, but in no case
less than $25, for provisions that the combined amount of annuities
may be only 25 or 12 1/2 percent of reduced retired or retainer pay
and provisions that the reduction in retired or retainer pay on
account of each annuity, and the amount of each annuity, be
determined in the same manner that it would be determined if the
other annuity had not been elected.
Subsec. (c). Pub. L. 90-485 made mandatory the provisions that an
election of any annuity under cls. (1) or (2) of subsec. (a), or
any combination of annuities under subsec. (b), and the provision
that an election of an annuity under cl. (3) of subsec. (a) shall
provide that no deduction may be made from the elector's retired or
retainer pay after the last day of the month in which there is no
beneficiary who would be eligible for the annuity if the elector
died or there is no eligible spouse because of death or divorce,
respectively, and inserted provision determining what constitutes
an eligible beneficiary.
Subsec. (d). Pub. L. 90-485 reenacted subsec. (d) without change.
1961 - Subsec. (b). Pub. L. 87-381, Sec. 3(1), substituted
permission to elect only 25 or 12 1/2 percent of the member's
reduced retired or retainer pay for each annuity for provisions
limiting the combined amount of the annuities to not more than 50
percent or the reduced pay, and added that the reduction in pay on
account of each annuity, and the amount of each annuity, shall be
determined as if the other annuity had not been elected.
Subsec. (d). Pub. L. 87-381, Sec. 3(2), added subsec. (d).
EFFECTIVE DATE OF 1980 AMENDMENT
Amendment by Pub. L. 96-513 effective Dec. 12, 1980, see section
701(b)(3) of Pub. L. 96-513, set out as a note under section 101 of
this title.
EFFECTIVE DATE OF 1978 AMENDMENT
Section 101(b) of Pub. L. 95-397 provided that: ''No benefits
shall accrue to any person by virtue of the amendments made by
subsection (a) (amending this section) for any period prior to the
first day of the first calendar month following the month in which
this Act is enacted (Sept. 1978) or October 1, 1978, whichever is
later.''
EFFECTIVE DATE OF 1968 AMENDMENT
For effective date of amendment by Pub. L. 90-485, see section 6
of Pub. L. 90-485, set out as a note under section 1431 of this
title.
INCREASE IN AMOUNT OF ANNUITY PAYABLE UNDER RETIRED SERVICEMAN'S
FAMILY PROTECTION PLAN
Section 102 of Pub. L. 95-397 provided that: ''Each annuity that
is payable under subchapter I of chapter 73 of title 10, United
States Code, on the day before the date of the enactment of this
Act (Sept. 30, 1978) to a spouse or child of a member of the
uniformed services who died on or before March 20, 1974, shall be
increased effective as of the first day of the first calendar month
following the month in which this Act (See Short Title note set out
under section 1431 of this title) is enacted (September 1978), or
as of October 1, 1978, whichever is later, by the percentage
increase in retired and retainer pay under section 1401a of that
title since September 21, 1972.''
PROVISIONS EFFECTIVE FOR CERTAIN MEMBERS ON AUGUST 13, 1968
Provisions of this section as amended by Pub. L. 90-485 effective
immediately and automatically for members to whom section 1431 of
this title applies on Aug. 13, 1968, see section 3 of Pub. L.
90-485, set out as a note under section 1431 of this title.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1431, 1436 of this title.
-CITE-
10 USC Sec. 1435 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
-HEAD-
Sec. 1435. Eligible beneficiaries
-STATUTE-
Only the following persons are eligible to be made the
beneficiaries of, or to receive payments under, an annuity elected
under this subchapter by a member of the armed forces:
(1) The spouse of the member on the date when the member is
retired or becomes entitled to retired or retainer pay or, if the
member was already retired or entitled to retired or retainer pay
on November 1, 1953, the spouse on that date.
(2) The children of the member who are -
(A) unmarried;
(B) under eighteen years of age, or incapable of supporting
themselves because of a mental defect or physical incapacity
existing before their eighteenth birthday, or at least
eighteen, but under twenty-three, years of age and pursuing a
full-time course of study or training in a high school, trade
school, technical or vocational institute, junior college,
college, university, or comparable recognized educational
institution;
(C) legitimate or adopted children of, or stepchildren in
fact dependent for their support upon, the member;
(D) living on the date when the member is retired or becomes
entitled to retired or retainer pay or, if the member was
already retired or entitled to retired or retainer pay on
November 1, 1953, living on that date; and
(E) born on or before the date prescribed in clause (D).
For the purposes of clause (2)(B), a child is considered to be
pursuing a full-time course of study or training during an interval
between school years that does not exceed one hundred and fifty
days if he has demonstrated to the satisfaction of the Secretary
concerned that he has a bonafide intention of commencing, resuming,
or continuing to pursue a full-time course of study or training in
a recognized educational institution immediately after that
interval.
-SOURCE-
(Aug. 10, 1956, ch. 1041, 70A Stat. 110; Pub. L. 90-485, Sec. 1(4),
(5), Aug. 13, 1968, 82 Stat. 752; Pub. L. 92-425, Sec. 1(2)(A),
Sept. 21, 1972, 86 Stat. 706.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Revised section Source (U.S. Code) Source (Statutes at
Large)
---------------------------------------------------------------------
1435(1) 1435(2) 37:371(e). Aug. 8, 1953, ch.
37:371(f). 393, Sec. 2(e),
(f), 67 Stat. 501.
-------------------------------
In clauses (1) and (2), the words ''is retired or becomes
entitled to retired or retainer pay'' are substituted for the words
''retired member'', since the words ''retired member'', as defined
in the source statute, included former members who have been
awarded that pay.
In clause (1), the words '' 'widow' includes a widower'' are
omitted as covered by the definition of ''spouse'' in section
101(32) of this title.
AMENDMENTS
1972 - Pub. L. 92-425 substituted ''subchapter'' for ''chapter''.
1968 - Pub. L. 90-485 inserted provisions in cl. (2)(B)
concerning children of the member who are at least 18, but under 23
and pursuing a full-time course of study or training and inserted
text following cl. (2)(E) relating to children considered to be
pursuing a full-time course of study or training.
EFFECTIVE DATE OF 1968 AMENDMENT
Amendment by Pub. L. 90-485 effective on first day of third
calendar month following Aug. 13, 1968, see section 6 of Pub. L.
90-485, set out as a note under section 1431 of this title.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1433, 1434, 1437 of this
title.
-CITE-
10 USC Sec. 1436 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
-HEAD-
Sec. 1436. Computation of reduction in retired pay; withdrawal for
severe financial hardship
-STATUTE-
(a) The reduction in the retired or retainer pay of any person
who elects an annuity under this subchapter shall be computed by
the armed force concerned as of the date when the person becomes
eligible for that pay but without regard to any increase in that
pay to reflect changes in the Consumer Price Index. It shall be
computed under an actuarial equivalent method based on (1)
appropriate actuarial tables selected by the Board of Actuaries,
and (2) an interest rate of 3 percent a year, or such other rate as
the Secretary of the Treasury, after considering the average yield
on outstanding marketable long-term obligations of the United
States during the preceding six months, may specify by August 1 of
any year for the following year. The method and tables shall be
those in effect on the date as of which the computation is made.
(b) Under regulations prescribed under section 1444(a) of this
title, the Secretary concerned may, upon application by the retired
member, allow the member -
(1) to reduce the amount of the annuity specified by him under
section 1434(a) and 1434(b) of this title but to not less than
the prescribed minimum; or
(2) to withdraw from participation in an annuity program under
this title; or
(3) to elect the annuity provided under clause (1) of section
1434(a) of this title in place of the annuity provided under
clause (3) of such section, if on the first day for which retired
or retainer pay is granted the member had in effect a valid
election under clause (3) of such section, and he does not have a
child beneficiary who would be eligible for the annuity provided
under clause (3) of such section. For this purpose, a child
(other than a child who is incapable of supporting himself
because of a mental defect or physical incapacity existing before
his eighteenth birthday) who is at least eighteen, but under
twenty-three years of age shall not be considered an eligible
beneficiary; or
(4) to elect that a child (other than a child who is incapable
of supporting himself because of a mental defect or physical
incapacity existing before his eighteenth birthday) who is at
least eighteen, but under twenty-three years of age shall not be
considered eligible for the annuity provided under clause (2) of
section 1434(a) of this title, or for an annuity provided under
section 1434(b) of this title, if on the first day for which
retired or retainer pay is granted the member had in effect a
valid election under clause (2) of section 1434(a) of this title,
or under section 1434(b) of this title.
A retired member may not reduce an annuity under clause (1) of this
subsection, or withdraw under clause (2) of this subsection,
earlier than the first day of the seventh calendar month beginning
after he applies for reduction or withdrawal. A change of election
under clause (3) of this subsection shall be effective on the first
day of the month following the month in which application is made.
An election under clause (4) of this subsection shall be effective
on the first day of the month following the month in which
application is made and, if on the effective date there is no
surviving child who would be eligible for an annuity provided under
clause (2) of section 1434(a), or under section 1434(b), of this
title if the elector died, no deduction shall be made for such an
annuity to, or on behalf of, a child from the elector's retired or
retainer pay for that month or any subsequent month. No amounts by
which a member's retired or retainer pay is reduced prior to the
effective date of a reduction of annuity, withdrawal, change of
election, or election under this subsection may be refunded to, or
credited on behalf of, the member by virtue of an application made
by him under this subsection.
-SOURCE-
(Aug. 10, 1956, ch. 1041, 70A Stat. 110; Pub. L. 87-381, Sec. 4,
Oct. 4, 1961, 75 Stat. 811; Pub. L. 90-207, Sec. 2(a)(3), Dec. 16,
1967, 81 Stat. 653; Pub. L. 90-485, Sec. 1(6), Aug. 13, 1968, 82
Stat. 753; Pub. L. 92-425, Sec. 1(2)(A), Sept. 21, 1972, 86 Stat.
706; Pub. L. 104-106, div. A, title XV, Sec. 1505(c), Feb. 10,
1996, 110 Stat. 514.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Revised section Source (U.S. Code) Source (Statutes at
Large)
---------------------------------------------------------------------
1436 37:373(c). Aug. 8, 1953, ch.
393, Sec. 4(c), 67
Stat. 503.
-------------------------------
The words ''of any person who elects an annuity'' are substituted
for the words ''of an active or retired member who has made an
election''. The words ''in each individual case'' and ''designated
in section 8'' are omitted as surplusage. The words ''and as of
the date of election in the case of a retired member'' are omitted
as executed. 37:373(c) (1st 23 words of last sentence) is omitted
as otherwise covered by the language of the revised section.
AMENDMENTS
1996 - Subsec. (b). Pub. L. 104-106 made technical correction to
directory language of Pub. L. 90-485, Sec. 1(6). See 1968 Amendment
note below.
1972 - Subsec. (a). Pub. L. 92-425 substituted ''subchapter'' for
''chapter''.
1968 - Subsec. (b). Pub. L. 90-485, as amended by Pub. L.
104-106, substituted provisions authorizing the Secretary to allow
the member to reduce the amount of the annuity, allow the member to
withdraw from participation in an annuity program, allow the member
to elect the annuity provided in section 1434(a)(1) in place of the
annuity provided in section 1434(a)(3) under the specified
conditions, and allow the member to elect that a child at least 18,
but under 23, not be eligible for the specified annuities, setting
forth the times when such reduction, withdrawal, or change of
election may take place, and disallowing the refunding or crediting
of any amount previously withheld, for provisions authorizing the
Secretary to allow the member to withdraw from participation in an
annuity program whenever the Secretary considers it necessary
because of the member's severe financial hardship, the absence of
an eligible beneficiary not of itself to be a basis for such
action.
1967 - Subsec. (a). Pub. L. 90-207 inserted ''but without regard
to any increase in that pay to reflect changes in the Consumer
Price Index'' after ''that pay''.
1961 - Pub. L. 87-381 designated existing provisions as subsec.
(a), added subsec. (b), and inserted ''; withdrawal for severe
financial hardship'' in section catchline.
EFFECTIVE DATE OF 1996 AMENDMENT
Section 1505(c) of Pub. L. 104-106 provided that the amendment
made by that section is effective Aug. 13, 1968, and as if included
in Pub. L. 90-485 as originally enacted.
EFFECTIVE DATE OF 1968 AMENDMENT
Amendment by Pub. L. 90-485 effective Aug. 13, 1968, see section
6 of Pub. L. 90-485, set out as a note under section 1431 of this
title.
EFFECTIVE DATE OF 1967 AMENDMENT
Amendment by Pub. L. 90-207 effective Oct. 1, 1967, see section 7
of Pub. L. 90-207, set out as a note under section 203 of Title 37,
Pay and Allowances of the Uniformed Services.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 1434 of this title.
-CITE-
10 USC Sec. 1436a 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
-HEAD-
Sec. 1436a. Coverage paid up at 30 years and age 70
-STATUTE-
Effective October 1, 2008, a reduction under this subchapter in
the retired or retainer pay of a person electing an annuity under
this subchapter may not be made for any month after the later of -
(1) the month that is the 360th month for which that person's
retired or retainer pay is reduced pursuant to such an election;
and
(2) the month during which that person attains 70 years of age.
-SOURCE-
(Added Pub. L. 106-65, div. A, title VI, Sec. 655(a), Oct. 5,
1999, 113 Stat. 667.)
-CITE-
10 USC Sec. 1437 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
-HEAD-
Sec. 1437. Payment of annuity
-STATUTE-
(a) Except as provided in subsections (b) and (c), each annuity
payable under this subchapter accrues as of the first day of the
month in which the person upon whose pay the annuity is based
dies. Payments shall be made in equal installments and not later
than the fifteenth day of each month following that month.
However, no annuity accrues for the month in which entitlement
thereto ends. The monthly amount of an annuity payable under this
subchapter, if not a multiple of $1, shall be rounded to the next
lower multiple of $1.
(b) Each annuity payable to or on behalf of an eligible child
(other than a child who is incapable of supporting himself because
of a mental defect or physical incapacity existing before his
eighteenth birthday) as defined in section 1435(2)(B) of this title
who is at least eighteen years of age and pursuing a full-time
course of study or training at a recognized educational
institution, accrues -
(1) as of the first day of the month in which the member upon
whose pay the annuity is based dies, if the eligible child's
eighteenth birthday occurs in the same or a preceding month.
(2) as of the first day of the month in which the eighteenth
birthday of an eligible child occurs, if the member upon whose
pay the annuity is based died in a preceding month.
(3) as of the first day of the month in which a child first
becomes or again becomes eligible, if that eligible child's
eighteenth birthday and the death of the member upon whose pay
the annuity is based both occurred in a preceding month or
months.
However, no such annuity is payable or accrues for any month before
November 1, 1968.
(c)(1) Upon application of the beneficiary of a member entitled
to retired or retainer pay whose retired or retainer pay has been
suspended because the member has been determined to be missing, the
Secretary concerned may determine for purposes of this subchapter
that the member is presumed dead. Any such determination shall be
made in accordance with regulations prescribed under section
1444(a) of this title. The Secretary concerned may not make a
determination for purposes of this subchapter that a member is
presumed dead unless he finds -
(A) that the member has been missing for at least 30 days; and
(B) that the circumstances under which the member is missing
would lead a reasonably prudent person to conclude that the
member is dead.
(2) Upon a determination under paragraph (1) with respect to a
member, an annuity otherwise payable under this subchapter shall be
paid as if the member died on the date as of which the retired or
retainer pay of the member was suspended.
(3)(A) If, after a determination under paragraph (1), the
Secretary concerned determines that the member is alive, any
annuity being paid under this subchapter by reason of this
subsection shall be promptly terminated and the total amount of any
annuity payments made by reason of this subsection shall constitute
a debt to the United States which may be collected or offset -
(i) from any retired or retainer pay otherwise payable to the
member;
(ii) if the member is entitled to compensation under chapter 11
of title 38, from that compensation; or
(iii) if the member is entitled to any other payment from the
United States, from that payment.
(B) If the member dies before the full recovery of the amount of
annuity payments described in subparagraph (A) has been made by the
United States, the remaining amount of such annuity payments may be
collected from the member's beneficiary under this subchapter if
that beneficiary was the recipient of the annuity payments made by
reason of this subsection.
-SOURCE-
(Aug. 10, 1956, ch. 1041, 70A Stat. 110; Pub. L. 90-485, Sec. 1(7),
Aug. 13, 1968, 82 Stat. 753; Pub. L. 92-425, Sec. 1(2)(A), Sept.
21, 1972, 86 Stat. 706; Pub. L. 96-513, title V, Sec. 511(57), Dec.
12, 1980, 94 Stat. 2925; Pub. L. 98-94, title IX, Sec.
922(a)(14)(A), Sept. 24, 1983, 97 Stat. 642; Pub. L. 98-525, title
VI, Sec. 642(a)(1), Oct. 19, 1984, 98 Stat. 2545; Pub. L. 99-145,
title XIII, Sec. 1303(a)(9), Nov. 8, 1985, 99 Stat. 739.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Revised section Source (U.S. Code) Source (Statutes at
Large)
---------------------------------------------------------------------
1437 37:379. Aug. 8, 1953, ch.
393, Sec. 10, 67
Stat. 504.
-------------------------------
The words ''the person upon whose reduced pay the annuity is
based'' are substituted for the words ''the retired member'' since
persons other than retired members may elect an annuity. The words
''due and'' and ''or be paid'' are omitted as surplusage.
AMENDMENTS
1985 - Subsec. (c)(3)(A). Pub. L. 99-145 struck out
''(notwithstanding section 144 of this title)'' after ''which''.
1984 - Subsec. (a). Pub. L. 98-525, Sec. 642(a)(1)(A),
substituted ''subsections (b) and (c),'' for ''subsection (b)''.
Subsec. (c). Pub. L. 98-525, Sec. 642(a)(1)(B), added subsec.
(c).
1983 - Subsec. (a). Pub. L. 98-94 inserted ''The monthly amount
of an annuity payable under this subchapter, if not a multiple of
$1, shall be rounded to the next lower multiple of $1.''
1980 - Subsec. (b). Pub. L. 96-513 substituted ''before November
1, 1968'' for ''prior to the effective date of this subsection''.
1972 - Subsec. (a). Pub. L. 92-425 substituted ''subchapter'' for
''chapter''.
1968 - Pub. L. 90-485 designated existing provisions as subsec.
(a), inserted ''Except as provided in subsection (b)'', substituted
''whose pay'' for ''whose reduced pay'', and added subsec. (b).
EFFECTIVE DATE OF 1983 AMENDMENT
Amendment by Pub. L. 98-94 effective Oct. 1, 1983, see section
922(e) of Pub. L. 98-94, set out as a note under section 1401 of
this title.
EFFECTIVE DATE OF 1980 AMENDMENT
Amendment by Pub. L. 96-513 effective Dec. 12, 1980, see section
701(b)(3) of Pub. L. 96-513, set out as a note under section 101 of
this title.
EFFECTIVE DATE OF 1968 AMENDMENT
For effective date of amendment by Pub. L. 90-485, see section 6
of Pub. L. 90-485, set out as a note under section 1431 of this
title.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 1440 of this title.
-CITE-
10 USC Sec. 1438 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
-HEAD-
Sec. 1438. Deposits for amounts not deducted
-STATUTE-
If, for any period, a person who has been retired or has become
entitled to retired or retainer pay, and who has elected an annuity
under this subchapter, is not entitled to retired or retainer pay,
he must deposit in the Treasury the amount that would otherwise
have been deducted from his pay for that period to provide the
annuity.
-SOURCE-
(Aug. 10, 1956, ch. 1041, 70A Stat. 110; Pub. L. 92-425, Sec.
1(2)(A), Sept. 21, 1972, 86 Stat. 706.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Revised section Source (U.S. Code) Source (Statutes at
Large)
---------------------------------------------------------------------
1438 37:374. Aug. 8, 1953, ch.
393, Sec. 5, 67
Stat. 504.
-------------------------------
The words ''a person who has been retired or has become entitled
to retired or retainer pay, and who has elected an annuity under
this chapter'' are substituted for the words ''a retired member of
a uniformed service who has made the election specified in section
372 of this title'', since the revised chapter applies to persons
who are receiving retired pay as well as retired members. The word
''otherwise'' is substituted for the words ''had he been receiving
that pay''. The words ''to provide the annuity'' are inserted for
clarity.
AMENDMENTS
1972 - Pub. L. 92-425 substituted ''subchapter'' for ''chapter''.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in title 5 sections 8311, 8316; title
26 section 122.
-CITE-
10 USC Sec. 1439 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
-HEAD-
Sec. 1439. Refund of amounts deducted from retired pay
-STATUTE-
If a person whose name is on the temporary disability retired
list of an armed force, and who has elected an annuity under this
subchapter, has his name removed from that list for any reason
other than retirement or grant of retired pay, he is entitled to a
refund of the difference between the amount by which his retired
pay was reduced to provide the annuity and the cost of an amount of
term insurance equal to the protection provided for his dependents
during the period that he was on that list.
-SOURCE-
(Aug. 10, 1956, ch. 1041, 70A Stat. 111; Pub. L. 92-425, Sec.
1(2)(A), Sept. 21, 1972, 86 Stat. 706.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Revised section Source (U.S. Code) Source (Statutes at
Large)
---------------------------------------------------------------------
1439 37:373(d). Aug. 8, 1953, ch.
393, Sec. 4(d), 67
Stat. 503.
-------------------------------
The words ''person whose name is on'' are substituted for the
words ''Any active member or former member on the''. The words
''is entitled to a refund'' are substituted for the words ''shall
have refunded to him''. The words ''permanent'', ''a sum which
represents'', and ''in accordance with his election under section
372 of this title'' are omitted as surplusage. The words
''retirement or grant of retired pay'' are substituted for the
words ''permanent retirement'', since under chapter 67 of this
title a member of the Army or Air Force may be granted retired pay
without being retired.
AMENDMENTS
1972 - Pub. L. 92-425 substituted ''subchapter'' for ''chapter''.
-CITE-
10 USC Sec. 1440 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
-HEAD-
Sec. 1440. Annuities not subject to legal process
-STATUTE-
Except as provided in section 1437(c)(3)(B) of this title, no
annuity payable under this subchapter is assignable or subject to
execution, levy, attachment, garnishment, or other legal process.
-SOURCE-
(Aug. 10, 1956, ch. 1041, 70A Stat. 111; Pub. L. 92-425, Sec.
1(2)(A), Sept. 21, 1972, 86 Stat. 706; Pub. L. 98-525, title VI,
Sec. 642(a)(2), Oct. 19, 1984, 98 Stat. 2546; Pub. L. 99-145, title
XIII, Sec. 1303(a)(10), Nov. 8, 1985, 99 Stat. 739.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Revised section Source (U.S. Code) Source (Statutes at
Large)
---------------------------------------------------------------------
1440 37:378. Aug. 8, 1953, ch.
393, Sec. 9, 67
Stat. 504.
-------------------------------
The words ''either in law or equity'' are omitted as surplusage.
AMENDMENTS
1985 - Pub. L. 99-145 substituted ''1437(c)(3)(B)'' for
''1437(c)(3)''.
1984 - Pub. L. 98-525 substituted ''Except as provided in section
1437(c)(3) of this title, no'' for ''No''.
1972 - Pub. L. 92-425 substituted ''subchapter'' for ''chapter''.
-CITE-
10 USC Sec. 1441 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
-HEAD-
Sec. 1441. Annuities in addition to other payments
-STATUTE-
An annuity under this subchapter is in addition to any pension or
other payment to which the beneficiary is entitled under any other
provision of law, and may not be considered as income under any law
administered by the Department of Veterans Affairs.
-SOURCE-
(Aug. 10, 1956, ch. 1041, 70A Stat. 111; Pub. L. 85-857, Sec.
13(v)(1), Sept. 2, 1958, 72 Stat. 1266; Pub. L. 85-861, Sec.
1(31B), Sept. 2, 1958, 72 Stat. 1452; Pub. L. 86-211, Sec. 8(a),
Aug. 29, 1959, 73 Stat. 436; Pub. L. 91-588, Sec. 8(b), Dec. 24,
1970, 84 Stat. 1584; Pub. L. 92-425, Sec. 1(2)(A), Sept. 21, 1972,
86 Stat. 706; Pub. L. 101-189, div. A, title XVI, Sec. 1621(a)(1),
Nov. 29, 1989, 103 Stat. 1602.)
-MISC1-
Historical and Revision Notes
1956 Act
---------------------------------------------------------------------
Revised section Source (U.S. Code) Source (Statutes at
Large)
---------------------------------------------------------------------
1441 37:380. Aug. 8, 1953, ch.
393, Sec. 11, 67
Stat. 504.
-------------------------------
The word ''is'' is substituted for the words ''may now or
hereafter be''.
1958 Act
---------------------------------------------------------------------
Revised section Source (U.S. Code) Source (Statutes at
Large)
---------------------------------------------------------------------
1441 37:380. Aug. 1, 1956, ch.
837, Sec. 501(1),
70 Stat. 884.
-------------------------------
The change is made to reflect the amendment made by section
501(1) of the Servicemen's and Veterans' Survivor Benefits Act (70
Stat. 884) to section 11 of the Uniform Services Contingency Option
Act of 1953 (restated in section 1441 of title 10).
AMENDMENTS
1989 - Pub. L. 101-189 substituted ''Department of Veterans
Affairs'' for ''Veterans' Administration''.
1972 - Pub. L. 92-425 substituted ''subchapter'' for ''chapter''.
1970 - Pub. L. 91-588 struck out ''except section 415(g) and
chapter 15 of title 38'' after ''Veterans' Administration''.
1959 - Pub. L. 86-211 inserted reference to chapter 15 of title
38.
1958 - Pub. L. 85-861 inserted ''except section 1115 of title
38'' after ''Administration''.
Pub. L. 85-857 substituted ''section 415(g) of title 38'' for
''section 1115 of title 38''.
EFFECTIVE DATE OF 1970 AMENDMENT
Amendment by Pub. L. 91-588 effective Jan. 1, 1971, see section
10 of Pub. L. 91-588, set out as a note under section 1521 of Title
38, Veterans' Benefits.
EFFECTIVE DATE OF 1959 AMENDMENT
Amendment by Pub. L. 86-211 effective July 1, 1960, see section
10 of Pub. L. 86-211, set out as a note under section 1506 of Title
38, Veterans' Benefits.
EFFECTIVE DATE OF 1958 AMENDMENT
Amendment by Pub. L. 85-857 effective Jan. 1, 1959, see section 2
of Pub. L. 85-857, set out as a note preceding Part I of Title 38,
Veterans' Benefits.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 1446 of this title.
-CITE-
10 USC Sec. 1442 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
-HEAD-
Sec. 1442. Recovery of annuity erroneously paid
-STATUTE-
In addition to other methods of recovery provided by law, the
Secretary concerned may authorize the recovery, by deduction from
later payments to a person, of any amount erroneously paid to him
under this subchapter. However, recovery is not required if, in
the judgment of the Secretary concerned, there has been no fault by
the person to whom the amount was erroneously paid and recovery
would be contrary to the purposes of this subchapter or against
equity and good conscience.
-SOURCE-
(Aug. 10, 1956, ch. 1041, 70A Stat. 111; Pub. L. 92-425, Sec.
1(2)(A), Sept. 21, 1972, 86 Stat. 706; Pub. L. 104-316, title I,
Sec. 105(a), Oct. 19, 1996, 110 Stat. 3830.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Revised section Source (U.S. Code) Source (Statutes at
Large)
---------------------------------------------------------------------
1442 37:376. Aug. 8, 1953, ch.
393, Sec. 7, 67
Stat. 504.
-------------------------------
The words ''In addition to other methods of recovery provided by
law, the Secretary concerned may'' are substituted for 37:376(a)
(1st 15 words of 1st sentence). The words ''from later payments to
an annuitant'' are substituted for 37:376(a) (2d sentence).
AMENDMENTS
1996 - Pub. L. 104-316 struck out ''and the Comptroller General''
after ''judgment of the Secretary concerned''.
1972 - Pub. L. 92-425 substituted ''subchapter'' for ''chapter''.
-CITE-
10 USC Sec. 1443 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
-HEAD-
(Sec. 1443. Repealed. Pub. L. 92-425, Sec. 1(2)(B), Sept. 21, 1972,
86 Stat. 706)
-MISC1-
Section, act Aug. 10, 1956, ch. 1041, 70A Stat. 111, related to
Board of Actuaries, composed of Government Actuary, Chief Actuary
of Social Security Administration, and an actuary who was a member
of Society of Actuaries.
-CITE-
10 USC Sec. 1444 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
-HEAD-
Sec. 1444. Regulations; determinations
-STATUTE-
(a) The President shall prescribe regulations to carry out this
subchapter. Those regulations shall, so far as practicable, be
uniform for the armed forces, the National Oceanic and Atmospheric
Administration, and the Public Health Service.
(b) Determinations and certifications of eligibility for, and
payments of, annuities and other payments or refunds under this
subchapter shall be made by the department concerned. However, in
the case of a department other than a military department, payments
shall be made through the disbursing facilities of the Department
of the Treasury.
-SOURCE-
(Aug. 10, 1956, ch. 1041, 70A Stat. 111; Pub. L. 87-381, Sec. 5,
Oct. 4, 1961, 75 Stat. 811; Pub. L. 89-718, Sec. 8(a), Nov. 2,
1966, 80 Stat. 1117; Pub. L. 92-425, Sec. 1(2)(A), (C), Sept. 21,
1972, 86 Stat. 706; Pub. L. 96-513, title V, Sec. 511(58), Dec. 12,
1980, 94 Stat. 2925.)
-MISC1-
Historical and Revision Notes
---------------------------------------------------------------------
Revised section Source (U.S. Code) Source (Statutes at
Large)
---------------------------------------------------------------------
1444(a) 1444(b) 37:377 (1st Aug. 8, 1953, ch.
1444(c) sentence). 37:377 393, Sec. 6, 8 (1st
(2d sentence). and 2d sentences),
37:375. 67 Stat. 504.
-------------------------------
AMENDMENTS
1980 - Subsec. (a). Pub. L. 96-513, Sec. 511(58)(A), substituted
''National Oceanic and Atmospheric Administration'' for
''Environmental Science Services Administration''.
Subsecs. (b), (c). Pub. L. 96-513, Sec. 511(58)(B), redesignated
subsec. (c) as (b).
1972 - Pub. L. 92-425, Sec. 1(2)(C), struck out ''reports to
Congress'' in section catchline.
Subsec. (a). Pub. L. 92-425, Sec. 1(2)(A), substituted
''subchapter'' for ''chapter''.
Subsec. (b). Pub. L. 92-425, Sec. 1(2)(C), struck out subsec. (b)
which required President to submit annual reports to Congress on
administration of this chapter.
Subsec. (c). Pub. L. 92-425, Sec. 1(2)(A), substituted
''subchapter'' for ''chapter''.
1966 - Subsec. (a). Pub. L. 89-718 substituted ''Environmental
Science Services Administration'' for ''Coast and Geodetic
Survey''.
1961 - Subsec. (b). Pub. L. 87-381 required report to contain a
detailed account, including an actuarial analysis, of cases in
which relief is granted under sections 1436(b) and 1552 of this
title, or any other statutory or administrative procedure.
EFFECTIVE DATE OF 1980 AMENDMENT
Amendment by Pub. L. 96-513 effective Dec. 12, 1980, see section
701(b)(3) of Pub. L. 96-513, set out as a note under section 101 of
this title.
REPEALS
The directory language of, but not the amendment made by, Pub. L.
89-718, Sec. 8(a), Nov. 2, 1966, 80 Stat. 1117, cited as a credit
to this section, was repealed by Pub. L. 97-295, Sec. 6(b), Oct.
12, 1982, 96 Stat. 1314.
-TRANS-
TRANSFER OF FUNCTIONS
For transfer of functions of Public Health Service, see note
under section 802 of this title.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1434, 1436, 1437, 1444a,
1445 of this title.
-CITE-
10 USC Sec. 1444a 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
-HEAD-
Sec. 1444a. Regulations regarding payment of annuity to a
representative payee
-STATUTE-
(a) The regulations prescribed pursuant to section 1444(a) of
this title shall provide procedures for the payment of an annuity
under this subchapter in the case of -
(1) a person for whom a guardian or other fiduciary has been
appointed; and
(2) a minor, mentally incompetent, or otherwise legally
disabled person for whom a guardian or other fiduciary has not
been appointed.
(b) Those regulations may include the provisions set out in
section 1455(d)(2) of this title.
(c) An annuity paid to a person on behalf of an annuitant in
accordance with the regulations prescribed pursuant to subsection
(a) discharges the obligation of the United States for payment to
the annuitant of the amount of the annuity so paid.
-SOURCE-
(Added Pub. L. 102-190, div. A, title VI, Sec. 654(b)(1), Dec. 5,
1991, 105 Stat. 1390; amended Pub. L. 105-85, div. A, title X,
Sec. 1073(a)(26), Nov. 18, 1997, 111 Stat. 1901.)
-MISC1-
AMENDMENTS
1997 - Subsec. (b). Pub. L. 105-85 substituted ''section
1455(d)(2)'' for ''section 1455(c)''.
-CITE-
10 USC Sec. 1445 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
-HEAD-
Sec. 1445. Correction of administrative deficiencies
-STATUTE-
Whenever he considers it necessary, the Secretary concerned may,
under regulations prescribed under section 1444(a) of this title,
correct any election, or any change or revocation of an election,
under this subchapter when he considers it necessary to correct an
administrative error. Except when procured by fraud, a correction
under this section is final and conclusive on all officers of the
United States.
-SOURCE-
(Added Pub. L. 87-381, Sec. 6(1), Oct. 4, 1961, 75 Stat. 811;
amended Pub. L. 92-425, Sec. 1(2)(A), Sept. 21, 1972, 86 Stat.
706.)
-MISC1-
AMENDMENTS
1972 - Pub. L. 92-425 substituted ''subchapter'' for ''chapter''.
-CITE-
10 USC Sec. 1446 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
SUBCHAPTER I - RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
-HEAD-
Sec. 1446. Restriction on participation
-STATUTE-
(a) Notwithstanding section 1441 of this title, if a person -
(1) has made an election under this subchapter; and
(2) is retired for physical disability before he completes 19
years of service for which he is entitled to credit in the
computation of his basic pay;
and thereafter dies, his beneficiaries are not entitled to the
annuities provided under this subchapter until they give proof to
the department concerned that they are not eligible for benefits
under chapter 11 or 13 of title 38. If the beneficiaries are not
eligible for benefits under chapter 11 or 13 of title 38, the
annuity shall begin on the first day of the month in which the
death occurs.
(b) Whenever the beneficiaries on whose behalf the election was
made are restricted, under subsection (a), from participating in
the annuities provided under this subchapter, the amount withheld
from the elector's retired or retainer pay as a result of an
election under this subchapter shall be refunded to the
beneficiaries, less the amount of any annuities paid under this
subchapter, and in either case without interest.
-SOURCE-
(Added Pub. L. 87-381, Sec. 6(1), Oct. 4, 1961, 75 Stat. 811;
amended Pub. L. 90-485, Sec. 1(8), Aug. 13, 1968, 82 Stat. 754;
Pub. L. 92-425, Sec. 1(2)(A), Sept. 21, 1972, 86 Stat. 706.)
-MISC1-
AMENDMENTS
1972 - Pub. L. 92-425 substituted ''subchapter'' for ''chapter''
wherever appearing.
1968 - Subsec. (a)(2). Pub. L. 90-485 substituted ''19'' for
''18''.
EFFECTIVE DATE OF 1968 AMENDMENT
Amendment by Pub. L. 90-485 effective on first day of third
calendar month following Aug. 13, 1968, see section 6 of Pub. L.
90-485, set out as a note under section 1431 of this title.
-CITE-
10 USC SUBCHAPTER II - SURVIVOR BENEFIT PLAN 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
SUBCHAPTER II - SURVIVOR BENEFIT PLAN
.
-HEAD-
SUBCHAPTER II - SURVIVOR BENEFIT PLAN
-MISC1-
Sec.
1447. Definitions.
1448. Application of Plan.
1448a. Election to discontinue participation: one-year opportunity
after second anniversary of commencement of payment of retired
pay.
1449. Mental incompetency of member.
1450. Payment of annuity: beneficiaries.
1451. Amount of annuity.
1452. Reduction in retired pay.
1453. Recovery of amounts erroneously paid.
1454. Correction of administrative errors.
1455. Regulations.
AMENDMENTS
1997 - Pub. L. 105-85, div. A, title VI, Sec. 641(a)(2), Nov.
18, 1997, 111 Stat. 1798, added item 1448a.
1996 - Pub. L. 104-201, div. A, title VI, Sec. 634, Sept. 23,
1996, 110 Stat. 2551, amended analysis generally, reenacting items
1447 to 1452, 1454, and 1455 without change and substituting
''Recovery of amounts'' for ''Recovery of annuity'' in item 1453.
1989 - Pub. L. 101-189, div. A, title XIV, Sec. 1407(a)(10)(B),
Nov. 29, 1989, 103 Stat. 1589, substituted ''errors'' for
''deficiencies'' in item 1454.
1985 - Pub. L. 99-145, title VII, Sec. 719(8)(B), Nov. 8, 1985,
99 Stat. 676, struck out ''or retainer'' after ''retired'' in item
1452.
1972 - Pub. L. 92-424, Sec. 1(3), Sept. 21, 1972, 86 Stat. 706,
added subchapter II heading and items 1447 to 1455.
-SECREF-
SUBCHAPTER REFERRED TO IN OTHER SECTIONS
This subchapter is referred to in sections 1460a, 12731 of this
title.
-CITE-
10 USC Sec. 1447 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
SUBCHAPTER II - SURVIVOR BENEFIT PLAN
-HEAD-
Sec. 1447. Definitions
-STATUTE-
In this subchapter:
(1) Plan. - The term ''Plan'' means the Survivor Benefit Plan
established by this subchapter.
(2) Standard annuity. - The term ''standard annuity'' means an
annuity provided by virtue of eligibility under section
1448(a)(1)(A) of this title.
(3) Reserve-component annuity. - The term ''reserve-component
annuity'' means an annuity provided by virtue of eligibility
under section 1448(a)(1)(B) of this title.
(4) Retired pay. - The term ''retired pay'' includes retainer
pay paid under section 6330 of this title.
(5) Reserve-component retired pay. - The term
''reserve-component retired pay'' means retired pay under chapter
1223 of this title (or under chapter 67 of this title as in
effect before the effective date of the Reserve Officer Personnel
Management Act).
(6) Base amount. - The term ''base amount'' means the
following:
(A) Full amount under standard annuity. - In the case of a
person who dies after becoming entitled to retired pay, such
term means the amount of monthly retired pay (determined
without regard to any reduction under section 1409(b)(2) of
this title) to which the person -
(i) was entitled when he became eligible for that pay; or
(ii) later became entitled by being advanced on the retired
list, performing active duty, or being transferred from the
temporary disability retired list to the permanent disability
retired list.
(B) Full amount under reserve-component annuity. - In the
case of a person who would have become eligible for
reserve-component retired pay but for the fact that he died
before becoming 60 years of age, such term means the amount of
monthly retired pay for which the person would have been
eligible -
(i) if he had been 60 years of age on the date of his
death, for purposes of an annuity to become effective on the
day after his death in accordance with a designation made
under section 1448(e) of this title; or
(ii) upon becoming 60 years of age (if he had lived to that
age), for purposes of an annuity to become effective on the
60th anniversary of his birth in accordance with a
designation made under section 1448(e) of this title.
(C) Reduced amount. - Such term means any amount less than
the amount otherwise applicable under subparagraph (A) or (B)
with respect to an annuity provided under the Plan but which is
not less than $300 and which is designated by the person (with
the concurrence of the person's spouse, if required under
section 1448(a)(3) of this title) providing the annuity on or
before -
(i) the first day for which he becomes eligible for retired
pay, in the case of a person providing a standard annuity, or
(ii) the end of the 90-day period beginning on the date on
which he receives the notification required by section
12731(d) of this title that he has completed the years of
service required for eligibility for reserve-component
retired pay, in the case of a person providing a
reserve-component annuity.
(7) Widow. - The term ''widow'' means the surviving wife of a
person who, if not married to the person at the time he became
eligible for retired pay -
(A) was married to him for at least one year immediately
before his death; or
(B) is the mother of issue by that marriage.
(8) Widower. - The term ''widower'' means the surviving husband
of a person who, if not married to the person at the time she
became eligible for retired pay -
(A) was married to her for at least one year immediately
before her death; or
(B) is the father of issue by that marriage.
(9) Surviving spouse. - The term ''surviving spouse'' means a
widow or widower.
(10) Former spouse. - The term ''former spouse'' means the
surviving former husband or wife of a person who is eligible to
participate in the Plan.
(11) Dependent child. -
(A) In general. - The term ''dependent child'' means a person
who -
(i) is unmarried;
(ii) is (I) under 18 years of age, (II) at least 18, but
under 22, years of age and pursuing a full-time course of
study or training in a high school, trade school, technical
or vocational institute, junior college, college, university,
or comparable recognized educational institution, or (III)
incapable of self support because of a mental or physical
incapacity existing before the person's eighteenth birthday
or incurred on or after that birthday, but before the
person's twenty-second birthday, while pursuing such a
full-time course of study or training; and
(iii) is the child of a person to whom the Plan applies,
including (I) an adopted child, and (II) a stepchild, foster
child, or recognized natural child who lived with that person
in a regular parent-child relationship.
(B) Special rules for college students. - For the purpose of
subparagraph (A), a child whose twenty-second birthday occurs
before July 1 or after August 31 of a calendar year, and while
regularly pursuing such a course of study or training, is
considered to have become 22 years of age on the first day of
July after that birthday. A child who is a student is
considered not to have ceased to be a student during an interim
between school years if the interim is not more than 150 days
and if the child shows to the satisfaction of the Secretary of
Defense that the child has a bona fide intention of continuing
to pursue a course of study or training in the same or a
different school during the school semester (or other period
into which the school year is divided) immediately after the
interim.
(C) Foster children. - A foster child, to qualify under this
paragraph as the dependent child of a person to whom the Plan
applies, must, at the time of the death of that person, also
reside with, and receive over one-half of his support from,
that person, and not be cared for under a social agency
contract. The temporary absence of a foster child from the
residence of that person, while a student as described in this
paragraph, shall not be considered to affect the residence of
such a foster child.
(12) Court. - The term ''court'' has the meaning given that
term by section 1408(a)(1) of this title.
(13) Court order. -
(A) In general. - The term ''court order'' means a court's
final decree of divorce, dissolution, or annulment or a court
ordered, ratified, or approved property settlement incident to
such a decree (including a final decree modifying the terms of
a previously issued decree of divorce, dissolution, annulment,
or legal separation, or of a court ordered, ratified, or
approved property settlement agreement incident to such
previously issued decree).
(B) Final decree. - The term ''final decree'' means a decree
from which no appeal may be taken or from which no appeal has
been taken within the time allowed for the taking of such
appeals under the laws applicable to such appeals, or a decree
from which timely appeal has been taken and such appeal has
been finally decided under the laws applicable to such appeals.
(C) Regular on its face. - The term ''regular on its face'',
when used in connection with a court order, means a court order
that meets the conditions prescribed in section 1408(b)(2) of
this title.
-SOURCE-
(Added Pub. L. 92-425, Sec. 1(3), Sept. 21, 1972, 86 Stat. 706;
amended Pub. L. 94-496, Sec. 1(1), Oct. 14, 1976, 90 Stat. 2375;
Pub. L. 95-397, title II, Sec. 201, Sept. 30, 1978, 92 Stat. 843;
Pub. L. 96-402, Sec. 2, Oct. 9, 1980, 94 Stat. 1705; Pub. L.
97-252, title X, Sec. 1003(a), Sept. 8, 1982, 96 Stat. 735; Pub. L.
98-94, title IX, Sec. 941(c)(1), Sept. 24, 1983, 97 Stat. 653; Pub.
L. 99-145, title VII, Sec. 719(1), (2), 721(b), Nov. 8, 1985, 99
Stat. 675, 676; Pub. L. 99-348, title III, Sec. 301(a)(1), July 1,
1986, 100 Stat. 702; Pub. L. 99-661, div. A, title XIII, Sec.
1343(a)(8)(A), Nov. 14, 1986, 100 Stat. 3992; Pub. L. 100-180,
div. A, title XII, Sec. 1231(17), Dec. 4, 1987, 101 Stat. 1161;
Pub. L. 101-189, div. A, title XIV, Sec. 1407(a)(1)-(3), Nov. 29,
1989, 103 Stat. 1588; Pub. L. 101-510, div. A, title XIV, Sec.
1484(l)(4)(C)(i), Nov. 5, 1990, 104 Stat. 1720; Pub. L. 103-337,
div. A, title XVI, Sec. 1671(d), Oct. 5, 1994, 108 Stat. 3014;
Pub. L. 104-201, div. A, title VI, Sec. 634, Sept. 23, 1996, 110
Stat. 2551.)
-REFTEXT-
REFERENCES IN TEXT
Chapter 67 of this title as in effect before the effective date
of the Reserve Officer Personnel Management Act, referred to in
par. (5), means chapter 67 (Sec. 1331 et seq.) of this title prior
to its transfer to part II of subtitle E of this title, its
renumbering as chapter 1223, and its general revision by section
1662(j)(1) of Pub. L. 103-337. A new chapter 67 (Sec. 1331) of this
title was added by section 1662(j)(7) of Pub. L. 103-337. For
effective date of the Reserve Officer Personnel Management Act
(Pub. L. 103-337, title XVI), see section 1691 of Pub. L. 103-337,
set out as an Effective Date note under section 10001 of this
title.
-MISC2-
AMENDMENTS
1996 - Pub. L. 104-201 amended section generally, making changes
in the order, style, and substance of definitions of terms used in
this subchapter and adding definition of ''surviving spouse''.
1994 - Par. (2)(C). Pub. L. 103-337, Sec. 1671(d)(2), substituted
''12731(d)'' for ''1331(d)''.
Par. (14). Pub. L. 103-337, Sec. 1671(d)(1), substituted
''chapter 1223 of this title (or under chapter 67 of this title as
in effect before the effective date of the Reserve Officer
Personnel Management Act)'' for ''chapter 67 of this title''.
1990 - Par. (5). Pub. L. 101-510 made technical correction to
directory language of Pub. L. 101-189, Sec. 1407(a)(1)(A), see 1989
Amendment note below.
1989 - Par. (2)(B). Pub. L. 101-189, Sec. 1407(a)(2), substituted
''reserve-component retired pay'' for ''retired pay under chapter
67 of this title''.
Par. (2)(C)(i). Pub. L. 101-189, Sec. 1407(a)(3), struck out ''or
retainer'' after ''eligible for retired''.
Par. (2)(C)(ii). Pub. L. 101-189, Sec. 1407(a)(2), substituted
''reserve-component retired pay'' for ''retired pay under chapter
67 of this title''.
Pars. (3), (4). Pub. L. 101-189, Sec. 1407(a)(3), struck out ''or
retainer'' after ''eligible for retired''.
Par. (5). Pub. L. 101-189, Sec. 1407(a)(1)(A), as amended by Pub.
L. 101-510, substituted ''this paragraph'' for ''this clause'' in
three places in concluding provisions.
Par. (11). Pub. L. 101-189, Sec. 1407(a)(1)(B), inserted ''paid
under section 6330 of this title'' after ''retainer pay''.
Par. (14). Pub. L. 101-189, Sec. 1407(a)(1)(C), added par. (14).
1987 - Pub. L. 100-180 inserted ''The term'' after each par.
designation and revised first word in quotes in pars. (2) to (13)
to make initial letter of such word lowercase.
1986 - Par. (2)(A). Pub. L. 99-661 substituted ''retired pay''
for ''retired or retainer pay'' in two places in provisions
preceding cl. (i).
Pub. L. 99-348 inserted ''(determined without regard to any
reduction under section 1409(b)(2) of this title)''.
1985 - Par. (2)(C). Pub. L. 99-145, Sec. 721(b), inserted ''(with
the concurrence of the person's spouse, if required under section
1448(a)(3) of this title)'' after ''designated by the person''.
Par. (2)(C)(i). Pub. L. 99-145, Sec. 719(2)(A), substituted ''a
standard annuity'' for ''an annuity by virtue of eligibility under
section 1448(a)(1)(A) of this title''.
Par. (2)(C)(ii). Pub. L. 99-145, Sec. 719(2)(B), substituted ''a
reserve-component annuity'' for ''an annuity by virtue of
eligibility under section 1448(a)(1)(B) of this title''.
Pars. (11) to (13). Pub. L. 99-145, Sec. 719(1), added pars. (11)
to (13).
1983 - Par. (8). Pub. L. 98-94 substituted ''or annulment'' for
''annulment, or legal separation,'' in two places.
1982 - Pars. (6) to (10). Pub. L. 97-252 added pars. (6) to (10).
1980 - Par. (2). Pub. L. 96-402 inserted in subpar. (C) ''but
which is not less than $300'' after ''under the Plan'', substituted
a period at end of subpar. (C) for '', but not less than $300;'',
and struck out following subpar. (C) ''as increased from time to
time under section 1401a of this title.''
1978 - Par. (2). Pub. L. 95-397 inserted ''in the case of a
person who dies after becoming entitled to retired or retainer
pay'' before ''the amount'' and substituted ''pay to which the
person'' for ''pay to which a person'' in subpar. (A), substituted
''in the case of a person who would have become eligible for
retired pay under chapter 67 of this title but for the fact that he
died before becoming 60 years of age, the amount of monthly retired
pay for which the person would have been eligible - '' for ''any
amount less than that described by clause (A) designated by that
person on or before the first day for which he became eligible for
retired or retainer pay, but not less than $300'' in subpar. (B),
and added subpars. (B)(i), (ii) and (C).
1976 - Pars. (3)(A), (4)(A). Pub. L. 94-496 substituted ''one
year'' for ''two years''.
EFFECTIVE DATE OF 1994 AMENDMENT
Amendment by Pub. L. 103-337 effective Dec. 1, 1994, except as
otherwise provided, see section 1691 of Pub. L. 103-337, set out as
an Effective Date note under section 10001 of this title.
EFFECTIVE DATE OF 1990 AMENDMENT
Section 1484(l)(4)(C) of Pub. L. 101-510 provided that the
amendment made by that section is effective Nov. 29, 1989.
EFFECTIVE DATE OF 1985 AMENDMENT
Section 731 of title VII of Pub. L. 99-145 provided that:
''(a) Effective Date. - Except as otherwise provided in this
title, the amendments made by this title (see Short Title of 1985
Amendment note below) shall take effect on the first day of the
first month beginning more than 90 days after the date of the
enactment of this Act (Nov. 8, 1985).
''(b) Prospective Benefits Only. - No benefit shall accrue to any
person by reason of the enactment of this title for any period
before the effective date under subsection (a).''
EFFECTIVE DATE OF 1982 AMENDMENT; TRANSITION PROVISIONS
Amendment by Pub. L. 97-252 effective Feb. 1, 1983, and
applicable to persons becoming eligible to participate in Survivor
Benefit Plan provided for in this subchapter before, on, or after
Feb. 1, 1983, see section 1006 of Pub. L. 97-252, set out as an
Effective Date; Transition Provisions note under section 1408 of
this title.
EFFECTIVE DATE OF 1980 AMENDMENT
Section 7 of Pub. L. 96-402 provided that: ''The amendments made
by sections 2, 3, and 4 of this Act (amending this section and
sections 1451 and 1452 of this title) and the provisions of section
5 of this Act (set out as a note under section 1448 of this title)
shall be effective on the first day of the second calendar month
following the month in which this Act is enacted (October 1980) and
shall apply to annuities payable by virtue of such amendments and
provisions for months beginning on or after such date. No benefits
shall accrue to any person by virtue of the enactment of this Act
(Pub. L. 96-402) for any period before the date of the enactment of
this Act (Oct. 9, 1980).''
EFFECTIVE DATE OF 1978 AMENDMENT
Section 210 of title II of Pub. L. 95-397 provided that:
''(a) Except as provided in subsection (b), the provisions of
this title (amending this section and sections 1331 (now 12731) and
1448 to 1452 of this title and enacting provisions set out as notes
under this section and section 1448 of this title) and the
amendments made by this title shall take effect on October 1, 1978,
or on the date of the enactment of this Act (Sept. 30, 1978),
whichever is later, and shall apply to annuities payable by virtue
of such amendments for months beginning on or after such date.
''(b) The amendment made by section 206 (amending section 1331
(now 12731) of this title) shall apply to notifications under
section 1331(d) (now 12731(d)) of title 10, United States Code,
after the date of the enactment of this Act (Sept. 30, 1978).''
EFFECTIVE DATE OF 1976 AMENDMENT
Section 3 of Pub. L. 94-496 provided that: ''This Act (amending
this section and sections 1448, 1450, 1451, and 1452 of this title,
and amending provisions set out as a note under section 1448 of
this title) shall be effective as of September 21, 1972. No pay
shall accrue to any person by virtue of the enactment of this Act
for any period prior to October 1, 1976.''
SHORT TITLE OF 1989 AMENDMENT
Section 1401 of title XIV of Pub. L. 101-189 provided that:
''This title (enacting subchapter III of this chapter, amending
this section and sections 1331 (now 12731), 1448 to 1452, and 1454
of this title and section 3101 (now 5301) of Title 38, Veterans'
Benefits, and enacting provisions set out as notes under sections
1448, 1451, 1452, 1456, and 12731 of this title) may be cited as
the 'Military Survivor Benefits Improvement Act of 1989'.''
SHORT TITLE OF 1985 AMENDMENT
Section 701 of title VII of Pub. L. 99-145 provided that: ''This
title (amending this section and sections 1448, 1450 to 1452, and
1455 of this title, enacting provisions set out as notes under this
section and sections 1448 and 1452 of this title, and repealing a
provision set out as a note under section 1451 of this title) may
be cited as the 'Survivor Benefit Plan Amendments of 1985'.''
SHORT TITLE OF 1980 AMENDMENT
Section 1 of Pub. L. 96-402 provided: ''That this Act (amending
this section and sections 1451 and 1452 of this title, enacting
provisions set out as notes under this section and section 1448 of
this title, and amending provisions set out as a note under section
1448 of this title) may be cited as the 'Uniformed Services
Survivor Benefits Amendments of 1980'.''
END OF 90-DAY PERIOD WITH RESPECT TO CERTAIN INDIVIDUALS
Section 208 of Pub. L. 95-397, as amended by Pub. L. 96-107,
title VIII, Sec. 816, Nov. 9, 1979, 93 Stat. 818, provided that the
90-day period referred to in former sections 1447(2)(C) and
1448(a)(2) and (4)(B) of this title was to be considered to end on
Mar. 31, 1980, for an individual who would have been eligible for
retired pay under former chapter 67 of this title on the effective
date of title II of Pub. L. 95-397 (see Effective Date of 1978
Amendment note above), but for the fact such individual was under
60 years of age, or for an individual who received before Jan. 1,
1980, a notification that such individual had completed the years
of service required for eligibility for such retired pay.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1078a, 1456 of this
title.
-CITE-
10 USC Sec. 1448 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
SUBCHAPTER II - SURVIVOR BENEFIT PLAN
-HEAD-
Sec. 1448. Application of Plan
-STATUTE-
(a) General Rules for Participation in the Plan. -
(1) Name of plan; eligible participants. - The program
established by this subchapter shall be known as the Survivor
Benefit Plan. The following persons are eligible to participate
in the Plan:
(A) Persons entitled to retired pay.
(B) Persons who would be eligible for reserve-component
retired pay but for the fact that they are under 60 years of
age.
(2) Participants in the plan. - The Plan applies to the
following persons, who shall be participants in the Plan:
(A) Standard annuity participants. - A person who is eligible
to participate in the Plan under paragraph (1)(A) and who is
married or has a dependent child when he becomes entitled to
retired pay, unless he elects (with his spouse's concurrence,
if required under paragraph (3)) not to participate in the Plan
before the first day for which he is eligible for that pay.
(B) Reserve-component annuity participants. - A person who
(i) is eligible to participate in the Plan under paragraph
(1)(B), and (ii) is married or has a dependent child when he is
notified under section 12731(d) of this title that he has
completed the years of service required for eligibility for
reserve-component retired pay, unless the person elects (with
his spouse's concurrence, if required under paragraph (3)) not
to participate in the Plan before the end of the 90-day period
beginning on the date on which he receives that notification.
A person who elects under subparagraph (B) not to participate in
the Plan remains eligible, upon reaching 60 years of age and
otherwise becoming entitled to retired pay, to participate in the
Plan in accordance with eligibility under paragraph (1)(A).
(3) Elections. -
(A) Spousal consent for certain elections respecting standard
annuity. - A married person who is eligible to provide a
standard annuity may not without the concurrence of the
person's spouse elect -
(i) not to participate in the Plan;
(ii) to provide an annuity for the person's spouse at less
than the maximum level; or
(iii) to provide an annuity for a dependent child but not
for the person's spouse.
(B) Spousal consent for certain elections respecting
reserve-component annuity. - A married person who is eligible
to provide a reserve-component annuity may not without the
concurrence of the person's spouse elect -
(i) not to participate in the Plan;
(ii) to designate under subsection (e)(2) the effective
date for commencement of annuity payments under the Plan in
the event that the member dies before becoming 60 years of
age to be the 60th anniversary of the member's birth (rather
than the day after the date of the member's death);
(iii) to provide an annuity for the person's spouse at less
than the maximum level; or
(iv) to provide an annuity for a dependent child but not
for the person's spouse.
(C) Exception when spouse unavailable. - A person may make an
election described in subparagraph (A) or (B) without the
concurrence of the person's spouse if the person establishes to
the satisfaction of the Secretary concerned -
(i) that the spouse's whereabouts cannot be determined; or
(ii) that, due to exceptional circumstances, requiring the
person to seek the spouse's consent would otherwise be
inappropriate.
(D) Construction with former spouse election provisions. -
This paragraph does not affect any right or obligation to elect
to provide an annuity for a former spouse (or for a former
spouse and dependent child) under subsection (b)(2).
(E) Notice to spouse of election to provide former spouse
annuity. - If a married person who is eligible to provide a
standard annuity elects to provide an annuity for a former
spouse (or for a former spouse and dependent child) under
subsection (b)(2), that person's spouse shall be notified of
that election.
(4) Irrevocability of elections. -
(A) Standard annuity. - An election under paragraph (2)(A) is
irrevocable if not revoked before the date on which the person
first becomes entitled to retired pay.
(B) Reserve-component annuity. - An election under paragraph
(2)(B) is irrevocable if not revoked before the end of the
90-day period referred to in that paragraph.
(5) Participation by person marrying after retirement, etc. -
(A) Election to participate in plan. - A person who is not
married and has no dependent child upon becoming eligible to
participate in the Plan but who later marries or acquires a
dependent child may elect to participate in the Plan.
(B) Manner and time of election. - Such an election must be
written, signed by the person making the election, and received
by the Secretary concerned within one year after the date on
which that person marries or acquires that dependent child.
(C) Limitation on revocation of election. - Such an election
may not be revoked except in accordance with subsection (b)(3).
(D) Effective date of election. - The election is effective
as of the first day of the first calendar month following the
month in which the election is received by the Secretary
concerned.
(E) Designation if rcsbp election. - In the case of a person
providing a reserve-component annuity, such an election shall
include a designation under subsection (e).
(6) Election out of plan by person with spouse coverage who
remarries. -
(A) General rule. - A person -
(i) who is a participant in the Plan and is providing
coverage under the Plan for a spouse (or a spouse and child);
(ii) who does not have an eligible spouse beneficiary under
the Plan; and
(iii) who remarries,
may elect not to provide coverage under the Plan for the
person's spouse.
(B) Effect of election on retired pay. - If such an election
is made, reductions in the retired pay of that person under
section 1452 of this title shall not be made.
(C) Terms and conditions of election. - An election under
this paragraph -
(i) is irrevocable;
(ii) shall be made within one year after the person's
remarriage; and
(iii) shall be made in such form and manner as may be
prescribed in regulations under section 1455 of this title.
(D) Notice to spouse. - If a person makes an election under
this paragraph -
(i) not to participate in the Plan;
(ii) to provide an annuity for the person's spouse at less
than the maximum level; or
(iii) to provide an annuity for a dependent child but not
for the person's spouse,
the person's spouse shall be notified of that election.
(E) Construction with former spouse election provisions. -
This paragraph does not affect any right or obligation to elect
to provide an annuity to a former spouse under subsection (b).
(b) Insurable Interest and Former Spouse Coverage. -
(1) Coverage for person with insurable interest. -
(A) General rule. - A person who is not married and does not
have a dependent child upon becoming eligible to participate in
the Plan may elect to provide an annuity under the Plan to a
natural person with an insurable interest in that person. In
the case of a person providing a reserve-component annuity,
such an election shall include a designation under subsection
(e).
(B) Termination of coverage. - An election under subparagraph
(A) for a beneficiary who is not the former spouse of the
person providing the annuity may be terminated. Any such
termination shall be made by a participant by the submission to
the Secretary concerned of a request to discontinue
participation in the Plan, and such participation in the Plan
shall be discontinued effective on the first day of the first
month following the month in which the request is received by
the Secretary concerned. Effective on such date, the Secretary
concerned shall discontinue the reduction being made in such
person's retired pay on account of participation in the Plan
or, in the case of a person who has been required to make
deposits in the Treasury on account of participation in the
Plan, such person may discontinue making such deposits
effective on such date.
(C) Form for discontinuation. - A request under subparagraph
(B) to discontinue participation in the Plan shall be in such
form and shall contain such information as may be required
under regulations prescribed by the Secretary of Defense.
(D) Withdrawal of request for discontinuation. - The
Secretary concerned shall furnish promptly to each person who
submits a request under subparagraph (B) to discontinue
participation in the Plan a written statement of the advantages
and disadvantages of participating in the Plan and the possible
disadvantages of discontinuing participation. A person may
withdraw the request to discontinue participation if withdrawn
within 30 days after having been submitted to the Secretary
concerned.
(E) Consequences of discontinuation. - Once participation is
discontinued, benefits may not be paid in conjunction with the
earlier participation in the Plan and premiums paid may not be
refunded. Participation in the Plan may not later be resumed
except through a qualified election under paragraph (5) of
subsection (a).
(2) Former spouse coverage upon becoming a participant in the
plan. -
(A) General rule. - A person who has a former spouse upon
becoming eligible to participate in the Plan may elect to
provide an annuity to that former spouse.
(B) Effect of former spouse election on spouse or dependent
child. - In the case of a person with a spouse or a dependent
child, such an election prevents payment of an annuity to that
spouse or child (other than a child who is a beneficiary under
an election under paragraph (4)), including payment under
subsection (d).
(C) Designation if more than one former spouse. - If there is
more than one former spouse, the person shall designate which
former spouse is to be provided the annuity.
(D) Designation if rcsbp election. - In the case of a person
providing a reserve-component annuity, such an election shall
include a designation under subsection (e).
(3) Former spouse coverage by persons already participating in
plan. -
(A) Election of coverage. -
(i) Authority for election. - A person -
(I) who is a participant in the Plan and is providing
coverage for a spouse or a spouse and child (even though
there is no beneficiary currently eligible for such
coverage), and
(II) who has a former spouse who was not that person's
former spouse when that person became eligible to
participate in the Plan,
may (subject to subparagraph (B)) elect to provide an annuity
to that former spouse.
(ii) Termination of previous coverage. - Any such election
terminates any previous coverage under the Plan.
(iii) Manner and time of election. - Any such election must
be written, signed by the person making the election, and
received by the Secretary concerned within one year after the
date of the decree of divorce, dissolution, or annulment.
(B) Limitation on election. - A person may not make an
election under subparagraph (A) to provide an annuity to a
former spouse who that person married after becoming eligible
for retired pay unless -
(i) the person was married to that former spouse for at
least one year, or
(ii) that former spouse is the parent of issue by that
marriage.
(C) Irrevocability, etc. - An election under this paragraph
may not be revoked except in accordance with section 1450(f) of
this title. This paragraph does not provide the authority to
change a designation previously made under subsection (e).
(D) Notice to spouse. - If a person who is married makes an
election to provide an annuity to a former spouse under this
paragraph, that person's spouse shall be notified of the
election.
(E) Effective date of election. - An election under this
paragraph is effective as of -
(i) the first day of the first month following the month in
which the election is received by the Secretary concerned; or
(ii) in the case of a person required (as described in
section 1450(f)(3)(B) of this title) to make the election by
reason of a court order or filing the date of which is after
October 16, 1998, the first day of the first month which
begins after the date of that court order or filing.
(4) Former spouse and child coverage. - A person who elects to
provide an annuity for a former spouse under paragraph (2) or (3)
may, at the time of the election, elect to provide coverage under
that annuity for both the former spouse and a dependent child, if
the child resulted from the person's marriage to that former
spouse.
(5) Disclosure of whether election of former spouse coverage is
required. - A person who elects to provide an annuity to a former
spouse under paragraph (2) or (3) shall, at the time of making
the election, provide the Secretary concerned with a written
statement (in a form to be prescribed by that Secretary and
signed by such person and the former spouse) setting forth -
(A) whether the election is being made pursuant to the
requirements of a court order; or
(B) whether the election is being made pursuant to a written
agreement previously entered into voluntarily by such person as
a part of, or incident to, a proceeding of divorce,
dissolution, or annulment and (if so) whether such voluntary
written agreement has been incorporated in, or ratified or
approved by, a court order.
(c) Persons on Temporary Disability Retired List. - The
application of the Plan to a person whose name is on the temporary
disability retired list terminates when his name is removed from
that list and he is no longer entitled to disability retired pay.
(d) Coverage for Survivors of Members Who Die on Active Duty. -
(1) Surviving spouse annuity. - The Secretary concerned shall
pay an annuity under this subchapter to the surviving spouse of -
(A) a member who dies while on active duty after -
(i) becoming eligible to receive retired pay;
(ii) qualifying for retired pay except that the member has
not applied for or been granted that pay; or
(iii) completing 20 years of active service but before the
member is eligible to retire as a commissioned officer
because the member has not completed 10 years of active
commissioned service; or
(B) a member not described in subparagraph (A) who dies in
line of duty while on active duty.
(2) Dependent child annuity. - The Secretary concerned shall
pay an annuity under this subchapter to the dependent child of a
member described in paragraph (1) if there is no surviving spouse
or if the member's surviving spouse subsequently dies.
(3) Mandatory former spouse annuity. - If a member described in
paragraph (1) is required under a court order or spousal
agreement to provide an annuity to a former spouse upon becoming
eligible to be a participant in the Plan or has made an election
under subsection (b) to provide an annuity to a former spouse,
the Secretary -
(A) may not pay an annuity under paragraph (1) or (2); but
(B) shall pay an annuity to that former spouse as if the
member had been a participant in the Plan and had made an
election under subsection (b) to provide an annuity to the
former spouse, or in accordance with that election, as the case
may be, if the Secretary receives a written request from the
former spouse concerned that the election be deemed to have
been made in the same manner as provided in section 1450(f)(3)
of this title.
(4) Priority. - An annuity that may be provided under this
subsection shall be provided in preference to an annuity that may
be provided under any other provision of this subchapter on
account of service of the same member.
(5) Computation. - The amount of an annuity under this
subsection is computed under section 1451(c) of this title.
(e) Designation for Commencement of Reserve-Component Annuity. -
In any case in which a person is required to make a designation
under this subsection, the person shall designate whether, in the
event he dies before becoming 60 years of age, the annuity provided
shall become effective on -
(1) the day after the date of his death; or
(2) the 60th anniversary of his birth.
(f) Coverage of Survivors of Persons Dying When Eligible To Elect
Reserve-Component Annuity. -
(1) Surviving spouse annuity. - The Secretary concerned shall
pay an annuity under this subchapter to the surviving spouse of a
person who is eligible to provide a reserve-component annuity and
who dies -
(A) before being notified under section 12731(d) of this
title that he has completed the years of service required for
eligibility for reserve-component retired pay; or
(B) during the 90-day period beginning on the date he
receives notification under section 12731(d) of this title that
he has completed the years of service required for eligibility
for reserve-component retired pay if he had not made an
election under subsection (a)(2)(B) to participate in the Plan.
(2) Dependent child annuity. - The Secretary concerned shall
pay an annuity under this subchapter to the dependent child of a
person described in paragraph (1) if there is no surviving spouse
or if the person's surviving spouse subsequently dies.
(3) Mandatory former spouse annuity. - If a person described in
paragraph (1) is required under a court order or spousal
agreement to provide an annuity to a former spouse upon becoming
eligible to be a participant in the Plan or has made an election
under subsection (b) to provide an annuity to a former spouse,
the Secretary -
(A) may not pay an annuity under paragraph (1) or (2); but
(B) shall pay an annuity to that former spouse as if the
person had been a participant in the Plan and had made an
election under subsection (b) to provide an annuity to the
former spouse, or in accordance with that election, as the case
may be, if the Secretary receives a written request from the
former spouse concerned that the election be deemed to have
been made in the same manner as provided in section 1450(f)(3)
of this title.
(4) Computation. - The amount of an annuity under this
subsection is computed under section 1451(c) of this title.
(g) Election To Increase Coverage Upon Remarriage. -
(1) Election. - A person -
(A) who is a participant in the Plan and is providing
coverage under subsection (a) for a spouse or a spouse and
child, but at less than the maximum level; and
(B) who remarries,
may elect, within one year of such remarriage, to increase the
level of coverage provided under the Plan to a level not in
excess of the current retired pay of that person.
(2) Payment required. - Such an election shall be contingent on
the person paying to the United States the amount determined
under paragraph (3) plus interest on such amount at a rate
determined under regulations prescribed by the Secretary of
Defense.
(3) Amount to be paid. - The amount referred to in paragraph
(2) is the amount equal to the difference between -
(A) the amount that would have been withheld from such
person's retired pay under section 1452 of this title if the
higher level of coverage had been in effect from the time the
person became a participant in the Plan; and
(B) the amount of such person's retired pay actually
withheld.
(4) Manner of making election. - An election under paragraph
(1) shall be made in such manner as the Secretary shall prescribe
and shall become effective upon receipt of the payment required
by paragraph (2).
(5) Disposition of payments. - A payment received under this
subsection by the Secretary of Defense shall be deposited into
the Department of Defense Military Retirement Fund. Any other
payment received under this subsection shall be deposited in the
Treasury as miscellaneous receipts.
-SOURCE-
(Added Pub. L. 92-425, Sec. 1(3), Sept. 21, 1972, 86 Stat. 707;
amended Pub. L. 94-496, Sec. 1(2), Oct. 14, 1976, 90 Stat. 2375;
Pub. L. 95-397, title II, Sec. 202, Sept. 30, 1978, 92 Stat. 844;
Pub. L. 97-252, title X, Sec. 1003(b), Sept. 8, 1982, 96 Stat. 735;
Pub. L. 97-295, Sec. 1(18), Oct. 12, 1982, 96 Stat. 1290; Pub. L.
98-94, title IX, Sec. 941(a)(1), (2), (c)(2), Sept. 24, 1983, 97
Stat. 652, 653; Pub. L. 99-145, title V, Sec. 513(b), title VII,
Sec. 712(a), 713(a), 715, 716(a), 719(3), (8)(A), 721(a), Nov. 8,
1985, 99 Stat. 628, 670, 671, 673-676; Pub. L. 99-661, div. A,
title VI, Sec. 641(b)(1), 642(a), title XIII, Sec. 1343(a)(8)(B),
Nov. 14, 1986, 100 Stat. 3885, 3886, 3992; Pub. L. 101-189, div.
A, title XIV, Sec. 1407(a)(2), (3), Nov. 29, 1989, 103 Stat. 1588;
Pub. L. 103-337, div. A, title VI, Sec. 638, title XVI, Sec.
1671(d)(2), Oct. 5, 1994, 108 Stat. 2791, 3015; Pub. L. 104-201,
div. A, title VI, Sec. 634, Sept. 23, 1996, 110 Stat. 2553; Pub.
L. 105-85, div. A, title X, Sec. 1073(a)(27), Nov. 18, 1997, 111
Stat. 1901; Pub. L. 105-261, div. A, title VI, Sec. 643(a), Oct.
17, 1998, 112 Stat. 2047; Pub. L. 106-65, div. A, title X, Sec.
1066(a)(12), Oct. 5, 1999, 113 Stat. 771; Pub. L. 106-398, Sec. 1
((div. A), title VI, Sec. 655(a)-(c)(3), title X, Sec.
1087(a)(10)), Oct. 30, 2000, 114 Stat. 1654, 1654A-165, 1654A-166,
1654A-290; Pub. L. 107-107, div. A, title VI, Sec. 642(a), (c)(1),
Dec. 28, 2001, 115 Stat. 1151, 1152.)
-MISC1-
AMENDMENTS
2001 - Subsec. (d). Pub. L. 107-107 struck out
''Retirement-Eligible'' before ''Members'' in heading and amended
par. (1) generally. Prior to amendment, par. (1) read as follows:
''(1) Surviving spouse annuity. - The Secretary concerned shall
pay an annuity under this subchapter to the surviving spouse of a
member who dies on active duty after -
''(A) becoming eligible to receive retired pay;
''(B) qualifying for retired pay except that he has not applied
for or been granted that pay; or
''(C) completing 20 years of active service but before he is
eligible to retire as a commissioned officer because he has not
completed 10 years of active commissioned service.''
2000 - Subsec. (a)(2). Pub. L. 106-398, Sec. 1 ((div. A), title
VI, Sec. 655(c)(1)), substituted ''who elects under subparagraph
(B) not to participate in the Plan'' for ''described in clauses (i)
and (ii) of subparagraph (B) who does not elect to participate in
the Plan before the end of the 90-day period referred to in that
clause'' in concluding provisions.
Subsec. (a)(2)(B). Pub. L. 106-398, Sec. 1 ((div. A), title VI,
Sec. 655(a)), amended heading and text of subpar. (B) generally.
Prior to amendment, text read as follows: ''A person who (i) is
eligible to participate in the Plan under paragraph (1)(B), (ii) is
married or has a dependent child when he is notified under section
12731(d) of this title that he has completed the years of service
required for eligibility for reserve-component retired pay, and
(iii) elects to participate in the Plan (and makes a designation
under subsection (e)) before the end of the 90-day period beginning
on the date he receives such notification.''
Subsec. (a)(3)(B). Pub. L. 106-398, Sec. 1 ((div. A), title VI,
Sec. 655(b)), substituted ''who is eligible to provide'' for ''who
elects to provide'' in introductory provisions, added cls. (i) and
(ii), and redesignated former cls. (i) and (ii) as (iii) and (iv),
respectively.
Subsec. (a)(4)(A). Pub. L. 106-398, Sec. 1 ((div. A), title VI,
Sec. 655(c)(2)(A)), struck out ''not to participate in the Plan''
after ''election under paragraph (2)(A)''.
Subsec. (a)(4)(B). Pub. L. 106-398, Sec. 1 ((div. A), title VI,
Sec. 655(c)(2)(B)), struck out ''to participate in the Plan'' after
''under paragraph (2)(B)''.
Subsec. (b)(3)(E)(ii). Pub. L. 106-398, Sec. 1 ((div. A), title
X, Sec. 1087(a)(10)), struck out second comma after ''October 16,
1998''.
Subsec. (e). Pub. L. 106-398, Sec. 1 ((div. A), title VI, Sec.
655(c)(3)), substituted ''a person is required to make a
designation under this subsection, the person'' for ''a person
electing to participate in the Plan is required to make a
designation under this subsection, the person making such
election'' in introductory provisions.
1999 - Subsec. (b)(3)(E)(ii). Pub. L. 106-65 substituted ''after
October 16, 1998,'' for ''on or after the date of the enactment of
the subparagraph''.
1998 - Subsec. (b)(3)(C). Pub. L. 105-261, Sec. 643(a)(1), struck
out ''effective date,'' after ''Irrevocability,'' in heading and
''Such an election is effective as of the first day of the first
calendar month following the month in which it is received by the
Secretary concerned.'' after ''section 1450(f) of this title.'' in
text.
Subsec. (b)(3)(E). Pub. L. 105-261, Sec. 643(a)(2), added subpar.
(E).
1997 - Pub. L. 105-85 substituted ''Plan'' for ''plan'' in
section catchline.
1996 - Pub. L. 104-201 amended section generally, revising and
restating provisions relating to application of the Plan and
inserting subsec., par., and subpar. headings.
1994 - Subsec. (a)(2)(B). Pub. L. 103-337, Sec. 1671(d)(2),
substituted ''12731(d)'' for ''1331(d)''.
Subsec. (b)(1). Pub. L. 103-337, Sec. 638, designated existing
provisions as subpar. (A) and added subpars. (B) to (E).
Subsec. (f)(1). Pub. L. 103-337, Sec. 1671(d)(2), substituted
''12731(d)'' for ''1331(d)'' in subpars. (A) and (B).
1989 - Subsec. (a)(1)(B), (2)(B). Pub. L. 101-189, Sec.
1407(a)(2), substituted ''reserve-component retired pay'' for
''retired pay under chapter 67 of this title''.
Subsec. (a)(4)(A). Pub. L. 101-189, Sec. 1407(a)(3), struck out
''or retainer'' after ''entitled to retired''.
Subsec. (f)(1)(A), (B). Pub. L. 101-189, Sec. 1407(a)(2),
substituted ''reserve-component retired pay'' for ''retired pay
under chapter 67 of this title''.
1986 - Subsec. (a)(5). Pub. L. 99-661, Sec. 1343(a)(8)(B),
substituted ''a reserve-component annuity'' for ''an annuity by
virtue of eligibility under paragraph (1)(B)''.
Subsec. (b)(5). Pub. L. 99-661, Sec. 641(b)(1), inserted ''(A)
whether the election is being made pursuant to the requirements of
a court order, or (B)''.
Subsec. (d)(2). Pub. L. 99-661, Sec. 642(a)(1), substituted ''if
there is no surviving spouse or if the member's surviving spouse
subsequently dies'' for ''if the member and the member's spouse die
as a result of a common accident''.
Subsec. (f)(2). Pub. L. 99-661, Sec. 642(a)(2), substituted ''if
there is no surviving spouse or if the person's surviving spouse
subsequently dies'' for ''if the person and the person's spouse die
as a result of a common accident''.
1985 - Subsec. (a)(1)(A). Pub. L. 99-145, Sec. 719(8)(A),
substituted ''retired pay'' for ''retired or retainer pay''.
Subsec. (a)(2)(A). Pub. L. 99-145, Sec. 721(a)(1), inserted
''(with his spouse's concurrence, if required under paragraph
(3))'' after ''unless he elects''.
Pub. L. 99-145, Sec. 719(8)(A), substituted ''retired pay'' for
''retired or retainer pay''.
Subsec. (a)(3). Pub. L. 99-145, Sec. 721(a)(2), amended par. (3)
generally. Prior to amendment, par. (3) read as follows:
''(A) If a person who is eligible under paragraph (1)(A) to
participate in the Plan and who is married elects not to
participate in the Plan at the maximum level, or elects to provide
an annuity for a dependent child but not for his spouse, or elects
to provide an annuity for a former spouse under subsection (b)(2),
that person's spouse shall be notified of that election.
''(B) If a person who is eligible under paragraph (1)(B) to
participate in the Plan and who is married does not elect to
participate in the Plan at the maximum level, or elects to provide
an annuity for a dependent child but not for his spouse, or elects
to provide an annuity for a former spouse under subsection (b)(2),
that person's spouse shall be notified of that action.''
Subsec. (a)(6). Pub. L. 99-149, Sec. 715(a), added par. (6).
Subsec. (b)(1). Pub. L. 99-145, Sec. 719(3), substituted ''a
reserve-component annuity'' for ''an annuity under this paragraph
by virtue of eligibility under subsection (a)(1)(B)''.
Subsec. (b)(2). Pub. L. 99-145, Sec. 719(3), substituted ''a
reserve-component annuity'' for ''an annuity under this paragraph
by virtue of eligibility under subsection (a)(1)(B)''.
Pub. L. 99-145, Sec. 716(a)(1), inserted ''(other than a child
who is a beneficiary under an election under paragraph (4))'' after
''that spouse or child'' in second sentence.
Subsec. (b)(3)(B). Pub. L. 99-145, Sec. 719(8)(A), substituted
''retired pay'' for ''retired or retainer pay''.
Subsec. (b)(4), (5). Pub. L. 99-145, Sec. 716(a)(2), (3), added
par. (4) and redesignated former par. (4) as (5).
Subsec. (c). Pub. L. 99-145, Sec. 513(b), inserted ''disability''
before ''retired pay''.
Subsec. (d). Pub. L. 99-145, Sec. 712(a), amended subsec. (d)
generally. Prior to amendment, subsec. (d) read as follows: ''If a
member of an armed force dies on active duty after he has become
entitled to retired or retainer pay, or after he has qualified for
that pay except that he has not applied for or been granted that
pay, and his spouse is eligible for dependency and indemnity
compensation under section 411(a) of title 38 in an amount that is
less than the annuity the spouse would have received under this
subchapter if it had applied to the member when he died, the
Secretary concerned shall pay to the spouse an annuity equal to the
difference between that amount of compensation and 55 percent of
the retired or retainer pay to which the otherwise eligible spouse
described in section 1450(a)(1) of this title would have been
entitled if the member had been entitled to that pay based upon his
years of active service when he died.''
Subsec. (f). Pub. L. 99-145, Sec. 713(a), added subsec. (f).
Subsec. (g). Pub. L. 99-145, Sec. 715(b), added subsec. (g).
1983 - Subsec. (a)(3). Pub. L. 98-94, Sec. 941(c)(2), substituted
''provide an annuity for a former spouse under subsection (b)(2),''
for ''provide an annuity under subsection (b)(2) of this section,''
in subpars. (A) and (B).
Subsec. (a)(5). Pub. L. 98-94, Sec. 941(a)(1), inserted ''except
in accordance with subsection (b)(3)''.
Subsec. (b). Pub. L. 98-94, Sec. 941(a)(2), amended subsec. (b)
generally. Prior to amendment subsec. (b) read as follows:
''(1) A person who is not married and does not have a dependent
child when he becomes eligible to participate in the Plan may elect
to provide an annuity to a natural person with an insurable
interest in that person or to provide an annuity to a former
spouse.
''(2) A person who is married, or has a dependent child may elect
to provide an annuity to a former spouse instead of providing an
annuity to a spouse or dependent child if the election is made in
order to carry out the terms of a written agreement entered into
voluntarily with the former spouse (without regard to whether such
agreement is included in or approved by a court order).
''(3) In the case of a person electing to provide an annuity
under paragraph (1) or (2) of this subsection by virtue of
eligibility under subsection (a)(1)(B), the election shall include
a designation under subsection (e).
''(4) Any person who elects under paragraph (1) or (2) to provide
an annuity to a former spouse shall, at the time of making such
election, provide the Secretary concerned with a written statement,
in a form to be prescribed by that Secretary, signed by such person
and the former spouse setting forth whether the election is being
made pursuant to a voluntary written agreement previously entered
into by such person as a part of or incident to a proceeding of
divorce, dissolution, annulment, or legal separation, and if so,
whether such voluntary written agreement has been incorporated in
or ratified or approved by a court order.''
1982 - Pub. L. 97-295, Sec. 1(18), substituted ''Plan'' for
''plan'' in section catchline.
Subsec. (a)(3). Pub. L. 97-252, Sec. 1003(b)(1), inserted in
subpars. (A) and (B) identical text ''or elects to provide an
annuity under subsection (b)(2) of this section,'' after ''for his
spouse,''.
Subsec. (b). Pub. L. 97-252, Sec. 1003(b)(2), designated existing
first sentence as par. (1), authorized an election to provide an
annuity to a former spouse, added pars. (2) and (4), designated
existing second sentence as par. (3), and substituted ''person
electing to provide an annuity under paragraph (1) or (2) of this
subsection'' for ''person providing an annuity under this
subsection'' and ''the election'' for ''such an election''.
1978 - Subsec. (a). Pub. L. 95-397, Sec. 202(a), amended subsec.
(a) generally, primarily inserting provision that this subchapter
shall be known as the Survivor Benefit Plan and provisions of pars.
(1)(B), (2)(B) and concluding sentence, (3)(B), (4)(B), and last
sentence of (5).
Subsec. (b). Pub. L. 95-397, Sec. 202(b), substituted ''entitled
to retired or retainer pay'' for ''eligible to participate in the
Plan'' and inserted provisions relating to the inclusion in an
election a designation under subsection (e) by persons providing an
annuity under this subsection by virtue of eligibility under
subsection (a)(1)(B).
Subsec. (e). Pub. L. 95-397, Sec. 202(c), added subsec. (e).
1976 - Subsec. (a). Pub. L. 94-496 inserted ''or elects to
provide an annuity for a dependent child but not for his spouse''
after ''maximum level''.
EFFECTIVE DATE OF 2001 AMENDMENT
Pub. L. 107-107, div. A, title VI, Sec. 642(d), Dec. 28, 2001,
115 Stat. 1152, provided that: ''The amendments made by this
section (amending this section and section 1451 of this title)
shall take effect as of September 10, 2001, and shall apply with
respect to deaths of members of the Armed Forces occurring on or
after that date.''
EFFECTIVE DATE OF 2000 AMENDMENT
Pub. L. 106-398, Sec. 1 ((div. A), title VI, Sec. 655(d)), Oct.
30, 2000, 114 Stat. 1654, 1654A-166, provided that: ''The
amendments made by this section (amending this section and section
1450 of this title) apply only with respect to a notification under
section 12731(d) of title 10, United States Code, made after
January 1, 2001, that a member of a reserve component has completed
the years of service required for eligibility for reserve-component
retired pay.''
EFFECTIVE DATE OF 1994 AMENDMENT
Amendment by section 1671(d)(2) of Pub. L. 103-337 effective Dec.
1, 1994, except as otherwise provided, see section 1691 of Pub. L.
103-337, set out as an Effective Date note under section 10001 of
this title.
EFFECTIVE DATE OF 1986 AMENDMENT
Amendment by section 641 of Pub. L. 99-661 applicable to court
orders issued on or after Nov. 14, 1986, see section 641(c) of Pub.
L. 99-661, set out as a note under section 1450 of this title.
Section 642(c) of Pub. L. 99-661 provided that: ''The amendments
made by subsection (a) (amending this section) shall apply only to
claims arising on or after March 1, 1986. The amendments made by
subsection (b) (amending section 1451 of this title) shall apply to
payments for periods after February 28, 1986.''
EFFECTIVE DATE OF 1985 AMENDMENT
Amendment by title VII of Pub. L. 99-145 effective Mar. 1, 1986,
with prohibition against accrual of benefits to any person by
reason of the enactment of such title VII for any period before
Mar. 1, 1986, see section 731 of Pub. L. 99-145, set out as a note
under section 1447 of this title.
EFFECTIVE DATE OF 1983 AMENDMENT
Section 941(b) of Pub. L. 98-94 provided that: ''In the case of a
person who on the date of the enactment of this Act (Sept. 24,
1983) is a person described in subparagraph (A) of subsection
(b)(3) of section 1448 of title 10, United States Code (as amended
by subsection (a)(2)), such subsection shall apply to that person
as if the one-year period provided for in subparagraph (A) of such
subsection began on the date of the enactment of this Act.''
EFFECTIVE DATE OF 1982 AMENDMENT; TRANSITION PROVISIONS
Amendment by Pub. L. 97-252 effective Feb. 1, 1983, and
applicable to persons becoming eligible to participate in Survivor
Benefit Plan provided for in this subchapter before, on, or after
Feb. 1, 1983, see section 1006 of Pub. L. 97-252, set out as an
Effective Date; Transition Provisions note under section 1408 of
this title.
EFFECTIVE DATE OF 1978 AMENDMENT
Amendment by Pub. L. 95-397 effective Oct. 1, 1978, and
applicable to annuities payable by virtue of amendment for months
beginning on or after such date, see section 210 of Pub. L. 95-397,
set out as a note under section 1447 of this title.
EFFECTIVE DATE OF 1976 AMENDMENT
Amendment by Pub. L. 94-496 effective Sept. 21, 1972, see section
3 of Pub. L. 94-496, set out as a note under section 1447 of this
title.
EFFECTIVE DATE OF 1997 AMENDMENTS BY SECTION 645 OF PUB. L. 105-85
Section 645(c) of Pub. L. 105-85 provided that: ''The amendments
made by this section (amending section 4(e)(1) of Pub. L. 92-425
and section 653(d) of Pub. L. 100-456, set out below) take effect
on the first day of the first month beginning after the date of the
enactment of this Act (Nov. 18, 1997) and shall apply with respect
to payments of benefits for months beginning on or after that date,
except that the Secretary of Veterans Affairs may provide, if
necessary for administrative implementation, that such amendments
shall apply beginning with a later month, not later than the first
month beginning more than 180 days after the date of the enactment
of this Act.''
OPEN ENROLLMENT PERIOD FOR SURVIVOR BENEFIT PLAN COMMENCING MARCH
1, 1999
Pub. L. 105-261, div. A, title VI, Sec. 642, Oct. 17, 1998, 112
Stat. 2045, as amended by Pub. L. 106-65, div. A, title VI, Sec.
654, Oct. 5, 1999, 113 Stat. 667, provided that:
''(a) Persons Not Currently Participating in Survivor Benefit
Plan. -
''(1) Election of sbp coverage. - An eligible retired or former
member may elect to participate in the Survivor Benefit Plan
during the open enrollment period specified in subsection (d).
''(2) Election of supplemental annuity coverage. - An eligible
retired or former member who elects under paragraph (1) to
participate in the Survivor Benefit Plan may also elect during
the open enrollment period to participate in the Supplemental
Survivor Benefit Plan.
''(3) Eligible retired or former member. - For purposes of
paragraphs (1) and (2), an eligible retired or former member is a
member or former member of the uniformed services who on the day
before the first day of the open enrollment period is not a
participant in the Survivor Benefit Plan and -
''(A) is entitled to retired pay; or
''(B) would be entitled to retired pay under chapter 1223 of
title 10, United States Code (or chapter 67 (now 1223) of such
title as in effect before October 5, 1994), but for the fact
that such member or former member is under 60 years of age.
''(4) Status under sbp of persons making elections. -
''(A) Standard annuity. - A person making an election under
paragraph (1) by reason of eligibility under paragraph (3)(A)
shall be treated for all purposes as providing a standard
annuity under the Survivor Benefit Plan.
''(B) Reserve-component annuity. - A person making an
election under paragraph (1) by reason of eligibility under
paragraph (3)(B) shall be treated for all purposes as providing
a reserve-component annuity under the Survivor Benefit Plan.
''(b) Manner of Making Elections. -
''(1) In general. - An election under this section must be made
in writing, signed by the person making the election, and
received by the Secretary concerned before the end of the open
enrollment period. Except as provided in paragraph (2), any such
election shall be made subject to the same conditions, and with
the same opportunities for designation of beneficiaries and
specification of base amount, that apply under the Survivor
Benefit Plan or the Supplemental Survivor Benefit Plan, as the
case may be. A person making an election under subsection (a) to
provide a reserve-component annuity shall make a designation
described in section 1448(e) of title 10, United States Code.
''(2) Election must be voluntary. - An election under this
section is not effective unless the person making the election
declares the election to be voluntary. An election to
participate in the Survivor Benefit Plan under this section may
not be required by any court. An election to participate or not
to participate in the Survivor Benefit Plan is not subject to the
concurrence of a spouse or former spouse of the person.
''(c) Effective Date for Elections. - Any such election shall be
effective as of the first day of the first calendar month following
the month in which the election is received by the Secretary
concerned.
''(d) Open Enrollment Period Defined. - The open enrollment
period is the 1-year period beginning on March 1, 1999.
''(e) Effect of Death of Person Making Election Within Two Years
of Making Election. - If a person making an election under this
section dies before the end of the 2-year period beginning on the
effective date of the election, the election is void and the amount
of any reduction in retired pay of the person that is attributable
to the election shall be paid in a lump sum to the person who would
have been the deceased person's beneficiary under the voided
election if the deceased person had died after the end of such
2-year period.
''(f) Applicability of Certain Provisions of Law. - The
provisions of sections 1449, 1453, and 1454 of title 10, United
States Code, are applicable to a person making an election, and to
an election, under this section in the same manner as if the
election were made under the Survivor Benefit Plan or the
Supplemental Survivor Benefit Plan, as the case may be.
''(g) Premiums for Open Enrollment Election. -
''(1) Premiums to be charged. - The Secretary of Defense shall
prescribe in regulations premiums which a person electing under
this section shall be required to pay for participating in the
Survivor Benefit Plan pursuant to the election. The total amount
of the premiums to be paid by a person under the regulations
shall be equal to the sum of -
''(A) the total amount by which the retired pay of the person
would have been reduced before the effective date of the
election if the person had elected to participate in the
Survivor Benefit Plan (for the same base amount specified in
the election) at the first opportunity that was afforded the
member to participate under chapter 73 of title 10, United
States Code;
''(B) interest on the amounts by which the retired pay of the
person would have been so reduced, computed from the dates on
which the retired pay would have been so reduced at such rate
or rates and according to such methodology as the Secretary of
Defense determines reasonable; and
''(C) any additional amount that the Secretary determines
necessary to protect the actuarial soundness of the Department
of Defense Military Retirement Fund against any increased risk
for the fund that is associated with the election.
''(2) Premiums to be credited to retirement fund. - Premiums
paid under the regulations shall be credited to the Department of
Defense Military Retirement Fund.
''(h) Credit Toward Paid-Up Coverage. - Upon payment of the total
amount of the premiums charged a person under subsection (g), the
retired pay of a person participating in the Survivor Benefit Plan
pursuant to an election under this section shall be treated, for
the purposes of subsection (j) of section 1452 of title 10, United
States Code, as having been reduced under such section 1452 for the
months in the period for which the person's retired pay would have
been reduced if the person had elected to participate in the
Survivor Benefit Plan at the first opportunity that was afforded
the person to participate.
''(i) Definitions. - In this section:
''(1) The term 'Survivor Benefit Plan' means the program
established under subchapter II of chapter 73 of title 10, United
States Code.
''(2) The term 'Supplemental Survivor Benefit Plan' means the
program established under subchapter III of chapter 73 of title
10, United States Code.
''(3) The term 'retired pay' includes retainer pay paid under
section 6330 of title 10, United States Code.
''(4) The terms 'uniformed services' and 'Secretary concerned'
have the meanings given those terms in section 101 of title 37,
United States Code.
''(5) The term 'Department of Defense Military Retirement Fund'
means the Department of Defense Military Retirement Fund
established under section 1461(a) of title 10, United States
Code.''
ANNUITIES FOR CERTAIN MILITARY SURVIVING SPOUSES
Pub. L. 105-85, div. A, title VI, Sec. 644, Nov. 18, 1997, 111
Stat. 1800, as amended by Pub. L. 106-65, div. A, title VI, Sec.
656(a), (b), title X, Sec. 1066(c)(3), Oct. 5, 1999, 113 Stat. 668,
773; Pub. L. 107-314, div. A, title VI, Sec. 634, Dec. 2, 202, 116
Stat. 2573, provided that:
''(a) Survivor Annuity. - (1) The Secretary concerned shall pay
an annuity to the qualified surviving spouse of each member of the
uniformed services who -
''(A) became entitled to retired or retainer pay before
September 21, 1972, died before March 21, 1974, and was entitled
to retired or retainer pay on the date of death; or
''(B) died before October 1, 1978, and at the time of his death
would have been entitled to retired pay under chapter 67 (now
1223) of title 10, United States Code (as in effect before
December 1, 1994), but for the fact that he was under 60 years of
age.
''(2) A qualified surviving spouse for purposes of this section
is a surviving spouse who has not remarried.
''(b) Amount of Annuity. - (1) An annuity under this section
shall be paid at the rate of $185.58 per month, as adjusted from
time to time under paragraph (3).
''(2) The amount of an annuity to which a surviving spouse is
entitled under this section for any period shall be reduced (but
not below zero) by any amount paid to that surviving spouse for the
same period under any of the following provisions of law:
''(A) Section 1311(a) of title 38, United States Code (relating
to dependency and indemnity compensation payable by the Secretary
of Veterans Affairs).
''(B) Chapter 73 of title 10, United States Code.
''(C) Section 4 of Public Law 92-425 (10 U.S.C. 1448 note).
''(3) Whenever after May 1, 2002, retired or retainer pay is
increased under section 1401a(b)(2) of title 10, United States
Code, each annuity that is payable under this section shall be
increased at the same time and by the same total percent.
''(c) Application Required. - No benefit shall be paid to any
person under this section unless an application for such benefit is
filed with the Secretary concerned by or on behalf of such person.
''(d) Definitions. - For purposes of this section:
''(1) The terms 'uniformed services' and 'Secretary concerned'
have the meanings given such terms in section 101 of title 37,
United States Code.
''(2) The term 'surviving spouse' has the meaning given such
term in paragraph (9) of section 1447 of title 10, United States
Code.
''(e) Prospective Applicability. - (1) Annuities under this
section shall be paid for months beginning after November 1997.
''(2) No benefit shall accrue to any person by reason of the
enactment of this section for any period before December 1997.''
(Pub. L. 106-65, div. A, title VI, Sec. 656(c), Oct. 5, 1999,
113 Stat. 668, provided that: ''The amendment made by subsection
(a) (amending section 644 of Pub. L. 105-85, set out above) shall
apply with respect to annuities payable for months beginning after
September 30, 1999.'')
AUTHORITY FOR RELIEF FROM PREVIOUS OVERPAYMENTS UNDER MINIMUM
INCOME WIDOWS PROGRAM
Pub. L. 104-106, div. A, title VI, Sec. 635, Feb. 10, 1996, 110
Stat. 366, provided that:
''(a) Authority. - The Secretary of Defense may waive recovery by
the United States of any overpayment by the United States described
in subsection (b). In the case of any such waiver, any debt to the
United States arising from such overpayment is forgiven.
''(b) Covered Overpayments. - Subsection (a) applies in the case
of an overpayment by the United States that -
''(1) was made before the date of the enactment of this Act
(Feb. 10, 1996) under section 4 of Public Law 92-425 (10 U.S.C.
1448 note); and
''(2) is attributable to failure by the Department of Defense
to apply the eligibility provisions of subsection (a) of such
section in the case of the person to whom the overpayment was
made.''
OPEN ENROLLMENT PERIOD FOR SURVIVOR BENEFIT PLAN COMMENCING APRIL
1, 1992
Section 1405 of Pub. L. 101-189, as amended by Pub. L. 101-510,
div. A, title VI, Sec. 631(2), title XIV, Sec. 1484(l)(4)(B), Nov.
5, 1990, 104 Stat. 1580, 1720; Pub. L. 102-190, div. A, title VI,
Sec. 653(a)(1), (c)(2), Dec. 5, 1991, 105 Stat. 1388, 1389; Pub. L.
102-484, div. A, title VI, Sec. 643, Oct. 23, 1992, 106 Stat.
2425, provided that:
''(a) Persons Not Currently Participating in Survivor Benefit
Plan. -
''(1) Election of sbp coverage. - An eligible retired or former
member may elect to participate in the Survivor Benefit Plan
during the open enrollment period specified in subsection (f).
''(2) Election of supplemental annuity coverage. - An eligible
retired or former member who elects under paragraph (1) to
participate in the Survivor Benefit Plan at the maximum level may
also elect during the open enrollment period to participate in
the Supplemental Survivor Benefit Plan established under
subchapter III of chapter 73 of title 10, United States Code, as
added by section 1404.
''(3) Eligible retired or former member. - For purposes of
paragraphs (1) and (2), an eligible retired or former member is a
member or former member of the uniformed services who on the day
before the first day of the open enrollment period is not a
participant in the Survivor Benefit Plan and -
''(A) is entitled to retired pay; or
''(B) would be entitled to retired pay under chapter 67 (now
1223) of title 10, United States Code, but for the fact that
such member or former member is under 60 years of age.
''(4) Status under sbp of persons making elections. -
''(A) Standard annuity. - A person making an election under
paragraph (1) by reason of eligibility under paragraph (3)(A)
shall be treated for all purposes as providing a standard
annuity under the Survivor Benefit Plan.
''(B) Reserve-component annuity. - A person making an
election under paragraph (1) by reason of eligibility under
paragraph (3)(B) shall be treated for all purposes as providing
a reserve-component annuity under the Survivor Benefit Plan.
''(b) Election To Increase Coverage Under SBP. - A person who on
the day before the first day of the open enrollment period is a
participant in the Survivor Benefit Plan but is not participating
at the maximum base amount or is providing coverage under the Plan
for a dependent child and not for the person's spouse or former
spouse may, during the open enrollment period elect to -
''(1) participate in the Plan at a higher base amount (not in
excess of the participant's retired pay); or
''(2) provide annuity coverage under the Plan for the person's
spouse or former spouse at a base amount not less than the base
amount provided for the dependent child.
''(c) Election for Current SBP Participants To Participate in
Supplemental SBP. -
''(1) Election. - A person who is eligible to make an election
under this paragraph may elect during the open enrollment period
to participate in the Supplemental Survivor Benefit Plan
established under subchapter III of chapter 73 of title 10,
United States Code, as added by section 1404.
''(2) Persons eligible. - Except as provided in paragraph (3),
a person is eligible to make an election under paragraph (1) if
on the day before the first day of the open enrollment period the
person is a participant in the Survivor Benefit Plan at the
maximum level, or during the open enrollment period the person
increases the level of such participation to the maximum level
under subsection (b) of this section, and under that Plan is
providing annuity coverage for the person's spouse or a former
spouse.
''(3) Limitation on eligibility for certain sbp participants
not affected by two-tier annuity computation. - A person is not
eligible to make an election under paragraph (1) if (as
determined by the Secretary concerned) the annuity of a spouse or
former spouse beneficiary of that person under the Survivor
Benefit Plan will be computed under section 1451(e) of title 10,
United States Code. However, such a person may during the open
enrollment period waive the right to have that annuity computed
under such section. Any such election is irrevocable. A person
making such a waiver may make an election under paragraph (1) as
in the case of any other participant in the Survivor Benefit
Plan.
''(d) Manner of Making Elections. - An election under this
section must be made in writing, signed by the person making the
election, and received by the Secretary concerned before the end of
the open enrollment period. Any such election shall be made
subject to the same conditions, and with the same opportunities for
designation of beneficiaries and specification of base amount, that
apply under the Survivor Benefit Plan or the Supplemental Survivor
Benefit Plan, as the case may be. A person making an election
under subsection (a) to provide a reserve-component annuity shall
make a designation described in section 1448(e) of title 10, United
States Code.
''(e) Effective Date for Elections. - Any such election shall be
effective as of the first day of the first calendar month following
the month in which the election is received by the Secretary
concerned.
''(f) Open Enrollment Period Defined. - The open enrollment
period is the one-year period beginning on April 1, 1992.
''(g) Effect of Death of Person Making Election Within Two Years
of Making Election. - (1) If a person making an election under this
section dies before the end of the two-year period beginning on the
effective date of the election, the election is void and the amount
of any reduction in retired pay of the person that is attributable
to the election shall be paid in a lump sum to the person who would
have been the deceased person's beneficiary under the voided
election if the deceased person had died after the end of such
two-year period.
''(2) Paragraph (1) does not apply in the case of the death of a
person making an election under subsection (a) if the beneficiary
of that person under the election is the person's spouse and that
spouse was entitled, before November 1, 1990, to receive dependency
and indemnity compensation benefits from the Department of Veterans
Affairs based on a previous marriage to another member or former
member of the uniformed services.
''(h) Applicability of Certain Provisions of Law. - The
provisions of sections 1449, 1453, and 1454 of title 10, United
States Code, are applicable to a person making an election, and to
an election, under this section in the same manner as if the
election were made under the Survivor Benefit Plan or the
Supplemental Survivor Benefit Plan, as the case may be.
''(i) Report Concerning Open Season. - Not later than June 1,
1990, the Secretary of Defense shall submit to the Committees on
Armed Services of the Senate and House of Representatives a report
on the open season authorized by this section for the Survivor
Benefit Plan. The report shall include -
''(1) a description of the Secretary's plans for implementation
of the open season;
''(2) the Secretary's estimates of the costs associated with
the open season, including any anticipated effect of the open
season on the actuarial status of the Department of Defense
Military Retirement Fund; and
''(3) any recommendation by the Secretary for further
legislative action.
''(j) Additional Premium. - The Secretary of Defense may require
that the SBP premium for a person making an election under
subsection (a)(1) or (b) include, in addition to the amount
required under section 1452(a) of title 10, United States Code, an
amount determined under regulations prescribed by the Secretary of
Defense for the purposes of this subsection. Any such amount shall
be stated as a percentage of the base amount of the person making
the election and shall reflect the number of years that have
elapsed since the person retired, but may not exceed 4.5 percent of
that person's base amount.''
DEFINITIONS FOR 1989 AMENDMENTS
Section 1406 of title XIV of div. A of Pub. L. 101-189, as
amended by Pub. L. 102-190, div. A, title VI, Sec. 653(a)(2), Dec.
5, 1991, 105 Stat. 1388, provided that: ''For the purpose of this
title (see Short Title of 1989 Amendment note set out under section
1447 of this title):
''(1) The term 'Survivor Benefit Plan' means the program
established under subchapter II of chapter 73 of title 10, United
States Code.
''(2) The term 'retired pay' includes retainer pay paid under
section 6330 of title 10, United States Code.
''(3) The terms 'uniformed services' and 'Secretary concerned'
have the meanings given those terms in section 101 of title 37,
United States Code.
''(4) The term 'SBP premium' means the reduction in retired pay
required as a condition of providing an annuity under the
Survivor Benefit Plan.
''(5) The term 'base amount' has the meaning given that term in
section 1447(2) (see 1447(6)) of title 10, United States Code.''
ANNUITY FOR SURVIVING SPOUSES OF MEMBERS WHO DIED BEFORE NOVEMBER
1, 1953, AND WHO WERE ENTITLED TO RETIRED OR RETAINER PAY ON DATE
OF DEATH
Pub. L. 100-456, div. A, title VI, Sec. 653, Sept. 29, 1988, 102
Stat. 1991, as amended by Pub. L. 103-337, div. A, title X, Sec.
1070(d)(3), Oct. 5, 1994, 108 Stat. 2858; Pub. L. 105-85, div. A,
title VI, Sec. 645(a), Nov. 18, 1997, 111 Stat. 1801, provided
that:
''(a) Annuity. - (1) The Secretary concerned shall pay an annuity
to the qualified surviving spouse of each member of the uniformed
services who -
''(A) died before November 1, 1953; and
''(B) was entitled to retired or retainer pay on the date of
death.
''(2) A qualified surviving spouse for purposes of this section
is a surviving spouse who has not remarried and who is eligible for
an annuity under section 4 of Public Law 92-425 (10 U.S.C. 1448
note).
''(b) Amount of Annuity. - (1) An annuity payable under this
section shall be paid at the rate of $165 per month, as adjusted
from time to time under subsection (c).
''(2) An annuity paid to a surviving spouse under this section
shall be reduced by the amount of dependency and indemnity
compensation (DIC) to which the surviving spouse is entitled under
section 1311(a) of title 38, United States Code.
''(c) Cost-of-Living Increases. - Whenever retired or retainer
pay is increased under section 1401a(b)(2) of title 10, United
States Code, each annuity that is payable under this section shall
be increased at the same time and by the same total percent. The
amount of the increase shall be based on the monthly annuity
payable before any reduction under this section.
''(d) Relationship to Other Programs. - (1) An annuity paid to a
surviving spouse under this section is in addition to any pension
to which the surviving spouse is entitled under subchapter III of
chapter 15 of title 38, United States Code, or section 306 of the
Veterans' and Survivors' Pension Improvement Act of 1978 (38 U.S.C.
1521 note), and any payment made under the provisions of section 4
of Public Law 92-425. An annuity paid under this section shall not
be considered as income for the purposes of eligibility for any
such pension.
''(2) Payment of annuities under this section shall be made by
the Secretary of Veterans Affairs. In making such payments, the
Secretary shall combine the payment under this section with the
payment of any amount due the same person under section 4 of Public
Law 92-425 (10 U.S.C. 1448 note), as provided in subsection (e)(1)
of that section. The Secretary concerned shall transfer amounts
for payments under this section to the Secretary of Veterans
Affairs in the same manner as is provided under subsection (e)(2)
of section 4 of Public Law 92-425 for payments under that section.
''(e) Definitions. - For purposes of this section:
''(1) The terms 'uniformed services' and 'Secretary concerned'
have the meanings given those terms in section 101 of title 37,
United States Code.
''(2) The term 'surviving spouse' has the meaning given the
terms 'widow' and 'widower' in paragraphs (3) and (4),
respectively, of section 1447 (see 1447(7), (8)) of title 10,
United States Code.
''(f) Effective Date. - Annuities under this section shall be
paid for months beginning after the month in which this Act is
enacted (September 1988). No benefit shall accrue to any person by
reason of the enactment of this section for any period before the
first month referred to in the preceding sentence. No benefit
shall be paid to any person under this section unless an
application for such benefit has been filed with the Secretary
concerned by or on behalf of such person.''
AUTHORITY FOR CERTAIN REMARRIED SURVIVOR BENEFIT PLAN PARTICIPANTS
TO WITHDRAW FROM PLAN
Pub. L. 100-180, div. A, title VI, Sec. 631, Dec. 4, 1987, 101
Stat. 1104, provided that:
''(a) Authority To Withdraw. - (1) An individual who is a
participant in the Survivor Benefit Plan under subchapter II of
chapter 73 of title 10, United States Code, and is described in
paragraph (2) may, with the consent of such individual's spouse,
withdraw from participation in the Plan.
''(2) An individual referred to in paragraph (1) is an individual
who -
''(A) is providing coverage for a spouse or for a spouse and
child under the Plan; and
''(B) remarried before March 1, 1986, and at a time when such
individual was a participant in the Plan but did not have an
eligible spouse beneficiary under the Plan.
''(b) Applicable Provisions. - An election under subsection (a)
shall be subject to subparagraphs (B) and (D) (see (E)) of section
1448(a)(6) of title 10, United States Code, except that in applying
such subparagraph (B) to subsection (a), the one-year period
referred to in clause (ii) of such subparagraph shall extend until
the end of the one-year period beginning 90 days after the date of
the enactment of this Act (Dec. 4, 1987).
''(c) Treatment of Prior Contributions. - No refund of amounts by
which the retired pay of a participant in the Survivor Benefit Plan
has been reduced by reason of section 1452 of title 10, United
States Code, may be made to an individual who withdraws from the
Survivor Benefit Plan under subsection (a).''
OPTION FOR CERTAIN PARTICIPANTS TO WITHDRAW FROM SURVIVOR BENEFIT
PLAN
Section 711(c) of Pub. L. 99-145 provided that person who during
period Oct. 19, 1984, to Nov. 8, 1985, became participant in
Survivor Benefit Plan under this subchapter could withdraw from
Plan before end of one-year period beginning on Nov. 8, 1985, and
receive refund of contributions plus interest.
PERSONS COVERED UNDER SUBSECTIONS (D) AND (F)
Section 712(b) of Pub. L. 99-145 provided that:
''(1) Section 1448(d) of title 10, United States Code, as amended
by subsection (a), applies to the surviving spouse and dependent
children of a person who dies on active duty after September 20,
1972, and the former spouse of a person who dies after September 7,
1982.
''(2) In the case of the surviving spouse and children of a
person who dies during the period beginning on September 21, 1972,
and ending on October 1, 1985, the Secretary concerned shall take
appropriate steps to locate persons eligible for an annuity under
section 1448(d) of title 10, United States Code, as amended by
subsection (a). Any such person must submit an application to the
Secretary for such an annuity before October 1, 1988, to be
eligible to receive such annuity. Any such annuity shall be
effective only for months after the month in which the Secretary
receives such application.''
Section 713(c) of Pub. L. 99-145 provided that:
''(1) Section 1448(f) of title 10, United States Code, as added
by subsection (a), shall apply to the surviving spouse and
dependent children of any person who dies after September 30, 1978,
and the former spouse of a person who dies after September 7, 1982.
''(2) In the case of the surviving spouse and dependents of a
person who dies during the period beginning on September 30, 1978,
and ending on October 1, 1985, the Secretary concerned shall take
appropriate steps to locate persons eligible for an annuity under
section 1448(f) of title 10, United States Code, as added by
subsection (a). Any such person must submit an application to the
Secretary for such an annuity before October 1, 1988, to be
eligible to receive such annuity. Any such annuity shall be
effective only for months after the month in which the Secretary
receives such application.''
REVISION FOR FORMER SPOUSE COVERAGE ALREADY IN EFFECT
Section 716(b) of Pub. L. 99-145, as amended by Pub. L. 99-661,
div. A, title VI, Sec. 645, Nov. 14, 1986, 100 Stat. 3887,
provided that person who before Mar. 1, 1986, made election under
subsec. (b) of this section to provide annuity for former spouse
could change that election to provide annuity for former spouse and
dependent children, even though former spouse had died, but such
election had to be made not later than Mar. 1, 1987, in case of
person who made election before Nov. 8, 1985, and not later than
end of one-year period beginning on Nov. 14, 1986, in case of
person who made election during period of Nov. 8, 1985, to Feb. 28,
1986.
ONE-YEAR OPEN PERIOD TO SWITCH COMPUTATION OF SBP ANNUITY
Section 723(c) of Pub. L. 99-145 provided that person who, before
effective date of title VII of Pub. L. 99-145 (see Effective Date
of 1985 Amendment note set out under section 1447 of this title)
participated in Survivor Benefit Plan under this subchapter, and
had elected to provide annuity to former spouse could, with
concurrence of such former spouse, elect to terminate such annuity
and provide annuity to such former spouse under section 1450(a)(1)
of this title, and any such election was to be made before end of
12-month period beginning on Nov. 8, 1985.
ONE-YEAR OPEN PERIOD FOR NEW FORMER SPOUSE COVERAGE
Section 723(d) of Pub. L. 99-145 provided that person who before
effective date of part B of title VII of Pub. L. 99-145 (see
Effective Date of 1985 Amendment note set out under section 1447 of
this title) was participant in Survivor Benefit Plan and did not
elect to provide annuity to former spouse could elect to provide
annuity to former spouse under Plan, and that any such election was
to be made before end of 12-month period beginning on Nov. 8, 1985.
OPEN ENROLLMENT PERIOD FOR SURVIVOR BENEFIT PLAN
Pub. L. 97-35, title II, Sec. 212, Aug. 13, 1981, 95 Stat. 383,
as amended by Pub. L. 97-252, title XI, Sec. 1119, Sept. 8, 1982,
96 Stat. 753, provided that certain members or former members of
the uniformed services who, on Aug. 13, 1981, were not participants
in the Survivor Benefit Plan established under this subchapter or
were not participants in the Plan at the maximum level, could elect
to participate in the Plan or to participate in the Plan at a
higher level, during an open enrollment period beginning Oct. 1,
1981, and ending Sept. 30, 1982, for members and former members
entitled to retired or retainer pay on Aug. 13, 1981, or beginning
on Oct. 1, 1982, and ending on Sept. 30, 1983, for members or
former members who on Aug. 13, 1981, would have been entitled to
retired pay, but for the fact they were under 60 years of age on
that date.
SURVIVING SPOUSE; ANNUITY PAYMENT AND REDUCTION PROVISIONS;
ELECTION OF ANNUITY; DEFINITIONS; EFFECTIVE DATE
Pub. L. 96-402, Sec. 5, Oct. 9, 1980, 94 Stat. 1707, provided
that:
''(a)(1) The Secretary concerned shall pay an annuity to any
individual who is the surviving spouse of a member of the uniformed
services who -
''(A) died before September 21, 1972;
''(B) was serving on active duty in the uniformed services at
the time of his death and had served on active duty for a period
of not less than 20 years; and
''(C) was at the time of his death entitled to retired or
retainer pay or would have been entitled to that pay except that
he had not applied for or been granted that pay.
''(2) An annuity under paragraph (1) shall be paid under the
provisions of subchapter II of chapter 73 of title 10, United
States Code, in the same manner as if such member had died on or
after September 21, 1972.
''(b)(1) The amount of retired or retainer pay to be used as the
basis for the computation of an annuity under subsection (a) is the
amount of the retired or retainer pay to which the member would
have been entitled if the member had been entitled to that pay
based upon his years of active service when he died, adjusted by
the overall percentage increase in retired and retainer pay under
section 1401a of title 10, United States Code (or any prior
comparable provision of law), during the period beginning on the
date of the member's death and ending on the day before the
effective date of this section.
''(2) In addition to any reduction required under the provisions
of subchapter II of chapter 73 of title 10, United States Code, the
annuity paid to any surviving spouse under this section shall be
reduced by any amount such surviving spouse is entitled to receive
as an annuity under subchapter I of such chapter.
''(c) If an individual entitled to an annuity under this section
is also entitled to an annuity under subchapter II of chapter 73 of
title 10, United States Code, based upon a subsequent marriage, the
individual may not receive both annuities but must elect which to
receive.
''(d) As used in this section:
''(1) The term 'uniformed services' means the Armed Forces and
the commissioned corps of the Public Health Service and of the
National Oceanic and Atmospheric Administration.
''(2) The term 'surviving spouse' has the meaning given the
terms 'widow' and 'widower' in section 1447 of title 10, United
States Code.
''(3) The term 'Secretary concerned' has the meaning given such
term in section 101(8) of title 10, United States Code, and
includes the Secretary of Commerce, with respect to matters
concerning the National Oceanic and Atmospheric Administration,
and the Secretary of Health and Human Services, with respect to
matters concerning the Public Health Service.''
Provision effective Dec. 1, 1980, applicable to annuities payable
for months beginning on or after such date, and prohibiting accrual
of benefits for any period before Oct. 9, 1980, see section 7 of
Pub. L. 96-402, set out as a note under section 1447 of this title.
ELECTION TO PARTICIPATE IN THE SURVIVOR BENEFIT PLAN AND WITHDRAW
FROM THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
Section 3 of Pub. L. 92-425, as amended by Pub. L. 93-155, title
VIII, Sec. 804, Nov. 16, 1973, 87 Stat. 615, provided that:
''(a) The Survivor Benefit Plan established pursuant to clause
(3) of the first section of this Act (this subchapter) applies to
any person who initially becomes entitled to retired or retainer
pay on or after the effective date of this Act (Sept. 21, 1972). An
election made before that date by such a person under section 1431
of title 10, United States Code, is canceled. However, a person
who initially becomes entitled to retired or retainer pay within
180 days after the effective date of this Act (Sept. 21, 1972) may,
within 180 days after becoming so entitled, elect -
''(1) not to participate in such Survivor Benefit Plan if he is
married or has a dependent child; or
''(2) to participate in that Plan, if he is a person covered by
section 1448(b) of title 10, United States Code.
''(b) Any person who is entitled to retired or retainer pay on
the effective date of this Act (Sept. 21, 1972) may elect to
participate in the Survivor Benefit Plan established pursuant to
clause (3) of the first section of this Act (this subchapter) at
any time within eighteen months after such date. However, such a
person who is receiving retired or retainer pay reduced under
section 1436(a) of title 10, United States Code, or who is
depositing amounts under section 1438 of that title, may elect at
any time within eighteen months after the effective date of this
Act (Sept. 21, 1972) -
''(1) to participate in the Plan and continue his participation
under chapter 73 of that title (this chapter) as in effect on the
day before the effective date of this Act (Sept. 21, 1972),
except that the total of the annuities elected may not exceed 100
percent of his retired or retainer pay; or
''(2) to participate in the Plan and, notwithstanding section
1436(b) of that title, terminate his participation under chapter
73 of that title (this chapter) as in effect on the day before
the effective date of this Act (Sept. 21, 1972).
A person who elects under clause (2) of this subsection is not
entitled to a refund of amounts previously deducted from his
retired or retainer pay under chapter 73 of title 10, United States
Code (this chapter), as in effect on the day before the effective
date of this Act (Sept. 21, 1972), or any payments made thereunder
on his behalf. A person who is not married or does not have a
dependent child on the first anniversary of the effective date of
this Act (Sept. 21, 1972), but who later marries or acquires a
dependent child, may elect to participate in the Plan under the
fourth sentence of section 1448(a) of that title (former subsec.
(a) of this section).
''(c) Notwithstanding the provisions of the Survivor Benefit Plan
established pursuant to clause (3) of the first section of this Act
(this subchapter), and except as otherwise provided in this
section, subchapter I of chapter 73 of title 10, United States Code
(subchapter I of this chapter) (other than the last two sentences
of section 1436(a), section 1443, and section 1444(b)), as in
effect on the day before the effective date of this Act (Sept. 21,
1972), shall continue to apply in the case of persons, and their
beneficiaries, who have elected annuities under section 1431 or
1432 of that title and who have not elected under subsection (b)(2)
of this section to participate in that Plan.
''(d) In this section, 'base amount' means -
''(1) the monthly retired or retainer pay to which a person -
''(A) is entitled on the effective date of this Act (Sept.
21, 1972); or
''(B) later becomes entitled by being advanced on the retired
list, performing active duty, or being transferred from the
temporary disability retired list to the permanent disability
retired list; or
''(2) any amount less than that described in clause (1)
designated by that person at the time he makes an election under
subsection (a)(2) or (b) of this section, but not less than $300;
as increased from time to time under section 1401a of title 10,
United States Code.
''(e) An election made under subsection (a) or (b) of this
section is effective on the date it is received by the Secretary
concerned, as defined in section 101(5) of title 37, United States
Code.
''(f) Sections 1449, 1453, and 1454 of title 10, United States
Code, as added by clause (3) of the first section of this Act (as
part of this subchapter), are applicable to persons covered by this
section.''
INCOME SUPPLEMENT FOR CERTAIN WIDOWS OF RETIRED MEMBERS OF THE
UNIFORMED FORCES; SPECIAL ANNUITY FOR WIDOWS OF COMMISSIONED
PERSONNEL OF THE PUBLIC HEALTH SERVICE AND NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION IN LIEU OF VA PENSION
Section 4 of Pub. L. 92-425, as amended by Pub. L. 94-496, Sec.
2, Oct. 14, 1976, 90 Stat. 2375; Pub. L. 95-397, title II, Sec.
209, Sept. 30, 1978, 92 Stat. 848; Pub. L. 96-402, Sec. 6, Oct. 9,
1980, 94 Stat. 1708; Pub. L. 98-94, title IX, Sec. 942(a), Sept.
24, 1983, 97 Stat. 654; Pub. L. 102-40, title IV, Sec. 402(d)(2),
May 7, 1991, 105 Stat. 239; Pub. L. 103-337, div. A, title X, Sec.
1070(d)(4), Oct. 5, 1994, 108 Stat. 2858; Pub. L. 104-201, div. A,
title VI, Sec. 638(a)-(c), Sept. 23, 1996, 110 Stat. 2581; Pub. L.
105-85, div. A, title VI, Sec. 645(b), Nov. 18, 1997, 111 Stat.
1801, provided that:
''(a) A person -
''(1) who, on September 21, 1972, was, or during the period
beginning on September 22, 1972, and ending on March 20, 1974,
became, a widow of a person who was entitled to retired or
retainer pay when he died;
''(2) who is eligible for a pension under subchapter III of
chapter 15 of title 38, United States Code, or section 306 of the
Veterans' and Survivors' Pension Improvement Act of 1978 (set out
as note under section 1521 of Title 38); and
''(3) whose annual income, as determined in establishing that
eligibility, is less than the maximum annual rate of pension in
effect under section 1541(b) of title 38, United States Code;
shall be paid an annuity by the Secretary concerned unless she is
eligible to receive an annuity under the Survivor Benefit Plan
established pursuant to clause (3) of the first section of this Act
(this subchapter). However, such a person who is the widow of a
retired officer of the Public Health Service or the National
Oceanic and Atmospheric Administration, and who would otherwise be
eligible for an annuity under this section except that she does not
qualify for the pension described in clause (2) of this subsection
because the service of her deceased spouse is not considered active
duty under section 101(21) of title 38, United States Code, is
entitled to an annuity under this section.
''(b) The annuity under subsection (a) of this section shall be
in an amount which when added to the widow's income determined
under subsection (a)(3) of this section, plus the amount of any
annuity being received under sections 1431-1436 of title 10, United
States Code, but exclusive of a pension described in subsection
(a)(2) of this section, equals the maximum annual rate of pension
in effect under section 1541(b) of title 38, United States Code. In
addition, the Secretary concerned shall pay to the widow, described
in the last sentence of subsection (a) of this section, an amount
equal to the pension she would otherwise have been eligible to
receive under subchapter III of chapter 15 of title 38, United
States Code, if the service of her deceased spouse was considered
active duty under section 101(21) of that title.
''(c) The amount of an annuity payable under this section,
although counted as income in determining the amount of any pension
described in subsection (a)(2) of this section, shall not be
considered to affect the eligiblity of the recipient of such
annuity for such pension, even though, as a result of including the
amount of the annuity as income, no amount of such pension is due.
''(d) Subsection 1450(i) and section 1453 as added to title 10,
United States Code, by clause 3 of the first section of this Act,
are applicable to persons covered by this section.
''(e)(1) Payment of annuities under this section shall be made by
the Secretary of Veterans Affairs. In making such payments, the
Secretary shall combine with the payment under this section payment
of any amount due the same person under section 653(d) of the
National Defense Authorization Act, Fiscal Year 1989 (Pub. L.
100-456) (10 U.S.C. 1448 note). If appropriate for administrative
convenience (or otherwise determined appropriate by the Secretary
of Veterans Affairs), that Secretary may combine a payment to any
person for any month under this section (and, if applicable, under
section 653(d) of the National Defense Authorization Act, Fiscal
Year 1989) with any other payment for that month under laws
administered by the Secretary so as to provide that person with a
single payment for that month.
''(2) The Secretary concerned shall annually transfer to the
Secretary of Veterans Affairs such amounts as may be necessary for
payments by the Secretary of Veterans Affairs under this section
and for costs of the Secretary of Veterans Affairs in administering
this section. Such transfers shall be made from amounts that would
otherwise be used for payment of annuities by the Secretary
concerned under this section. The authority to make such a
transfer is in addition to any other authority of the Secretary
concerned to transfer funds for a purpose other than the purpose
for which the funds were originally made available. In the case of
a transfer by the Secretary of a military department, the
provisions of section 2215 of title 10, United States Code, do not
apply.
''(3) The Secretary concerned shall promptly notify the Secretary
of Veterans Affairs of any change in beneficiaries under this
section.''
(Section 638(d) of Pub. L. 104-201 provided that: ''The
amendments made by this section (amending section 4 of Pub. L.
92-425, set out above) take effect on July 1, 1997, and apply with
respect to payments of benefits for any month after June 1997.'')
(Section 942(b) of Pub. L. 98-94 provided that: ''Any annuity
payable by reason of subsection (a) (amending section 4(a)(1) of
Pub. L. 92-425, set out above) shall be payable only for months
after September 1983.'')
END OF 90-DAY PERIOD WITH RESPECT TO CERTAIN INDIVIDUALS
The 90-day period, referred to in subsec. (a)(2), (4)(B), with
respect to certain individuals shall be considered to end on Mar.
31, 1980, see section 208 of Pub. L. 95-397, set out as a note
under section 1447 of this title.
-SECREF-
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 1076c, 1447, 1448a, 1449,
1450, 1451, 1452, 1455, 1458 of this title; title 38 section 1318.
-CITE-
10 USC Sec. 1448a 01/06/03
-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART II - PERSONNEL
CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY
SUBCHAPTER II - SURVIVOR BENEFIT PLAN
-HEAD-
Sec. 1448a. Election to discontinue participation: one-year
opportunity after second anniversary of commencement of payment
of retired pay
-STATUTE-
(a) Authority. - A participant in the Plan may, subject to the
provisions of this section, elect to discontinue participation in
the Plan at any time during the one-year period beginning on the
second anniversary of the date on which payment of retired pay to
the participant commences.
(b) Concurrence of Spouse. -
(1) Concurrence required. - A married participant may not
(except as provided in paragraph (2)) make an election under
subsection (a) without the concurrence of the participant's
spouse.
(2) Exceptions. - A participant may make such an election
without the concurrence of the participant's spouse by
establishing to the satisfaction of the Secretary concerned that
one of the conditions specified in section 1448(a)(3)(C) of this
title exists.
(3) Form of concurrence. - The concurrence of a spouse under
paragraph (1) shall be made in such written form and shall
contain such information as may be required under regulations
prescribed by the Secretary of Defense.
(c) Limitation on Election When Former Spouse Coverage in Effect.
- The limitation set forth in section 1450(f)(2) of this title
applies to an election to discontinue participation in the Plan
under subsection (a).
(d) Withdrawal of Election To Discontinue. - Section
1448(b)(1)(D) of this title applies to an election under subsection
(a).
(e) Consequences of Discontinuation. - Section 1448(b)(1)(E) of
this title applies to an election under subsection (a).
(f) Notice to Affected Beneficiaries. - The Secretary concerned
shall notify any former spouse or other natural person previously
designated under section 1448(b) of this title of an election to
discontinue participation under subsection (a).
(g) Effective Date of Election. - An election under subsection
(a) is effective as of the first day of the first calendar month
following t
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| Enviado por: | El remitente no desea revelar su nombre |
| Idioma: | inglés |
| País: | Estados Unidos |
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