- § 1401. Computation of retired pay
- § 1401a. Adjustment of retired pay and retainer pay to reflect changes in Consumer Price Index
- § 1402. Recomputation of retired or retainer pay to reflect later active duty of members who first became members before
- § 1402a. Recomputation of retired or retainer pay to reflect later active duty of members who first became members after
- § 1403. Disability retired pay: treatment under Internal Revenue Code of 1986
- § 1404. Applicability of
- § 1405. Years of service
- § 1406. Retired pay base for members who first became members before
- § 1407. Retired pay base for members who first became members after
- § 1407a. Retired pay base: officers retired in general or flag officer grades
- § 1408. Payment of retired or retainer pay in compliance with court orders
- § 1409. Retired pay multiplier
- § 1410. Restoral of full retirement amount at age 62 for certain members entering on or after
- § 1411. Rules of construction
- § 1412. Administrative provisions
- [§ 1413. Repealed.
- § 1413a. Combat-related special compensation
- § 1414. Members eligible for retired pay who are also eligible for veterans’ disability compensation for disabilities rated 50 percent or higher: concurrent payment of retired pay and veterans’ disability compensation
- § 1415. Lump sum payment of certain retired pay
§ 1401. Computation of retired pay
(a)Disability, Non-Regular Service, Warrant Officer, and DOPMA Retirement.—The monthly retired pay of a person entitled thereto under this subtitle is computed according to the following table. For each case covered by a section of this title named in the column headed “For sections”, retired pay is computed by taking, in order, the steps prescribed opposite it in columns 1, 2, and 3, as modified by the applicable footnotes.
Formula No. | For sections | Column 1 Take | Column 2 Multiply by | Column 3 Add | 1 Before applying percentage factor, credit each full month of service that is in addition to the number of full years of service creditable to the member as one-twelfth of a year and disregard any remaining fractional part of a month. | 1 | 1201 1204 | Retired pay base as computed under section 1406(b) or 1407. | As member elects— (1) the retired pay multiplier determined for the member under section 1409 of this title; 1 or (2) the percentage of disability, not to exceed 75%, on date when retired. | 2 | 1202 1205 | Retired pay base as computed under section 1406(b) or 1407. | As member elects— (1) the retired pay multiplier determined for the member under section 1409 of this title; 1 or (2) the percentage of disability, not to exceed 75%, on date when his name was placed on temporary disability retired list. | Amount necessary to increase product of columns 1 and 2 to 50% of retired pay base upon which computation is based. | 4 | 580 1263 1293 1305 | Retired pay base as computed under section 1406(b) or 1407. | The retired pay multiplier prescribed in section 1409 for the years of service credited to him under section 1405. | 5 | 633 634 635 636 1251 1252 1253 | Retired pay base as computed under section 1406(b) or 1407. | The retired pay multiplier prescribed in section 1409 for the years of service credited to him under section 1405. |
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(b)Use of Most Favorable Formula.—If a person would otherwise be entitled to retired pay computed under more than one formula of the table in subsection (a) or of any other provision of law, the person is entitled to be paid under the applicable formula that is most favorable to him.
(Aug. 10, 1956, ch. 1041, 70A Stat. 106; Pub. L. 85–422, §§ 6(7), 11(a)(2), May 20, 1958, 72 Stat. 129, 131; Pub. L. 88–132, § 5(h)(1), Oct. 2, 1963, 77 Stat. 214; Pub. L. 89–132, § 6, Aug. 21, 1965, 79 Stat. 547; Pub. L. 90–207, § 3(1), Dec. 16, 1967, 81 Stat. 653; Pub. L. 92–455, § 1, Oct. 2, 1972, 86 Stat. 761;
§ 1401a. Adjustment of retired pay and retainer pay to reflect changes in Consumer Price Index
(a)Prohibition on Recomputation To Reflect Increases in Basic Pay.—Unless otherwise specifically provided by law, the retired pay of a member or former member of an armed force may not be recomputed to reflect any increase in the rates of basic pay for members of the armed forces.
(b)Cost-of-Living Adjustments Based on CPI Increases.—
(1)Increase required.—Effective on December 1 of each year, the Secretary of Defense shall increase the retired pay of members and former members entitled to that pay in accordance with paragraphs (2) and (3).
(2)Percentage increase.—Except as otherwise provided in this subsection, the Secretary shall increase the retired pay of each member and former member by the percent (adjusted to the nearest one-tenth of 1 percent) by which—
(A) the price index for the base quarter of that year, exceeds
(B) the base index.
(3)Reduced percentage for certain post-august 1, 1986 members.—If the percent determined under paragraph (2) is greater than 1 percent, the Secretary shall increase the retired pay of each member and former member who first became a member on or after August 1, 1986, and has elected to receive a bonus under section 322 (as in effect before the enactment of the National Defense Authorization Act for Fiscal Year 2008) or section 354 of title 37, by the difference between—
(A) the percent determined under paragraph (2); and
(B) 1 percent.
(4)Special rule for paragraph (3).—If in any case in which an increase in retired pay that would otherwise be made under paragraph (3) is not made by reason of law (other than any provision of this section), then (unless otherwise provided by law) when the next increase in retired pay is made under this subsection, the increase under paragraph (3) shall be carried out so as to achieve the same net increase in retired pay under that paragraph that would have been the case if that law had not been enacted.
(5)Adjustments for participants in modernized retirement system.—Notwithstanding paragraph (3), if a member or former member participates in the modernized retirement system by reason of section 1409(b)(4) of this title (including pursuant to an election under subparagraph (B) of that section), the Secretary shall increase the retired pay of such member in accordance with paragraph (2).
(6)Regulations.—Any increase in retired pay under this subsection shall be made in accordance with regulations prescribed by the Secretary of Defense.
(c)First COLA Adjustment for Members With Retired Pay Computed Using Final Basic Pay.—
(1)First adjustment with intervening increase in basic pay.—Notwithstanding subsection (b) but subject to subsection (f)(3), if a person described in paragraph (3) becomes entitled to retired pay based on rates of monthly basic pay that became effective after the last day of the calendar quarter of the base index, the retired pay of the member or former member shall be increased on the effective date of the next adjustment of retired pay under subsection (b) only by the percent (adjusted to the nearest one-tenth of 1 percent) by which—
(A) the price index for the base quarter of that year, exceeds
(B) the price index for the calendar quarter immediately before the calendar quarter in which the rates of monthly basic pay on which the retired pay is based became effective.
(2)First adjustment with no intervening increase in basic pay.—If a person described in paragraph (3) becomes entitled to retired pay on or after the effective date of an adjustment in retired pay under subsection (b) but before the effective date of the next increase in the rates of monthly basic pay, the retired pay of the member or former member shall be increased (subject to subsection (f)(3) as applied to other members whose retired pay is computed on the current rates of basic pay in the most recent adjustment under this section), effective on the date the member becomes entitled to that pay, by the percent (adjusted to the nearest one-tenth of 1 percent) by which—
(A) the base index, exceeds
(B) the price index for the calendar quarter immediately before the calendar quarter in which the rates of monthly basic pay on which the retired pay is based became effective.
(3)Members covered.—Paragraphs (1) and (2) apply to a member or former member of an armed force who first became a member of a uniformed service before
(d)First COLA Adjustment for Members With Retired Pay Computed Using High-Three.—Notwithstanding subsection (b) but subject to subsection (f)(3), the retired pay of a member or former member of an armed force who first became a member of a uniformed service before August 1, 1986, or on or after August 1, 1986, if the member or former member did not elect to receive a bonus under section 322 (as in effect before January 28, 2008) or section 354 of title 37 and whose retired pay base is determined under section 1407 of this title shall be increased on the effective date of the first adjustment of retired pay under subsection (b) after the member or former member becomes entitled to retired pay by the percent (adjusted to the nearest one-tenth of 1 percent) equal to the difference between the percent by which—
(1) the price index for the base quarter of that year, exceeds
(2) the price index for the calendar quarter immediately before the calendar quarter during which the member became entitled to retired pay.
(e)Pro Rating of Initial Adjustment.—Notwithstanding subsection (b) but subject to subsection (f)(3), the retired pay of a member or former member of an armed force who first became a member of a uniformed service on or after August 1, 1986, and elected to receive a bonus under section 322 (as in effect before January 28, 2008) or section 354 of title 37 shall be increased on the effective date of the first adjustment of retired pay under subsection (b) after the member or former member becomes entitled to retired pay by the percent (adjusted to the nearest one-tenth of 1 percent) equal to the difference between—
(1) the percent by which—
(A) the price index for the base quarter of that year, exceeds
(B) the price index for the calendar quarter immediately before the calendar quarter during which the member became entitled to retired pay; and
(2) one-fourth of 1 percent for each calendar quarter from the quarter described in paragraph (1)(B) to the quarter described in paragraph (1)(A).
If in any case the percent described in paragraph (2) exceeds the percent determined under paragraph (1), such an increase shall not be made.
(f)Prevention of Pay Inversions.—
(1)Prevention of retired pay inversions for members with retired pay computed using final basic pay.—The monthly retired pay of a member or a former member of an armed force who first became a member of a uniformed service before September 8, 1980, and who initially became entitled to that pay on or after January 1, 1971, may not be less than the monthly retired pay to which he would be entitled if he had become entitled to retired pay at an earlier date based on the grade in which the member is retired, adjusted to reflect any applicable increases in such pay under this section. In computing the amount of retired pay to which such a member or former member would have been entitled on that earlier date, the computation shall be based on his grade, length of service, and the rate of basic pay applicable to him at that time, except that such computation may not be based on a rate of basic pay for a grade higher than the grade in which the member is retired. This subsection does not authorize any increase in the monthly retired pay to which a member was entitled for any period before October 7, 1975.
(2)Prevention of retired pay inversions for members with retired pay computed using high-three.—Subject to subsections (d) and (e), the monthly retired pay of a member or former member of an armed force who first became a member of a uniformed service on or after September 8, 1980, may not be less, on the date on which the member or former member initially becomes entitled to such pay, than the monthly retired pay to which the member or former member would be entitled on that date if the member or former member had become entitled to retired pay on an earlier date, adjusted to reflect any applicable increases in such pay under this section. However, in the case of a member or former member whose retired pay is computed subject to section 1407(f) of this title, paragraph (1) (rather than the preceding sentence) shall apply in the same manner as if the member or former member first became a member of a uniformed service before September 8, 1980, but only with respect to a calculation as of the date on which the member or former member first became entitled to retired pay.
(3)Prevention of cola inversions.—The percentage of the first adjustment under this section in the retired pay of any person, as determined under subsection (c)(1), (c)(2), (d), or (e), may not exceed the percentage increase in retired pay determined under subsection (b)(2) that is effective on the same date as the effective date of such first adjustment.
(g)Definitions.—In this section:
(1) The term “price index” means the Consumer Price Index (all items, United States city average) published by the Bureau of Labor Statistics.
(2) The term “base quarter” means the calendar quarter ending on September 30 of each year.
(3) The term “base index” means the price index for the base quarter for the most recent adjustment under subsection (b).
(4) The term “retired pay” includes retainer pay.
(h)Price Index for a Quarter.—For purposes of this section, the price index for a calendar quarter is the arithmetical mean of the price index for the three months comprising that quarter.
(Added Pub. L. 88–132, § 5(g)(1), Oct. 2, 1963, 77 Stat. 213; amended Pub. L. 89–132, § 5(b), Aug. 21, 1965, 79 Stat. 547; Pub. L. 90–207, § 2(a)(1), Dec. 16, 1967, 81 Stat. 652; Pub. L. 91–179, § 1, Dec. 30, 1969, 83 Stat. 837; Pub. L. 94–106, title VIII, § 806, Oct. 7, 1975, 89 Stat. 538; Pub. L. 94–361, title VIII, § 801(a), July 14, 1976, 90 Stat. 929; Pub. L. 94–440, title XIII, § 1306(d)(1), Oct. 1, 1976, 90 Stat. 1462; Pub. L. 96–342, title VIII, § 812(b)(1), Sept. 8, 1980, 94 Stat. 1098; Pub. L. 98–94, title IX, §§ 921(a)(1), (b), 922(a)(2), Sept. 24, 1983, 97 Stat. 640, 641; Pub. L. 98–525, title XIV, § 1405(26), Oct. 19, 1984, 98 Stat. 2623; Pub. L. 99–348, title I, § 102, July 1, 1986, 100 Stat. 683; Pub. L. 100–180, div. A, title XII, § 1231(21), Dec. 4, 1987, 101 Stat. 1161; Pub. L. 100–224, § 1, Dec. 30, 1987, 101 Stat. 1536; Pub. L. 100–456, div. A, title VI, § 622(a), Sept. 29, 1988, 102 Stat. 1983; Pub. L. 101–189, div. A, title VI, § 651(b)(1), Nov. 29, 1989, 103 Stat. 1460; Pub. L. 103–66, title II, § 2001, Aug. 10, 1993, 107 Stat. 335; Pub. L. 103–160, div. A, title XI, § 1182(e), Nov. 30, 1993, 107 Stat. 1773; Pub. L. 103–335, title VIII, § 8114A(b)(1), Sept. 30, 1994, 108 Stat. 2648; Pub. L. 103–337, div. A, title VI, § 633(a), Oct. 5, 1994, 108 Stat. 2787; Pub. L. 104–106, div. A, title VI, § 631(a), (c), Feb. 10, 1996, 110 Stat. 364, 365; Pub. L. 104–201, div. A, title VI, §§ 631(a), 632(a), Sept. 23, 1996, 110 Stat. 2549; Pub. L. 106–65, div. A, title VI, §§ 641(b), 643(b)(1), title X, § 1066(a)(10), Oct. 5, 1999, 113 Stat. 662, 663, 771; Pub. L. 107–314, div. A, title VI, § 633, Dec. 2, 2002, 116 Stat. 2572; Pub. L. 110–181, div. A, title VI, § 661(b)(3), Jan. 28, 2008, 122 Stat. 178; Pub. L. 113–66, div. A, title VI, § 631(a), (b), title X, § 1091(a)(9), Dec. 26, 2013, 127 Stat. 785, 876; Pub. L. 113–67, div. A, title IV, § 403(a), Dec. 26, 2013, 127 Stat. 1186; Pub. L. 113–76, div. C, title X, § 10001(a), (b)(3), Jan. 17, 2014, 128 Stat. 151; Pub. L. 113–82, § 2(a), Feb. 15, 2014, 128 Stat. 1009; Pub. L. 113–291, div. A, title VI, § 623, Dec. 19, 2014, 128 Stat. 3403; Pub. L. 114–92, div. A, title VI, § 631(c)(1)(B), (d), Nov. 25, 2015, 129 Stat. 844, 845.)
§ 1402. Recomputation of retired or retainer pay to reflect later active duty of members who first became members before September 8, 1980
(a) A member of an armed force who first became a member of a uniformed service before September 8, 1980, and who has become entitled to retired pay or retainer pay, and who thereafter serves on active duty (other than for training), is entitled to recompute his retired pay or retainer pay upon his release from that duty according to the following table.
Column 1 Take | Column 2 Multiply by | 1 For a member who has been entitled, for continuous period of at least two years, to basic pay under the rates of basic pay in effect upon that release from active duty, compute under those rates. For a member who has been entitled to basic pay for a continuous period of at least two years upon that release from active duty, but who is not covered by the preceding sentence, compute under the rates of basic pay replaced by those in effect upon that release from active duty. For any other member, compute under the rates of basic pay under which the member’s retired pay or retainer pay was computed when he entered on that active duty. | 2 Before applying percentage factor, credit each full month of service that is in addition to the number of full years of service creditable to the member as one-twelfth of a year and disregard any remaining fractional part of a month. | Monthly basic pay 1 of the grade in which he would be eligible— (1) to retire if he were retiring upon that release from active duty; or (2) to transfer to the Fleet Reserve or Fleet Marine Corps Reserve if he were transferring to either upon that release from active duty. | 2½ percent of the sum of— (1) the years of service that may be credited to him in computing retired pay or retainer pay; and (2) his years of active service after becoming entitled to retired pay or retainer pay.2 |
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However, an officer who was ordered to active duty (other than for training) in the grade that he holds on the retired list under former section 6150 of this title, or under any other law that authorized advancement on the retired list based upon a special commendation for the performance of duty in actual combat, may have his retired pay recomputed under this subsection on the basis of the rate of basic pay applicable to that grade upon his release from that active duty only if he has been entitled, for a continuous period of at least three years, to basic pay at that rate. If, upon his release from that active duty, he has been entitled to the basic pay of that grade for a continuous period of at least three years, but he does not qualify under the preceding sentence, he may have his retired pay recomputed under this subsection on the basis of the rate of basic pay prescribed for that grade by the rates of basic pay replaced by those in effect upon his release from that duty.
(b) A member of an armed force who first became a member of a uniformed service before September 8, 1980, and who has been retired other than for physical disability, and who while on active duty incurs a physical disability of at least 30 percent for which he would otherwise be eligible for retired pay under chapter 61 of this title, is entitled, upon his release from active duty, to retired pay under subsection (d).
(c) A member of an armed force who first became a member of a uniformed service before September 8, 1980, and who—
(1) was retired for physical disability under section 1201 or 1204 of this title or any other law or whose name is on the temporary disability retired list;
(2) incurs, while on active duty after retirement or after his name was placed on that list, a physical disability that is in addition to or that aggravates the physical disability for which he was retired or for which his name was placed on the temporary disability retired list; and
(3) is qualified under section 1201, 1202, 1204, or 1205 of this title;
is entitled, upon his release from active duty, to retired pay under subsection (d).
(d) A member of an armed force covered by subsection (b) or (c) may elect to receive either (1) the retired pay to which he became entitled when he retired, increased by any applicable adjustments in that pay under section 1401a of this title after he initially became entitled to that pay, or (2) retired pay computed according to the following table.
Column 1 Take | Column 2 Multiply by | Column 3 Add | 1 Before applying percentage factor, credit each full month of service that is in addition to the number of full years of service creditable to the member as one-twelfth of a year and disregard any remaining fractional part of a month. | Highest monthly basic pay that member received while on active duty after retirement or after date when his name was placed on temporary disability retired list, as the case may be. | As member elects— (1) 2½% of years of service credited under section 1208 of this title; 1 or (2) the highest percentage of disability, not to exceed 75%, attained while on active duty after retirement or after the date when his name was placed on temporary disability retired list, as the case may be.1 | Add amount necessary to increase product of columns 1 and 2 to 50% of pay upon which computation is based, if member is on temporary disability retired list. |
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If, while on active duty after retirement or after his name was placed on the temporary disability retired list, a member covered by this subsection was promoted to a higher grade in which he served satisfactorily, as determined by the Secretary concerned, he is entitled to retired pay based on the monthly basic pay to which he would be entitled if he were on active duty in that higher grade.
(e) Notwithstanding subsection (a), a member covered by that subsection may elect, upon his release from active duty, to have his retired pay or retainer pay—
(1) computed according to the formula set forth in subsection (a) but using the rate of basic pay under which his retired pay or retainer pay was computed when he entered on active duty; and
(2) increased by any applicable adjustments in that pay under section 1401a of this title after he initially became entitled to that pay.
(f)
(1) In the case of a member who is entitled to recompute retired pay under this section upon release from active duty served after retiring under section 7314 or 9314 of this title, the member’s retired pay as recomputed under another provision of this section shall be increased by 10 percent of the amount so recomputed if the member has been credited by the Secretary concerned with extraordinary heroism in the line of duty during any period of active duty service in the armed forces.
(2) The amount of the retired pay as recomputed under another provision of this section and as increased under paragraph (1) may not exceed the amount equal to 75 percent of the monthly rate of basic pay upon which the recomputation of such retired pay is based.
(3) The determination of the Secretary concerned as to extraordinary heroism is conclusive for all purposes.
(Aug. 10, 1956, ch. 1041, 70A Stat. 107; Pub. L. 86–559, § 1(5), June 30, 1960, 74 Stat. 265; Pub. L. 88–132, § 5(l)(1), Oct. 2, 1963, 77 Stat. 214; Pub. L. 90–207, § 2(a)(2), Dec. 16, 1967, 81 Stat. 653; Pub. L. 96–342, title VIII, § 813(b)(2), Sept. 8, 1980, 94 Stat. 1102; Pub. L. 96–513, title V, § 511(50), Dec. 12, 1980, 94 Stat. 2924; Pub. L. 98–94, title IX, §§ 922(a)(3), (4), 923(a)(1), (2)(B), (C), Sept. 24, 1983, 97 Stat. 641, 642; Pub. L. 99–348, title II, § 201(b)(3), title III, § 304(a)(3), (b)(3), July 1, 1986, 100 Stat. 694, 703; Pub. L. 102–484, div. A, title VI, § 642(a), Oct. 23, 1992, 106 Stat. 2424; Pub. L. 110–181, div. A, title VI, § 646(b), Jan. 28, 2008, 122 Stat. 160; Pub. L. 111–383, div. A, title VI, § 631(b), Jan. 7, 2011, 124 Stat. 4239; Pub. L. 115–232, div. A, title VIII, § 809(a), Aug. 13, 2018, 132 Stat. 1840.)
§ 1402a. Recomputation of retired or retainer pay to reflect later active duty of members who first became members after September 7, 1980
(a)In General.—A member of an armed force—
(1) who first became a member of a uniformed service after September 7, 1980;
(2) who has become entitled to retired pay or retainer pay; and
(3) who thereafter serves on active duty (other than for training),
is entitled to recompute his retired pay or retainer pay upon release from that duty according to the following table.
Column 1 Take | Column 2 Multiply by | Retired pay base or retainer pay base under section 1407 which he would be entitled to use if— | The retired pay multiplier or retainer pay multiplier prescribed in section 1409 for the sum of— | (1) he were retiring upon release from that active duty; or | (1) the years of service that may be credited to him in computing retired pay or retainer pay; and | (2) he were transferring to the Fleet Reserve or Fleet Marine Corps Reserve upon that release from active duty. | (2) his years of active service after becoming entitled to retired pay or retainer pay. |
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(b)New Disability Incurred During Later Active Duty.—A member of an armed force who first became a member of a uniformed service after September 7, 1980, who has been retired other than for physical disability and who while on active duty incurs a physical disability of at least 30 percent for which he would otherwise be eligible for retired pay under chapter 61 of this title, is entitled, upon his release from active duty, to retired pay under subsection (d).
(c)Additional or Aggravated Disability Incurred During Later Active Duty.—A member of an armed force who first became a member of a uniformed service after September 7, 1980, and who—
(1) was retired for physical disability under section 1201 or 1204 of this title or any other law or whose name is on the temporary disability retired list;
(2) incurs, while on active duty after retirement or after his name was placed on the temporary disability retired list, a physical disability that is in addition to or that aggravates the physical disability for which he was retired or for which his name was placed on that list; and
(3) is qualified under section 1201, 1202, 1204, or 1205 of this title;
is entitled, upon his release from active duty, to retired pay under subsection (d).
(d)Computation for Later Disability.—A member of an armed force covered by subsection (b) or (c) may elect to receive either (1) the retired pay to which he became entitled when he retired, increased by any applicable adjustments in that pay under section 1401a of this title after he initially became entitled to that pay, or (2) retired pay computed according to the following table.
Column 1 Take | Column 2 Multiply by | Column 3 Add | 1 Before applying percentage factor, credit each full month of service that is in addition to the number of full years of service creditable to the member as one-twelfth of a year and disregard any remaining fractional part of a month. | The retired pay base computed under section 1407(b) of this title. | As member elects— (1) 2½ percent of years of service credited under section 1208 of this title; 1 or (2) the highest percentage of disability, not to exceed 75 percent, attained while on active duty after retirement or after the date when his name was placed on temporary disability retired list, as the case may be. | Amount necessary to increase product of columns 1 and 2 to 50 percent of pay upon which computation is based, if member is on temporary disability retired list. |
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(e)Alternative Recomputation to Subsection (a) Formula.—Notwithstanding subsection (a), a member covered by that subsection may elect, upon his release from that active duty, to have his retired pay or retainer pay—
(1) computed according to the formula set forth in subsection (a) but using the monthly retired pay base under which his retired pay or retainer pay was computed when he entered on that active duty; and
(2) increased by any applicable adjustments in that pay under section 1401a of this title after he initially became entitled to that pay.
(f)Additional 10 Percent for Certain Enlisted Members Credited With Extraordinary Heroism.—
(1) In the case of a member who is entitled to recompute retired pay under this section upon release from active duty served after retiring under section 7314 or 9314 of this title, the member’s retired pay as recomputed under another provision of this section shall be increased by 10 percent of the amount so recomputed if the member has been credited by the Secretary concerned with extraordinary heroism in the line of duty during any period of active duty service in the armed forces.
(2) The amount of the retired pay as recomputed under another provision of this section and as increased under paragraph (1) may not exceed the amount equal to 75 percent of the retired pay base upon which the recomputation of such retired pay is based.
(3) The determination of the Secretary concerned as to extraordinary heroism is conclusive for all purposes.
(Added Pub. L. 96–342, title VIII, § 813(b)(3)(A), Sept. 8, 1980, 94 Stat. 1102; amended Pub. L. 96–513, title V, § 511(51)(A), (B), Dec. 12, 1980, 94 Stat. 2924; Pub. L. 98–94, title IX, §§ 922(a)(5), (6), 923(a)(1), (2)(D), (E), Sept. 24, 1983, 97 Stat. 641, 642; Pub. L. 99–348, title II, § 201(b)(1), (2), July 1, 1986, 100 Stat. 693; Pub. L. 102–484, div. A, title VI, § 642(b), Oct. 23, 1992, 106 Stat. 2425; Pub. L. 111–383, div. A, title VI, § 631(c), Jan. 7, 2011, 124 Stat. 4239; Pub. L. 115–232, div. A, title VIII, § 809(a), Aug. 13, 2018, 132 Stat. 1840.)
§ 1403. Disability retired pay: treatment under Internal Revenue Code of 1986
That part of the retired pay of a member of an armed force, computed under formula No. 1 or 2 of section 1401, or under section 1402(d) or 1402a(d) of this title on the basis of years of service, which exceeds the retired pay that he would receive if it were computed on the basis of percentage of disability is not considered as a pension, annuity, or similar allowance for personal injury, or sickness, resulting from active service in the armed forces, under section 104(a) of the Internal Revenue Code of 1986.
(Aug. 10, 1956, ch. 1041, 70A Stat. 108; Pub. L. 96–342, title VIII, § 813(b)(3)(C), Sept. 8, 1980, 94 Stat. 1104; Pub. L. 96–513, title V, § 511(52)(A), (B), Dec. 12, 1980, 94 Stat. 2925; Pub. L. 100–26, § 7(h)(1), (2)(A), Apr. 21, 1987, 101 Stat. 282.)
§ 1404. Applicability of section 8301 of title 5
The retirement provisions of this title are subject to section 8301 of title 5.
(Aug. 10, 1956, ch. 1041, 70A Stat. 108; Pub. L. 89–718, § 3, Nov. 2, 1966, 80 Stat. 1115.)
§ 1405. Years of service
(a)In General.—For the purposes of the computation of the years of service of a member of the armed forces under a provision of this title providing for such computation to be made under this section, the years of service of the member are computed by adding—
(1) his years of active service;
(2) the years of service, not included in clause (1), with which he was entitled to be credited on May 31, 1958, in computing his basic pay; and
(3) the years of service, not included in clause (1) or (2), with which he would be entitled to be credited under section 12733 of this title if he were entitled to retired pay under section 12731 of this title.
(b)Fractional Years of Service.—In determining a member’s years of service under subsection (a)—
(1) each full month of service that is in addition to the number of full years of service creditable to the member shall be credited as 1⁄12 of a year; and
(2) any remaining fractional part of a month shall be disregarded.
(c)Exclusion of Time Required To Be Made Up or Excluded.—
(1) Time required to be made up by an enlisted member of the Army, Air Force, or Space Force under section 972(a) of this title, or required to be made up by an enlisted member of the Navy, Marine Corps, or Coast Guard under that section with respect to a period of time after October 5, 1994, may not be counted in determining years of service under subsection (a).
(2)Section 972(b) of this title excludes from computation of an officer’s years of service for purposes of this section any time identified with respect to that officer under that section.
(Added Pub. L. 85–422, § 11(a)(1)(A), May 20, 1958, 72 Stat. 130; amended Pub. L. 85–861, § 1(31A), Sept. 2, 1958, 72 Stat. 1451; Pub. L. 87–649, § 6(f)(4), Sept. 7, 1962, 76 Stat. 494; Pub. L. 87–651, title I, § 109, Sept. 7, 1962, 76 Stat. 509; Pub. L. 90–130, § 1(7), Nov. 8, 1967, 81 Stat. 374; Pub. L. 96–513, title I, § 113(b), Dec. 12, 1980, 94 Stat. 2877; Pub. L. 97–295, § 1(17), Oct. 12, 1982, 96 Stat. 1290; Pub. L. 99–348, title I, § 106, July 1, 1986, 100 Stat. 691; Pub. L. 103–337, div. A, title VI, § 635(d), title XVI, § 1662(j)(3), Oct. 5, 1994, 108 Stat. 2789, 3004; Pub. L. 104–106, div. A, title V, § 561(d)(1), Feb. 10, 1996, 110 Stat. 322; Pub. L. 104–201, div. A, title X, § 1074(b)(1), Sept. 23, 1996, 110 Stat. 2660; Pub. L. 107–107, div. A, title X, § 1048(c)(7), Dec. 28, 2001, 115 Stat. 1226; Pub. L. 116–283, div. A, title IX, § 924(b)(25), Jan. 1, 2021, 134 Stat. 3824.)
§ 1406. Retired pay base for members who first became members before September 8, 1980: final basic pay
(a)Use of Retired Pay Base in Computing Retired Pay.—
(1)General rule.—The retired pay or retainer pay of any person entitled to that pay who first became a member of a uniformed service before September 8, 1980, is computed using the retired pay base or retainer pay base determined under this section.
(2)Exception for recomputation.—Recomputation of retired or retainer pay to reflect later active duty is provided for under section 1402 of this title without reference to a retired pay base or retainer pay base.
(b)Retirement Under Subtitle A or E.—
(1)Disability, warrant officer, and dopma retirement.—In the case of a person whose retired pay is computed under this subtitle, the retired pay base is determined in accordance with the following table.
For a member entitled to retired pay under section: | The retired pay base is: | 1 Compute at rates applicable on date of retirement or date when member’s name was placed on temporary disability retired list, as the case may be. | 3 For the purposes of this subsection, determine member’s retired grade as if sections 7342 and 9342 did not apply. | 1201 1202 1204 1205 | Monthly basic pay 1 of grade to which member is entitled under section 1372 or to which he was entitled on day before retirement or placement on temporary disability retired list, whichever is higher. | 580 1263 1293 1305 | Monthly basic pay to which member would have been entitled if he had served on active duty in his retired grade on day before retirement, or if the pay of that grade is less than the pay of any warrant grade satisfactorily held by him on active duty, the monthly basic pay of that warrant officer grade. | 633 634 635 636 1251 1252 1253 |
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(2)Non-regular service retirement.—In the case of a person who is entitled to retired pay under section 12731 of this title, the retired pay base is the monthly basic pay, determined at the rates applicable on the date when retired pay is granted (or, in the case of a person entitled to retired pay by reason of an election under section 12741(a) of this title, at rates applicable on the date the person completes the service required under such section 12741(a)), of the highest grade held satisfactorily by the person at any time in the armed forces. For purposes of the preceding sentence, the highest grade in which a person served satisfactorily as an officer shall be determined in accordance with section 1370a of this title.
(c)Voluntary Retirement for Members of the Army.—
(1)In general.—In the case of a member whose retired pay is computed under section 7361 of this title or who is entitled to retired pay computed under section 7362 of this title, the retired pay base is determined in accordance with the following table.
For a member entitled to retired pay under section: | The retired pay base is: | 1 For the purposes of this subsection, determine member’s retired grade as if section 7342 did not apply. | 7311 7318 7320 7324 | Monthly basic pay of member’s retired grade.1 | 7314 7317 | Monthly basic pay to which member was entitled on day before he retired. | 7362 | Monthly basic pay of grade to which member is advanced on retired list. |
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(2)Rate of basic pay to be used.—The rate of basic pay to be used under paragraph (1) is the rate applicable on the date of the member’s retirement.
(d)Retirement for Members of the Navy and Marine Corps.—In the case of a member whose retired pay is computed under section 8333 of this title, who is advanced on the retired list under section 8262 or 8334 of this title, or who is entitled to retainer pay under section 8330 of this title, the retired pay base or retainer pay base is determined in accordance with the following table.
For a member entitled to retired or retainer pay under section: | The retired pay base or retainer pay base is: | 1 If the rate specified is less than the pay of any warrant officer grade satisfactorily held by the member on active duty, use the monthly basic pay of that warrant officer grade. | 8323 8325(a) 8372 | Basic pay of the grade in which the member retired.1 | 8325(b) | Basic pay of the grade the officer would hold if he had not received an appointment described in section 8325(b). | 8326 | Basic pay of the pay grade in which the member was serving on the day before retirement. | 8330 | Basic pay that the member received at the time of transfer to the Fleet Reserve or Fleet Marine Corps Reserve. | 8262 | Basic pay of the grade to which the member is advanced under section 8262. | 8334 | Basic pay of the grade to which the member is advanced under section 8334. |
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(e)Voluntary Retirement for Members of the Air Force and Space Force.—
(1)In general.—In the case of a member whose retired pay is computed under section 9361 of this title or who is entitled to retired pay computed under section 9362 of this title, the retired pay base is determined in accordance with the following table.
For a member entitled to retired pay under section: | The retired pay base is: | 1 For the purposes of this subsection, determine member’s retired grade as if section 9342 did not apply. | 9311 9318 9320 9324 | Monthly basic pay of member’s retired grade.1 | 9314 9317 | Monthly basic pay to which member was entitled on day before he retired. | 9362 | Monthly basic pay of grade to which member is advanced on retired list. |
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(2)Rate of basic pay to be used.—The rate of basic pay to be used under paragraph (1) is the rate applicable on the date of the member’s retirement.
(f)Coast Guard.—In the case of a member who is retired under any section of title 14, the member’s retired pay is computed under section 423(a) 1
1 See References in Text note below.
of title 14 in the manner provided in that section.(g)Commissioned Corps of National Oceanic and Atmospheric Administration.—In the case of an officer whose retired pay is computed under section 245 of the National Oceanic and Atmospheric Administration Commissioned Officer Corps Act of 2002 (33 U.S.C. 3045), the retired pay base is the basic pay of the rank with which the officer retired.
(h)Commissioned Corps of Public Health Service.—In the case of an officer who is retired under section 210(g) or 211(a) of the Public Health Service Act (42 U.S.C. 211(g), 212(a)), the retired pay base is determined as follows:
(1)Mandatory retirement.—If the officer is retired under section 210(g) of such Act, the retired pay base is the basic pay of the permanent grade held by the officer at the time of retirement.
(2)Voluntary retirement.—If the officer is retired under section 211(a) of such Act, the retired pay base is the basic pay of the highest grade held by the officer and in which, in the case of a temporary promotion to such grade, the officer has performed active duty for not less than six months.
(i)Special Rule for Former Chairmen and Vice Chairmen of the JCS, Chiefs of Service, Chief of the National Guard Bureau, Commanders of Combatant Commands, and Senior Enlisted Members.—
(1)In general.—For the purposes of subsections (b) through (e), in determining the rate of basic pay to apply in the determination of the retired pay base of a member who has served as Chairman or Vice Chairman of the Joint Chiefs of Staff, as a Chief of Service, as Chief of the National Guard Bureau, as a commander of a unified or specified combatant command (as defined in section 161(c) of this title), or as the senior enlisted member of an armed force or the senior enlisted advisor to the Chairman of the Joint Chiefs of Staff or the Chief of the National Guard Bureau, the highest rate of basic pay applicable to the member while serving in that position shall be used, if that rate is higher than the rate otherwise authorized by this section.
(2)Exception for members reduced in grade or who do not serve satisfactorily.—Paragraph (1) does not apply in the case of a member who, while or after serving in a position specified in that paragraph and by reason of conduct occurring after October 16, 1998—
(A) in the case of an enlisted member, is reduced in grade as the result of a court-martial sentence, nonjudicial punishment, or other administrative process; or
(B) in the case an officer, is not certified by the Secretary of Defense under section 1370(c) 1 of this title as having served on active duty satisfactorily in the grade of general or admiral, as the case may be, while serving in that position.
(3)Definitions.—In this subsection:
(A) The term “Chief of Service” means any of the following:
(i) Chief of Staff of the Army.
(ii) Chief of Naval Operations.
(iii) Chief of Staff of the Air Force.
(iv) Commandant of the Marine Corps.
(v) Chief of Space Operations.
(vi) Commandant of the Coast Guard.
(B) The term “senior enlisted member” means any of the following:
(i) Sergeant Major of the Army.
(ii) Master Chief Petty Officer of the Navy.
(iii) Chief Master Sergeant of the Air Force.
(iv) Sergeant Major of the Marine Corps.
(v) The senior enlisted advisor of the Space Force.
(vi) Master Chief Petty Officer of the Coast Guard.
(Added Pub. L. 99–348, title I, § 104(b), July 1, 1986, 100 Stat. 686; amended Pub. L. 100–180, div. A, title V, § 512(d)(2), title XIII, § 1314(b)(6), Dec. 4, 1987, 101 Stat. 1090, 1175; Pub. L. 100–456, div. A, title XII, § 1233(c), Sept. 29, 1988, 102 Stat. 2057; Pub. L. 102–190, div. A, title XI, § 1131(7), Dec. 5, 1991, 105 Stat. 1506; Pub. L. 103–337, div. A, title XVI, § 1662(j)(4), Oct. 5, 1994, 108 Stat. 3004; Pub. L. 105–85, div. A, title X, § 1073(a)(23), Nov. 18, 1997, 111 Stat. 1901; Pub. L. 105–261, div. A, title VI, § 646, Oct. 17, 1998, 112 Stat. 2050; Pub. L. 106–65, div. A, title X, § 1066(a)(11), Oct. 5, 1999, 113 Stat. 771; Pub. L. 107–372, title II, § 272(a), Dec. 19, 2002, 116 Stat. 3094; Pub. L. 108–136, div. A, title VI, § 643(a), (b), Nov. 24, 2003, 117 Stat. 1517; Pub. L. 108–375, div. A, title X, § 1084(d)(9), Oct. 28, 2004, 118 Stat. 2061; Pub. L. 109–163, div. A, title V, § 509(d)(1)(B), title VI, § 685(d), Jan. 6, 2006, 119 Stat. 3231, 3325; Pub. L. 109–364, div. A, title V, § 502(d)(2), title X, § 1071(a)(7), Oct. 17, 2006, 120 Stat. 2178, 2398; Pub. L. 111–84, div. A, title VI, § 643(d)(1), Oct. 28, 2009, 123 Stat. 2367; Pub. L. 113–291, div. A, title VI, § 603(d), Dec. 19, 2014, 128 Stat. 3398; Pub. L. 115–232, div. A, title VIII, § 809(a), Aug. 13, 2018, 132 Stat. 1840; Pub. L. 116–283, div. A, title V, § 508(b)(1)(A), title IX, § 924(b)(26), Jan. 1, 2021, 134 Stat. 3585, 3824.)
§ 1407. Retired pay base for members who first became members after September 7, 1980: high-36 month average
(a)Use of Retired Pay Base in Computing Retired Pay.—The retired pay or retainer pay of any person entitled to that pay who first became a member of a uniformed service after September 7, 1980, is computed using the retired pay base or retainer pay base determined under this section.
(b)High-Three Average.—Except as provided in subsection (f), the retired pay base or retainer pay base of a person under this section is the person’s high-three average determined under subsection (c) or (d).
(c)Computation of High-Three Average for Members Entitled to Retired or Retainer Pay for Regular Service.—
(1)General rule.—The high-three average of a member entitled to retired or retainer pay under any provision of law other than section 1204 or 1205 or section 12731 of this title is the amount equal to—
(A) the total amount of monthly basic pay to which the member was entitled for the 36 months (whether or not consecutive) out of all the months of active service of the member for which the monthly basic pay to which the member was entitled was the highest, divided by
(B) 36.
(2)Special rule for short-term disability retirees.—In the case of a member who is entitled to retired pay under section 1201 or 1202 of this title and who has completed less than 36 months of active service, the member’s high-three average (notwithstanding paragraph (1)) is the amount equal to—
(A) the total amount of basic pay to which the member was entitled during the period of the member’s active service, divided by
(B) the number of months (including any fraction thereof) of the member’s active service.
(3)Special Rule for Reserve Component Members.—In the case of a member of a reserve component who is entitled to retired pay under section 1201 or 1202 of this title, the member’s high-three average (notwithstanding paragraphs (1) and (2)) is computed in the same manner as prescribed in paragraphs (2) and (3) of subsection (d) for a member entitled to retired pay under section 1204 or 1205 of this title.
(d)Computation of High-Three Average for Members and Former Members Entitled to Retired Pay for Nonregular Service.—
(1)Retired pay under chapter 1223.—The high-three average of a member or former member entitled to retired pay under section 12731 of this title is the amount equal to—
(A) the total amount of monthly basic pay to which the member or former member was entitled during the member or former member’s high-36 months (or to which the member or former member would have been entitled if the member or former member had served on active duty during the entire period of the member or former member’s high-36 months), divided by
(B) 36.
(2)Nonregular service disability retired pay.—The high-three average of a member entitled to retired pay under section 1204 or 1205 of this title is the amount equal to—
(A) the total amount of monthly basic pay to which the member was entitled during the member’s high-36 months (or to which the member would have been entitled if the member had served on active duty during the entire period of the member’s high-36 months), divided by
(B) 36.
(3)Special rule for short-term disability retirees.—In the case of a member who is entitled to retired pay under section 1204 or 1205 of this title and who was a member for less than 36 months before being retired under that section, the member’s high-three average (notwithstanding paragraph (2)) is the amount equal to—
(A) the total amount of basic pay to which the member was entitled during the entire period the member was a member of a uniformed service before being so retired (or to which the member would have been entitled if the member had served on active duty during the entire period the member was a member of a uniformed service before being so retired), divided by
(B) the number of months (including any fraction thereof) which the member was a member before being so retired.
(4)High-36 months.—The high-36 months of a member or former member whose retired pay is covered by paragraph (1) or (2) are the 36 months (whether or not consecutive) out of all the months before the member or former member became entitled to retired pay or, in the case of a member or former member entitled to retired pay by reason of an election under section 12741(a) of this title, before the member or former member completes the service required under such section 12741(a), for which the monthly basic pay to which the member or former member was entitled (or would have been entitled if serving on active duty during those months) was the highest. In the case of a former member, only months during which the former member was a member of a uniformed service may be used for purposes of the preceding sentence.
(e)Limitation for Enlisted Members Retiring With Less Than 30 Years’ Service.—In the case of a member who is retired under section 7314 or 9314 of this title or who is transferred to the Fleet Reserve or Fleet Marine Corps Reserve under section 8330 of this title, the member’s high-36 average shall be computed using only rates of basic pay applicable to months of active duty of the member as an enlisted member.
(f)Exception for Enlisted Members Reduced in Grade and Officers Who Do Not Serve Satisfactorily in Highest Grade Held.—
(1)Computation based on pre-high-three rules.—In the case of a member or former member described in paragraph (2), the retired pay base or retainer pay base is determined under section 1406 of this title in the same manner as if the member or former member first became a member of a uniformed service before September 8, 1980.
(2)Affected members.—A member or former member referred to in paragraph (1) is a member or former member who by reason of conduct occurring after October 30, 2000—
(A) in the case of a member retired in an enlisted grade or transferred to the Fleet Reserve or Fleet Marine Corps Reserve, was at any time reduced in grade as the result of a court-martial sentence, nonjudicial punishment, or an administrative action, unless the member was subsequently promoted to a higher enlisted grade or appointed to a commissioned or warrant grade; and
(B) in the case of an officer, is retired in a grade lower than the highest grade in which served pursuant to section 1370 or 1370a of this title that the officer served on active duty satisfactorily in that grade.
(3)Special rule for enlisted members.—In the case of a member who retires within three years after having been reduced in grade as described in paragraph (2)(A), who retires in an enlisted grade that is lower than the grade from which reduced, and who would be subject to paragraph (1) but for a subsequent promotion to a higher enlisted grade or a subsequent appointment to a warrant or commissioned grade, the rates of basic pay used in the computation of the member’s high-36 average for the period of the member’s service in a grade higher than the grade in which retired shall be the rates of pay that would apply if the member had been serving for that period in the grade in which retired.
(Added Pub. L. 99–348, title I, § 104(b), July 1, 1986, 100 Stat. 689; amended Pub. L. 101–189, div. A, title VI, § 651(a), (b)(2), Nov. 29, 1989, 103 Stat. 1459, 1460; Pub. L. 103–337, div. A, title XVI, § 1662(j)(5), Oct. 5, 1994, 108 Stat. 3004; Pub. L. 104–106, div. A, title XV, § 1501(c)(15), Feb. 10, 1996, 110 Stat. 499; Pub. L. 106–398, § 1 [[div. A], title VI, § 651], Oct. 30, 2000, 114 Stat. 1654, 1654A–163; Pub. L. 107–107, div. A, title X, § 1048(c)(8), Dec. 28, 2001, 115 Stat. 1226; Pub. L. 108–375, div. A, title VI, § 641(a), Oct. 28, 2004, 118 Stat. 1957; Pub. L. 111–84, div. A, title VI, § 643(d)(2), Oct. 28, 2009, 123 Stat. 2367; Pub. L. 115–232, div. A, title VIII, § 809(a), Aug. 13, 2018, 132 Stat. 1840; Pub. L. 116–283, div. A, title V, § 508(b)(1)(B), Jan. 1, 2021, 134 Stat. 3585.)
§ 1407a. Retired pay base: officers retired in general or flag officer grades
(a)Rates of Basic Pay to Be Used in Determination.—Except as otherwise provided in this section, in a case in which the determination under section 1406 or 1407 of this title of the retired pay base applicable to the computation of the retired pay of a covered general or flag officer involves a rate of basic pay payable to that officer for any period between October 1, 2006, and December 31, 2014, that was subject to a reduction under section 203(a)(2) of title 37 for such period, such retired-pay-base determination shall be made using the rate of basic pay for such period provided by law, without regard to the reduction under section 203(a)(2) of title 37.
(b)Partial Preservation of Computation of Retired Pay Base Using Uncapped Rates of Basic Pay for Covered Officers Who First Became Members Before September 8, 1980, and Whose Retired Pay Commences After December 31, 2014.—
(1)Officers retiring after december 31, 2014.—In the case of a covered general or flag officer who first became a member of a uniformed service before September 8, 1980, and who is retired after December 31, 2014, under any provision of law other than chapter 1223 of this title or is transferred to the Retired Reserve after December 31, 2014, the retired pay base applicable to the computation of the retired pay of that officer shall be determined as provided in paragraph (2) if determination of such retired pay base as provided in that paragraph results in a higher retired pay base than determination of such retired pay base as otherwise provided by law (including the application of section 203(a)(2) of title 37).
(2)Alternative determination of retired pay base using uncapped rates of basic pay as of december 31, 2014.—For a determination in accordance with this paragraph, the amount of an officer’s retired pay base shall be determined by using the rate of basic pay provided as of December 31, 2014, for that officer’s grade as of that date for purposes of basic pay, with that officer’s years of service creditable as of that date for purposes of basic pay, and without regard to any reduction under section 203(a)(2) of title 37.
(3)Exception for officer retired in a lower grade.—In a case in which the retired grade of the officer is lower than the grade in which the officer was serving on December 31, 2014, paragraph (2) shall be applied as if the officer was serving on that date in the officer’s retired grade.
(c)Preservation of Computation of Retired Pay Base Using Uncapped Rates of Basic Pay for Officers Transferring to Retired Reserve During Specified Period.—In the case of a covered general or flag officer who is transferred to the Retired Reserve between October 1, 2006, and December 31, 2014, and who becomes entitled to receive retired pay under section 12731 of this title after December 31, 2014, the retired pay base applicable to the computation of the retired pay of that officer shall be determined using the rates of basic pay provided by law without regard to any reduction in rates of basic pay under section 203(a)(2) of title 37.
(d)Covered General or Flag Officer Defined.—In this section, the term “covered general or flag officer” means a member or former member of a uniformed service who after September 30, 2006—
(1) is retired in a general officer grade or flag officer grade (or an equivalent grade, in the case of an officer of the commissioned corps of the Public Health Service or the National Oceanic and Atmospheric Administration); or
(2) is transferred to the Retired Reserve in a general officer grade or flag officer grade.
(Added Pub. L. 109–364, div. A, title VI, § 641(a), Oct. 17, 2006, 120 Stat. 2258; amended Pub. L. 113–291, div. A, title VI, § 622(a), Dec. 19, 2014, 128 Stat. 3401.)
§ 1408. Payment of retired or retainer pay in compliance with court orders
(a)Definitions.—In this section:
(1) The term “court” means—
(A) any court of competent jurisdiction of any State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the Northern Mariana Islands, and the Trust Territory of the Pacific Islands;
(B) any court of the United States (as defined in section 451 of title 28) having competent jurisdiction;
(C) any court of competent jurisdiction of a foreign country with which the United States has an agreement requiring the United States to honor any court order of such country; and
(D) any administrative or judicial tribunal of a State competent to enter orders for support or maintenance (including a State agency administering a program under a State plan approved under part D of title IV of the Social Security Act), and, for purposes of this subparagraph, the term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa.
(2) The term “court order” means a final decree of divorce, dissolution, annulment, or legal separation issued by a court, or a court ordered, ratified, or approved property settlement incident to such a decree (including a final decree modifying the terms of a previously issued decree of divorce, dissolution, annulment, or legal separation, or a court ordered, ratified, or approved property settlement incident to such previously issued decree), or a support order, as defined in section 453(p) of the Social Security Act (42 U.S.C. 653(p)), which—
(A) is issued in accordance with the laws of the jurisdiction of that court;
(B) provides for—
(i) payment of child support (as defined in section 459(i)(2) of the Social Security Act (42 U.S.C. 659(i)(2)));
(ii) payment of alimony (as defined in section 459(i)(3) of the Social Security Act (42 U.S.C. 659(i)(3))); or
(iii) division of property (including a division of community property); and
(C) in the case of a division of property, specifically provides for the payment of an amount, expressed in dollars or as a percentage of disposable retired pay, from the disposable retired pay of a member to the spouse or former spouse of that member.
(3) The term “final decree” means a decree from which no appeal may be taken or from which no appeal has been taken within the time allowed for taking such appeals under the laws applicable to such appeals, or a decree from which timely appeal has been taken and such appeal has been finally decided under the laws applicable to such appeals.
(4)
(A) The term “disposable retired pay” means the total monthly retired pay to which a member is entitled less amounts which—
(i) are owed by that member to the United States for previous overpayments of retired pay and for recoupments required by law resulting from entitlement to retired pay;
(ii) are deducted from the retired pay of such member as a result of forfeitures of retired pay ordered by a court-martial or as a result of a waiver of retired pay required by law in order to receive compensation under title 5 or title 38;
(iii) in the case of a member entitled to retired pay under chapter 61 of this title, are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member’s disability on the date when the member was retired (or the date on which the member’s name was placed on the temporary disability retired list); or
(iv) are deducted because of an election under chapter 73 of this title to provide an annuity to a spouse or former spouse to whom payment of a portion of such member’s retired pay is being made pursuant to a court order under this section.
(B) For purposes of subparagraph (A), in the case of a division of property as part of a final decree of divorce, dissolution, annulment, or legal separation that becomes final prior to the date of a member’s retirement, the total monthly retired pay to which the member is entitled shall be—
(i) in the case of a member not described in clause (ii), the amount of retired pay to which the member would have been entitled using the member’s retired pay base and years of service on the date of the decree of divorce, dissolution, annulment, or legal separation, as computed under section 1406 or 1407 of this title, whichever is applicable, increased by the sum of the cost-of-living adjustments that—(I) would have occurred under section 1401a(b) of this title between the date of the decree of divorce, dissolution, annulment, or legal separation and the time of the member’s retirement using the adjustment provisions under section 1401a of this title applicable to the member upon retirement; and(II) occur under 1401a of this title after the member’s retirement; or
(ii) in the case of a member who becomes entitled to retired pay pursuant to chapter 1223 of this title, the amount of retired pay to which the member would have been entitled using the member’s retired pay base and creditable service points on the date of the decree of divorce, dissolution, annulment, or legal separation, as computer under chapter 1223 of this title, increased by the sum of the cost-of-living adjustments as described in clause (i) that apply with respect to the member.
(5) The term “member” includes a former member entitled to retired pay under section 12731 of this title.
(6) The term “spouse or former spouse” means the husband or wife, or former husband or wife, respectively, of a member who, on or before the date of a court order, was married to that member.
(7) The term “retired pay” includes retainer pay.
(b)Effective Service of Process.—For the purposes of this section—
(1) service of a court order is effective if—
(A) an appropriate agent of the Secretary concerned designated for receipt of service of court orders under regulations prescribed pursuant to subsection (i) or, if no agent has been so designated, the Secretary concerned, is personally served or is served by facsimile or electronic transmission or by mail;
(B) the court order is regular on its face;
(C) the court order or other documents served with the court order identify the member concerned and include, if possible, the social security number of such member; and
(D) the court order or other documents served with the court order certify that the rights of the member under the Servicemembers Civil Relief Act (50 U.S.C. 3901 et seq.) were observed; and
(2) a court order is regular on its face if the order—
(A) is issued by a court of competent jurisdiction;
(B) is legal in form; and
(C) includes nothing on its face that provides reasonable notice that it is issued without authority of law.
(c)Authority for Court To Treat Retired Pay as Property of the Member and Spouse.—
(1) Subject to the limitations of this section, a court may treat disposable retired pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court. A court may not treat retired pay as property in any proceeding to divide or partition any amount of retired pay of a member as the property of the member and the member’s spouse or former spouse if a final decree of divorce, dissolution, annulment, or legal separation (including a court ordered, ratified, or approved property settlement incident to such decree) affecting the member and the member’s spouse or former spouse (A) was issued before June 25, 1981, and (B) did not treat (or reserve jurisdiction to treat) any amount of retired pay of the member as property of the member and the member’s spouse or former spouse.
(2) Notwithstanding any other provision of law, this section does not create any right, title, or interest which can be sold, assigned, transferred, or otherwise disposed of (including by inheritance) by a spouse or former spouse. Payments by the Secretary concerned under subsection (d) to a spouse or former spouse with respect to a division of retired pay as the property of a member and the member’s spouse under this subsection may not be treated as amounts received as retired pay for service in the uniformed services.
(3) This section does not authorize any court to order a member to apply for retirement or retire at a particular time in order to effectuate any payment under this section.
(4) A court may not treat the disposable retired pay of a member in the manner described in paragraph (1) unless the court has jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court.
(d)Payments by Secretary Concerned to (or for Benefit of) Spouse or Former Spouse.—
(1) After effective service on the Secretary concerned of a court order providing for the payment of child support or alimony or, with respect to a division of property, specifically providing for the payment of an amount of the disposable retired pay from a member to the spouse or a former spouse of the member, the Secretary shall make payments (subject to the limitations of this section) from the disposable retired pay of the member to the spouse or former spouse (or for the benefit of such spouse or former spouse to a State disbursement unit established pursuant to section 454B of the Social Security Act or other public payee designated by a State, in accordance with part D of title IV of the Social Security Act, as directed by court order, or as otherwise directed in accordance with such part D) in an amount sufficient to satisfy the amount of child support and alimony set forth in the court order and, with respect to a division of property, in the amount of disposable retired pay specifically provided for in the court order. In the case of a spouse or former spouse who, pursuant to section 408(a)(3) of the Social Security Act (42 U.S.C. 608(a)(4)),1
1 See References in Text note below.
assigns to a State the rights of the spouse or former spouse to receive support, the Secretary concerned may make the child support payments referred to in the preceding sentence to that State in amounts consistent with that assignment of rights. In the case of a member entitled to receive retired pay on the date of the effective service of the court order, such payments shall begin not later than 90 days after the date of effective service. In the case of a member not entitled to receive retired pay on the date of the effective service of the court order, such payments shall begin not later than 90 days after the date on which the member first becomes entitled to receive retired pay.(2) If the spouse or former spouse to whom payments are to be made under this section was not married to the member for a period of 10 years or more during which the member performed at least 10 years of service creditable in determining the member’s eligibility for retired pay, payments may not be made under this section to the extent that they include an amount resulting from the treatment by the court under subsection (c) of disposable retired pay of the member as property of the member or property of the member and his spouse.
(3) Payments under this section shall not be made more frequently than once each month, and the Secretary concerned shall not be required to vary normal pay and disbursement cycles for retired pay in order to comply with a court order.
(4) Payments from the disposable retired pay of a member pursuant to this section shall terminate in accordance with the terms of the applicable court order, but not later than the date of the death of the member or the date of the death of the spouse or former spouse to whom payments are being made, whichever occurs first.
(5) If a court order described in paragraph (1) provides for a division of property (including a division of community property) in addition to an amount of child support or alimony or the payment of an amount of disposable retired pay as the result of the court’s treatment of such pay under subsection (c) as property of the member and his spouse, the Secretary concerned shall pay (subject to the limitations of this section) from the disposable retired pay of the member to the spouse or former spouse of the member, any part of the amount payable to the spouse or former spouse under the division of property upon effective service of a final court order of garnishment of such amount from such retired pay.
(6) In the case of a court order for which effective service is made on the Secretary concerned on or after August 22, 1996, and which provides for payments from the disposable retired pay of a member to satisfy the amount of child support set forth in the order, the authority provided in paragraph (1) to make payments from the disposable retired pay of a member to satisfy the amount of child support set forth in a court order shall apply to payment of any amount of child support arrearages set forth in that order as well as to amounts of child support that currently become due.
(7)
(A) The Secretary concerned may not accept service of a court order that is an out-of-State modification, or comply with the provisions of such a court order, unless the court issuing that order has jurisdiction in the manner specified in subsection (c)(4) over both the member and the spouse or former spouse involved.
(B) A court order shall be considered to be an out-of-State modification for purposes of this paragraph if the order—
(i) modifies a previous court order under this section upon which payments under this subsection are based; and
(ii) is issued by a court of a State other than the State of the court that issued the previous court order.
(8) A division of property award computed as a percentage of a member’s disposable retired pay shall be increased by the same percentage as any cost-of-living adjustment made under section 1401a after the member’s retirement.
(e)Limitations.—
(1) The total amount of the disposable retired pay of a member payable under all court orders pursuant to subsection (c) may not exceed 50 percent of such disposable retired pay.
(2) In the event of effective service of more than one court order which provide for payment to a spouse and one or more former spouses or to more than one former spouse, the disposable retired pay of the member shall be used to satisfy (subject to the limitations of paragraph (1)) such court orders on a first-come, first-served basis. Such court orders shall be satisfied (subject to the limitations of paragraph (1)) out of that amount of disposable retired pay which remains after the satisfaction of all court orders which have been previously served.
(3)
(A) In the event of effective service of conflicting court orders under this section which assert to direct that different amounts be paid during a month to the same spouse or former spouse of the same member, the Secretary concerned shall—
(i) pay to that spouse from the member’s disposable retired pay the least amount directed to be paid during that month by any such conflicting court order, but not more than the amount of disposable retired pay which remains available for payment of such court orders based on when such court orders were effectively served and the limitations of paragraph (1) and subparagraph (B) of paragraph (4);
(ii) retain an amount of disposable retired pay that is equal to the lesser of—(I) the difference between the largest amount required by any conflicting court order to be paid to the spouse or former spouse and the amount payable to the spouse or former spouse under clause (i); and(II) the amount of disposable retired pay which remains available for payment of any conflicting court order based on when such court order was effectively served and the limitations of paragraph (1) and subparagraph (B) of paragraph (4); and
(iii) pay to that member the amount which is equal to the amount of that member’s disposable retired pay (less any amount paid during such month pursuant to legal process served under section 459 of the Social Security Act (42 U.S.C. 659) and any amount paid during such month pursuant to court orders effectively served under this section, other than such conflicting court orders) minus—(I) the amount of disposable retired pay paid under clause (i); and(II) the amount of disposable retired pay retained under clause (ii).
(B) The Secretary concerned shall hold the amount retained under clause (ii) of subparagraph (A) until such time as that Secretary is provided with a court order which has been certified by the member and the spouse or former spouse to be valid and applicable to the retained amount. Upon being provided with such an order, the Secretary shall pay the retained amount in accordance with the order.
(4)
(A) In the event of effective service of a court order under this section and the service of legal process pursuant to section 459 of the Social Security Act (42 U.S.C. 659), both of which provide for payments during a month from the same member, satisfaction of such court orders and legal process from the retired pay of the member shall be on a first-come, first-served basis. Such court orders and legal process shall be satisfied out of moneys which are subject to such orders and legal process and which remain available in accordance with the limitations of paragraph (1) and subparagraph (B) of this paragraph during such month after the satisfaction of all court orders or legal process which have been previously served.
(B) Notwithstanding any other provision of law, the total amount of the disposable retired pay of a member payable by the Secretary concerned under all court orders pursuant to this section and all legal processes pursuant to section 459 of the Social Security Act (42 U.S.C. 659) with respect to a member may not exceed 65 percent of the amount of the retired pay payable to such member that is considered under section 462 of the Social Security Act (42 U.S.C. 662) to be remuneration for employment that is payable by the United States.
(5) A court order which itself or because of previously served court orders provides for the payment of an amount which exceeds the amount of disposable retired pay available for payment because of the limit set forth in paragraph (1), or which, because of previously served court orders or legal process previously served under section 459 of the Social Security Act (42 U.S.C. 659), provides for payment of an amount that exceeds the maximum amount permitted under paragraph (1) or subparagraph (B) of paragraph (4), shall not be considered to be irregular on its face solely for that reason. However, such order shall be considered to be fully satisfied for purposes of this section by the payment to the spouse or former spouse of the maximum amount of disposable retired pay permitted under paragraph (1) and subparagraph (B) of paragraph (4).
(6) Nothing in this section shall be construed to relieve a member of liability for the payment of alimony, child support, or other payments required by a court order on the grounds that payments made out of disposable retired pay under this section have been made in the maximum amount permitted under paragraph (1) or subparagraph (B) of paragraph (4). Any such unsatisfied obligation of a member may be enforced by any means available under law other than the means provided under this section in any case in which the maximum amount permitted under paragraph (1) has been paid and under section 459 of the Social Security Act (
(f)Immunity of Officers and Employees of United States.—
(1) The United States and any officer or employee of the United States shall not be liable with respect to any payment made from retired pay to any member, spouse, or former spouse pursuant to a court order that is regular on its face if such payment is made in accordance with this section and the regulations prescribed pursuant to subsection (i).
(2) An officer or employee of the United States who, under regulations prescribed pursuant to subsection (i), has the duty to respond to interrogatories shall not be subject under any law to any disciplinary action or civil or criminal liability or penalty for, or because of, any disclosure of information made by him in carrying out any of his duties which directly or indirectly pertain to answering such interrogatories.
(g)Notice to Member of Service of Court Order on Secretary Concerned.—A person receiving effective service of a court order under this section shall, as soon as possible, but not later than 30 days after the date on which effective service is made, send a written notice of such court order (together with a copy of such order) to the member affected by the court order at his last known address.
(h)Benefits for Dependents Who Are Victims of Abuse by Members Losing Right to Retired Pay.—
(1)
(A) If, in the case of a member or former member of the armed forces referred to in paragraph (2)(A), a court order provides (in the manner applicable to a division of property) for the payment of an amount from the disposable retired pay of that member or former member (as certified under paragraph (4)) to an eligible spouse or former spouse of that member or former member, the Secretary concerned, beginning upon effective service of such court order, shall pay that amount in accordance with this subsection to such spouse or former spouse.
(B) If, in the case of a member or former member of the armed forces referred to in paragraph (2)(A), a court order provides for the payment as child support of an amount from the disposable retired pay of that member or former member (as certified under paragraph (4)) to an eligible dependent child of the member or former member, the Secretary concerned, beginning upon effective service of such court order, shall pay that amount in accordance with this subsection to such dependent child.
(2) A spouse or former spouse, or a dependent child, of a member or former member of the armed forces is eligible to receive payment under this subsection if—
(A) the member or former member, while a member of the armed forces and after becoming eligible to be retired from the armed forces on the basis of years of service, has eligibility to receive retired pay terminated as a result of misconduct while a member involving abuse of a spouse or dependent child (as defined in regulations prescribed by the Secretary of Defense or, for the Coast Guard when it is not operating as a service in the Navy, by the Secretary of Homeland Security);
(B) in the case of eligibility of a spouse or former spouse under paragraph (1)(A), the spouse or former spouse—
(i) was the victim of the abuse and was married to the member or former member at the time of that abuse; or
(ii) is a natural or adopted parent of a dependent child of the member or former member who was the victim of the abuse; and
(C) in the case of eligibility of a dependent child under paragraph (1)(B), the other parent of the child died as a result of the misconduct that resulted in the termination of retired pay.
(3) The amount certified by the Secretary concerned under paragraph (4) with respect to a member or former member of the armed forces referred to in paragraph (2)(A) shall be deemed to be the disposable retired pay of that member or former member for the purposes of this subsection.
(4) Upon the request of a court or an eligible spouse or former spouse, or an eligible dependent child, of a member or former member of the armed forces referred to in paragraph (2)(A) in connection with a civil action for the issuance of a court order in the case of that member or former member, the Secretary concerned shall determine and certify the amount of the monthly retired pay that the member or former member would have been entitled to receive as of the date of the certification—
(A) if the member or former member’s eligibility for retired pay had not been terminated as described in paragraph (2)(A); and
(B) if, in the case of a member or former member not in receipt of retired pay immediately before that termination of eligibility for retired pay, the member or former member had retired on the effective date of that termination of eligibility.
(5) A court order under this subsection may provide that whenever retired pay is increased under section 1401a of this title (or any other provision of law), the amount payable under the court order to the spouse or former spouse, or the dependent child, of a member or former member described in paragraph (2)(A) shall be increased at the same time by the percent by which the retired pay of the member or former member would have been increased if the member or former member were receiving retired pay.
(6) Notwithstanding any other provision of law, a member or former member of the armed forces referred to in paragraph (2)(A) shall have no ownership interest in, or claim against, any amount payable under this section to a spouse or former spouse, or to a dependent child, of the member or former member.
(7)
(A) If a former spouse receiving payments under this subsection with respect to a member or former member referred to in paragraph (2)(A) marries again after such payments begin, the eligibility of the former spouse to receive further payments under this subsection shall terminate on the date of such marriage.
(B) A person’s eligibility to receive payments under this subsection that is terminated under subparagraph (A) by reason of remarriage shall be resumed in the event of the termination of that marriage by the death of that person’s spouse or by annulment or divorce. The resumption of payments shall begin as of the first day of the month in which that marriage is so terminated. The monthly amount of the payments shall be the amount that would have been paid if the continuity of the payments had not been interrupted by the marriage.
(8) Payments in accordance with this subsection shall be made out of funds in the Department of Defense Military Retirement Fund established by section 1461 of this title or, in the case of the Coast Guard, out of funds appropriated to the Department of Homeland Security for payment of retired pay for the Coast Guard.
(9)
(A) A spouse or former spouse of a member or former member of the armed forces referred to in paragraph (2)(A), while receiving payments in accordance with this subsection, shall be entitled to receive medical and dental care, to use commissary and exchange stores, and to receive any other benefit that a spouse or a former spouse of a retired member of the armed forces is entitled to receive on the basis of being a spouse or former spouse, as the case may be, of a retired member of the armed forces in the same manner as if the member or former member referred to in paragraph (2)(A) was entitled to retired pay.
(B) A dependent child of a member or former member referred to in paragraph (2)(A) who was a member of the household of the member or former member at the time of the misconduct described in paragraph (2)(A) shall be entitled to receive medical and dental care, to use commissary and exchange stores, and to have other benefits provided to dependents of retired members of the armed forces in the same manner as if the member or former member referred to in paragraph (2)(A) was entitled to retired pay.
(C) If a spouse or former spouse or a dependent child eligible or entitled to receive a particular benefit under this paragraph is eligible or entitled to receive that benefit under another provision of law, the eligibility or entitlement of that spouse or former spouse or dependent child to such benefit shall be determined under such other provision of law instead of this paragraph.
(10)
(A) For purposes of this subsection, in the case of a member of the armed forces who has been sentenced by a court-martial to receive a punishment that will terminate the eligibility of that member to receive retired pay if executed, the eligibility of that member to receive retired pay may, as determined by the Secretary concerned, be considered terminated effective upon entry of judgment under section 860c of this title (article 60c of the Uniform Code of Military Justice).
(B) If each form of the punishment that would result in the termination of eligibility to receive retired pay is later remitted, set aside, or mitigated to a punishment that does not result in the termination of that eligibility, a payment of benefits to the eligible recipient under this subsection that is based on the punishment so vacated, set aside, or mitigated shall cease. The cessation of payments shall be effective as of the first day of the first month following the month in which the Secretary concerned notifies the recipient of such benefits in writing that payment of the benefits will cease. The recipient may not be required to repay the benefits received before that effective date (except to the extent necessary to recoup any amount that was erroneous when paid).
(11) In this subsection, the term “dependent child”, with respect to a member or former member of the armed forces referred to in paragraph (2)(A), means an unmarried legitimate child, including an adopted child or a stepchild of the member or former member, who—
(A) is under 18 years of age;
(B) is incapable of self-support because of a mental or physical incapacity that existed before becoming 18 years of age and is dependent on the member or former member for over one-half of the child’s support; or
(C) if enrolled in a full-time course of study in an institution of higher education recognized by the Secretary of Defense for the purposes of this subparagraph, is under 23 years of age and is dependent on the member or former member for over one-half of the child’s support.
(i)Certification Date.—It is not necessary that the date of a certification of the authenticity or completeness of a copy of a court order for child support received by the Secretary concerned for the purposes of this section be recent in relation to the date of receipt by the Secretary.
(j)Regulations.—The Secretaries concerned shall prescribe uniform regulations for the administration of this section.
(k)Relationship to Other Laws.—In any case involving an order providing for payment of child support (as defined in section 459(i)(2) of the Social Security Act) by a member who has never been married to the other parent of the child, the provisions of this section shall not apply, and the case shall be subject to the provisions of section 459 of such Act.
(l)Garnishment To Satisfy a Judgment Rendered for Physically, Sexually, or Emotionally Abusing a Child.—
(1) Subject to paragraph (2), any payment of retired pay that would otherwise be made to a member shall be paid (in whole or in part) by the Secretary concerned to another person if and to the extent expressly provided for in the terms of a child abuse garnishment order.
(2) A court order providing for the payment of child support or alimony or, with respect to a division of property, specifically providing for the payment of an amount of the disposable retired pay from a member to the spouse or a former spouse of the member, shall be given priority over a child abuse garnishment order. The total amount of the disposable retired pay of a member payable under a child abuse garnishment order shall not exceed 25 percent of the member’s disposable retired pay.
(3) In this subsection, the term “court order” includes a child abuse garnishment order.
(4) In this subsection, the term “child abuse garnishment order” means a final decree issued by a court that—
(A) is issued in accordance with the laws of the jurisdiction of that court; and
(B) provides in the nature of garnishment for the enforcement of a judgment rendered against the member for physically, sexually, or emotionally abusing a child.
(5) For purposes of this subsection, a judgment rendered for physically, sexually, or emotionally abusing a child is any legal claim perfected through a final enforceable judgment, which claim is based in whole or in part upon the physical, sexual, or emotional abuse of an individual under 18 years of age, whether or not that abuse is accompanied by other actionable wrongdoing, such as sexual exploitation or gross negligence.
(6) If the Secretary concerned is served with more than one court order with respect to the retired pay of a member, the disposable retired pay of the member shall be available to satisfy such court orders on a first-come, first-served basis, subject to the order of precedence specified in paragraph (2), with any such process being satisfied out of such monies as remain after the satisfaction of all such processes which have been previously served.
(7) The Secretary concerned shall not be required to vary normal pay and disbursement cycles for retired pay in order to comply with a child abuse garnishment order.
(Added Pub. L. 97–252, title X, § 1002(a), Sept. 8, 1982, 96 Stat. 730; amended Pub. L. 98–525, title VI, § 643(a)–(d), Oct. 19, 1984, 98 Stat. 2547; Pub. L. 99–661, div. A, title VI, § 644(a), Nov. 14, 1986, 100 Stat. 3887; Pub. L. 100–26, §§ 3(3), 7(h)(1), Apr. 21, 1987, 101 Stat. 273, 282; Pub. L. 101–189, div. A, title VI, § 653(a)(5), title XVI, § 1622(e)(6), Nov. 29, 1989, 103 Stat. 1462, 1605; Pub. L. 101–510, div. A, title V, § 555(a)–(d), (f), (g), Nov. 5, 1990, 104 Stat. 1569, 1570; Pub. L. 102–190, div. A, title X, § 1061(a)(7), Dec. 5, 1991, 105 Stat. 1472; Pub. L. 102–484, div. A, title VI, § 653(a), Oct. 23, 1992, 106 Stat. 2426; Pub. L. 103–160, div. A, title V, § 555(a), (b), title XI, § 1182(a)(2), Nov. 30, 1993, 107 Stat. 1666, 1771; Pub. L. 104–106, div. A, title XV, § 1501(c)(16), Feb. 10, 1996, 110 Stat. 499; Pub. L. 104–193, title III, §§ 362(c), 363(c)(1)–(3), Aug. 22, 1996, 110 Stat. 2246, 2249; Pub. L. 104–201, div. A, title VI, § 636, Sept. 23, 1996, 110 Stat. 2579; Pub. L. 105–85, div. A, title X, § 1073(a)(24), (25), Nov. 18, 1997, 111 Stat. 1901; Pub. L. 107–107, div. A, title X, § 1048(c)(9), Dec. 28, 2001, 115 Stat. 1226; Pub. L. 107–296, title XVII, § 1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 108–189, § 2(c), Dec. 19, 2003, 117 Stat. 2866; Pub. L. 109–163, div. A, title VI, § 665(a), Jan. 6, 2006, 119 Stat. 3317; Pub. L. 111–84, div. A, title X, § 1073(a)(15), Oct. 28, 2009, 123 Stat. 2473; Pub. L. 114–328, div. A, title VI, § 641(a), title X, § 1081(b)(2)(B), Dec. 23, 2016, 130 Stat. 2164, 2418; Pub. L. 115–91, div. A, title V, §§ 531(m), 534(a), title VI, § 624(a), Dec. 12, 2017, 131 Stat. 1386, 1390, 1429.)
§ 1409. Retired pay multiplier
(a)Retired Pay Multiplier for Regular-Service Nondisability Retirement.—In computing—
(1) the retired pay of a member of a uniformed service who is entitled to that pay under any provision of law other than—
(A) chapter 61 of this title (relating to retirement or separation for physical disability); or
(B) chapter 1223 of this title (relating to retirement for non-regular service); or
(2) the retainer pay of a member who is transferred to the Fleet Reserve or the Fleet Marine Corps Reserve under section 8330 of this title,
the retired pay multiplier (or retainer pay multiplier) is the percentage determined under subsection (b).
(b)Percentage.—
(1)General rule.—Subject to paragraphs (2) and (3), the percentage to be used under subsection (a) is the product (stated as a percentage) of—
(A) 2½, and
(B) the member’s years of creditable service (as defined in subsection (c)).
(2)Reduction applicable to certain new-retirement members with less than 30 years of service.—In the case of a member who first became a member of a uniformed service after July 31, 1986, has elected to receive a bonus under section 322 (as in effect before the enactment of the National Defense Authorization Act for Fiscal Year 2008) or section 354 of title 37, has less than 30 years of creditable service, and is under the age of 62 at the time of retirement, the percentage determined under paragraph (1) shall be reduced by—
(A) 1 percentage point for each full year that the member’s years of creditable service are less than 30; and
(B)1⁄12 of 1 percentage point for each month by which the member’s years of creditable service (after counting all full years of such service) are less than a full year.
(3) 30 years of service.—
(A)Retirement before january 1, 2007.—In the case of a member who retires before January 1, 2007, with more than 30 years of creditable service, the percentage to be used under subsection (a) is 75 percent.
(B)Retirement after december 31, 2006.—In the case of a member who retires after December 31, 2006, with more than 30 years of creditable service, the percentage to be used under subsection (a) is the sum of—
(i) 75 percent; and
(ii) the product (stated as a percentage) of—(I) 2½; and(II) the member’s years of creditable service (as defined in subsection (c)) in excess of 30 years of creditable service, under conditions authorized for purposes of this subparagraph during a period designated by the Secretary of Defense for purposes of this subparagraph.
(4)Modernized retirement system.—
(A)Reduced multiplier for full tsp members.—Notwithstanding paragraphs (1), (2), and (3), in the case of a member who first becomes a member of the uniformed services on or after January 1, 2018, or a member who makes the election described in subparagraph (B) (referred to as a “full TSP member”)—
(i) paragraph (1)(A) shall be applied by substituting “2” for “2½”;
(ii) clause (i) of paragraph (3)(B) shall be applied by substituting “60 percent” for “75 percent”; and
(iii) clause (ii)(I) of such paragraph shall be applied by substituting “2” for “2½”.
(B)Election to participate in modernized retirement system.—Pursuant to subparagraph (C), a member of a uniformed service serving on December 31, 2017, who has served in the uniformed services for fewer than 12 years as of December 31, 2017, may elect, in exchange for the reduced multipliers described in subparagraph (A) for purposes of calculating the retired pay of the member, to receive Thrift Savings Plan contributions pursuant to section 8440e(e) of title 5.
(C)Election period.—
(i)In general.—Except as provided in clauses (ii), (iii), (iv), and (v), a member of a uniformed service described in subparagraph (B) may make the election authorized by that subparagraph only during the period that begins on January 1, 2018, and ends on December 31, 2018.
(ii)Hardship extension.—The Secretary concerned may extend the election period described in clause (i) for a member who experiences a hardship as determined by the Secretary concerned.
(iii)Effect of break in service.—A member of a uniformed service who returns to service after a break in service that occurs during the election period specified in clause (i) shall make the election described in subparagraph (B) within 30 days after the date of the reentry into service of the member.
(iv)Cadets and midshipmen, etc.—A member of a uniformed service who serves as a cadet, midshipman, or member of the Senior Reserve Officers’ Training Corps during the election period specified in clause (i) shall make the election described in subparagraph (B)—(I) on or after the date on which such cadet, midshipman, or member of the Senior Reserve Officers’ Training Corps is appointed as a commissioned officer or otherwise begins to receive basic pay; and(II) not later than 30 days after such date or the end of such election period, whichever is later.
(v)Inactive reserves.—A member of a reserve component who is not in an active status during the election period specified in clause (i) shall make the election described in subparagraph (B)—(I) on or after the date on which such member is transferred from an inactive status to an active status or active duty; and(II) not later than 30 days after such date or the end of such election period, whichever is later.
(D)No retroactive contributions pursuant to election.—Thrift Savings Plan contributions may not be made for a member making an election pursuant to subparagraph (B) for any period beginning before the date of the member’s election under that subparagraph by reason of the member’s election.
(E)Regulations.—The Secretary concerned shall prescribe regulations to implement this paragraph.
(c)Years of Creditable Service Defined.—In this section, the term “years of creditable service” means the number of years of service creditable to a member in computing the member’s retired or retainer pay (including 1⁄12 of a year for each full month of service that is in addition to the number of full years of service of the member).
(Added Pub. L. 99–348, title I, § 101, July 1, 1986, 100 Stat. 683; amended Pub. L. 101–189, div. A, title VI, § 651(b)(3), Nov. 29, 1989, 103 Stat. 1460; Pub. L. 103–337, div. A, title XVI, § 1662(j)(6), Oct. 5, 1994, 108 Stat. 3005; Pub. L. 106–65, div. A, title VI, §§ 641(a), 643(b)(2), Oct. 5, 1999, 113 Stat. 662, 664; Pub. L. 109–364, div. A, title VI, § 642(a), Oct. 17, 2006, 120 Stat. 2259; Pub. L. 110–181, div. A, title VI, § 661(b)(3), Jan. 28, 2008, 122 Stat. 178; Pub. L. 114–92, div. A, title VI, § 631(a), Nov. 25, 2015, 129 Stat. 842; Pub. L. 114–328, div. A, title VI, § 631(a), Dec. 23, 2016, 130 Stat. 2162; Pub. L. 115–232, div. A, title VIII, § 809(a), Aug. 13, 2018, 132 Stat. 1840.)
§ 1410. Restoral of full retirement amount at age 62 for certain members entering on or after August 1, 1986
In the case of a member or former member who first became a member of a uniformed service on or after August 1, 1986, who has elected to receive a bonus under section 322 (as in effect before the enactment of the National Defense Authorization Act for Fiscal Year 2008) or section 354 of title 37, and who becomes entitled to retired pay before the age of 62, the retired pay of such member or former member shall be recomputed, effective on the first day of the first month beginning after the member or former member attains 62 years of age, so as to be the amount equal to the amount of retired pay to which the member or former member would be entitled on that date if—
(1) increases in the retired pay of the member or former member under section 1401a(b) of this title had been computed as provided in paragraph (2) of that section (rather than under paragraph (3) of that section); and
(2) in the case of a member whose retired pay was subject to section 1409(b)(2) of this title, no reduction in the member’s retired pay had been made under that section.
(Added Pub. L. 99–348, title I, § 103, July 1, 1986, 100 Stat. 685; amended Pub. L. 100–224, § 2, Dec. 30, 1987, 101 Stat. 1536; Pub. L. 101–189, div. A, title VI, § 651(b)(4), Nov. 29, 1989, 103 Stat. 1460; Pub. L. 106–65, div. A, title VI, §§ 641(c), 643(b)(3)(A), Oct. 5, 1999, 113 Stat. 662, 664; Pub. L. 110–181, div. A, title VI, § 661(b)(3), Jan. 28, 2008, 122 Stat. 178; Pub. L. 113–67, div. A, title IV, § 403(b), Dec. 26, 2013, 127 Stat. 1186; Pub. L. 114–92, div. A, title VI, § 631(d)(1), Nov. 25, 2015, 129 Stat. 845.)
§ 1411. Rules of construction
(a)Construction of “First Became a Member”.—For purposes of this chapter and other provisions of law providing for computation of retired or retainer pay of members of the uniformed services, a person shall be considered to first become a member of a uniformed service on the date the person is first enlisted, inducted, or appointed in a uniformed service.
(b)References in Tables.—Section references in tables in this chapter are to sections of this title.
(Added Pub. L. 99–348, title I, § 105, July 1, 1986, 100 Stat. 691.)
§ 1412. Administrative provisions
(a)Rounding.—Amounts computed under this chapter, if not a multiple of $1, shall be rounded to the next lower multiple of $1.
(b)Payment Date.—Amounts of retired pay and retainer pay due a retired member of the uniformed services shall be paid on the first day of each month beginning after the month in which the right to such pay accrues.
(Added Pub. L. 99–348, title I, § 105, July 1, 1986, 100 Stat. 691; amended Pub. L. 111–383, div. A, title VI, § 632(a), (b)(1), Jan. 7, 2011, 124 Stat. 4240.)
[§ 1413. Repealed. Pub. L. 108–136, div. A, title VI, § 641(b), Nov. 24, 2003, 117 Stat. 1514]
§ 1413a. Combat-related special compensation
(a)Authority.—The Secretary concerned shall pay to each eligible combat-related disabled uniformed services retiree who elects benefits under this section a monthly amount for the combat-related disability of the retiree determined under subsection (b).
(b)Amount.—
(1)Determination of monthly amount.—Subject to paragraphs (2) and (3), the monthly amount to be paid an eligible combat-related disabled uniformed services retiree under subsection (a) for any month is the amount of compensation to which the retiree is entitled under title 38 for that month, determined without regard to any disability of the retiree that is not a combat-related disability.
(2)Maximum amount.—The amount paid to an eligible combat-related disabled uniformed services retiree for any month under paragraph (1) may not exceed the amount of the reduction in retired pay that is applicable to the retiree for that month under sections 5304 and 5305 of title 38.
(3)Special rules for chapter 61 disability retirees.—
(A)General rule.—In the case of an eligible combat-related disabled uniformed services retiree who is retired under chapter 61 of this title, the amount of the payment under paragraph (1) for any month may not, when combined with the amount of retired pay payable to the retiree after any such reduction under sections 5304 and 5305 of title 38, cause the total of such combined payment to exceed the amount of retired pay to which the member would have been entitled under any other provision of law based upon the member’s service in the uniformed services if the member had not been retired under chapter 61 of this title.
(B)Special rule for retirees with fewer than 20 years of service.—In the case of an eligible combat-related disabled uniformed services retiree who is retired under chapter 61 of this title with fewer than 20 years of creditable service, the amount of the payment under paragraph (1) for any month may not, when combined with the amount of retired pay payable to the retiree after any such reduction under sections 5304 and 5305 of title 38, cause the total of such combined payment to exceed the amount equal to the retired pay percentage (determined for the member under section 1409(b) of this title) of the member’s years of creditable service multiplied by the member’s retired pay base under section 1406(b)(1) or 1407 of this title, whichever is applicable to the member.
(c)Eligible Retirees.—For purposes of this section, an eligible combat-related disabled uniformed services retiree referred to in subsection (a) is a member of the uniformed services who—
(1) is entitled to retired pay (other than by reason of section 12731b of this title); and
(2) has a combat-related disability.
(d)Procedures.—The Secretary of Defense shall prescribe procedures and criteria under which a disabled uniformed services retiree may apply to the Secretary of a military department to be considered to be an eligible combat-related disabled uniformed services retiree. Such procedures shall apply uniformly throughout the Department of Defense.
(e)Combat-Related Disability.—In this section, the term “combat-related disability” means a disability that is compensable under the laws administered by the Secretary of Veterans Affairs and that—
(1) is attributable to an injury for which the member was awarded the Purple Heart; or
(2) was incurred (as determined under criteria prescribed by the Secretary of Defense)—
(A) as a direct result of armed conflict;
(B) while engaged in hazardous service;
(C) in the performance of duty under conditions simulating war; or
(D) through an instrumentality of war.
(f)Coordination With Concurrent Receipt Provision.—Subsection (d) of section 1414 of this title provides for coordination between benefits under that section and under this section.
(g)Status of Payments.—Payments under this section are not retired pay.
(h)Source of Payments.—Payments under this section for a member of the Army, Navy, Air Force, Marine Corps, or Space Force shall be paid from the Department of Defense Military Retirement Fund. Payments under this section for any other member for any fiscal year shall be paid out of funds appropriated for pay and allowances payable by the Secretary concerned for that fiscal year.
(i)Other Definitions.—In this section:
(1) The term “service-connected” has the meaning given such term in section 101 of title 38.
(2) The term “retired pay” includes retainer pay, emergency officers’ retirement pay, and naval pension.
(Added Pub. L. 107–314, div. A, title VI, § 636(a)(1), Dec. 2, 2002, 116 Stat. 2574; amended Pub. L. 108–136, div. A, title VI, §§ 641(c)(1), 642(a)–(e)(1), Nov. 24, 2003, 117 Stat. 1514, 1516, 1517; Pub. L. 110–181, div. A, title VI, § 641(a), (b), Jan. 28, 2008, 122 Stat. 156; Pub. L. 112–239, div. A, title VI, § 643(a), Jan. 2, 2013, 126 Stat. 1783; Pub. L. 113–76, div. C, title X, § 10001(b)(1), Jan. 17, 2014, 128 Stat. 151; Pub. L. 114–92, div. A, title VI, § 631(d)(2), Nov. 25, 2015, 129 Stat. 845; Pub. L. 114–328, div. A, title VI, § 634(a), Dec. 23, 2016, 130 Stat. 2163; Pub. L. 116–283, div. A, title IX, § 924(b)(3)(X), Jan. 1, 2021, 134 Stat. 3821.)
§ 1414. Members eligible for retired pay who are also eligible for veterans’ disability compensation for disabilities rated 50 percent or higher: concurrent payment of retired pay and veterans’ disability compensation
(a)Payment of Both Retired Pay and Compensation.—
(1)In general.—Subject to subsection (b), a member or former member of the uniformed services who is entitled for any month to retired pay and who is also entitled for that month to veterans’ disability compensation for a qualifying service-connected disability (hereinafter in this section referred to as a “qualified retiree”) is entitled to be paid both for that month without regard to sections 5304 and 5305 of title 38. During the period beginning on January 1, 2004, and ending on December 31, 2013, payment of retired pay to such a qualified retiree is subject to subsection (c), except that payment of retired pay is subject to subsection (c) only during the period beginning on January 1, 2004, and ending on December 31, 2004, in the case of the following:
(A) A qualified retiree receiving veterans’ disability compensation for a disability rated as 100 percent.
(B) A qualified retiree receiving veterans’ disability compensation at the rate payable for a 100 percent disability by reason of a determination of individual unemployability.
(2)Qualifying service-connected disability.—In this section, the term “qualifying service-connected disability” means a service-connected disability or combination of service-connected disabilities that is rated as not less than 50 percent disabling by the Secretary of Veterans Affairs.
(b)Special Rules for Chapter 61 Disability Retirees.—
(1)Career retirees.—The retired pay of a member retired under chapter 61 of this title with 20 years or more of service otherwise creditable under section 1405 of this title, or at least 20 years of service computed under section 12732 of this title, at the time of the member’s retirement is subject to reduction under sections 5304 and 5305 of title 38, but only to the extent that the amount of the member’s retired pay under chapter 61 of this title exceeds the amount of retired pay to which the member would have been entitled under any other provision of law based upon the member’s service in the uniformed services if the member had not been retired under chapter 61 of this title.
(2)Disability retirees with less than 20 years of service.—Subsection (a) does not apply to a member retired under chapter 61 of this title with less than 20 years of service otherwise creditable under section 1405 of this title, or with less than 20 years of service computed under section 12732 of this title, at the time of the member’s retirement.
(c)Phase-in of Full Concurrent Receipt.—During the period beginning on January 1, 2004, and ending on December 31, 2013, retired pay payable to a qualified retiree that pursuant to the second sentence of subsection (a)(1) is subject to this subsection shall be determined as follows:
(1)Calendar year 2004.—For a month during 2004, the amount of retired pay payable to a qualified retiree is the amount (if any) of retired pay in excess of the current baseline offset plus the following:
(A) For a month for which the retiree receives veterans’ disability compensation for a disability rated as total, $750.
(B) For a month for which the retiree receives veterans’ disability compensation for a disability rated as 90 percent, $500.
(C) For a month for which the retiree receives veterans’ disability compensation for a disability rated as 80 percent, $350.
(D) For a month for which the retiree receives veterans’ disability compensation for a disability rated as 70 percent, $250.
(E) For a month for which the retiree receives veterans’ disability compensation for a disability rated as 60 percent, $125.
(F) For a month for which the retiree receives veterans’ disability compensation for a disability rated as 50 percent, $100.
(2)Calendar year 2005.—For a month during 2005, the amount of retired pay payable to a qualified retiree is the sum of—
(A) the amount specified in paragraph (1) for that qualified retiree; and
(B) 10 percent of the difference between (i) the current baseline offset, and (ii) the amount specified in paragraph (1) for that member’s disability.
(3)Calendar year 2006.—For a month during 2006, the amount of retired pay payable to a qualified retiree is the sum of—
(A) the amount determined under paragraph (2) for that qualified retiree; and
(B) 20 percent of the difference between (i) the current baseline offset, and (ii) the amount determined under paragraph (2) for that qualified retiree.
(4)Calendar year 2007.—For a month during 2007, the amount of retired pay payable to a qualified retiree is the sum of—
(A) the amount determined under paragraph (3) for that qualified retiree; and
(B) 30 percent of the difference between (i) the current baseline offset, and (ii) the amount determined under paragraph (3) for that qualified retiree.
(5)Calendar year 2008.—For a month during 2008, the amount of retired pay payable to a qualified retiree is the sum of—
(A) the amount determined under paragraph (4) for that qualified retiree; and
(B) 40 percent of the difference between (i) the current baseline offset, and (ii) the amount determined under paragraph (4) for that qualified retiree.
(6)Calendar year 2009.—For a month during 2009, the amount of retired pay payable to a qualified retiree is the sum of—
(A) the amount determined under paragraph (5) for that qualified retiree; and
(B) 50 percent of the difference between (i) the current baseline offset, and (ii) the amount determined under paragraph (5) for that qualified retiree.
(7)Calendar year 2010.—For a month during 2010, the amount of retired pay payable to a qualified retiree is the sum of—
(A) the amount determined under paragraph (6) for that qualified retiree; and
(B) 60 percent of the difference between (i) the current baseline offset, and (ii) the amount determined under paragraph (6) for that qualified retiree.
(8)Calendar year 2011.—For a month during 2011, the amount of retired pay payable to a qualified retiree is the sum of—
(A) the amount determined under paragraph (7) for that qualified retiree; and
(B) 70 percent of the difference between (i) the current baseline offset, and (ii) the amount determined under paragraph (7) for that qualified retiree.
(9)Calendar year 2012.—For a month during 2012, the amount of retired pay payable to a qualified retiree is the sum of—
(A) the amount determined under paragraph (8) for that qualified retiree; and
(B) 80 percent of the difference between (i) the current baseline offset, and (ii) the amount determined under paragraph (8) for that qualified retiree.
(10)Calendar year 2013.—For a month during 2013, the amount of retired pay payable to a qualified retiree is the sum of—
(A) the amount determined under paragraph (9) for that qualified retiree; and
(B) 90 percent of the difference between (i) the current baseline offset, and (ii) the amount determined under paragraph (9) for that qualified retiree.
(11)General limitation.—Retired pay determined under this subsection for a qualified retiree, if greater than the amount of retired pay otherwise applicable to that qualified retiree, shall be reduced to the amount of retired pay otherwise applicable to that qualified retiree.
(d)Coordination With Combat-Related Special Compensation Program.—
(1)In general.—A person who is a qualified retiree under this section and is also an eligible combat-related disabled uniformed services retiree under may receive special compensation in accordance with that section or retired pay in accordance with this section, but not both.
(2)Annual open season.—The Secretary concerned shall provide for an annual period (referred to as an “open season”) during which a person described in paragraph (1) shall have the right to make an election to change from receipt of special compensation in accordance with section 1413a of this title to receipt of retired pay in accordance with this section, or the reverse, as the case may be. Any such election shall be made under regulations prescribed by the Secretary concerned. Such regulations shall provide for the form and manner for making such an election and shall provide for the date as of when such an election shall become effective. In the case of the Secretary of a military department, such regulations shall be subject to approval by the Secretary of Defense.
(e)Definitions.—In this section:
(1)Retired pay.—The term “retired pay” includes retainer pay, emergency officers’ retirement pay, and naval pension.
(2)Veterans’ disability compensation.—The term “veterans’ disability compensation” has the meaning given the term “compensation” in section 101(13) of title 38.
(3)Disability rated as total.—The term “disability rated as total” means—
(A) a disability, or combination of disabilities, that is rated as total under the standard schedule of rating disabilities in use by the Department of Veterans Affairs; or
(B) a disability, or combination of disabilities, for which the scheduled rating is less than total but for which a rating of total is assigned by reason of inability of the disabled person concerned to secure or follow a substantially gainful occupation as a result of disabilities for which veterans’ disability compensation may be paid.
(4)Current baseline offset.—
(A)In general.—The term “current baseline offset” for any qualified retiree means the amount for any month that is the lesser of—
(i) the amount of the applicable monthly retired pay of the qualified retiree for that month; and
(ii) the amount of monthly veterans’ disability compensation to which the qualified retiree is entitled for that month.
(B)Applicable retired pay.—In subparagraph (A), the term “applicable retired pay” for a qualified retiree means the amount of monthly retired pay to which the qualified retiree is entitled, determined without regard to this section or sections 5304 and 5305 of title 38, except that in the case of such a retiree who was retired under chapter 61 of this title, such amount is the amount of retired pay to which the member would have been entitled under any other provision of law based upon the member’s service in the uniformed services if the member had not been retired under chapter 61 of this title.
(Added Pub. L. 107–107, div. A, title VI, § 641(a), Dec. 28, 2001, 115 Stat. 1149; amended Pub. L. 108–136, div. A, title VI, § 641(a), Nov. 24, 2003, 117 Stat. 1511; Pub. L. 108–375, div. A, title VI, § 642, Oct. 28, 2004, 118 Stat. 1957; Pub. L. 109–163, div. A, title VI, § 663, Jan. 6, 2006, 119 Stat. 3316; Pub. L. 110–181, div. A, title VI, § 642(a), Jan. 28, 2008, 122 Stat. 157; Pub. L. 113–76, div. C, title X, § 10001(b)(2), Jan. 17, 2014, 128 Stat. 151; Pub. L. 114–92, div. A, title VI, § 631(d)(2), Nov. 25, 2015, 129 Stat. 845.)
§ 1415. Lump sum payment of certain retired pay
(a)Definitions.—In this section:
(1)Covered retired pay.—The term “covered retired pay” means retired pay under—
(A) this title;
(B) title 14;
(C) the National Oceanic and Atmospheric Administration Commissioned Officer Corps Act of 2002 (33 U.S.C. 3001 et seq.); or
(D) the Public Health Service Act (42 U.S.C. 201 et seq.).
(2)Eligible person.—The term “eligible person” means a person who—
(A)
(i) first becomes a member of a uniformed service on or after January 1, 2018; or
(ii) makes the election described in section 1409(b)(4)(B) or 12739(f)(2) of this title; and
(B) does not retire or separate under chapter 61 of this title.
(3)Retirement age.—The term “retirement age” has the meaning given the term in section 216(l) of the Social Security Act (42 U.S.C. 416(l)).
(b)Election of Lump Sum Payment of Certain Retired Pay.—
(1)In general.—An eligible person entitled to covered retired pay (including an eligible person who is entitled to such pay by reason of an election described in subsection (a)(2)(A)(ii)) may elect to receive—
(A) a lump sum payment of the discounted present value at the time of the election of an amount of the covered retired pay that the eligible person is otherwise entitled to receive for the period beginning on the date of retirement and ending on the date the eligible person attains the eligible person’s retirement age equal to—
(i) 50 percent of the amount of such covered retired pay during such period; or
(ii) 25 percent of the amount of such covered retired pay during such period; and
(B) a monthly amount during the period described in subparagraph (A) equal to—
(i) in the case of an eligible person electing to receive an amount described in subparagraph (A)(i), 50 percent of the amount of monthly covered retired pay the eligible person is otherwise entitled to receive during such period; and
(ii) in the case of an eligible person electing to receive an amount described in subparagraph (A)(ii), 75 percent of the amount of monthly covered retired pay the eligible person is otherwise entitled to receive during such period.
(2)Discounted present value.—The Secretary of Defense shall compute the discounted present value of amounts of covered retired pay that an eligible person is otherwise entitled to receive for a period for purposes of paragraph (1)(A) by—
(A) estimating the aggregate amount of retired pay the person would receive for the period, taking into account cost-of-living adjustments under section 1401a of this title projected by the Secretary at the time the person separates from service and would otherwise begin receiving covered retired pay; and
(B) reducing the aggregate amount estimated pursuant to subparagraph (A) by an appropriate percentage determined by the Secretary—
(i) using average personal discount rates (as defined and calculated by the Secretary taking into consideration applicable and reputable studies of personal discount rates for military personnel and past actuarial experience in the calculation of personal discount rates under this paragraph); and
(ii) in accordance with generally accepted actuarial principles and practices.
(3)Timing of election.—An eligible person shall make the election under this subsection not later than 90 days before the date of the retirement of the eligible person from the uniformed services.
(4)Single payment or combination of payments.—An eligible person may elect to receive a lump sum payment under this subsection in a single payment or in a combination of payments.
(5)Commencement of payment.—An eligible person who makes an election under this subsection shall receive the lump sum payment, or the first installment of a combination of payments of the lump sum payment if elected under paragraph (4), as follows:
(A) Not later than 60 days after the date of the retirement of the eligible person from the uniformed services.
(B) In the case of an eligible person who is a member of a reserve component, not later than 60 days after the earlier of—
(i) the date on which the eligible person attains 60 years of age; or
(ii) the date on which the eligible person first becomes entitled to covered retired pay.
(6)No subsequent adjustment.—An eligible person who accepts payment of a lump sum under this subsection may not seek the review of or otherwise challenge the amount of the lump sum in light of any variation in cost-of-living adjustments under section 1401a of this title, actuarial assumptions, or other factors used by the Secretary in calculating the amount of the lump sum that occur after the Secretary pays the lump sum.
(c)Resumption of Monthly Annuity.—
(1)General rule.—Subject to paragraph (2), an eligible person who makes an election described in subsection (b)(1) shall be entitled to receive the eligible person’s monthly covered retired pay calculated in accordance with paragraph (2) after the eligible person attains the eligible person’s retirement age.
(2)Restoration of full retirement amount at retirement age.—The retired pay of an eligible person who makes an election described in subsection (a) shall be recomputed, effective on the first day of the first month beginning after the person attains the eligible person’s retirement age, so as to be an amount equal to the amount of covered retired pay to which the eligible person would otherwise be entitled on that date if the annual increases, in the retired pay of the eligible person made to reflect changes in the Consumer Price Index, had been made in accordance with section 1401a of this title.
(d)Payment of Retired Pay to Persons Not Making Election.—An eligible person who does not make the election described in subsection (b)(1) shall be paid the retired pay to which the eligible person is otherwise entitled under the applicable provisions of law referred to in subsection (a)(1).
(e)Regulations.—The Secretary of Defense shall prescribe regulations to carry out the provisions of this section.
(Added Pub. L. 114–92, div. A, title VI, § 633(a)(1), Nov. 25, 2015, 129 Stat. 847; amended Pub. L. 114–328, div. A, title X, § 1081(a)(4), Dec. 23, 2016, 130 Stat. 2417; Pub. L. 115–232, div. A, title X, § 1081(a)(14), Aug. 13, 2018, 132 Stat. 1984.)