TITLE 10 - US CODE - CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY

TITLE 10 - US CODE - SUBCHAPTER I - RETIRED SERVICEMANS FAMILY PROTECTION PLAN

10 USC 1431 - Election of annuity: members of armed forces

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

(1) members whose names are on a retired list other than a list maintained under section 12774 (a) of this title;

(2) cadets at the United States Military Academy, the United States Air Force Academy, or the Coast Guard Academy; and

(3) midshipmen.

(b) To provide an annuity under section 1434 of this title, a person covered by subsection (a) may elect to receive a reduced amount of the retired pay or retainer pay to which he may become entitled as a result of service in his armed force. Except as otherwise provided in this section, unless it is made before he completes nineteen years of service for which he is entitled to credit in the computation of his basic pay, the election must be made at least two years before the first day for which retired pay or retainer pay is granted. However, if, because of military operations, a member is assigned to an isolated station or is missing, interned in a neutral country, captured by a hostile force, or beleaguered or besieged, and for that reason is unable to make an election before completing nineteen years of that service, he may make the election, to become effective immediately, within one year after he ceases to be assigned to that station or returns to the jurisdiction of his armed force, as the case may be. A member to whom retired pay or retainer pay is granted retroactively, and who is otherwise eligible to make an election, may make the election within ninety days after receiving notice that such pay has been granted to him. An election made after August 13, 1968, is not effective if

(1) the elector dies during the first thirty-day period he is entitled to retired pay as a result of a physical condition which led to his being granted retired pay under chapter 61 of title 10 with a disability of 100 per centum under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination of the per centum of his disability;

(2) the disability was not the result of injury or disease received in line of duty as a direct result of armed conflict; and

(3) his surviving spouse or children are entitled to dependency and indemnity compensation under chapter 13 of title 38 based upon his death.

(c) An election may be changed or revoked by the elector before the first day for which retired or retainer pay is granted. Unless it is made on the basis of restored mental competency under section 1433 of this title, or unless it is made before the elector completes nineteen years of service for which he is entitled to credit in the computation of his basic pay (in which case only the latest change or revocation shall be effective), the change or revocation is not effective if it is made less than two years before the first day for which retired or retainer pay is granted. The elector may, however, before the first day for which retired or retainer pay is granted, change or revoke his election (provided the change does not increase the amount of the annuity elected) to reflect a change in the marital or dependency status of the member or his family that is caused by death, divorce, annulment, remarriage, or acquisition of a child, if such change or revocation of election is made within two years of such change in marital or dependency status.

(d) If an election made under this section is found to be void for any reason except fraud or willful intent of the member making the election, he may make a corrected election at any time within 90 days after he is notified in writing that the election is void. A corrected election made under this subsection is effective as of the date of the voided election it replaces.

10 USC 1432 - Election of annuity: former members of armed forces

A person who was a former member of an armed force on November 1, 1953, and who is granted retired or retainer pay after that date, may, at the time he is granted that pay, make an election as provided in section 1431 of this title.

10 USC 1433 - Mental incompetency of member

If a person who would be entitled to make an election under section 1431 or 1432 of this title is determined to be mentally incompetent by medical officers of the armed force concerned or of the Department of Veterans Affairs, or by a court of competent jurisdiction, and for that reason cannot make the election within the prescribed time, the Secretary concerned may make an election for that person upon the request of his spouse or, if there is no spouse, of his children who would be eligible to be made beneficiaries under section 1435 of this title. If the person for whom the Secretary has made an election is later determined to be mentally competent by medical officers of the Department of Veterans Affairs or by a court of competent jurisdiction, he may, within 180 days after that determination, change or revoke that election. However, deductions made from his retired or retainer pay before that date may not be refunded.

10 USC 1434 - Kinds of annuities that may be elected

(a) The annuity that a person is entitled to elect under section 1431 or 1432 of this title shall, in conformance with actuarial tables selected by the Board of Actuaries under section 1436 (a) of this title, be the amount specified by the elector at the time of the election, but not more than 50 percent nor less than 121/2 percent of his retired or retainer pay, in no case less than $25. He may make the annuity payable

(1) to, or on behalf of, the surviving spouse, ending when the spouse dies or, if the spouse remarries before age 60, when the spouse remarries;

(2) in equal shares to, or on behalf of, the surviving children eligible for the annuity at the time each payment is due, ending when there is no surviving eligible child; or

(3) to, or on behalf of, the surviving spouse, and after the death of that spouse or the remarriage of that spouse before age 60, in equal shares to, or on behalf of, the surviving eligible children, ending when there is no surviving eligible child.

(b) A person may elect to provide both the annuity provided in clause (1) of subsection (a) and that provided in clause (2) of subsection (a), but the combined amount of the annuities may not be more than 50 percent nor less than 121/2 percent of his retired or retainer pay but in no case less than $25.

(c) An election of any annuity under clause (1) or (2) of subsection (a), or any combination of annuities under subsection (b), shall provide that no deduction may be made from the electors retired or retainer pay after the last day of the month in which there is no beneficiary who would be eligible for the annuity if the elector died. For the purposes of the preceding sentence, a child (other than a child who is incapable of supporting himself because of a mental defect or physical incapacity existing before his eighteenth birthday) who is at least eighteen, but under twenty-three years of age, and who is not pursuing a course of study or training defined in section 1435 of this title, shall be considered an eligible beneficiary unless the Secretary concerned approves an application submitted by the member under section 1436 (b)(4) of this title. An election of an annuity under clause (3) of subsection (a) shall provide that no deduction may be made from the electors retired or retainer pay after the last day of the month in which there is no eligible spouse because of death or divorce.

(d) Under regulations prescribed under section 1444 (a) of this title, a person may, before or after the first day for which retired or retainer pay is granted, provided for allocating, during the period of the surviving spouses eligibility, a part of the annuity under subsection (a)(3) for payment to those of his surviving children who are not children of that spouse.

(e) Whenever there is an increase in retired and retainer pay under section 1401a of this title, each annuity that is payable under this subchapter on the day before the effective date of that increase to a spouse or child of a member who died on or before March 20, 1974, shall be increased by the same percentage as the percentage of that increase, effective on the effective date of that increase.

10 USC 1435 - Eligible beneficiaries

Only the following persons are eligible to be made the beneficiaries of, or to receive payments under, an annuity elected under this subchapter by a member of the armed forces:

(1) The spouse of the member on the date when the member is retired or becomes entitled to retired or retainer pay or, if the member was already retired or entitled to retired or retainer pay on November 1, 1953, the spouse on that date.

(2) The children of the member who are

(A) unmarried;

(B) under eighteen years of age, or incapable of supporting themselves because of a mental defect or physical incapacity existing before their eighteenth birthday, or at least eighteen, but under twenty-three, years of age and pursuing a full-time course of study or training in a high school, trade school, technical or vocational institute, junior college, college, university, or comparable recognized educational institution;

(D) living on the date when the member is retired or becomes entitled to retired or retainer pay or, if the member was already retired or entitled to retired or retainer pay on November 1, 1953, living on that date; and

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

For the purposes of clause (2)(B), a child is considered to be pursuing a full-time course of study or training during an interval between school years that does not exceed one hundred and fifty days if he has demonstrated to the satisfaction of the Secretary concerned that he has a bonafide intention of commencing, resuming, or continuing to pursue a full-time course of study or training in a recognized educational institution immediately after that interval.

10 USC 1436 - Computation of reduction in retired pay; withdrawal for severe financial hardship

(a) The reduction in the retired or retainer pay of any person who elects an annuity under this subchapter shall be computed by the armed force concerned as of the date when the person becomes eligible for that pay but without regard to any increase in that pay to reflect changes in the Consumer Price Index. It shall be computed under an actuarial equivalent method based on

(1) appropriate actuarial tables selected by the Board of Actuaries, and

(2) an interest rate of 3 percent a year, or such other rate as the Secretary of the Treasury, after considering the average yield on outstanding marketable long-term obligations of the United States during the preceding six months, may specify by August 1 of any year for the following year. The method and tables shall be those in effect on the date as of which the computation is made.

(b) Under regulations prescribed under section 1444 (a) of this title, the Secretary concerned may, upon application by the retired member, allow the member

(1) to reduce the amount of the annuity specified by him under section 1434 (a) and 1434 (b) of this title but to not less than the prescribed minimum; or

(2) to withdraw from participation in an annuity program under this title; or

(3) to elect the annuity provided under clause (1) of section 1434 (a) of this title in place of the annuity provided under clause (3) of such section, if on the first day for which retired or retainer pay is granted the member had in effect a valid election under clause (3) of such section, and he does not have a child beneficiary who would be eligible for the annuity provided under clause (3) of such section. For this purpose, a child (other than a child who is incapable of supporting himself because of a mental defect or physical incapacity existing before his eighteenth birthday) who is at least eighteen, but under twenty-three years of age shall not be considered an eligible beneficiary; or

(4) to elect that a child (other than a child who is incapable of supporting himself because of a mental defect or physical incapacity existing before his eighteenth birthday) who is at least eighteen, but under twenty-three years of age shall not be considered eligible for the annuity provided under clause (2) of section 1434 (a) of this title, or for an annuity provided under section 1434 (b) of this title, if on the first day for which retired or retainer pay is granted the member had in effect a valid election under clause (2) of section 1434 (a) of this title, or under section 1434 (b) of this title.

A retired member may not reduce an annuity under clause (1) of this subsection, or withdraw under clause (2) of this subsection, earlier than the first day of the seventh calendar month beginning after he applies for reduction or withdrawal. A change of election under clause (3) of this subsection shall be effective on the first day of the month following the month in which application is made. An election under clause (4) of this subsection shall be effective on the first day of the month following the month in which application is made and, if on the effective date there is no surviving child who would be eligible for an annuity provided under clause (2) of section 1434 (a), or under section 1434 (b), of this title if the elector died, no deduction shall be made for such an annuity to, or on behalf of, a child from the electors retired or retainer pay for that month or any subsequent month. No amounts by which a members retired or retainer pay is reduced prior to the effective date of a reduction of annuity, withdrawal, change of election, or election under this subsection may be refunded to, or credited on behalf of, the member by virtue of an application made by him under this subsection.

10 USC 1436a - Coverage paid up at 30 years and age 70

Effective October 1, 2008, a reduction under this subchapter in the retired or retainer pay of a person electing an annuity under this subchapter may not be made for any month after the later of

(1) the month that is the 360th month for which that persons retired or retainer pay is reduced pursuant to such an election; and

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

10 USC 1437 - Payment of annuity

(a) Except as provided in subsections (b) and (c), each annuity payable under this subchapter accrues as of the first day of the month in which the person upon whose pay the annuity is based dies. Payments shall be made in equal installments and not later than the fifteenth day of each month following that month. However, no annuity accrues for the month in which entitlement thereto ends. The monthly amount of an annuity payable under this subchapter, if not a multiple of $1, shall be rounded to the next lower multiple of $1.

(b) Each annuity payable to or on behalf of an eligible child (other than a child who is incapable of supporting himself because of a mental defect or physical incapacity existing before his eighteenth birthday) as defined in section 1435 (2)(B) of this title who is at least eighteen years of age and pursuing a full-time course of study or training at a recognized educational institution, accrues

(1) as of the first day of the month in which the member upon whose pay the annuity is based dies, if the eligible childs eighteenth birthday occurs in the same or a preceding month.

(2) as of the first day of the month in which the eighteenth birthday of an eligible child occurs, if the member upon whose pay the annuity is based died in a preceding month.

(3) as of the first day of the month in which a child first becomes or again becomes eligible, if that eligible childs eighteenth birthday and the death of the member upon whose pay the annuity is based both occurred in a preceding month or months.

However, no such annuity is payable or accrues for any month before November 1, 1968.

(c)

(1) Upon application of the beneficiary of a member entitled to retired or retainer pay whose retired or retainer pay has been suspended because the member has been determined to be missing, the Secretary concerned may determine for purposes of this subchapter that the member is presumed dead. Any such determination shall be made in accordance with regulations prescribed under section 1444 (a) of this title. The Secretary concerned may not make a determination for purposes of this subchapter that a member is presumed dead unless he finds

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

(B) that the circumstances under which the member is missing would lead a reasonably prudent person to conclude that the member is dead.

(2) Upon a determination under paragraph (1) with respect to a member, an annuity otherwise payable under this subchapter shall be paid as if the member died on the date as of which the retired or retainer pay of the member was suspended.

(3)

(A) If, after a determination under paragraph (1), the Secretary concerned determines that the member is alive, any annuity being paid under this subchapter by reason of this subsection shall be promptly terminated and the total amount of any annuity payments made by reason of this subsection shall constitute a debt to the United States which may be collected or offset

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

(ii) if the member is entitled to compensation under chapter 11 of title 38, from that compensation; or

(iii) if the member is entitled to any other payment from the United States, from that payment.

(B) If the member dies before the full recovery of the amount of annuity payments described in subparagraph (A) has been made by the United States, the remaining amount of such annuity payments may be collected from the members beneficiary under this subchapter if that beneficiary was the recipient of the annuity payments made by reason of this subsection.

10 USC 1438 - Deposits for amounts not deducted

If, for any period, a person who has been retired or has become entitled to retired or retainer pay, and who has elected an annuity under this subchapter, is not entitled to retired or retainer pay, he must deposit in the Treasury the amount that would otherwise have been deducted from his pay for that period to provide the annuity.

10 USC 1439 - Refund of amounts deducted from retired pay

If a person whose name is on the temporary disability retired list of an armed force, and who has elected an annuity under this subchapter, has his name removed from that list for any reason other than retirement or grant of retired pay, he is entitled to a refund of the difference between the amount by which his retired pay was reduced to provide the annuity and the cost of an amount of term insurance equal to the protection provided for his dependents during the period that he was on that list.

10 USC 1440 - Annuities not subject to legal process

Except as provided in section 1437 (c)(3)(B) of this title, no annuity payable under this subchapter is assignable or subject to execution, levy, attachment, garnishment, or other legal process.

10 USC 1441 - Annuities in addition to other payments

An annuity under this subchapter is in addition to any pension or other payment to which the beneficiary is entitled under any other provision of law, and may not be considered as income under any law administered by the Department of Veterans Affairs.

10 USC 1442 - Recovery of annuity erroneously paid

In addition to other methods of recovery provided by law, the Secretary concerned may authorize the recovery, by deduction from later payments to a person, of any amount erroneously paid to him under this subchapter. However, recovery is not required if, in the judgment of the Secretary concerned, there has been no fault by the person to whom the amount was erroneously paid and recovery would be contrary to the purposes of this subchapter or against equity and good conscience.

10 USC 1443 - Repealed. Pub. L. 92425, 1(2)(B), Sept. 21, 1972, 86 Stat. 706]

Section, act Aug. 10, 1956, ch. 1041, 70A Stat. 111, related to Board of Actuaries, composed of Government Actuary, Chief Actuary of Social Security Administration, and an actuary who was a member of Society of Actuaries.

10 USC 1444 - Regulations; determinations

(a) The President shall prescribe regulations to carry out this subchapter. Those regulations shall, so far as practicable, be uniform for the armed forces, the National Oceanic and Atmospheric Administration, and the Public Health Service.

(b) Determinations and certifications of eligibility for, and payments of, annuities and other payments or refunds under this subchapter shall be made by the department concerned. However, in the case of a department other than a military department, payments shall be made through the disbursing facilities of the Department of the Treasury.

10 USC 1444a - Regulations regarding payment of annuity to a representative payee

(a) The regulations prescribed pursuant to section 1444 (a) of this title shall provide procedures for the payment of an annuity under this subchapter in the case of

(1) a person for whom a guardian or other fiduciary has been appointed; and

(2) a minor, mentally incompetent, or otherwise legally disabled person for whom a guardian or other fiduciary has not been appointed.

(b) Those regulations may include the provisions set out in section 1455 (d)(2) of this title.

(c) An annuity paid to a person on behalf of an annuitant in accordance with the regulations prescribed pursuant to subsection (a) discharges the obligation of the United States for payment to the annuitant of the amount of the annuity so paid.

10 USC 1445 - Correction of administrative deficiencies

Whenever he considers it necessary, the Secretary concerned may, under regulations prescribed under section 1444 (a) of this title, correct any election, or any change or revocation of an election, under this subchapter when he considers it necessary to correct an administrative error. Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States.

10 USC 1446 - Restriction on participation

(a) Notwithstanding section 1441 of this title, if a person

(1) has made an election under this subchapter; and

(2) is retired for physical disability before he completes 19 years of service for which he is entitled to credit in the computation of his basic pay;

and thereafter dies, his beneficiaries are not entitled to the annuities provided under this subchapter until they give proof to the department concerned that they are not eligible for benefits under chapter 11 or 13 of title 38. If the beneficiaries are not eligible for benefits under chapter 11 or 13 of title 38, the annuity shall begin on the first day of the month in which the death occurs.

(b) Whenever the beneficiaries on whose behalf the election was made are restricted, under subsection (a), from participating in the annuities provided under this subchapter, the amount withheld from the electors retired or retainer pay as a result of an election under this subchapter shall be refunded to the beneficiaries, less the amount of any annuities paid under this subchapter, and in either case without interest.

TITLE 10 - US CODE - SUBCHAPTER II - SURVIVOR BENEFIT PLAN

10 USC 1447 - Definitions

In this subchapter:

(1) Plan.—
The term Plan means the Survivor Benefit Plan established by this subchapter.

(2) Standard annuity.—
The term standard annuity means an annuity provided by virtue of eligibility under section 1448 (a)(1)(A) of this title.

(3) Reserve-component annuity.—
The term reserve-component annuity means an annuity provided by virtue of eligibility under section 1448 (a)(1)(B) of this title.

(4) Retired pay.—
The term retired pay includes retainer pay paid under section 6330 of this title.

(5) Reserve-component retired pay.—
The term reserve-component retired pay means retired pay under chapter 1223 of this title (or under chapter 67 of this title as in effect before the effective date of the Reserve Officer Personnel Management Act).

(6) Base amount.—
The term base amount means the following:

(A) Full amount under standard annuity.—
In the case of a person who dies after becoming entitled to retired pay, such term means the amount of monthly retired pay (determined without regard to any reduction under section 1409 (b)(2) of this title) to which the person

(i) was entitled when he became eligible for that pay; or

(ii) later became entitled by being advanced on the retired list, performing active duty, or being transferred from the temporary disability retired list to the permanent disability retired list.

(B) Full amount under reserve-component annuity.—
In the case of a person who would have become eligible for reserve-component retired pay but for the fact that he died before becoming 60 years of age, such term means the amount of monthly retired pay for which the person would have been eligible

(i) if he had been 60 years of age on the date of his death, for purposes of an annuity to become effective on the day after his death in accordance with a designation made under section 1448 (e) of this title; or

(ii) upon becoming 60 years of age (if he had lived to that age), for purposes of an annuity to become effective on the 60th anniversary of his birth in accordance with a designation made under section 1448 (e) of this title.

(C) Reduced amount.—
Such term means any amount less than the amount otherwise applicable under subparagraph (A) or (B) with respect to an annuity provided under the Plan but which is not less than $300 and which is designated by the person (with the concurrence of the persons spouse, if required under section 1448 (a)(3) of this title) providing the annuity on or before

(i) the first day for which he becomes eligible for retired pay, in the case of a person providing a standard annuity, or

(ii) the end of the 90-day period beginning on the date on which he receives the notification required by section 12731 (d) of this title that he has completed the years of service required for eligibility for reserve-component retired pay, in the case of a person providing a reserve-component annuity.

(7) Widow.—
The term widow means the surviving wife of a person who, if not married to the person at the time he became eligible for retired pay

(A) was married to him for at least one year immediately before his death; or

(B) is the mother of issue by that marriage.

(8) Widower.—
The term widower means the surviving husband of a person who, if not married to the person at the time she became eligible for retired pay

(A) was married to her for at least one year immediately before her death; or

(B) is the father of issue by that marriage.

(9) Surviving spouse.—
The term surviving spouse means a widow or widower.

(10) Former spouse.—
The term former spouse means the surviving former husband or wife of a person who is eligible to participate in the Plan.

(11) Dependent child.—

(A) In general.—
The term dependent child means a person who

(i) is unmarried;

(ii) is

(I) under 18 years of age,

(II) at least 18, but under 22, years of age and pursuing a full-time course of study or training in a high school, trade school, technical or vocational institute, junior college, college, university, or comparable recognized educational institution, or

(III) incapable of self support because of a mental or physical incapacity existing before the persons eighteenth birthday or incurred on or after that birthday, but before the persons twenty-second birthday, while pursuing such a full-time course of study or training; and

(iii) is the child of a person to whom the Plan applies, including

(I) an adopted child, and

(II) a stepchild, foster child, or recognized natural child who lived with that person in a regular parent-child relationship.

(B) Special rules for college students.—
For the purpose of subparagraph (A), a child whose twenty-second birthday occurs before July 1 or after August 31 of a calendar year, and while regularly pursuing such a course of study or training, is considered to have become 22 years of age on the first day of July after that birthday. A child who is a student is considered not to have ceased to be a student during an interim between school years if the interim is not more than 150 days and if the child shows to the satisfaction of the Secretary of Defense that the child has a bona fide intention of continuing to pursue a course of study or training in the same or a different school during the school semester (or other period into which the school year is divided) immediately after the interim.

(C) Foster children.—
A foster child, to qualify under this paragraph as the dependent child of a person to whom the Plan applies, must, at the time of the death of that person, also reside with, and receive over one-half of his support from, that person, and not be cared for under a social agency contract. The temporary absence of a foster child from the residence of that person, while a student as described in this paragraph, shall not be considered to affect the residence of such a foster child.

(12) Court.—
The term court has the meaning given that term by section 1408 (a)(1) of this title.

(13) Court order.—

(A) In general.—
The term court order means a courts final decree of divorce, dissolution, or annulment or a court ordered, ratified, or approved property settlement incident to such a decree (including a final decree modifying the terms of a previously issued decree of divorce, dissolution, annulment, or legal separation, or of a court ordered, ratified, or approved property settlement agreement incident to such previously issued decree).

(B) Final decree.—
The term final decree means a decree from which no appeal may be taken or from which no appeal has been taken within the time allowed for the taking of such appeals under the laws applicable to such appeals, or a decree from which timely appeal has been taken and such appeal has been finally decided under the laws applicable to such appeals.

(C) Regular on its face.—
The term regular on its face, when used in connection with a court order, means a court order that meets the conditions prescribed in section 1408 (b)(2) of this title.

10 USC 1448 - Application of Plan

(a) General Rules for Participation in the Plan.—

(1) Name of plan; eligible participants.—
The program established by this subchapter shall be known as the Survivor Benefit Plan. The following persons are eligible to participate in the Plan:

(A) Persons entitled to retired pay.

(B) Persons who would be eligible for reserve-component retired pay but for the fact that they are under 60 years of age.

(2) Participants in the plan.—
The Plan applies to the following persons, who shall be participants in the Plan:

(A) Standard annuity participants.—
A person who is eligible to participate in the Plan under paragraph (1)(A) and who is married or has a dependent child when he becomes entitled to retired pay, unless he elects (with his spouses concurrence, if required under paragraph (3)) not to participate in the Plan before the first day for which he is eligible for that pay.

(B) Reserve-component annuity participants.—
A person who (i) is eligible to participate in the Plan under paragraph (1)(B), and (ii) is married or has a dependent child when he is notified under section 12731 (d) of this title that he has completed the years of service required for eligibility for reserve-component retired pay, unless the person elects (with his spouses concurrence, if required under paragraph (3)) not to participate in the Plan before the end of the 90-day period beginning on the date on which he receives that notification.

A person who elects under subparagraph (B) not to participate in the Plan remains eligible, upon reaching 60 years of age and otherwise becoming entitled to retired pay, to participate in the Plan in accordance with eligibility under paragraph (1)(A).

(3) Elections.—

(A) Spousal consent for certain elections respecting standard annuity.—
A married person who is eligible to provide a standard annuity may not without the concurrence of the persons spouse elect

(i) not to participate in the Plan;

(ii) to provide an annuity for the persons spouse at less than the maximum level; or

(iii) to provide an annuity for a dependent child but not for the persons spouse.

(B) Spousal consent for certain elections respecting reserve-component annuity.—
A married person who is eligible to provide a reserve-component annuity may not without the concurrence of the persons spouse elect

(i) not to participate in the Plan;

(ii) to designate under subsection (e)(2) the effective date for commencement of annuity payments under the Plan in the event that the member dies before becoming 60 years of age to be the 60th anniversary of the members birth (rather than the day after the date of the members death);

(iii) to provide an annuity for the persons spouse at less than the maximum level; or

(iv) to provide an annuity for a dependent child but not for the persons spouse.

(C) Exception when spouse unavailable.—
A person may make an election described in subparagraph (A) or (B) without the concurrence of the persons spouse if the person establishes to the satisfaction of the Secretary concerned

(i) that the spouses whereabouts cannot be determined; or

(ii) that, due to exceptional circumstances, requiring the person to seek the spouses consent would otherwise be inappropriate.

(D) Construction with former spouse election provisions.—
This paragraph does not affect any right or obligation to elect to provide an annuity for a former spouse (or for a former spouse and dependent child) under subsection (b)(2).

(E) Notice to spouse of election to provide former spouse annuity.—
If a married person who is eligible to provide a standard annuity elects to provide an annuity for a former spouse (or for a former spouse and dependent child) under subsection (b)(2), that persons spouse shall be notified of that election.

(4) Irrevocability of elections.—

(A) Standard annuity.—
An election under paragraph (2)(A) is irrevocable if not revoked before the date on which the person first becomes entitled to retired pay.

(B) Reserve-component annuity.—
An election under paragraph (2)(B) is irrevocable if not revoked before the end of the 90-day period referred to in that paragraph.

(5) Participation by person marrying after retirement, etc.—

(A) Election to participate in plan.—
A person who is not married and has no dependent child upon becoming eligible to participate in the Plan but who later marries or acquires a dependent child may elect to participate in the Plan.

(B) Manner and time of election.—
Such an election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date on which that person marries or acquires that dependent child.

(C) Limitation on revocation of election.—
Such an election may not be revoked except in accordance with subsection (b)(3).

(D) Effective date of election.—
The election is effective as of the first day of the first calendar month following the month in which the election is received by the Secretary concerned.

(E) Designation if rcsbp election.—
In the case of a person providing a reserve-component annuity, such an election shall include a designation under subsection (e).

(6) Election out of plan by person with spouse coverage who remarries.—

(A) General rule.—
A person

(i) who is a participant in the Plan and is providing coverage under the Plan for a spouse (or a spouse and child);

(ii) who does not have an eligible spouse beneficiary under the Plan; and

(iii) who remarries,

may elect not to provide coverage under the Plan for the persons spouse.

(B) Effect of election on retired pay.—
If such an election is made, reductions in the retired pay of that person under section 1452 of this title shall not be made.

(i) is irrevocable;

(ii) shall be made within one year after the persons remarriage; and

(iii) shall be made in such form and manner as may be prescribed in regulations under section 1455 of this title.

(D) Notice to spouse.—
If a person makes an election under this paragraph

(i) not to participate in the Plan;

(ii) to provide an annuity for the persons spouse at less than the maximum level; or

(iii) to provide an annuity for a dependent child but not for the persons spouse,

the persons spouse shall be notified of that election.

(E) Construction with former spouse election provisions.—
This paragraph does not affect any right or obligation to elect to provide an annuity to a former spouse under subsection (b).

(b) Insurable Interest and Former Spouse Coverage.—

(1) Coverage for person with insurable interest.—

(A) General rule.—
A person who is not married and does not have a dependent child upon becoming eligible to participate in the Plan may elect to provide an annuity under the Plan to a natural person with an insurable interest in that person. In the case of a person providing a reserve-component annuity, such an election shall include a designation under subsection (e).

(B) Termination of coverage.—
An election under subparagraph (A) for a beneficiary who is not the former spouse of the person providing the annuity may be terminated. Any such termination shall be made by a participant by the submission to the Secretary concerned of a request to discontinue participation in the Plan, and such participation in the Plan shall be discontinued effective on the first day of the first month following the month in which the request is received by the Secretary concerned. Effective on such date, the Secretary concerned shall discontinue the reduction being made in such persons retired pay on account of participation in the Plan or, in the case of a person who has been required to make deposits in the Treasury on account of participation in the Plan, such person may discontinue making such deposits effective on such date.

(C) Form for discontinuation.—
A request under subparagraph (B) to discontinue participation in the Plan shall be in such form and shall contain such information as may be required under regulations prescribed by the Secretary of Defense.

(D) Withdrawal of request for discontinuation.—
The Secretary concerned shall furnish promptly to each person who submits a request under subparagraph (B) to discontinue participation in the Plan a written statement of the advantages and disadvantages of participating in the Plan and the possible disadvantages of discontinuing participation. A person may withdraw the request to discontinue participation if withdrawn within 30 days after having been submitted to the Secretary concerned.

(E) Consequences of discontinuation.—
Once participation is discontinued, benefits may not be paid in conjunction with the earlier participation in the Plan and premiums paid may not be refunded. Participation in the Plan may not later be resumed except through a qualified election under paragraph (5) of subsection (a) or under subparagraph (G) of this paragraph.

(F) Vitiation of election by disability retiree who dies of disability-related cause.—
If a member retired after November 23, 2003, under chapter 61 of this title dies within one year after the date on which the member is so retired and the cause of death is related to a disability for which the member was retired under that chapter (as determined under regulations prescribed by the Secretary of Defense)

(i) an election made by the member under paragraph (1) to provide an annuity under the Plan to any person other than a dependent of that member (as defined in section 1072 (2) of this title) is vitiated; and

(ii) the amounts by which the members retired pay was reduced under section 1452 of this title shall be refunded and paid to the person to whom the annuity under the Plan would have been paid pursuant to such election.

(G) Election of new beneficiary upon death of previous beneficiary.—

(i) Authority for election.—
If the reason for discontinuation in the Plan is the death of the beneficiary, the participant in the Plan may elect a new beneficiary. Any such beneficiary must be a natural person with an insurable interest in the participant. Such an election may be made only during the 180-day period beginning on the date of the death of the previous beneficiary.

(ii) Procedures.—
Such an election shall be in writing, signed by the participant, and made in such form and manner as the Secretary concerned may prescribe. Such an election shall be effective the first day of the first month following the month in which the election is received by the Secretary.

(iii) Vitiation of election by participant who dies within two years of election.—
If a person providing an annuity under a election under clause (i) dies before the end of the two-year period beginning on the effective date of the election

(I) the election is vitiated; and

(II) the amount by which the persons retired pay was reduced under section 1452 of this title that is attributable to the election shall be paid in a lump sum to the person who would have been the deceased persons beneficiary under the vitiated election if the deceased person had died after the end of such two-year period.

(2) Former spouse coverage upon becoming a participant in the plan.—

(A) General rule.—
A person who has a former spouse upon becoming eligible to participate in the Plan may elect to provide an annuity to that former spouse.

(B) Effect of former spouse election on spouse or dependent child.—
In the case of a person with a spouse or a dependent child, such an election prevents payment of an annuity to that spouse or child (other than a child who is a beneficiary under an election under paragraph (4)), including payment under subsection (d).

(C) Designation if more than one former spouse.—
If there is more than one former spouse, the person shall designate which former spouse is to be provided the annuity.

(D) Designation if rcsbp election.—
In the case of a person providing a reserve-component annuity, such an election shall include a designation under subsection (e).

(3) Former spouse coverage by persons already participating in plan.—

(A) Election of coverage.—

(i) Authority for election.—
A person

(I) who is a participant in the Plan and is providing coverage for a spouse or a spouse and child (even though there is no beneficiary currently eligible for such coverage), and

(II) who has a former spouse who was not that persons former spouse when that person became eligible to participate in the Plan,

may (subject to subparagraph (B)) elect to provide an annuity to that former spouse.

(ii) Termination of previous coverage.—
Any such election terminates any previous coverage under the Plan.

(iii) Manner and time of election.—
Any such election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce, dissolution, or annulment.

(B) Limitation on election.—
A person may not make an election under subparagraph (A) to provide an annuity to a former spouse who that person married after becoming eligible for retired pay unless

(i) the person was married to that former spouse for at least one year, or

(ii) that former spouse is the parent of issue by that marriage.

(C) Irrevocability, etc.—
An election under this paragraph may not be revoked except in accordance with section 1450 (f) of this title. This paragraph does not provide the authority to change a designation previously made under subsection (e).

(D) Notice to spouse.—
If a person who is married makes an election to provide an annuity to a former spouse under this paragraph, that persons spouse shall be notified of the election.

(E) Effective date of election.—
An election under this paragraph is effective as of

(i) the first day of the first month following the month in which the election is received by the Secretary concerned; or

(ii) in the case of a person required (as described in section 1450 (f)(3)(B) of this title) to make the election by reason of a court order or filing the date of which is after October 16, 1998, the first day of the first month which begins after the date of that court order or filing.

(4) Former spouse and child coverage.—
A person who elects to provide an annuity for a former spouse under paragraph (2) or (3) may, at the time of the election, elect to provide coverage under that annuity for both the former spouse and a dependent child, if the child resulted from the persons marriage to that former spouse.

(5) Disclosure of whether election of former spouse coverage is required.—
A person who elects to provide an annuity to a former spouse under paragraph (2) or (3) shall, at the time of making the election, provide the Secretary concerned with a written statement (in a form to be prescribed by that Secretary and signed by such person and the former spouse) setting forth

(A) whether the election is being made pursuant to the requirements of a court order; or

(B) whether the election is being made pursuant to a written agreement previously entered into voluntarily by such person as a part of, or incident to, a proceeding of divorce, dissolution, or annulment and (if so) whether such voluntary written agreement has been incorporated in, or ratified or approved by, a court order.

(c) Persons on Temporary Disability Retired List.—
The application of the Plan to a person whose name is on the temporary disability retired list terminates when his name is removed from that list and he is no longer entitled to disability retired pay.

(d) Coverage for Survivors of Members Who Die on Active Duty.—

(1) Surviving spouse annuity.—
Except as provided in paragraph (2)(B), the Secretary concerned shall pay an annuity under this subchapter to the surviving spouse of

(A) a member who dies while on active duty after

(i) becoming eligible to receive retired pay;

(ii) qualifying for retired pay except that the member has not applied for or been granted that pay; or

(iii) completing 20 years of active service but before the member is eligible to retire as a commissioned officer because the member has not completed 10 years of active commissioned service; or

(B) a member not described in subparagraph (A) who dies in line of duty while on active duty.

(2) Dependent children.—

(A) Annuity when no eligible surviving spouse.—
In the case of a member described in paragraph (1), the Secretary concerned shall pay an annuity under this subchapter to the members dependent children under section 1450 (a)(2) of this title as applicable.

(B) Optional annuity when there is an eligible surviving spouse.—
In the case of a member described in paragraph (1) who dies after October 7, 2001, and for whom there is a surviving spouse eligible for an annuity under paragraph (1), the Secretary may pay an annuity under this subchapter to the members dependent children under section 1450 (a)(3) of this title, if applicable, instead of paying an annuity to the surviving spouse under paragraph (1), if the Secretary concerned, in consultation with the surviving spouse, determines it appropriate to provide an annuity for the dependent children under this paragraph instead of an annuity for the surviving spouse under paragraph (1).

(3) Mandatory former spouse annuity.—
If a member described in paragraph (1) is required under a court order or spousal agreement to provide an annuity to a former spouse upon becoming eligible to be a participant in the Plan or has made an election under subsection (b) to provide an annuity to a former spouse, the Secretary

(A) may not pay an annuity under paragraph (1) or (2); but

(B) shall pay an annuity to that former spouse as if the member had been a participant in the Plan and had made an election under subsection (b) to provide an annuity to the former spouse, or in accordance with that election, as the case may be, if the Secretary receives a written request from the former spouse concerned that the election be deemed to have been made in the same manner as provided in section 1450 (f)(3) of this title.

(4) Priority.—
An annuity that may be provided under this subsection shall be provided in preference to an annuity that may be provided under any other provision of this subchapter on account of service of the same member.

(5) Computation.—
The amount of an annuity under this subsection is computed under section 1451 (c) of this title.

(6) Deemed election.—

(A) Annuity for dependent.—
In the case of a member described in paragraph (1) who dies after November 23, 2003, the Secretary concerned may, if no other annuity is payable on behalf of the member under this subchapter, pay an annuity to a natural person who has an insurable interest in such member as if the annuity were elected by the member under subsection (b)(1). The Secretary concerned may pay such an annuity under this paragraph only in the case of a person who is a dependent of that member (as defined in section 1072 (2) of this title).

(B) Computation of annuity.—
An annuity under this subparagraph shall be computed under section 1451 (b) of this title as if the member had retired for total disability on the date of death with reductions as specified under section 1452 (c) of this title, as applicable to the ages of the member and the natural person with an insurable interest.

(e) Designation for Commencement of Reserve-Component Annuity.—
In any case in which a person is required to make a designation under this subsection, the person shall designate whether, in the event he dies before becoming 60 years of age, the annuity provided shall become effective on

(1) the day after the date of his death; or

(2) the 60th anniversary of his birth.

(f) Coverage of Survivors of Persons Dying When or Before Eligible To Elect Reserve-Component Annuity.—

(1) Surviving spouse annuity.—
The Secretary concerned shall pay an annuity under this subchapter to the surviving spouse of a person who

(A) is eligible to provide a reserve-component annuity and dies

(i) before being notified under section 12731 (d) of this title that he has completed the years of service required for eligibility for reserve-component retired pay; or

(ii) during the 90-day period beginning on the date he receives notification under section 12731 (d) of this title that he has completed the years of service required for eligibility for reserve-component retired pay if he had not made an election under subsection (a)(2)(B) to participate in the Plan; or

(B) is a member of a reserve component not described in subparagraph (A) and dies from an injury or illness incurred or aggravated in the line of duty during inactive-duty training.

(2) Dependent child annuity.—
The Secretary concerned shall pay an annuity under this subchapter to the dependent child of a person described in paragraph (1) if there is no surviving spouse or if the persons surviving spouse subsequently dies.

(3) Mandatory former spouse annuity.—
If a person described in paragraph (1) is required under a court order or spousal agreement to provide an annuity to a former spouse upon becoming eligible to be a participant in the Plan or has made an election under subsection (b) to provide an annuity to a former spouse, the Secretary

(A) may not pay an annuity under paragraph (1) or (2); but

(B) shall pay an annuity to that former spouse as if the person had been a participant in the Plan and had made an election under subsection (b) to provide an annuity to the former spouse, or in accordance with that election, as the case may be, if the Secretary receives a written request from the former spouse concerned that the election be deemed to have been made in the same manner as provided in section 1450 (f)(3) of this title.

(4) Computation.—
The amount of an annuity under this subsection is computed under section 1451 (c) of this title.

(g) Election To Increase Coverage Upon Remarriage.—

(1) Election.—
A person

(A) who is a participant in the Plan and is providing coverage under subsection (a) for a spouse or a spouse and child, but at less than the maximum level; and

(B) who remarries,

may elect, within one year of such remarriage, to increase the level of coverage provided under the Plan to a level not in excess of the current retired pay of that person.

(2) Payment required.—
Such an election shall be contingent on the person paying to the United States the amount determined under paragraph (3) plus interest on such amount at a rate determined under regulations prescribed by the Secretary of Defense.

(3) Amount to be paid.—
The amount referred to in paragraph (2) is the amount equal to the difference between

(A) the amount that would have been withheld from such persons retired pay under section 1452 of this title if the higher level of coverage had been in effect from the time the person became a participant in the Plan; and

(B) the amount of such persons retired pay actually withheld.

(4) Manner of making election.—
An election under paragraph (1) shall be made in such manner as the Secretary shall prescribe and shall become effective upon receipt of the payment required by paragraph (2).

(5) Disposition of payments.—
A payment received under this subsection by the Secretary of Defense shall be deposited into the Department of Defense Military Retirement Fund. Any other payment received under this subsection shall be deposited in the Treasury as miscellaneous receipts.

10 USC 1448a - Election to discontinue participation: one-year opportunity after second anniversary of commencement of payment of retired pay

(a) Authority.—
A participant in the Plan may, subject to the provisions of this section, elect to discontinue participation in the Plan at any time during the one-year period beginning on the second anniversary of the date on which payment of retired pay to the participant commences.

(b) Concurrence of Spouse.—

(1) Concurrence required.—
A married participant may not (except as provided in paragraph (2)) make an election under subsection (a) without the concurrence of the participants spouse.

(2) Exceptions.—
A participant may make such an election without the concurrence of the participants spouse by establishing to the satisfaction of the Secretary concerned that one of the conditions specified in section 1448 (a)(3)(C) of this title exists.

(3) Form of concurrence.—
The concurrence of a spouse under paragraph (1) shall be made in such written form and shall contain such information as may be required under regulations prescribed by the Secretary of Defense.

(c) Limitation on Election When Former Spouse Coverage in Effect.—
The limitation set forth in section 1450 (f)(2) of this title applies to an election to discontinue participation in the Plan under subsection (a).

(d) Withdrawal of Election To Discontinue.—
Section 1448 (b)(1)(D) of this title applies to an election under subsection (a).

(e) Consequences of Discontinuation.—
Section 1448 (b)(1)(E) of this title applies to an election under subsection (a).

(f) Notice to Affected Beneficiaries.—
The Secretary concerned shall notify any former spouse or other natural person previously designated under section 1448 (b) of this title of an election to discontinue participation under subsection (a).

(g) Effective Date of Election.—
An election under subsection (a) is effective as of the first day of the first calendar month following the month in which the election is received by the Secretary concerned.

(h) Inapplicability of Irrevocability Provisions.—
Paragraphs (4)(B) and (5)(C) of section 1448 (a) of this title do not apply to prevent an election under subsection (a).

10 USC 1449 - Mental incompetency of member

(a) Election by Secretary Concerned on Behalf of Mentally Incompetent Member.—
If a person to whom section 1448 of this title applies is determined to be mentally incompetent by medical officers of the armed force concerned or of the Department of Veterans Affairs, or by a court of competent jurisdiction, an election described in subsection (a)(2) or (b) of section 1448 of this title may be made on behalf of that person by the Secretary concerned.

(b) Revocation of Election by Member.—

(1) Authority upon subsequent determination of mental competence.—
If a person for whom the Secretary has made an election under subsection (a) is later determined to be mentally competent by an authority named in that subsection, that person may, within 180 days after that determination, revoke that election.

(2) Deductions from retired pay not to be refunded.—
Any deduction made from retired pay by reason of such an election may not be refunded.

10 USC 1450 - Payment of annuity: beneficiaries

(a) In General.—
Effective as of the first day after the death of a person to whom section 1448 of this title applies (or on such other day as that person may provide under subsection (j)), a monthly annuity under section 1451 of this title shall be paid to the persons beneficiaries under the Plan, as follows:

(1) Surviving spouse or former spouse.—
The eligible surviving spouse or the eligible former spouse.

(2) Surviving children.—
The surviving dependent children in equal shares, if the eligible surviving spouse or the eligible former spouse is dead, dies, or otherwise becomes ineligible under this section.

(3) Dependent children.—
The dependent children in equal shares if the person to whom section 1448 of this title applies (with the concurrence of the persons spouse, if required under section 1448 (a)(3) of this title) elected to provide an annuity for dependent children but not for the spouse or former spouse.

(4) Natural person designated under “insurable interest” coverage.—
The natural person designated under section 1448 (b)(1) of this title, unless the election to provide an annuity to the natural person has been changed as provided in subsection (f).

(b) Termination of Annuity for Death, Remarriage Before Age 55, Etc.—

(1) General rule.—
An annuity payable to the beneficiary terminates effective as of the first day of the month in which eligibility is lost.

(2) Termination of spouse annuity upon death or remarriage before age 55.—
An annuity for a surviving spouse or former spouse shall be paid to the surviving spouse or former spouse while the surviving spouse or former spouse is living or, if the surviving spouse or former spouse remarries before reaching age 55, until the surviving spouse or former spouse remarries.

(3) Effect of termination of subsequent marriage before age 55.—
If the surviving spouse or former spouse remarries before reaching age 55 and that marriage is terminated by death, annulment, or divorce, payment of the annuity shall be resumed effective as of the first day of the month in which the marriage is so terminated. However, if the surviving spouse or former spouse is also entitled to an annuity under the Plan based upon the marriage so terminated, the surviving spouse or former spouse may not receive both annuities but must elect which to receive.

(1) Required offset.—
If, upon the death of a person to whom section 1448 of this title applies, the surviving spouse or former spouse of that person is also entitled to dependency and indemnity compensation under section 1311 (a) of title 38, the surviving spouse or former spouse may be paid an annuity under this section, but only in the amount that the annuity otherwise payable under this section would exceed that compensation.

(2) Effective date of offset.—
A reduction in an annuity under this section required by paragraph (1) shall be effective on the date of the commencement of the period of payment of such dependency and indemnity compensation under title 38.

(3) Limitation on recoupment of offset amount.—
Any amount subject to offset under this subsection that was previously paid to the surviving spouse or former spouse shall be recouped only to the extent that the amount paid exceeds any amount to be refunded under subsection (e). In notifying a surviving spouse or former spouse of the recoupment requirement, the Secretary shall provide the spouse or former spouse

(A) a single notice of the net amount to be recouped or the net amount to be refunded, as applicable, under this subsection or subsection (e);

(B) a written explanation of the statutory requirements for recoupment of the offset amount and for refund of any applicable amount deducted from retired pay;

(C) a detailed accounting of how the offset amount being recouped and retired pay deduction amount being refunded were calculated; and

(D) contact information for a person who can provide information about the offset recoupment and retired pay deduction refund processes and answer questions the surviving spouse or former spouse may have about the requirements, processes, or amounts.

(d) Limitation on Payment of Annuities When Coverage Under Civil Service Retirement Elected.—
If, upon the death of a person to whom section 1448 of this title applies, that person had in effect a waiver of that persons retired pay for the purposes of subchapter III of chapter 83 of title 5, an annuity under this section shall not be payable unless, in accordance with section 8339 (j) of title 5, that person notified the Office of Personnel Management that he did not desire any spouse surviving him to receive an annuity under section 8341(b) of that title.

(e) Refund of Amounts Deducted From Retired Pay When DIC Offset Is Applicable.—

(1) Full refund when dic greater than sbp annuity.—
If an annuity under this section is not payable because of subsection (c), any amount deducted from the retired pay of the deceased under section 1452 of this title shall be refunded to the surviving spouse or former spouse.

(2) Partial refund when sbp annuity reduced by dic.—
If, because of subsection (c), the annuity payable is less than the amount established under section 1451 of this title, the annuity payable shall be recalculated under that section. The amount of the reduction in the retired pay required to provide that recalculated annuity shall be computed under section 1452 of this title, and the difference between the amount deducted before the computation of that recalculated annuity and the amount that would have been deducted on the basis of that recalculated annuity shall be refunded to the surviving spouse or former spouse.

(f) Change in Election of Insurable Interest or Former Spouse Beneficiary.—

(1) Authorized changes.—

(A) Election in favor of spouse or child.—
A person who elects to provide an annuity to a person designated by him under section 1448 (b) of this title may, subject to paragraph (2), change that election and provide an annuity to his spouse or dependent child.

(B) Notice.—
The Secretary concerned shall notify the former spouse or other natural person previously designated under section 1448 (b) of this title of any change of election under subparagraph (A).

(C) Procedures, effective date, etc.—
Any such change of election is subject to the same rules with respect to execution, revocation, and effectiveness as are set forth in section 1448 (a)(5) of this title (without regard to the eligibility of the person making the change of election to make such an election under that section). Notwithstanding the preceding sentence, a change of election under this subsection to provide an annuity to a spouse instead of a former spouse may (subject to paragraph (2)) be made at any time after the person providing the annuity remarries without regard to the time limitation in section 1448 (a)(5)(B) of this title.

(2) Limitation on change in beneficiary when former spouse coverage in effect.—
A person who, incident to a proceeding of divorce, dissolution, or annulment, is required by a court order to elect under section 1448 (b) of this title to provide an annuity to a former spouse (or to both a former spouse and child), or who enters into a written agreement (whether voluntary or required by a court order) to make such an election, and who makes an election pursuant to such order or agreement, may not change that election under paragraph (1) unless, of the following requirements, whichever are applicable in a particular case are satisfied:

(A) In a case in which the election is required by a court order, or in which an agreement to make the election has been incorporated in or ratified or approved by a court order, the person

(i) furnishes to the Secretary concerned a certified copy of a court order which is regular on its face and which modifies the provisions of all previous court orders relating to such election, or the agreement to make such election, so as to permit the person to change the election; and

(ii) certifies to the Secretary concerned that the court order is valid and in effect.

(B) In a case of a written agreement that has not been incorporated in or ratified or approved by a court order, the person

(i) furnishes to the Secretary concerned a statement, in such form as the Secretary concerned may prescribe, signed by the former spouse and evidencing the former spouses agreement to a change in the election under paragraph (1); and

(ii) certifies to the Secretary concerned that the statement is current and in effect.

(3) Required former spouse election to be deemed to have been made.—

(A) Deemed election upon request by former spouse.—
If a person described in paragraph (2) or (3) of section 1448 (b) of this title is required (as described in subparagraph (B)) to elect under section 1448 (b) of this title to provide an annuity to a former spouse and such person then fails or refuses to make such an election, such person shall be deemed to have made such an election if the Secretary concerned receives the following:

(i) Request from former spouse.—
A written request, in such manner as the Secretary shall prescribe, from the former spouse concerned requesting that such an election be deemed to have been made.

(ii) Copy of court order or other official statement.—
Either

(I) a copy of the court order, regular on its face, which requires such election or incorporates, ratifies, or approves the written agreement of such person; or

(II) a statement from the clerk of the court (or other appropriate official) that such agreement has been filed with the court in accordance with applicable State law.

(B) Persons required to make election.—
A person shall be considered for purposes of subparagraph (A) to be required to elect under section 1448 (b) of this title to provide an annuity to a former spouse if

(i) the person enters, incident to a proceeding of divorce, dissolution, or annulment, into a written agreement to make such an election and the agreement

(I) has been incorporated in or ratified or approved by a court order, or

(II) has been filed with the court of appropriate jurisdiction in accordance with applicable State law; or

(ii) the person is required by a court order to make such an election.

(C) Time limit for request by former spouse.—
An election may not be deemed to have been made under subparagraph (A) in the case of any person unless the Secretary concerned receives a request from the former spouse of the person within one year of the date of the court order or filing involved.

(D) Effective date of deemed election.—
An election deemed to have been made under subparagraph (A) shall become effective on the day referred to in section 1448 (b)(3)(E)(ii) of this title.

(4) Former spouse coverage may be required by court order.—
A court order may require a person to elect (or to enter into an agreement to elect) under section 1448 (b) of this title to provide an annuity to a former spouse (or to both a former spouse and child).

(g) Limitation on Changing or Revoking Elections.—

(1) In general.—
An election under this section may not be changed or revoked.

(2) Exceptions.—
Paragraph (1) does not apply to

(A) a revocation of an election under section 1449 (b) of this title; or

(B) a change in an election under subsection (f).

(h) Treatment of Annuities Under Other Laws.—
Except as provided in section 1451 of this title, an annuity under this section is in addition to any other payment to which a person is entitled under any other provision of law. Such annuity shall be considered as income under laws administered by the Secretary of Veterans Affairs.

(i) Annuities Exempt From Certain Legal Process.—
Except as provided in subsection (l)(3)(B), an annuity under this section is not assignable or subject to execution, levy, attachment, garnishment, or other legal process.

(j) Effective Date of Reserve-Component Annuities.—

(1) Persons making section 1448 (e) designation.A reserve-component annuity shall be effective in accordance with the designation made under section 1448 (e) of this title by the person providing the annuity.

(2) Persons dying before making section 1448 (e) designation.An annuity payable under section 1448 (f) of this title shall be effective on the day after the date of the death of the person upon whose service the right to the annuity is based.

(k) Adjustment of Spouse or Former Spouse Annuity Upon Loss of Dependency and Indemnity Compensation.—

(1) Readjustment if beneficiary 55 years of age or more.—
If a surviving spouse or former spouse whose annuity has been adjusted under subsection (c) subsequently loses entitlement to dependency and indemnity compensation under section 1311 (a) of title 38 because of the remarriage of the surviving spouse, or former spouse, and if at the time of such remarriage the surviving spouse or former spouse is 55 years of age or more, the amount of the annuity of the surviving spouse or former spouse shall be readjusted, effective on the effective date of such loss of dependency and indemnity compensation, to the amount of the annuity which would be in effect with respect to the surviving spouse or former spouse if the adjustment under subsection (c) had never been made.

(2) Repayment of amounts previously refunded.—

(A) General rule.—
A surviving spouse or former spouse whose annuity is readjusted under paragraph (1) shall repay any amount refunded under subsection (e) by reason of the adjustment under subsection (c).

(B) Interest required if repayment not a lump sum.—
If the repayment is not made in a lump sum, the surviving spouse or former spouse shall pay interest on the amount to be repaid. Such interest shall commence on the date on which the first such payment is due and shall be applied over the period during which any part of the repayment remains to be paid.

(C) Manner of repayment; rate of interest.—
The manner in which such repayment shall be made, and the rate of any such interest, shall be prescribed in regulations under section 1455 of this title.

(D) Deposit of amounts repaid.—
An amount repaid under this paragraph (including any such interest) received by the Secretary of Defense shall be deposited into the Department of Defense Military Retirement Fund. Any other amount repaid under this paragraph shall be deposited into the Treasury as miscellaneous receipts.

(l) Participants in the Plan Who Are Missing.—

(1) Authority to presume death of missing participant.—

(A) In general.—
Upon application of the beneficiary of a participant in the Plan who is missing, the Secretary concerned may determine for purposes of this subchapter that the participant is presumed dead.

(B) Participant who is missing.—
A participant in the Plan is considered to be missing for purposes of this subsection if

(i) the retired pay of the participant has been suspended on the basis that the participant is missing; or

(ii) in the case of a participant in the Plan who would be eligible for reserve-component retired pay but for the fact that he is under 60 years of age, his retired pay, if he were entitled to retired pay, would be suspended on the basis that he is missing.

(C) Requirements applicable to presumption of death.—
Any such determination shall be made in accordance with regulations prescribed under section 1455 of this title. The Secretary concerned may not make a determination for purposes of this subchapter that a participant who is missing is presumed dead unless the Secretary finds that

(i) the participant has been missing for at least 30 days; and

(ii) the circumstances under which the participant is missing would lead a reasonably prudent person to conclude that the participant is dead.

(2) Commencement of annuity.—
Upon a determination under paragraph (1) with respect to a participant in the Plan, an annuity otherwise payable under this subchapter shall be paid as if the participant died on the date as of which the retired pay of the participant was suspended.

(3) Effect of person not being dead.—

(A) Termination of annuity.—
If, after a determination under paragraph (1), the Secretary concerned determines that the participant is alive

(i) any annuity being paid under this subchapter by reason of this subsection shall be terminated; and

(ii) the total amount of any annuity payments made by reason of this subsection shall constitute a debt to the United States.

(B) Collection from participant of annuity amounts erroneously paid.—
A debt under subparagraph (A)(ii) may be collected or offset

(i) from any retired pay otherwise payable to the participant;

(ii) if the participant is entitled to compensation under chapter 11 of title 38, from that compensation; or

(iii) if the participant is entitled to any other payment from the United States, from that payment.

(C) Collection from beneficiary.—
If the participant dies before the full recovery of the amount of annuity payments described in subparagraph (A)(ii) has been made by the United States, the remaining amount of such annuity payments may be collected from the participants beneficiary under the Plan if that beneficiary was the recipient of the annuity payments made by reason of this subsection.

(m) Special Survivor Indemnity Allowance.—

(1) Provision of allowance.—
The Secretary concerned shall pay a monthly special survivor indemnity allowance under this subsection to the surviving spouse or former spouse of a member of the uniformed services to whom section 1448 of this title applies if

(A) the surviving spouse or former spouse is entitled to dependency and indemnity compensation under section 1311 (a) of title 38;

(B) except for subsection (c) of this section, the surviving spouse or former spouse is eligible for an annuity by reason of a participant in the Plan under subsection (a)(1) of section 1448 of this title or by reason of coverage under subsection (d) of such section; and

(C) the eligibility of the surviving spouse or former spouse for an annuity as described in subparagraph (B) is affected by subsection (c) of this section.

(2) Amount of payment.—
Subject to paragraph (3), the amount of the allowance paid to an eligible survivor under paragraph (1) for a month shall be equal to

(A) for months during fiscal year 2009, $50;

(B) for months during fiscal year 2010, $60;

(D) for months during fiscal year 2012, $80;

(E) for months during fiscal year 2013, $90; and

(F) for months after fiscal year 2013, $100.

(3) Limitation.—
The amount of the allowance paid to an eligible survivor under paragraph (1) for any month may not exceed the amount of the annuity for that month that is subject to offset under subsection (c).

(4) Status of payments.—
An allowance paid under this subsection does not constitute an annuity, and amounts so paid are not subject to adjustment under any other provision of law.

(5) Source of funds.—
The special survivor indemnity allowance shall be paid from amounts in the Department of Defense Military Retirement Fund established under section 1461 of this title.

(6) Effective date and duration.—
This subsection shall only apply with respect to the month beginning on October 1, 2008, and subsequent months through the month ending on February 28, 2016. Effective on March 1, 2016, the authority provided by this subsection shall terminate. No special survivor indemnity allowance may be paid to any person by reason of this subsection for any period before October 1, 2008, or beginning on or after March 1, 2016.

10 USC 1451 - Amount of annuity

(a) Computation of Annuity for a Spouse, Former Spouse, or Child.—

(1) Standard annuity.—
In the case of a standard annuity provided to a beneficiary under section 1450 (a) of this title (other than under section 1450 (a)(4)), the monthly annuity payable to the beneficiary shall be determined as follows:

(A) Beneficiary under 62 years of age.—
If the beneficiary is under 62 years of age or is a dependent child when becoming entitled to the annuity, the monthly annuity shall be the amount equal to 55 percent of the base amount.

(B) Beneficiary 62 years of age or older.—

(i) General rule.—
If the beneficiary (other than a dependent child) is 62 years of age or older when becoming entitled to the annuity, the monthly annuity shall be the amount equal to the product of the base amount and the percent applicable to the month, as follows:

(I) For a month before October 2005, the applicable percent is 35 percent.

(II) For months after September 2005 and before April 2006, the applicable percent is 40 percent.

(III) For months after March 2006 and before April 2007, the applicable percent is 45 percent.

(IV) For months after March 2007 and before April 2008, the applicable percent is 50 percent.

(V) For months after March 2008, the applicable percent is 55 percent.

(ii) Rule if beneficiary eligible for social security offset computation.—
If the beneficiary is eligible to have the annuity computed under subsection (e) and if computation of the annuity under that subsection is more favorable to the beneficiary than computation under clause (i), the annuity shall be computed under that subsection rather than under clause (i).

(2) Reserve-component annuity.—
In the case of a reserve-component annuity provided to a beneficiary under section 1450 (a) of this title (other than under section 1450 (a)(4)), the monthly annuity payable to the beneficiary shall be determined as follows:

(i) is less than 55 percent; and

(ii) is determined under subsection (f).

(B) Beneficiary 62 years of age or older.—

(I) is less than the percent specified under subsection (a)(1)(B)(i) as being applicable for the month; and

(II) is determined under subsection (f).

(ii) Rule if beneficiary eligible for social security offset computation.—
If the beneficiary is eligible to have the annuity computed under subsection (e) and if, at the time the beneficiary becomes entitled to the annuity, computation of the annuity under that subsection is more favorable to the beneficiary than computation under clause (i), the annuity shall be computed under that subsection rather than under clause (i).

(b) Insurable Interest Beneficiary.—

(1) Standard annuity.—
In the case of a standard annuity provided to a beneficiary under section 1450 (a)(4) of this title, the monthly annuity payable to the beneficiary shall be the amount equal to 55 percent of the retired pay of the person who elected to provide the annuity after the reduction in that pay in accordance with section 1452 (c) of this title.

(2) Reserve-component annuity.—
In the case of a reserve-component annuity provided to a beneficiary under section 1450 (a)(4) of this title, the monthly annuity payable to the beneficiary shall be the amount equal to a percentage of the retired pay of the person who elected to provide the annuity after the reduction in such pay in accordance with section 1452 (c) of this title that

(A) is less than 55 percent; and

(B) is determined under subsection (f).

(3) Computation of reserve-component annuity when participant dies before age 60.—
For the purposes of paragraph (2), a person

(A) who provides an annuity that is determined in accordance with that paragraph;

(B) who dies before becoming 60 years of age; and

(C) who at the time of death is otherwise entitled to retired pay, shall be considered to have been entitled to retired pay at the time of death. The retired pay of such person for the purposes of such paragraph shall be computed on the basis of the rates of basic pay in effect on the date on which the annuity provided by such person is to become effective in accordance with the designation of such person under section 1448 (e) of this title.

(1) In general.—
In the case of an annuity provided under section 1448 (d) or 1448 (f) of this title, the amount of the annuity shall be determined as follows:

(A) Beneficiary under 62 years of age.—
If the person receiving the annuity is under 62 years of age or is a dependent child when the member or former member dies, the monthly annuity shall be the amount equal to 55 percent of the retired pay to which the member or former member would have been entitled if the member or former member had been entitled to that pay when he died determined as follows:

(i) In the case of an annuity provided under section 1448 (d) of this title (other than in a case covered by clause (ii)), such retired pay shall be computed as if the member had been retired under section 1201 of this title on the date of the members death with a disability rated as total.

(ii) In the case of an annuity provided under section 1448 (d)(1)(A) of this title by reason of the death of a member not in line of duty, such retired pay shall be computed based upon the members years of active service when he died.

(iii) In the case of an annuity provided under section 1448 (f) of this title, such retired pay shall be computed based upon the member or former members years of active service when he died computed under section 12733 of this title.

(B) Beneficiary 62 years of age or older.—

(i) General rule.—
If the person receiving the annuity (other than a dependent child) is 62 years of age or older when the member or former member dies, the monthly annuity shall be the amount equal to the applicable percent of the retired pay to which the member or former member would have been entitled as determined under subparagraph (A). The percent applicable for a month under the preceding sentence is the percent specified under subsection (a)(1)(B)(i) as being applicable for that month.

(2) DIC offset.—
An annuity computed under paragraph (1) that is paid to a surviving spouse shall be reduced by the amount of dependency and indemnity compensation to which the surviving spouse is entitled under section 1311 (a) of title 38. Any such reduction shall be effective on the date of the commencement of the period of payment of such compensation under title 38.

(3) Servicemembers not yet granted retired pay.—
In the case of an annuity provided by reason of the service of a member described in clause (ii) or (iii) of section 1448 (d)(1)(A) of this title who first became a member of a uniformed service before September 8, 1980, the retired pay to which the member would have been entitled when he died shall be determined for purposes of paragraph (1) based upon the rate of basic pay in effect at the time of death for the grade in which the member was serving at the time of death, unless (as determined by the Secretary concerned) the member would have been entitled to be retired in a higher grade.

(4) Rate of pay to be used in computing annuity.—
In the case of an annuity paid under section 1448 (f) of this title by reason of the service of a person who first became a member of a uniformed service before September 8, 1980, the retired pay of the person providing the annuity shall for the purposes of paragraph (1) be computed on the basis of the rates of basic pay in effect on the effective date of the annuity.

(d) Reduction of Annuities at Age 62.—

(1) Reduction required.—
The annuity of a person whose annuity is computed under subparagraph (A) of subsection (a)(1), (a)(2), or (c)(1) shall be reduced on the first day of the month after the month in which the person becomes 62 years of age.

(2) Amount of annuity as reduced.—

(A) Computation of annuity.—
Except as provided in subparagraph (B), the reduced amount of the annuity shall be the amount of the annuity that the person would be receiving on that date if the annuity had initially been computed under subparagraph (B) of that subsection.

(B) Savings provision for beneficiaries eligible for social security offset computation.—
In the case of a person eligible to have an annuity computed under subsection (e) and for whom, at the time the person becomes 62 years of age, the annuity computed with a reduction under subsection (e)(3) is more favorable than the annuity with a reduction described in subparagraph (A), the reduction in the annuity shall be computed in the same manner as a reduction under subsection (e)(3).

(e) Savings Provision for Certain Beneficiaries.—

(1) Persons covered.—
The following beneficiaries under the Plan are eligible to have an annuity under the Plan computed under this subsection:

(A) A beneficiary receiving an annuity under the Plan on October 1, 1985, as the surviving spouse or former spouse of the person providing the annuity.

(B) A spouse or former spouse beneficiary of a person who on October 1, 1985

(i) was a participant in the Plan;

(ii) was entitled to retired pay or was qualified for that pay except that he had not applied for and been granted that pay; or

(iii) would have been eligible for reserve-component retired pay but for the fact that he was under 60 years of age.

(2) Amount of annuity.—
Subject to paragraph (3), an annuity computed under this subsection is determined as follows:

(A) Standard annuity.—
In the case of the beneficiary of a standard annuity, the annuity shall be the amount equal to 55 percent of the base amount.

(B) Reserve-component annuity.—
In the case of the beneficiary of a reserve-component annuity, the annuity shall be the percentage of the base amount that

(i) is less than 55 percent; and

(ii) is determined under subsection (f).

(C) Beneficiaries of persons dying during a period of special eligibility for sbp.—
In the case of the beneficiary of an annuity under section 1448 (d) or 1448 (f) of this title, the annuity shall be the amount equal to 55 percent of the retired pay of the person providing the annuity (as that pay is determined under subsection (c)).

(3) Social security offset.—
An annuity computed under this subsection shall be reduced by the lesser of the following:

(A) Social security computation.—
The amount of the survivor benefit, if any, to which the surviving spouse (or the former spouse, in the case of a former spouse beneficiary who became a former spouse under a divorce that became final after November 29, 1989) would be entitled under title II of the Social Security Act (42 U.S.C. 401 et seq.) based solely upon service by the person concerned as described in section 210(l)(1) of such Act (42 U.S.C. 410 (l)(1)) and calculated assuming that the person concerned lives to age 65.

(B) Maximum amount of reduction.—
40 percent of the amount of the monthly annuity as determined under paragraph (2).

(4) Special rules for social security offset computation.—

(A) Treatment of deductions made on account of work.—
For the purpose of paragraph (3), a surviving spouse (or a former spouse, in the case of a person who becomes a former spouse under a divorce that becomes final after November 29, 1989) shall not be considered as entitled to a benefit under title II of the Social Security Act (42 U.S.C. 401 et seq.) to the extent that such benefit has been offset by deductions under section 203 of such Act (42 U.S.C. 403) on account of work.

(B) Treatment of certain periods for which social security refunds are made.—
In the computation of any reduction made under paragraph (3), there shall be excluded any period of service described in section 210(l)(1) of the Social Security Act (42 U.S.C. 410 (l)(1))

(i) which was performed after December 1, 1980; and

(ii) which involved periods of service of less than 30 continuous days for which the person concerned is entitled to receive a refund under section 6413(c) of the Internal Revenue Code of 1986 of the social security tax which the person had paid.

(f) Determination of Percentages Applicable to Computation of Reserve-Component Annuities.—
The percentage to be applied in determining the amount of an annuity computed under subsection (a)(2), (b)(2), or (e)(2)(B) shall be determined under regulations prescribed by the Secretary of Defense. Such regulations shall be prescribed taking into consideration the following:

(1) The age of the person electing to provide the annuity at the time of such election.

(2) The difference in age between such person and the beneficiary of the annuity.

(3) Whether such person provided for the annuity to become effective (in the event he died before becoming 60 years of age) on the day after his death or on the 60th anniversary of his birth.

(4) Appropriate group annuity tables.

(5) Such other factors as the Secretary considers relevant.

(g) Adjustments to Annuities.—

(1) Periodic adjustments for cost-of-living.—

(A) Increases in annuities when retired pay increased.—
Whenever retired pay is increased under section 1401a of this title (or any other provision of law), each annuity that is payable under the Plan shall be increased at the same time.

(B) Percentage of increase.—
The increase shall, in the case of any annuity, be by the same percent as the percent by which the retired pay of the person providing the annuity would have been increased at such time if the person were alive (and otherwise entitled to such pay).

(C) Certain reductions to be disregarded.—
The amount of the increase shall be based on the monthly annuity payable before any reduction under section 1450 (c) of this title or under subsection (c)(2).

(2) Rounding down.—
The monthly amount of an annuity payable under this subchapter, if not a multiple of $1, shall be rounded to the next lower multiple of $1.

(h) Adjustments to Base Amount.—

(1) Periodic adjustments for cost-of-living.—

(A) Increases in base amount when retired pay increased.—
Whenever retired pay is increased under section 1401a of this title (or any other provision of law), the base amount applicable to each participant in the Plan shall be increased at the same time.

(B) Percentage of increase.—
The increase shall be by the same percent as the percent by which the retired pay of the participant is so increased.

(2) Recomputation at age 62.—
When the retired pay of a person who first became a member of a uniformed service on or after August 1, 1986, and who is a participant in the Plan is recomputed under section 1410 of this title upon the persons becoming 62 years of age, the base amount applicable to that person shall be recomputed (effective on the effective date of the recomputation of such retired pay under section 1410 of this title) so as to be the amount equal to the amount of the base amount that would be in effect on that date if increases in such base amount under paragraph (1) had been computed as provided in paragraph (2) of section 1401a (b) of this title (rather than under paragraph (3) of that section).

(3) Disregarding of retired pay reductions for retirement of certain members before 30 years of service.—
Computation of a members retired pay for purposes of this section shall be made without regard to any reduction under section 1409 (b)(2) of this title.

(i) Recomputation of Annuity for Certain Beneficiaries.—
In the case of an annuity under the Plan which is computed on the basis of the retired pay of a person who would have been entitled to have that retired pay recomputed under section 1410 of this title upon attaining 62 years of age, but who dies before attaining that age, the annuity shall be recomputed, effective on the first day of the first month beginning after the date on which the member or former member would have attained 62 years of age, so as to be the amount equal to the amount of the annuity that would be in effect on that date if increases under subsection (h)(1) in the base amount applicable to that annuity to the time of the death of the member or former member, and increases in such annuity under subsection (g)(1), had been computed as provided in paragraph (2) of section 1401a (b) of this title (rather than under paragraph (3) of that section).

10 USC 1452 - Reduction in retired pay

(a) Spouse and Former Spouse Annuities.—

(1) Required reduction in retired pay.—
Except as provided in subsection (b), the retired pay of a participant in the Plan who is providing spouse coverage (as described in paragraph (5)) shall be reduced as follows:

(A) Standard annuity.—
If the annuity coverage being provided is a standard annuity, the reduction shall be as follows:

(i) Disability and nonregular service retirees.—
In the case of a person who is entitled to retired pay under chapter 61 or chapter 1223 of this title, the reduction shall be in whichever of the alternative reduction amounts is more favorable to that person.

(ii) Members as of enactment of flat-rate reduction.—
In the case of a person who first became a member of a uniformed service before March 1, 1990, the reduction shall be in whichever of the alternative reduction amounts is more favorable to that person.

(iii) New entrants after enactment of flat-rate reduction.—
In the case of a person who first becomes a member of a uniformed service on or after March 1, 1990, and who is entitled to retired pay under a provision of law other than chapter 61 or chapter 1223 of this title, the reduction shall be in an amount equal to 61/2 percent of the base amount.

(iv) Alternative reduction amounts.—
For purposes of clauses (i) and (ii), the alternative reduction amounts are the following:

(I) Flat-rate reduction.—
An amount equal to 61/2 percent of the base amount.

(II) Amount under pre-flat-rate reduction.—
An amount equal to 21/2 percent of the first $337 (as adjusted after November 1, 1989, under paragraph (4)) of the base amount plus 10 percent of the remainder of the base amount.

(B) Reserve-component annuity.—
If the annuity coverage being provided is a reserve-component annuity, the reduction shall be in whichever of the following amounts is more favorable to that person:

(i) Flat-rate reduction.—
An amount equal to 61/2 percent of the base amount plus an amount determined in accordance with regulations prescribed by the Secretary of Defense as a premium for the additional coverage provided through reserve-component annuity coverage under the Plan.

(ii) Amount under pre-flat-rate reduction.—
An amount equal to 21/2 percent of the first $337 (as adjusted after November 1, 1989, under paragraph (4)) of the base amount plus 10 percent of the remainder of the base amount plus an amount determined in accordance with regulations prescribed by the Secretary of Defense as a premium for the additional coverage provided through reserve-component annuity coverage under the Plan.

(2) Additional reduction for child coverage.—
If there is a dependent child as well as a spouse or former spouse, the amount prescribed under paragraph (1) shall be increased by an amount prescribed under regulations of the Secretary of Defense.

(3) No reduction when no beneficiary.—
The reduction in retired pay prescribed by paragraph (1) shall not be applicable during any month in which there is no eligible spouse or former spouse beneficiary.

(4) Periodic adjustments.—

(A) Adjustments for increases in rates of basic pay.—
Whenever there is an increase in the rates of basic pay of members of the uniformed services effective on or after October 1, 1985, the amounts under paragraph (1) with respect to which the percentage factor of 21/2 is applied shall be increased by the overall percentage of such increase in the rates of basic pay. The increase under the preceding sentence shall apply only with respect to persons whose retired pay is computed based on the rates of basic pay in effect on or after the date of such increase in rates of basic pay.

(B) Adjustments for retired pay colas.—
In addition to the increase under subparagraph (A), the amounts under paragraph (1) with respect to which the percentage factor of 21/2 is applied shall be further increased at the same time and by the same percentage as an increase in retired pay under section 1401a of this title effective on or after October 1, 1985. Such increase under the preceding sentence shall apply only with respect to a person who initially participates in the Plan on a date which is after both the effective date of such increase under section 1401a and the effective date of the rates of basic pay upon which that persons retired pay is computed.

(5) Spouse coverage described.—
For the purposes of paragraph (1), a participant in the Plan who is providing spouse coverage is a participant who

(A) has

(i) a spouse or former spouse, or

(ii) a spouse or former spouse and a dependent child; and

(B) has not elected to provide an annuity to a person designated by him under section 1448 (b)(1) of this title or, having made such an election, has changed his election in favor of his spouse under section 1450 (f) of this title.

(b) Child-Only Annuities.—

(1) Required reduction in retired pay.—
The retired pay of a participant in the Plan who is providing child-only coverage (as described in paragraph (4)) shall be reduced by an amount prescribed under regulations by the Secretary of Defense.

(2) No reduction when no child.—
There shall be no reduction in retired pay under paragraph (1) for any month during which the participant has no eligible dependent child.

(3) Special rule for certain rcsbp participants.—
In the case of a participant in the Plan who is participating in the Plan under an election under section 1448 (a)(2)(B) of this title and who provided child-only coverage during a period before the participant becomes entitled to receive retired pay, the retired pay of the participant shall be reduced by an amount prescribed under regulations by the Secretary of Defense to reflect the coverage provided under the Plan during the period before the participant became entitled to receive retired pay. A reduction under this paragraph is in addition to any reduction under paragraph (1) and is made without regard to whether there is an eligible dependent child during a month for which the reduction is made.

(4) Child-only coverage defined.—
For the purposes of this subsection, a participant in the Plan who is providing child-only coverage is a participant who has a dependent child and who

(A) does not have an eligible spouse or former spouse; or

(B) has a spouse or former spouse but has elected to provide an annuity for dependent children only.

(1) Required reduction in retired pay.—
The retired pay of a person who has elected to provide an annuity to a person designated by him under section 1450 (a)(4) of this title shall be reduced as follows:

(A) Standard annuity.—
In the case of a person providing a standard annuity, the reduction shall be by 10 percent plus 5 percent for each full five years the individual designated is younger than that person.

(B) Reserve component annuity.—
In the case of a person providing a reserve-component annuity, the reduction shall be by an amount prescribed under regulations of the Secretary of Defense.

(2) Limitation on total reduction.—
The total reduction under paragraph (1) may not exceed 40 percent.

(3) Duration of reduction.—
The reduction in retired pay prescribed by this subsection shall continue during the lifetime of the person designated under section 1450 (a)(4) of this title or until the person receiving retired pay changes his election under section 1450 (f) of this title.

(4) Rule for computation.—
Computation of a members retired pay for purposes of this subsection shall be made without regard to any reduction under section 1409 (b)(2) of this title.

(5) Rule for designation of new insurable interest beneficiary following death of original beneficiary.—
The Secretary of Defense shall prescribe in regulations premiums which a participant making an election under section 1448 (b)(1)(G) of this title shall be required to pay for participating in the Plan pursuant to that election. The total amount of the premiums to be paid by a participant under the regulations shall be equal to the sum of the following:

(A) The total additional amount by which the retired pay of the participant would have been reduced before the effective date of the election if the original beneficiary

(i) had not died and had been covered under the Plan through the date of the election, and

(ii) had been the same number of years younger than the participant (if any) as the new beneficiary designated under the election.

(B) Interest on the amounts by which the retired pay of the participant would have been so reduced, computed from the dates on which the retired pay would have been so reduced at such rate or rates and according to such methodology as the Secretary of Defense determines reasonable.

(C) Any additional amount that the Secretary determines necessary to protect the actuarial soundness of the Department of Defense Military Retirement Fund against any increased risk for the fund that is associated with the election.

(d) Deposits To Cover Periods When Retired Pay Not Paid.—

(1) Required deposits.—
If a person who has elected to participate in the Plan has been awarded retired pay and is not entitled to that pay for any period, that person must deposit in the Treasury the amount that would otherwise have been deducted from his pay for that period.

(2) Deposits not required when participant on active duty.—
Paragraph (1) does not apply to a person with respect to any period when that person is on active duty under a call or order to active duty for a period of more than 30 days.

(e) Deposits Not Required for Certain Participants in CSRS.—
When a person who has elected to participate in the Plan waives that persons retired pay for the purposes of subchapter III of chapter 83 of title 5, that person shall not be required to make the deposit otherwise required by subsection (d) as long as that waiver is in effect unless, in accordance with section 8339 (j) of title 5, that person has notified the Office of Personnel Management that he does not desire a spouse surviving him to receive an annuity under section 8341 (b) of title 5.

(f) Refunds of Deductions Not Allowed.—

(1) General rule.—
A person is not entitled to refund of any amount deducted from retired pay under this section.

(2) Exceptions.—
Paragraph (1) does not apply

(A) in the case of a refund authorized by section 1450 (e) of this title; or

(B) in case of a deduction made through administrative error.

(g) Discontinuation of Participation by Participants Whose Surviving Spouses Will Be Entitled to DIC.—

(1) Discontinuation.—

(A) Conditions.—
Notwithstanding any other provision of this subchapter but subject to paragraphs (2) and (3), a person who has elected to participate in the Plan and who is suffering from a service-connected disability rated by the Secretary of Veterans Affairs as totally disabling and has suffered from such disability while so rated for a continuous period of 10 or more years (or, if so rated for a lesser period, has suffered from such disability while so rated for a continuous period of not less than 5 years from the date of such persons last discharge or release from active duty) may discontinue participation in the Plan by submitting to the Secretary concerned a request to discontinue participation in the Plan.

(B) Effective date.—
Participation in the Plan of a person who submits a request under subparagraph (A) shall be discontinued effective on the first day of the first month following the month in which the request under subparagraph (A) is received by the Secretary concerned. Effective on such date, the Secretary concerned shall discontinue the reduction being made in such persons retired pay on account of participation in the Plan or, in the case of a person who has been required to make deposits in the Treasury on account of participation in the Plan, such person may discontinue making such deposits effective on such date.

(C) Form for request for discontinuation.—
Any request under this paragraph to discontinue participation in the Plan shall be in such form and shall contain such information as the Secretary concerned may require by regulation.

(2) Consent of beneficiaries required.—
A person described in paragraph (1) may not discontinue participation in the Plan under such paragraph without the written consent of the beneficiary or beneficiaries of such person under the Plan.

(3) Information on plan to be provided by secretary concerned.—

(A) Information to be provided promptly to participant.—
The Secretary concerned shall furnish promptly to each person who files a request under paragraph (1) to discontinue participation in the Plan a written statement of the advantages of participating in the Plan and the possible disadvantages of discontinuing participation.

(B) Right to withdraw discontinuation request.—
A person may withdraw a request made under paragraph (1) if it is withdrawn within 30 days after having been submitted to the Secretary concerned.

(4) Refund of deductions from retired pay.—
Upon the death of a person described in paragraph (1) who discontinued participation in the Plan in accordance with this subsection, any amount deducted from the retired pay of that person under this section shall be refunded to the persons surviving spouse.

(5) Resumption of participation in plan.—

(A) Conditions for resumption.—
A person described in paragraph (1) who discontinued participation in the Plan may elect to participate again in the Plan if

(i) after having discontinued participation in the Plan the Secretary of Veterans Affairs reduces that persons service-connected disability rating to a rating of less than total; and

(ii) that person applies to the Secretary concerned, within such period of time after the reduction in such persons service-connected disability rating has been made as the Secretary concerned may prescribe, to again participate in the Plan and includes in such application such information as the Secretary concerned may require.

(B) Effective date of resumed coverage.—
Such persons participation in the Plan under this paragraph is effective beginning on the first day of the month after the month in which the Secretary concerned receives the application for resumption of participation in the Plan.

(C) Resumption of contributions.—
When a person elects to participate in the Plan under this paragraph, the Secretary concerned shall begin making reductions in that persons retired pay, or require such person to make deposits in the Treasury under subsection (d), as appropriate, effective on the effective date of such participation under subparagraph (B).

(h) Increases in Reduction With Increases in Retired Pay.—

(1) General rule.—
Whenever retired pay is increased under section 1401a of this title (or any other provision of law), the amount of the reduction to be made under subsection (a) or (b) in the retired pay of any person shall be increased at the same time and by the same percentage as such retired pay is so increased.

(2) Coordination when payment of increase in retired pay is delayed by law.—

(A) In general.—
Notwithstanding paragraph (1), when the initial payment of an increase in retired pay under section 1401a of this title (or any other provision of law) to a person is for a month that begins later than the effective date of that increase by reason of the application of subsection (b)(2)(B) of such section (or section 631(b) of Public Law 104106 (110 Stat. 364)), then the amount of the reduction in the persons retired pay shall be effective on the date of that initial payment of the increase in retired pay rather than the effective date of the increase in retired pay.

(B) Delay not to affect computation of annuity.—
Subparagraph (A) may not be construed as delaying, for purposes of determining the amount of a monthly annuity under section 1451 of this title, the effective date of an increase in a base amount under subsection (h) of such section from the effective date of an increase in retired pay under section 1401a of this title to the date on which the initial payment of that increase in retired pay is made in accordance with subsection (b)(2)(B) of such section.

(i) Recomputation of Reduction Upon Recomputation of Retired Pay.—
Whenever the retired pay of a person who first became a member of a uniformed service on or after August 1, 1986, and who is a participant in the Plan is recomputed under section 1410 of this title upon the persons becoming 62 years of age, the amount of the reduction in such retired pay under this section shall be recomputed (effective on the effective date of the recomputation of such retired pay under section 1410 of this title) so as to be the amount equal to the amount of such reduction that would be in effect on that date if increases in such retired pay under section 1401a (b) of this title, and increases in reductions in such retired pay under subsection (h), had been computed as provided in paragraph (2) of section 1401a (b) of this title (rather than under paragraph (3) of that section).

(j) Coverage Paid Up at 30 Years and Age 70.—
Effective October 1, 2008, no reduction may be made under this section in the retired pay of a participant in the Plan for any month after the later of

(1) the 360th month for which the participants retired pay is reduced under this section; and

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

10 USC 1453 - Recovery of amounts erroneously paid

(a) Recovery.—
In addition to any other method of recovery provided by law, the Secretary concerned may authorize the recovery of any amount erroneously paid to a person under this subchapter by deduction from later payments to that person.

(b) Authority To Waive Recovery.—
Recovery of an amount erroneously paid to a person under this subchapter is not required if, in the judgment of the Secretary concerned

(1) there has been no fault by the person to whom the amount was erroneously paid; and

(2) recovery of such amount would be contrary to the purposes of this subchapter or against equity and good conscience.

10 USC 1454 - Correction of administrative errors

(a) Authority.—
The Secretary concerned may, under regulations prescribed under section 1455 of this title, correct or revoke any election under this subchapter when the Secretary considers it necessary to correct an administrative error.

(b) Finality.—
Except when procured by fraud, a correction or revocation under this section is final and conclusive on all officers of the United States.

10 USC 1455 - Regulations

(a) In General.—
The President shall prescribe regulations to carry out this subchapter. Those regulations shall, so far as practicable, be uniform for the uniformed services.

(b) Notice of Elections.—
Regulations prescribed under this section shall provide that before the date on which a member becomes entitled to retired pay

(1) if the member is married, the member and the members spouse shall be informed of the elections available under section 1448 (a) of this title and the effects of such elections; and

(2) if the notification referred to in section 1448 (a)(3)(E) of this title is required, any former spouse of the member shall be informed of the elections available and the effects of such elections.

(c) Procedure for Depositing Certain Receipts.—
Regulations prescribed under this section shall establish procedures for depositing the amounts referred to in sections 1448 (g), 1450 (k)(2), and 1452 (d) of this title.

(d) Payments to Guardians and Fiduciaries.—

(1) In general.—
Regulations prescribed under this section shall provide procedures for the payment of an annuity under this subchapter in the case of

(A) a person for whom a guardian or other fiduciary has been appointed; and

(B) a minor, mentally incompetent, or otherwise legally disabled person for whom a guardian or other fiduciary has not been appointed.

(2) Authorized procedures.—
The regulations under paragraph (1) may include provisions for the following:

(A) In the case of an annuitant referred to in paragraph (1)(A), payment of the annuity to the appointed guardian or other fiduciary.

(B) In the case of an annuitant referred to in paragraph (1)(B), payment of the annuity to any person who, in the judgment of the Secretary concerned, is responsible for the care of the annuitant.

(C) Subject to subparagraphs (D) and (E), a requirement for the payee of an annuity to spend or invest the amounts paid on behalf of the annuitant solely for benefit of the annuitant.

(D) Authority for the Secretary concerned to permit the payee to withhold from the annuity payment such amount, not in excess of 4 percent of the annuity, as the Secretary concerned considers a reasonable fee for the fiduciary services of the payee when a court appointment order provides for payment of such a fee to the payee for such services or the Secretary concerned determines that payment of a fee to such payee is necessary in order to obtain the fiduciary services of the payee.

(E) Authority for the Secretary concerned to require the payee to provide a surety bond in an amount sufficient to protect the interests of the annuitant and to pay for such bond out of the annuity.

(F) A requirement for the payee of an annuity to maintain and, upon request, to provide to the Secretary concerned an accounting of expenditures and investments of amounts paid to the payee.

(G) In the case of an annuitant referred to in paragraph (1)(B)

(i) procedures for determining incompetency and for selecting a payee to represent the annuitant for the purposes of this section, including provisions for notifying the annuitant of the actions being taken to make such a determination and to select a representative payee, an opportunity for the annuitant to review the evidence being considered, and an opportunity for the annuitant to submit additional evidence before the determination is made; and

(ii) standards for determining incompetency, including standards for determining the sufficiency of medical evidence and other evidence.

(H) Provisions for any other matter that the President considers appropriate in connection with the payment of an annuity in the case of a person referred to in paragraph (1).

(3) Legal effect of payment to guardian or fiduciary.—
An annuity paid to a person on behalf of an annuitant in accordance with the regulations prescribed pursuant to paragraph (1) discharges the obligation of the United States for payment to the annuitant of the amount of the annuity so paid.

[SUBCHAPTER III - REPEALED]

1456 to 1460b. Repealed. Pub. L. 108375, div. A, title VI, 644(b)(2), Oct. 28, 2004, 118 Stat. 1961]

Section 1456, added Pub. L. 101–189, div. A, title XIV, 1404(a)(1), Nov. 29, 1989, 103 Stat. 1580, related to supplemental spouse coverage: establishment of plan; definitions. Section 1457, added Pub. L. 101–189, div. A, title XIV, 1404(a)(1), Nov. 29, 1989, 103 Stat. 1580; amended Pub. L. 102–190, div. A, title VI, 653(b)(1), Dec. 5, 1991, 105 Stat. 1388; Pub. L. 103–337, div. A, title X, 1070(e)(5), Oct. 5, 1994, 108 Stat. 2859; Pub. L. 108–375, div. A, title VI, 644(b)(1), Oct. 28, 2004, 118 Stat. 1960, related to supplemental spouse coverage: payment of annuity; amount. Section 1458, added Pub. L. 101–189, div. A, title XIV, 1404(a)(1), Nov. 29, 1989, 103 Stat. 1581; amended Pub. L. 102–190, div. A, title VI, 653(c)(1), Dec. 5, 1991, 105 Stat. 1388; Pub. L. 108–136, div. A, title VI, 645(b)(2), Nov. 24, 2003, 117 Stat. 1519; Pub. L. 108–375, div. A, title X, 1084(d)(10), Oct. 28, 2004, 118 Stat. 2061, related to supplemental spouse coverage: eligible participants; elections of coverage. Section 1459, added Pub. L. 101–189, div. A, title XIV, 1404(a)(1), Nov. 29, 1989, 103 Stat. 1584, related to former spouse coverage: special rules. Section 1460, added Pub. L. 101–189, div. A, title XIV, 1404(a)(1), Nov. 29, 1989, 103 Stat. 1584; amended Pub. L. 102–190, div. A, title VI, 653(b)(2), Dec. 5, 1991, 105 Stat. 1388; Pub. L. 110–181, div. A, title IX, 906(c)(2), Jan. 28, 2008, 122 Stat. 277, related to supplemental spouse coverage: reductions in retired pay. Section 1460a, added Pub. L. 101–189, div. A, title XIV, 1404(a)(1), Nov. 29, 1989, 103 Stat. 1585; amended Pub. L. 101–510, div. A, title XIV, 1484(k)(5), Nov. 5, 1990, 104 Stat. 1719, related to incorporation of certain administrative provisions. Section 1460b, added Pub. L. 101–189, div. A, title XIV, 1404(a)(1), Nov. 29, 1989, 103 Stat. 1585, related to regulations.