10 U.S.C. § 1402a — Recomputation of retired or retainer pay

Page 1308 TITLE 10—ARMED FORCES § 1402a ‘‘(2) to an increase of 5 percent in the retired pay or retainer pay to which he was entitled on the day be- fore the effective date of this Act [Oct. 1, 1963]; whichever pay is the greater. ‘‘(d) A member or former member of a uniformed service who was entitled to retired pay on the day be- fore the effective date of this Act [Oct. 1, 1963] and who served as Chief of Staff of the Army, Chief of Naval Op- erations, Chief of Staff of the Air Force, or Com- mandant of the Marine Corps is entitled— ‘‘(1) to have his retired pay recomputed under the formula for computing retired pay applicable to him— ‘‘(A) when he retired; or ‘‘(B) if he served on active duty after he retired and his retired pay was recomputed by reason of that service, when his retired pay was so recom- puted; using as his rate of basic pay the rate of basic pay prescribed for officers serving on active duty in those positions on June 1, 1958, by footnote 1 to table for commissioned officers in section 201(a) of the Career Compensation Act of 1949, as amended (72 Stat. 122) [see section 203 of Title 37]; or ‘‘(2) to an increase of 5 percent in the retired pay to which he was entitled on the day before the effective date of this Act [Oct. 1, 1963]; whichever pay is the greater. ‘‘(e) A member or former member of a uniformed service who was entitled to retired pay or retainer pay on the day before the effective date of this Act [Oct. 1, 1963], other than a member or former member who is covered by subsection (b), (c), or (d) of this section, is entitled to an increase of 5 percent in the retired or re- tainer pay to which he was entitled on the day before the effective date of this Act [Oct. 1, 1963]. ‘‘(f) Notwithstanding any other provision of law, a member of an armed force who was entitled to pay and allowances under any of the following provisions of law on the day before the effective date of this Act [Oct. 1, 1963] shall continue to receive the pay and allowances to which he was entitled on that day: ‘‘(1) The Act of March 23, 1946, chapter 112 (60 Stat. 59). ‘‘(2) The Act of June 26, 1948, chapter 677 (62 Stat. 1052). ‘‘(3) The Act of September 18, 1950, chapter 952 (64 Stat. A224).’’ RETIRED PAY AND RETAINER PAY; RETROACTIVE EFFECT Pub. L. 88–132, § 5(j), Oct. 2, 1963, 77 Stat. 214, provided that: ‘‘A member or former member of a uniformed service is not entitled to an increase in his retired pay or retainer pay because of the enactment of this Act [see Short Title note set out under section 201 of Title 37] for any period before the effective date of this Act [Oct. 1, 1963].’’ SAVINGS PROVISION Pub. L. 88–132, § 5(l)(2), Oct. 2, 1963, 77 Stat. 215, pro- vided that: ‘‘Notwithstanding paragraph (1) of this sub- section [amending this section], and unless otherwise entitled to higher retired pay or retainer pay, a mem- ber of a uniformed service who is on active duty (other than for training) on the effective date of this Act [Oct. 1, 1963], who was entitled to retired pay or retainer pay before he entered on that duty, and who is released from that duty on or after the effective date of this Act after having served on that duty for a continuous pe- riod of at least one year shall, upon that release from active duty, be entitled to recompute his retired pay or retainer pay under the table in section 1402 of title 10, United States Code [this section], subject to section 6483(c) [now 8383(c)] of title 10, as that table and that section were in effect on the day before the effective date of this Act, using rates of basic pay prescribed by this Act [section 203 of Title 37].’’ § 1402a. Recomputation of retired or retainer pay to reflect later active duty of members who first became members after September 7, 1980 (a) IN GENERAL.—A member of an armed force— (1) who first became a member of a uni- formed service after September 7, 1980; (2) who has become entitled to retired pay or retainer pay; and (3) who thereafter serves on active duty (other than for training), is entitled to recompute his retired pay or re- tainer pay upon release from that duty accord- ing to the following table. Column 1 Take Column 2 Multiply by Retired pay base or retainer pay base under section 1407 which he would be entitled to use if— The retired pay multiplier or retainer pay multiplier pre- scribed in section 1409 for the sum of— (1) he were retiring upon release from that active duty; or (1) the years of service that may be credited to him in computing retired pay or re- tainer pay; and (2) he were transferring to the Fleet Reserve or Fleet Marine Corps Reserve upon that release from active duty. (2) his years of active serv- ice after becoming entitled to retired pay or retainer pay. (b) NEW DISABILITY INCURRED DURING LATER ACTIVE DUTY.—A member of an armed force who first became a member of a uniformed service after September 7, 1980, who has been retired other than for physical disability and who while on active duty incurs a physical disability of at least 30 percent for which he would otherwise be eligible for retired pay under chapter 61 of this title, is entitled, upon his release from active duty, to retired pay under subsection (d). (c) ADDITIONAL OR AGGRAVATED DISABILITY IN- CURRED DURING LATER ACTIVE DUTY.—A member of an armed force who first became a member of a uniformed service after September 7, 1980, and who— (1) was retired for physical disability under section 1201 or 1204 of this title or any other law or whose name is on the temporary dis- ability retired list; (2) incurs, while on active duty after retire- ment or after his name was placed on the tem- porary disability retired list, a physical dis- ability that is in addition to or that aggra- vates the physical disability for which he was retired or for which his name was placed on that list; and (3) is qualified under section 1201, 1202, 1204, or 1205 of this title; is entitled, upon his release from active duty, to retired pay under subsection (d). (d) COMPUTATION FOR LATER DISABILITY.—A member of an armed force covered by subsection (b) or (c) may elect to receive either (1) the re- tired pay to which he became entitled when he retired, increased by any applicable adjustments in that pay under section 1401a of this title after he initially became entitled to that pay, or (2) retired pay computed according to the following table. Page 1309 TITLE 10—ARMED FORCES § 1402a Column 1 Take Column 2 Multiply by Column 3 Add The retired pay base computed under section 1407(b) of this title. As member elects— (1) 21⁄2 percent of years of service credited under section 1208 of this title; 1 or (2) the highest percentage of dis- ability, not to exceed 75 percent, at- tained while on active duty after re- tirement or after the date when his name was placed on temporary dis- ability retired list, as the case may be. Amount necessary to increase product of columns 1 and 2 to 50 percent of pay upon which computation is based, if mem- ber is on temporary disability retired list. 1 Before applying percentage factor, credit each full month of service that is in addition to the number of full years of service cred- itable to the member as one-twelfth of a year and disregard any remaining fractional part of a month. (e) ALTERNATIVE RECOMPUTATION TO SUB- SECTION (a) FORMULA.—Notwithstanding sub- section (a), a member covered by that sub- section may elect, upon his release from that ac- tive duty, to have his retired pay or retainer pay— (1) computed according to the formula set forth in subsection (a) but using the monthly retired pay base under which his retired pay or retainer pay was computed when he entered on that active duty; and (2) increased by any applicable adjustments in that pay under section 1401a of this title after he initially became entitled to that pay. (f) ADDITIONAL 10 PERCENT FOR CERTAIN EN- LISTED MEMBERS CREDITED WITH EXTRAORDINARY HEROISM.—(1) In the case of a member who is en- titled to recompute retired pay under this sec- tion upon release from active duty served after retiring under section 7314 or 9314 of this title, the member’s retired pay as recomputed under another provision of this section shall be in- creased by 10 percent of the amount so recom- puted if the member has been credited by the Secretary concerned with extraordinary heroism in the line of duty during any period of active duty service in the armed forces. (2) The amount of the retired pay as recom- puted under another provision of this section and as increased under paragraph (1) may not exceed the amount equal to 75 percent of the re- tired pay base upon which the recomputation of such retired pay is based. (3) The determination of the Secretary con- cerned as to extraordinary heroism is conclusive for all purposes. (Added Pub. L. 96–342, title VIII, § 813(b)(3)(A), Sept. 8, 1980, 94 Stat. 1102; amended Pub. L. 96–513, title V, § 511(51)(A), (B), Dec. 12, 1980, 94 Stat. 2924; Pub. L. 98–94, title IX, §§ 922(a)(5), (6), 923(a)(1), (2)(D), (E), Sept. 24, 1983, 97 Stat. 641, 642; Pub. L. 99–348, title II, § 201(b)(1), (2), July 1, 1986, 100 Stat. 693; Pub. L. 102–484, div. A, title VI, § 642(b), Oct. 23, 1992, 106 Stat. 2425; Pub. L. 111–383, div. A, title VI, § 631(c), Jan. 7, 2011, 124 Stat. 4239; Pub. L. 115–232, div. A, title VIII, § 809(a), Aug. 13, 2018, 132 Stat. 1840.) Editorial Notes AMENDMENTS 2018—Subsec. (f)(1). Pub. L. 115–232 substituted ‘‘sec- tion 7314 or 9314’’ for ‘‘section 3914 or 8914’’. 2011—Subsec. (d). Pub. L. 111–383, in column 2 of table, inserted ‘‘, not to exceed 75%,’’ after ‘‘percentage of disability’’ and struck out column 4 of table which re- lated to subtraction of excess over 75 percent of retired or retainer pay base upon which computation is based. 1992—Subsec. (f). Pub. L. 102–484 added subsec. (f). 1986—Subsec. (a). Pub. L. 99–348, § 201(b)(1), amended subsec. (a) generally. Prior to the amendment, subsec. (a) read as follows: ‘‘A member of an armed force who first became a member of a uniformed service (as de- fined in section 1407(a)(2) of this title) after September 7, 1980, who has become entitled to retired pay or re- tainer pay, and who thereafter serves on active duty (other than for training), is entitled to recompute his retired pay or retainer pay upon his release from that duty according to the following table. The amount re- computed, if not a multiple of $1, shall be rounded to the next lower multiple of $1.’’ Subsec. (b). Pub. L. 99–348, § 201(b)(2)(A), inserted heading. Subsec. (c). Pub. L. 99–348, § 201(b)(2)(B), inserted heading. Subsec. (d). Pub. L. 99–348, § 201(b)(2)(C), inserted heading, struck out provision that if the amount re- computed is not a multiple of $1, it be rounded to the next lower multiple of $1, and in column 1 of table struck out ‘‘monthly’’ before ‘‘retired pay’’ and in col- umn 4 of table struck out ‘‘monthly’’ before ‘‘retired or’’. Subsec. (e). Pub. L. 99–348, § 201(b)(2)(D), inserted heading. 1983—Subsec. (a). Pub. L. 98–94, § 922(a)(5), substituted ‘‘according to the following table. The amount recom- puted, if not a multiple of $1, shall be rounded to the next lower multiple of $1.’’ for ‘‘as follows:’’. Pub. L. 98–94, § 923(a)(1), (2)(D), in footnote 1 of table, substituted ‘‘Before applying percentage factor, credit each full month of service that is in addition to the number of full years of service creditable to the mem- ber as one-twelfth of a year and disregard any remain- ing fractional part of a month’’ for ‘‘Before applying percentage factor, credit a part of a year that is six months or more as a whole year, and disregard a part of a year that is less than six months’’. Subsec. (d). Pub. L. 98–94, § 922(a)(6), substituted ‘‘ac- cording to the following table. The amount computed, if not a multiple of $1, shall be rounded to the next lower multiple of $1.’’ for ‘‘as follows:’’. Pub. L. 98–94, § 923(a)(1), (2)(E), in footnote 1 of table, substituted ‘‘Before applying percentage factor, credit each full month of service that is in addition to the number of full years of service creditable to the mem- ber as one-twelfth of a year and disregard any remain- ing fractional part of a month’’ for ‘‘Before applying percentage factor, credit a part of a year that is six months or more as a whole year, and disregard a part of a year that is less than six months’’. 1980—Pub. L. 96–513, § 511(51)(B), substituted ‘‘of mem- bers who first became members after September 7, 1980’’ for ‘‘in case of members who first became mem- bers after the enactment of the Department of Defense Authorization Act, 1981’’ in section catchline. Subsecs. (a) to (c). Pub. L. 96–513, § 511(51)(A), sub- stituted ‘‘after September 7, 1980’’ for ‘‘on or after the date of the enactment of the Department of Defense Authorization Act, 1981’’ wherever appearing. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Amendment by Pub. L. 115–232 effective Feb. 1, 2019, with provision for the coordination of amendments and Page 1310 TITLE 10—ARMED FORCES § 1403 special rule for certain redesignations, see section 800 of Pub. L. 115–232, set out as a note preceding section 3001 of this title. EFFECTIVE DATE OF 2011 AMENDMENT Amendment by Pub. L. 111–383 applicable to persons who first become entitled to retired or retainer pay under subtitle A of this title after Jan. 7, 2011, and table in subsec. (d) of this section, in effect on the day before Jan. 7, 2011, applicable to the computation or re- computation of retired or retainer pay for persons who first became entitled to retired or retainer pay under subtitle A on or before Jan. 7, 2011, see section 631(d) of Pub. L. 111–383, set out as a note under section 1401 of this title. EFFECTIVE DATE OF 1983 AMENDMENT Amendment by section 922 of Pub. L. 98–94 effective Oct. 1, 1983, see section 922(e) of Pub. L. 98–94, set out as a note under section 1401 of this title. Amendment by section 923 of Pub. L. 98–94 applicable with respect to (1) the computation of retired or re- tainer pay of any individual who becomes entitled to that pay after Sept. 30, 1983, and (2) the recomputation of retired pay under this section, of any individual who after Sept. 30, 1983, becomes entitled to recompute re- tired pay under this section, see section 923(g) of Pub. L. 98–94, set out as a note under section 1174 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title. ACCRUAL OF BENEFITS; PROSPECTIVE APPLICABILITY No benefits to accrue for months beginning before Oct. 23, 1992, by reason of the amendment by Pub. L. 102–484, see section 642(c) of Pub. L. 102–484, set out as a note under section 1402 of this title. § 1403. Disability retired pay: treatment under Internal Revenue Code of 1986 That part of the retired pay of a member of an armed force, computed under formula No. 1 or 2 of section 1401, or under section 1402(d) or 1402a(d) of this title on the basis of years of serv- ice, which exceeds the retired pay that he would receive if it were computed on the basis of per- centage of disability is not considered as a pen- sion, annuity, or similar allowance for personal injury, or sickness, resulting from active service in the armed forces, under section 104(a) of the Internal Revenue Code of 1986. (Aug. 10, 1956, ch. 1041, 70A Stat. 108; Pub. L. 96–342, title VIII, § 813(b)(3)(C), Sept. 8, 1980, 94 Stat. 1104; Pub. L. 96–513, title V, § 511(52)(A), (B), Dec. 12, 1980, 94 Stat. 2925; Pub. L. 100–26, § 7(h)(1), (2)(A), Apr. 21, 1987, 101 Stat. 282.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 1403 ......... 37:272(h). Oct. 12, 1949, ch. 681, § 402(h), 63 Stat. 820. Editorial Notes REFERENCES IN TEXT The Internal Revenue Code of 1986, referred to in text, is set out in Title 26, Internal Revenue Code. AMENDMENTS 1987—Pub. L. 100–26 substituted ‘‘Internal Revenue Code of 1986’’ for ‘‘Internal Revenue Code of 1954’’ in section catchline and text. 1980—Pub. L. 96–513 substituted ‘‘the Internal Rev- enue Code of 1954’’ for ‘‘title 26’’ in section catchline and text. Pub. L. 96–342 inserted reference to section 1402a(d) of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title. § 1404. Applicability of section 8301 of title 5 The retirement provisions of this title are sub- ject to section 8301 of title 5. (Aug. 10, 1956, ch. 1041, 70A Stat. 108; Pub. L. 89–718, § 3, Nov. 2, 1966, 80 Stat. 1115.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 1404 ......... [No source]. [No source]. The effect of the act of April 23, 1930 (5 U.S.C. 47a), in temporarily deferring retirement dates otherwise spe- cifically fixed by law is reflected in the sections of the proposed text that name those dates. This section is in- serted to make clear that under that act such deferments have no effect on the applicability of the specific rates that are to be used in computing retired pay. Editorial Notes AMENDMENTS 1966—Pub. L. 89–718 substituted ‘‘8301’’ for ‘‘47a’’ in section catchline and text. § 1405. Years of service (a) IN GENERAL.—For the purposes of the com- putation of the years of service of a member of the armed forces under a provision of this title providing for such computation to be made under this section, the years of service of the member are computed by adding— (1) his years of active service; (2) the years of service, not included in clause (1), with which he was entitled to be credited on May 31, 1958, in computing his basic pay; and (3) the years of service, not included in clause (1) or (2), with which he would be enti- tled to be credited under section 12733 of this title if he were entitled to retired pay under section 12731 of this title. (b) FRACTIONAL YEARS OF SERVICE.—In deter- mining a member’s years of service under sub- section (a)— (1) each full month of service that is in addi- tion to the number of full years of service creditable to the member shall be credited as 1⁄12 of a year; and (2) any remaining fractional part of a month shall be disregarded. (c) EXCLUSION OF TIME REQUIRED TO BE MADE UP OR EXCLUDED.—(1) Time required to be made up by an enlisted member of the Army, Air Force, or Space Force under section 972(a) of this title, or required to be made up by an en- listed member of the Navy, Marine Corps, or