10 U.S.C. § 1438 — Deposits for amounts not deducted

Page 1345 TITLE 10—ARMED FORCES § 1438 curs, if the member upon whose pay the annu- ity 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 eligi- ble, if that eligible child’s eighteenth birthday and the death of the member upon whose pay the annuity is based both occurred in a pre- ceding 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 sus- pended because the member has been determined to be missing, the Secretary concerned may de- termine for purposes of this subchapter that the member is presumed dead. Any such determina- tion shall be made in accordance with regula- tions 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 re- tired or retainer pay of the member was sus- pended. (3)(A) If, after a determination under para- graph (1), the Secretary concerned determines that the member is alive, any annuity being paid under this subchapter by reason of this sub- section 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 other- wise payable to the member; (ii) if the member is entitled to compensa- tion under chapter 11 of title 38, from that compensation; or (iii) if the member is entitled to any other payment from the United States, from that payment. (B) If the member dies before the full recovery of the amount of annuity payments described in subparagraph (A) has been made by the United States, the remaining amount of such annuity payments may be collected from the member’s beneficiary under this subchapter if that bene- ficiary was the recipient of the annuity pay- ments made by reason of this subsection. (Aug. 10, 1956, ch. 1041, 70A Stat. 110; Pub. L. 90–485, § 1(7), Aug. 13, 1968, 82 Stat. 753; Pub. L. 92–425, § 1(2)(A), Sept. 21, 1972, 86 Stat. 706; Pub. L. 96–513, title V, § 511(57), Dec. 12, 1980, 94 Stat. 2925; Pub. L. 98–94, title IX, § 922(a)(14)(A), Sept. 24, 1983, 97 Stat. 642; Pub. L. 98–525, title VI, § 642(a)(1), Oct. 19, 1984, 98 Stat. 2545; Pub. L. 99–145, title XIII, § 1303(a)(9), Nov. 8, 1985, 99 Stat. 739.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 1437 ......... 37:379. Aug. 8, 1953, ch. 393, § 10, 67 Stat. 504. The words ‘‘the person upon whose reduced pay the annuity is based’’ are substituted for the words ‘‘the re- tired member’’ since persons other than retired mem- bers may elect an annuity. The words ‘‘due and’’ and ‘‘or be paid’’ are omitted as surplusage. Editorial Notes AMENDMENTS 1985—Subsec. (c)(3)(A). Pub. L. 99–145 struck out ‘‘(notwithstanding section 144 of this title)’’ after ‘‘which’’. 1984—Subsec. (a). Pub. L. 98–525, § 642(a)(1)(A), sub- stituted ‘‘subsections (b) and (c),’’ for ‘‘subsection (b)’’. Subsec. (c). Pub. L. 98–525, § 642(a)(1)(B), added subsec. (c). 1983—Subsec. (a). Pub. L. 98–94 inserted ‘‘The monthly amount of an annuity payable under this subchapter, if not a multiple of $1, shall be rounded to the next lower multiple of $1.’’ 1980—Subsec. (b). Pub. L. 96–513 substituted ‘‘before November 1, 1968’’ for ‘‘prior to the effective date of this subsection’’. 1972—Subsec. (a). Pub. L. 92–425 substituted ‘‘sub- chapter’’ for ‘‘chapter’’. 1968—Pub. L. 90–485 designated existing provisions as subsec. (a), inserted ‘‘Except as provided in subsection (b)’’, substituted ‘‘whose pay’’ for ‘‘whose reduced pay’’, and added subsec. (b). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1983 AMENDMENT Amendment by Pub. L. 98–94 effective Oct. 1, 1983, see section 922(e) of Pub. L. 98–94, set out as a note under section 1401 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96–513 effective Dec. 12, 1980, see section 701(b)(3) of Pub. L. 96–513, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1968 AMENDMENT For effective date of amendment by Pub. L. 90–485, see section 6 of Pub. L. 90–485, set out as a note under section 1431 of this title. § 1438. Deposits for amounts not deducted If, for any period, a person who has been re- tired or has become entitled to retired or re- tainer 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 de- ducted from his pay for that period to provide the annuity. (Aug. 10, 1956, ch. 1041, 70A Stat. 110; Pub. L. 92–425, § 1(2)(A), Sept. 21, 1972, 86 Stat. 706.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 1438 ......... 37:374. Aug. 8, 1953, ch. 393, § 5, 67 Stat. 504. The words ‘‘a person who has been retired or has be- come entitled to retired or retainer pay, and who has elected an annuity under this chapter’’ are substituted for the words ‘‘a retired member of a uniformed service Page 1346 TITLE 10—ARMED FORCES § 1439 who has made the election specified in section 372 of this title’’, since the revised chapter applies to persons who are receiving retired pay as well as retired mem- bers. The word ‘‘otherwise’’ is substituted for the words ‘‘had he been receiving that pay’’. The words ‘‘to pro- vide the annuity’’ are inserted for clarity. Editorial Notes AMENDMENTS 1972—Pub. L. 92–425 substituted ‘‘subchapter’’ for ‘‘chapter’’. § 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 rea- son 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. (Aug. 10, 1956, ch. 1041, 70A Stat. 111; Pub. L. 92–425, § 1(2)(A), Sept. 21, 1972, 86 Stat. 706.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 1439 ......... 37:373(d). Aug. 8, 1953, ch. 393, § 4(d), 67 Stat. 503. The words ‘‘person whose name is on’’ are substituted for the words ‘‘Any active member or former member on the’’. The words ‘‘is entitled to a refund’’ are sub- stituted for the words ‘‘shall have refunded to him’’. The words ‘‘permanent’’, ‘‘a sum which represents’’, and ‘‘in accordance with his election under section 372 of this title’’ are omitted as surplusage. The words ‘‘re- tirement or grant of retired pay’’ are substituted for the words ‘‘permanent retirement’’, since under chap- ter 67 of this title a member of the Army or Air Force may be granted retired pay without being retired. Editorial Notes AMENDMENTS 1972—Pub. L. 92–425 substituted ‘‘subchapter’’ for ‘‘chapter’’. § 1440. Annuities not subject to legal process Except as provided in section 1437(c)(3)(B) of this title, no annuity payable under this sub- chapter is assignable or subject to execution, levy, attachment, garnishment, or other legal process. (Aug. 10, 1956, ch. 1041, 70A Stat. 111; Pub. L. 92–425, § 1(2)(A), Sept. 21, 1972, 86 Stat. 706; Pub. L. 98–525, title VI, § 642(a)(2), Oct. 19, 1984, 98 Stat. 2546; Pub. L. 99–145, title XIII, § 1303(a)(10), Nov. 8, 1985, 99 Stat. 739.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 1440 ......... 37:378. Aug. 8, 1953, ch. 393, § 9, 67 Stat. 504. The words ‘‘either in law or equity’’ are omitted as surplusage. Editorial Notes AMENDMENTS 1985—Pub. L. 99–145 substituted ‘‘1437(c)(3)(B)’’ for ‘‘1437(c)(3)’’. 1984—Pub. L. 98–525 substituted ‘‘Except as provided in section 1437(c)(3) of this title, no’’ for ‘‘No’’. 1972—Pub. L. 92–425 substituted ‘‘subchapter’’ for ‘‘chapter’’. § 1441. Annuities in addition to other payments An annuity under this subchapter is in addi- tion to any pension or other payment to which the beneficiary is entitled under any other pro- vision of law, and may not be considered as in- come under any law administered by the Depart- ment of Veterans Affairs. (Aug. 10, 1956, ch. 1041, 70A Stat. 111; Pub. L. 85–857, § 13(v)(1), Sept. 2, 1958, 72 Stat. 1266; Pub. L. 85–861, § 1(31B), Sept. 2, 1958, 72 Stat. 1452; Pub. L. 86–211, § 8(a), Aug. 29, 1959, 73 Stat. 436; Pub. L. 91–588, § 8(b), Dec. 24, 1970, 84 Stat. 1584; Pub. L. 92–425, § 1(2)(A), Sept. 21, 1972, 86 Stat. 706; Pub. L. 101–189, div. A, title XVI, § 1621(a)(1), Nov. 29, 1989, 103 Stat. 1602.) HISTORICAL AND REVISION NOTES 1956 ACT Revised section Source (U.S. Code) Source (Statutes at Large) 1441 ......... 37:380. Aug. 8, 1953, ch. 393, § 11, 67 Stat. 504. The word ‘‘is’’ is substituted for the words ‘‘may now or hereafter be’’. 1958 ACT Revised section Source (U.S. Code) Source (Statutes at Large) 1441 ......... 37:380. Aug. 1, 1956, ch. 837, § 501(1), 70 Stat. 884. The change is made to reflect the amendment made by section 501(1) of the Servicemen’s and Veterans’ Sur- vivor Benefits Act (70 Stat. 884) to section 11 of the Uni- form Services Contingency Option Act of 1953 (restated in section 1441 of title 10). Editorial Notes AMENDMENTS 1989—Pub. L. 101–189 substituted ‘‘Department of Vet- erans Affairs’’ for ‘‘Veterans’ Administration’’. 1972—Pub. L. 92–425 substituted ‘‘subchapter’’ for ‘‘chapter’’. 1970—Pub. L. 91–588 struck out ‘‘except section 415(g) and chapter 15 of title 38’’ after ‘‘Veterans’ Administra- tion’’. 1959—Pub. L. 86–211 inserted reference to chapter 15 of title 38. 1958—Pub. L. 85–861 inserted ‘‘except section 1115 of title 38’’ after ‘‘Administration’’. Pub. L. 85–857 substituted ‘‘section 415(g) of title 38’’ for ‘‘section 1115 of title 38’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1970 AMENDMENT Amendment by Pub. L. 91–588 effective Jan. 1, 1971, see section 10 of Pub. L. 91–588, set out as a note under section 1521 of Title 38, Veterans’ Benefits. EFFECTIVE DATE OF 1959 AMENDMENT Amendment by Pub. L. 86–211 effective July 1, 1960, see section 10 of Pub. L. 86–211, set out as a note under section 1506 of Title 38, Veterans’ Benefits.