10 U.S.C. § 1407 — Retired pay base for members who first

Page 1315 TITLE 10—ARMED FORCES § 1407 tration Commissioned Officers Act of 2002’’ for ‘‘section 16 of the Coast and Geodetic Survey Commissioned Of- ficers’ Act of 1948 (33 U.S.C. 853o)’’ 1999—Subsec. (i)(2). Pub. L. 106–65 substituted ‘‘after October 16, 1998’’ for ‘‘on or after the date of the enact- ment of the Strom Thurmond National Defense Author- ization Act for Fiscal Year 1999’’ in introductory provi- sions. 1998—Subsec. (i)(2), (3). Pub. L. 105–261 added par. (2) and redesignated former par. (2) as (3). 1997—Subsec. (b)(1). Pub. L. 105–85 substituted ‘‘3962 and 8962’’ for ‘‘3962(b) and 8962(b)’’ in footnote 3 in table. Subsec. (c)(1). Pub. L. 105–85, § 1073(a)(23)(A), sub- stituted ‘‘3962’’ for ‘‘3962(b)’’ in footnote 1 in table. Subsec. (e)(1). Pub. L. 105–85, § 1073(a)(23)(B), sub- stituted ‘‘8962’’ for ‘‘8962(b)’’ in footnote 1 in table. 1994—Subsec. (b). Pub. L. 103–337 substituted ‘‘Sub- title A or E’’ for ‘‘Subtitle A’’ in subsec. heading, des- ignated existing provisions as par. (1), inserted par. (1) heading, in table struck out item for section 1331 which related to monthly basic pay of highest grade held sat- isfactorily by person at any time in armed forces, re- numbered footnotes 3 and 4 as 2 and 3, respectively, and struck out former footnote 2 which provided for com- putations at rates applicable on date when retired pay is granted, and added par. (2). 1991—Subsec. (b). Pub. L. 102–190 substituted ‘‘580’’ for ‘‘564’’ in table. 1988—Subsec. (b). Pub. L. 100–456 substituted ‘‘satis- factorily by person’’ for ‘‘satisfactory by person’’ in item relating to section 1331 in table. 1987—Subsec. (d). Pub. L. 100–180, § 512(d)(2), inserted ‘‘or 6334’’ after ‘‘6151’’ in text, and inserted item relat- ing to section 6334 at end of table. Subsec. (i). Pub. L. 100–180, § 1314(b)(6), inserted ‘‘and Vice Chairmen’’ after ‘‘Chairmen’’ in heading and in- serted ‘‘or Vice Chairman’’ after ‘‘Chairman’’ in par. (1). 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 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 2014 AMENDMENT Pub. L. 113–291, div. A, title VI, § 603(e), Dec. 19, 2014, 128 Stat. 3398, provided that: ‘‘This section [amending this section and sections 210 and 414 of Title 37, Pay and Allowances of the Uniformed Services, enacting provi- sions set out as a note under section 203 of Title 37, and amending provisions set out as a note under section 205 of Title 37] and the amendments made by this section shall take effect on the date of the enactment of this Act [Dec. 19, 2014], and shall apply with respect to months of service that begin on or after that date.’’ EFFECTIVE DATE OF 2003 AMENDMENT Pub. L. 108–136, div. A, title VI, § 643(c), Nov. 24, 2003, 117 Stat. 1517, provided that: ‘‘The amendments made by this section [amending this section] shall take effect on the date of the enactment of this Act [Nov. 24, 2003] and shall apply with respect to officers who first be- come entitled to retired pay under title 10, United States Code, on or after such date.’’ EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–337 effective Dec. 1, 1994, except as otherwise provided, see section 1691 of Pub. L. 103–337, set out as an Effective Date note under section 10001 of this title. EFFECTIVE DATE OF 1991 AMENDMENT Amendment by Pub. L. 102–190 effective Feb. 1, 1992, see section 1132 of Pub. L. 102–190, set out as a note under section 521 of this title. TRANSFER OF FUNCTIONS For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relat- ing thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Secu- rity, and the Department of Homeland Security Reor- ganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. GRADE ON TRANSFER TO RETIRED RESERVE Pub. L. 103–337, div. A, title XVI, § 1688, Oct. 5, 1994, 108 Stat. 3025, provided that: ‘‘In determining the high- est grade held satisfactorily by a person at any time in the Armed Forces for the purposes of paragraph (2) of section 1406(b) of title 10, United States Code, as added by this title, the requirement for satisfactory service on the reserve active-status list contained in [former] section 1370(d) of title 10, United States Code, as added by this title, shall apply only to reserve commissioned officers who are promoted to a higher grade as a result of selection for promotion under chapter 36 of that title or under chapter 1405 of that title, as added by this title, or having been found qualified for Federal rec- ognition in a higher grade under chapter 3 of title 32, United States Code, after the effective date of this title [see Effective Date note set out under section 10001 of this title].’’ [In determining retired grade of certain commis- sioned officers of the Armed Forces who retire after Jan. 1, 2021, any reference to section 1370 of title 10 in such determination with respect to such officers deemed to be a reference to section 1370a of title 10, see section 508(c) of Pub. L. 116–283, set out as a note under section 1370 of this title.] § 1407. Retired pay base for members who first became members after September 7, 1980: high-36 month average (a) USE OF RETIRED PAY BASE IN COMPUTING RETIRED PAY.—The retired pay or retainer pay of any person entitled to that pay who first be- came a member of a uniformed service after September 7, 1980, is computed using the retired pay base or retainer pay base determined under this section. (b) HIGH-THREE AVERAGE.—Except as provided in subsection (f), the retired pay base or retainer pay base of a person under this section is the person’s high-three average determined under subsection (c) or (d). (c) COMPUTATION OF HIGH-THREE AVERAGE FOR MEMBERS ENTITLED TO RETIRED OR RETAINER PAY FOR REGULAR SERVICE.— (1) GENERAL RULE.—The high-three average of a member entitled to retired or retainer pay under any provision of law other than section 1204 or 1205 or section 12731 of this title is the amount equal to— (A) the total amount of monthly basic pay to which the member was entitled for the 36 months (whether or not consecutive) out of all the months of active service of the mem- ber for which the monthly basic pay to which the member was entitled was the highest, divided by (B) 36. (2) SPECIAL RULE FOR SHORT-TERM DISABILITY RETIREES.—In the case of a member who is en- titled to retired pay under section 1201 or 1202 of this title and who has completed less than 36 months of active service, the member’s high-three average (notwithstanding para- graph (1)) is the amount equal to— Page 1316 TITLE 10—ARMED FORCES § 1407 (A) the total amount of basic pay to which the member was entitled during the period of the member’s active service, divided by (B) the number of months (including any fraction thereof) of the member’s active service. (3) SPECIAL RULE FOR RESERVE COMPONENT MEMBERS.—In the case of a member of a re- serve component who is entitled to retired pay under section 1201 or 1202 of this title, the member’s high-three average (notwithstanding paragraphs (1) and (2)) is computed in the same manner as prescribed in paragraphs (2) and (3) of subsection (d) for a member entitled to retired pay under section 1204 or 1205 of this title. (d) COMPUTATION OF HIGH-THREE AVERAGE FOR MEMBERS AND FORMER MEMBERS ENTITLED TO RETIRED PAY FOR NONREGULAR SERVICE.— (1) RETIRED PAY UNDER CHAPTER 1223.—The high-three average of a member or former member entitled to retired pay under section 12731 of this title is the amount equal to— (A) the total amount of monthly basic pay to which the member or former member was entitled during the member or former mem- ber’s high-36 months (or to which the mem- ber or former member would have been enti- tled if the member or former member had served on active duty during the entire pe- riod of the member or former member’s high-36 months), divided by (B) 36. (2) NONREGULAR SERVICE DISABILITY RETIRED PAY.—The high-three average of a member en- titled to retired pay under section 1204 or 1205 of this title is the amount equal to— (A) the total amount of monthly basic pay to which the member was entitled during the member’s high-36 months (or to which the member would have been entitled if the member had served on active duty during the entire period of the member’s high-36 months), divided by (B) 36. (3) SPECIAL RULE FOR SHORT-TERM DISABILITY RETIREES.—In the case of a member who is en- titled to retired pay under section 1204 or 1205 of this title and who was a member for less than 36 months before being retired under that section, the member’s high-three average (not- withstanding paragraph (2)) is the amount equal to— (A) the total amount of basic pay to which the member was entitled during the entire period the member was a member of a uni- formed service before being so retired (or to which the member would have been entitled if the member had served on active duty dur- ing the entire period the member was a member of a uniformed service before being so retired), divided by (B) the number of months (including any fraction thereof) which the member was a member before being so retired. (4) HIGH-36 MONTHS.—The high-36 months of a member or former member whose retired pay is covered by paragraph (1) or (2) are the 36 months (whether or not consecutive) out of all the months before the member or former member became entitled to retired pay or, in the case of a member or former member enti- tled to retired pay by reason of an election under section 12741(a) of this title, before the member or former member completes the serv- ice required under such section 12741(a), for which the monthly basic pay to which the member or former member was entitled (or would have been entitled if serving on active duty during those months) was the highest. In the case of a former member, only months during which the former member was a mem- ber of a uniformed service may be used for purposes of the preceding sentence. (e) LIMITATION FOR ENLISTED MEMBERS RETIR- ING WITH LESS THAN 30 YEARS’ SERVICE.—In the case of a member who is retired under section 7314 or 9314 of this title or who is transferred to the Fleet Reserve or Fleet Marine Corps Reserve under section 8330 of this title, the member’s high-36 average shall be computed using only rates of basic pay applicable to months of active duty of the member as an enlisted member. (f) EXCEPTION FOR ENLISTED MEMBERS REDUCED IN GRADE AND OFFICERS WHO DO NOT SERVE SAT- ISFACTORILY IN HIGHEST GRADE HELD.— (1) COMPUTATION BASED ON PRE-HIGH-THREE RULES.—In the case of a member or former member described in paragraph (2), the retired pay base or retainer pay base is determined under section 1406 of this title in the same manner as if the member or former member first became a member of a uniformed service before September 8, 1980. (2) AFFECTED MEMBERS.—A member or former member referred to in paragraph (1) is a member or former member who by reason of conduct occurring after October 30, 2000— (A) in the case of a member retired in an enlisted grade or transferred to the Fleet Reserve or Fleet Marine Corps Reserve, was at any time reduced in grade as the result of a court-martial sentence, nonjudicial pun- ishment, or an administrative action, unless the member was subsequently promoted to a higher enlisted grade or appointed to a com- missioned or warrant grade; and (B) in the case of an officer, is retired in a grade lower than the highest grade in which served pursuant to section 1370 or 1370a of this title that the officer served on active duty satisfactorily in that grade. (3) SPECIAL RULE FOR ENLISTED MEMBERS.—In the case of a member who retires within three years after having been reduced in grade as de- scribed in paragraph (2)(A), who retires in an enlisted grade that is lower than the grade from which reduced, and who would be subject to paragraph (1) but for a subsequent pro- motion to a higher enlisted grade or a subse- quent appointment to a warrant or commis- sioned grade, the rates of basic pay used in the computation of the member’s high-36 average for the period of the member’s service in a grade higher than the grade in which retired shall be the rates of pay that would apply if the member had been serving for that period in the grade in which retired. (4) SPECIAL RULE FOR OFFICERS WHO SERVED IN GRADE O–9 OR O–10 AND RETIRED IN GRADE Page 1317 TITLE 10—ARMED FORCES § 1407a O–8.—In the case of an officer who served in the temporary grade of O–9 or O–10 and re- ceived a conditional or final retirement in the permanent grade of O–8 pursuant to section 1370 or 1370a of this title, the retired pay base or retainer pay shall be the lower of— (A) the amount determined under sub- section (c) or (d), as applicable; or (B) the amount determined under section 1406 of this title, as if the officer first be- came a member of a uniformed service be- fore September 8, 1980. (Added Pub. L. 99–348, title I, § 104(b), July 1, 1986, 100 Stat. 689; amended Pub. L. 101–189, div. A, title VI, § 651(a), (b)(2), Nov. 29, 1989, 103 Stat. 1459, 1460; Pub. L. 103–337, div. A, title XVI, § 1662(j)(5), Oct. 5, 1994, 108 Stat. 3004; Pub. L. 104–106, div. A, title XV, § 1501(c)(15), Feb. 10, 1996, 110 Stat. 499; Pub. L. 106–398, § 1 [[div. A], title VI, § 651], Oct. 30, 2000, 114 Stat. 1654, 1654A–163; Pub. L. 107–107, div. A, title X, § 1048(c)(8), Dec. 28, 2001, 115 Stat. 1226; Pub. L. 108–375, div. A, title VI, § 641(a), Oct. 28, 2004, 118 Stat. 1957; Pub. L. 111–84, div. A, title VI, § 643(d)(2), Oct. 28, 2009, 123 Stat. 2367; Pub. L. 115–232, div. A, title VIII, § 809(a), Aug. 13, 2018, 132 Stat. 1840; Pub. L. 116–283, div. A, title V, § 508(b)(1)(B), Jan. 1, 2021, 134 Stat. 3585; Pub. L. 118–159, div. A, title VI, § 605, Dec. 23, 2024, 138 Stat. 1931.) Editorial Notes PRIOR PROVISIONS A prior section 1407, added Pub. L. 96–342, title VIII, § 813(a)(1), Sept. 8, 1980, 94 Stat. 1100; amended Pub. L. 96–513, title I, § 113(c), title V, §§ 501(21), 511(53), Dec. 12, 1980, 94 Stat. 2877, 2908, 2925, related to determination of retired base pay, prior to repeal by Pub. L. 99–348, § 104(b). AMENDMENTS 2024—Subsec. (f)(4). Pub. L. 118–159 added par. (4). 2021—Subsec. (f)(2)(B). Pub. L. 116–283 substituted ‘‘pursuant to section 1370 or 1370a’’ for ‘‘by reason of de- nial of a determination or certification under section 1370’’. 2018—Subsec. (e). Pub. L. 115–232 substituted ‘‘section 7314 or 9314’’ for ‘‘section 3914 or 8914’’ and ‘‘section 8330’’ for ‘‘section 6330’’. 2009—Subsec. (d)(4). Pub. L. 111–84 inserted ‘‘or, in the case of a member or former member entitled to retired pay by reason of an election under section 12741(a) of this title, before the member or former member com- pletes the service required under such section 12741(a),’’ after ‘‘became entitled to retired pay’’. 2004—Subsec. (c)(3). Pub. L. 108–375 added par. (3). 2001—Subsec. (f)(2). Pub. L. 107–107 substituted ‘‘Octo- ber 30, 2000—’’ for ‘‘the date of the enactment of this subsection—’’ in introductory provisions. 2000—Subsec. (b). Pub. L. 106–398, § 1 [[div. A], title VI, § 651(1)], substituted ‘‘Except as provided in subsection (f), the retired pay base’’ for ‘‘The retired pay base’’. Subsec. (f). Pub. L. 106–398, § 1 [[div. A], title VI, § 651(2)], added subsec. (f). 1996—Subsec. (c)(1). Pub. L. 104–106, § 1501(c)(15)(A), substituted ‘‘section 12731’’ for ‘‘section 1331’’. Subsec. (d)(1). Pub. L. 104–106 substituted in heading ‘‘CHAPTER 1223’’ for ‘‘CHAPTER 67’’ and in text ‘‘section 12731’’ for ‘‘section 1331’’. 1994—Subsec. (c)(2)(B). Pub. L. 103–337, § 1662(j)(5)(A), which directed substitution of ‘‘chapter 1223’’ for ‘‘chapter 67’’, could not be executed because the words ‘‘chapter 67’’ did not appear subsequent to amendment by Pub. L. 101–189, § 651(a)(2), (4). See 1989 Amendment note below. Subsec. (f)(2). Pub. L. 103–337, § 1662(j)(5)(B), which di- rected amendment of subsec. (f)(2) by substituting ‘‘Chapter 1223’’ for ‘‘Chapter 67’’ in heading and ‘‘sec- tion 12731’’ for ‘‘section 1331’’ in text, could not be exe- cuted because of previous repeal of subsec. (f) by Pub. L. 101–189, § 651(a)(2). See 1989 Amendment note below. 1989—Subsec. (b). Pub. L. 101–189, § 651(a)(1), (b)(2), substituted ‘‘person’’ for ‘‘member’’, ‘‘person’s’’ for ‘‘member’s’’, and ‘‘subsection (c) or (d)’’ for ‘‘subsection (c)’’. Subsec. (c). Pub. L. 101–189, § 651(a)(2), (4), added sub- sec. (c) and struck out former subsec. (c) which related to computation of high-three average. Subsec. (d). Pub. L. 101–189, § 651(a)(4), added subsec. (d). Former subsec. (d) redesignated (e). Subsec. (e). Pub. L. 101–189, § 651(a)(2), (3), redesig- nated subsec. (d) as (e) and struck out former subsec. (e) which related to special rules for short-term dis- ability retirees. Subsecs. (f), (g). Pub. L. 101–189, § 651(a)(2), struck out subsec. (f) which related to special rule for members re- tiring with non-regular service, and subsec. (g) which defined the term ‘‘years of creditable service’’. 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 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 2004 AMENDMENT Pub. L. 108–375, div. A, title VI, § 641(b), Oct. 28, 2004, 118 Stat. 1957, provided that: ‘‘Paragraph (3) of section 1407(c) of title 10, United States Code, as added by sub- section (a), shall take effect— ‘‘(1) for purposes of determining an annuity under subchapter II or III of chapter 73 of that title, with respect to deaths on active duty on or after Sep- tember 10, 2001; and ‘‘(2) for purposes of determining the amount of re- tired pay of a member of a reserve component enti- tled to retired pay under section 1201 or 1202 of such title, with respect to such entitlement that becomes effective on or after the date of the enactment of this Act [Oct. 28, 2004].’’ EFFECTIVE DATE OF 1996 AMENDMENT Pub. L. 104–106, div. A, title XV, § 1501(c), Feb. 10, 1996, 110 Stat. 498, provided that the amendment made by that section is effective as of Dec. 1, 1994, and as if in- cluded as an amendment made by the Reserve Officer Personnel Management Act, title XVI of Pub. L. 103–337, as originally enacted. EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–337 effective Dec. 1, 1994, except as otherwise provided, see section 1691 of Pub. L. 103–337, set out as an Effective Date note under section 10001 of this title. § 1407a. Retired pay base: officers retired in gen- eral or flag officer grades (a) RATES OF BASIC PAY TO BE USED IN DETER- MINATION.—Except as otherwise provided in this section, in a case in which the determination under section 1406 or 1407 of this title of the re- tired pay base applicable to the computation of the retired pay of a covered general or flag offi- cer involves a rate of basic pay payable to that officer for any period between October 1, 2006, and December 31, 2014, that was subject to a re- duction under section 203(a)(2) of title 37 for such period, such retired-pay-base determina-