10 U.S.C. § 1209 — Transfer to inactive status list instead of

Page 1263 TITLE 10—ARMED FORCES § 1209 provisions of law’’ because of the definitions of ‘‘active service’’ and ‘‘active duty’’ in sections 101(24) and 101(22) of this title. In subsection (a)(2)(C), the references to 10:22–23, 24–26, and 30–36 are omitted as repealed by section 401 of the Army Organization Act of 1950, 64 Stat. 271. The reference to 32:70 is omitted as repealed by section 16 of the act of June 15, 1933, ch. 87, 48 Stat. 159. The ref- erence to 10:23a is omitted as executed. The references to 10:38 and 32:66 and 172–175 are omitted as covered by the words ‘‘active service’’. The references to 32:144–147, 171, and 176 are omitted, since they deal with pay and do not authorize duty or training. The reference to sec- tion 502 of title 32, not contained in 37:282, is inserted, since section 92 of the National Defense Act, as amend- ed (32:62) is referred to in section 412 of the Career Com- pensation Act of 1949 (37:282). In subsection (b), the words ‘‘any other member’’ are substituted for the words ‘‘members of the reserve com- ponents’’, since the words ‘‘reserve components’’ are defined by section 102(k) of the Career Compensation Act of 1949, 63 Stat. 805 (37 U.S.C. 231(k)) to include members appointed, enlisted, or inducted without com- ponent. Editorial Notes AMENDMENTS 1996—Subsec. (b). Pub. L. 104–106 substituted ‘‘section 12733’’ for ‘‘section 1333’’. 1987—Subsec. (a). Pub. L. 100–26 substituted ‘‘para- graph (1)’’ and ‘‘paragraph (2)’’ for ‘‘clause (1)’’ and ‘‘clause (2)’’, respectively, in introductory provisions, and ‘‘paragraph (2)’’ for ‘‘clause 2(B) of this subsection’’ in second sentence. 1986—Subsec. (a)(2)(A). Pub. L. 99–661 struck out ‘‘after February 2, 1901’’ after ‘‘a reserve nurse’’. 1980—Subsec. (a). Pub. L. 96–513 substituted ‘‘separa- tion, discharge, or retirement for length of service’’ for ‘‘separation or mandatory elimination from the active list’’ in par. (1), substituted ‘‘National Oceanic and At- mospheric Administration’’ for ‘‘Environmental Science Services Administration’’ in par. (2)(B), and, in provisions following par. (2)(C), substituted ‘‘as a mem- ber of the National Oceanic and Atmospheric Adminis- tration includes active service as a member of the En- vironmental Science Services Administration and’’ for ‘‘as a member of the Environmental Science Services Administration includes service as a member’’. 1966—Subsec. (a). Pub. L. 89–718 substituted ‘‘Environ- mental Science Services Administration’’ for ‘‘Coast and Geodetic Survey’’ in clause (2)(B) and inserted pro- vision that, for purposes of clause (2)(B) of subsec. (a), active service as a member of the Environmental Science Services Administration includes active serv- ice as a member of the Coast and Geodetic Survey. Statutory Notes and Related Subsidiaries 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 1980 AMENDMENT Amendment by section 501(16) of Pub. L. 96–513 effec- tive Sept. 15, 1981, and amendment by section 511(42) of Pub. L. 96–513 effective Dec. 12, 1980, see section 701 of Pub. L. 96–513, set out as a note under section 101 of this title. REPEALS The directory language of, but not the amendment made by, Pub. L. 89–718, § 8(a), Nov. 2, 1966, 80 Stat. 1117, cited as a credit to this section, was repealed by Pub. L. 97–295, § 6(b), Oct. 12, 1982, 96 Stat. 1314. ADDITIONAL SERVICE CREDITABLE TO CERTAIN REGULARS Act Aug. 10, 1956, ch. 1041, § 39, 70A Stat. 635, provided that: ‘‘In addition to service with which he may be credited under section 1208(a)(2) of title 10, United States Code [subsec. (a)(2) of this section], a member of a regular component of the armed forces shall be cred- ited, for the purposes of chapter 61 of title 10, United States Code [this chapter], with all service as— ‘‘(1) a cadet at the United States Military Academy, if appointed before August 24, 1912; ‘‘(2) a midshipman at the United States Naval Academy, if appointed before March 4, 1913; ‘‘(3) an Army field clerk; and ‘‘(4) a field clerk, Army Quartermaster Corps.’’ OFFICERS OF THE PUBLIC HEALTH SERVICE Applicability of subsec. (a)(2) of this section to offi- cers of the Reserve Corps and to officers of the Regular Corps of the Public Health Service, see section 212 of Title 42, The Public Health and Welfare. Executive Documents TRANSFER OF FUNCTIONS For transfer of functions of Public Health Service, see note set out under section 802 of this title. § 1209. Transfer to inactive status list instead of separation Any member of the armed forces who has at least 20 years of service computed under section 12732 of this title, and who would be qualified for retirement under this chapter but for the fact that his disability is less than 30 percent under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination, may elect, in- stead of being separated under this chapter, to be transferred to the inactive status list under section 12735 of this title and, if otherwise eligi- ble, to receive retired pay under section 12739 of this title upon becoming 60 years of age. (Aug. 10, 1956, ch. 1041, 70A Stat. 95; Pub. L. 101–189, div. A, title XVI, § 1621(a)(1), Nov. 29, 1989, 103 Stat. 1602; Pub. L. 104–106, div. A, title XV, § 1501(c)(14), Feb. 10, 1996, 110 Stat. 499.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 1209 ......... 37:272(g). Oct. 12, 1949, ch. 681, § 402(g), 63 Stat. 820. The words ‘‘Notwithstanding the foregoing provisions of this section’’, ‘‘satisfactory Federal’’, and ‘‘and re- ceiving disability severance pay’’ are omitted as sur- plusage. The words ‘‘at the time of the determination’’ are substituted for the word ‘‘current’’. The word ‘‘oth- erwise’’ is substituted for the words ‘‘in all other re- spects’’. Editorial Notes AMENDMENTS 1996—Pub. L. 104–106 substituted ‘‘section 12732’’ for ‘‘section 1332’’, ‘‘section 12735’’ for ‘‘section 1335’’, and ‘‘section 12739’’ for ‘‘chapter 71’’. 1989—Pub. L. 101–189 substituted ‘‘Department of Vet- erans Affairs’’ for ‘‘Veterans’ Administration’’. Statutory Notes and Related Subsidiaries 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 Page 1264 TITLE 10—ARMED FORCES § 1210 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. § 1210. Members on temporary disability retired list: periodic physical examination; final de- termination of status (a) A physical examination shall be given at least once every 18 months to each member of the armed forces whose name is on the tem- porary disability retired list to determine whether there has been a change in the dis- ability for which he was temporarily retired. He may be required to submit to those examina- tions while his name is carried on that list. If a member fails to report for an examination under this subsection, after receipt of proper notifica- tion, his disability retired pay may be termi- nated. However, payments to him shall be re- sumed if there was just cause for his failure to report. If payments are so resumed, they may be made retroactive for not more than one year. (b) The Secretary concerned shall make a final determination of the case of each member whose name is on the temporary disability retired list upon the expiration of three years after the date when the member’s name was placed on that list. If, at the time of that determination, the physical disability for which the member’s name was carried on the temporary disability retired list still exists, it shall be considered to be of a permanent nature and stable. (c) If, as a result of a periodic examination under subsection (a), or upon a final determina- tion under subsection (b), it is determined that the member’s physical disability is of a perma- nent nature and stable and is at least 30 percent under the standard schedule of rating disabil- ities in use by the Department of Veterans Af- fairs at the time of the determination, his name shall be removed from the temporary disability retired list and he shall be retired under section 1201 or 1204 of this title, whichever applies. (d) If, as a result of a periodic examination under subsection (a), or upon a final determina- tion under subsection (b), it is determined that the member’s physical disability is of a perma- nent nature and stable and is less than 30 per- cent under the standard schedule of rating dis- abilities in use by the Department of Veterans Affairs at the time of the determination, and if he has at least 20 years of service computed under section 1208 of this title, his name shall be removed from the temporary disability retired list and he shall be retired under section 1201 or 1204 of this title, whichever applies, with retired pay computed under section 1401 of this title. (e) If, as a result of a periodic examination under subsection (a), or upon a final determina- tion under subsection (b), it is determined that the member’s physical disability is less than 30 percent under the standard schedule of rating disabilities in use by the Department of Vet- erans Affairs at the time of the determination, and if he has less than 20 years of service com- puted under section 1208 of this title, his name shall be removed from the temporary disability retired list and he may be separated under sec- tion 1203 or 1206 of this title, whichever applies. (f)(1) If, as a result of a periodic examination under subsection (a), or upon a final determina- tion under subsection (b), it is determined that the member is physically fit to perform the du- ties of his office, grade, rank, or rating, the Sec- retary shall— (A) treat the member as provided in section 1211 of this title; or (B) discharge the member, retire the mem- ber, or transfer the member to the Fleet Re- serve, Fleet Marine Corps Reserve, or inactive Reserve under any other law if, under that law, the member— (i) applies for and qualifies for that retire- ment or transfer; or (ii) is required to be discharged, retired, or eliminated from an active status. (2)(A) For the purpose of paragraph (1)(B), a member shall be considered qualified for retire- ment or transfer to the Fleet Reserve or Fleet Marine Corps Reserve or is required to be dis- charged, retired, or eliminated from an active status if, were the member reappointed or reen- listed under section 1211 of this title, the mem- ber would in all other respects be qualified for or would be required to be retired, transferred to the Fleet Reserve or Fleet Marine Corps Re- serve, discharged, or eliminated from an active status under any other provision of law. (B) The grade of a member retired, trans- ferred, discharged, or eliminated from an active status pursuant to paragraph (1)(B) shall be de- termined under the provisions of law under which the member is retired, transferred, dis- charged, or eliminated. The member’s retired, retainer, severance, readjustment, or separation pay shall be computed as if the member had been reappointed or reenlisted upon removal from the temporary disability retired list and before the retirement, transfer, discharge, or elimination. Notwithstanding section 8301 of title 5, a member who is retired shall be entitled to retired pay effective on the day after the last day on which the member is entitled to dis- ability retired pay. (g) Any member of the armed forces whose name is on the temporary disability retired list, and who is required to travel to submit to a physical examination under subsection (a), is entitled to the travel and transportation allow- ances authorized for members in his retired grade traveling in connection with temporary duty while on active duty. (h) If his name is not sooner removed, the dis- ability retired pay of a member whose name is on the temporary disability retired list termi- nates upon the expiration of three years after the date when his name was placed on that list. (Aug. 10, 1956, ch. 1041, 70A Stat. 95; Pub. L. 99–145, title V, § 513(a)(2), Nov. 8, 1985, 99 Stat. 627; Pub. L. 101–189, div. A, title XVI, § 1621(a)(1), Nov. 29, 1989, 103 Stat. 1602; Pub. L. 114–328, div. A, title V, § 525(a), Dec. 23, 2016, 130 Stat. 2117.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 1210(a) ..... 37:272(e) (less last sen- tence). 37:274(a). 37:274(b) (less 1st sen- tence). Oct. 12, 1949, ch. 681, §§ 402(d) (30th through 55th words), (e) (less 1st proviso of last sen- tence), (f) (as applica- ble to § 402(e)), 404, 63 Stat. 818–821.