10 U.S.C. § 1040 — Transportation of dependent patients

Page 926 TITLE 10—ARMED FORCES § 1038 In subsection (a), the words ‘‘Under regulations to be prescribed by him’’ and the last sentence are sub- stituted for 50:752. In subsection (b), the words ‘‘subject to the Uniform Code of Military Justice’’ are omitted as surplusage. In subsection (c), the words ‘‘the terms and provi- sions of’’ are omitted as surplusage. Editorial Notes REFERENCES IN TEXT The Uniform Code of Military Justice, referred to in subsec. (a), is classified to chapter 47 (§ 801 et seq.) of this title. AMENDMENTS 2002—Subsec. (c). Pub. L. 107–296 substituted ‘‘Depart- ment of Homeland Security’’ for ‘‘Department of Transportation’’. 1985—Subsec. (a). Pub. L. 99–145 provided for payment of expenses for legal representation of civilians over- seas. 1980—Subsec. (c). Pub. L. 96–513 substituted ‘‘Depart- ment of Transportation’’ for ‘‘Department of the Treas- ury’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title. EFFECTIVE DATE OF 1985 AMENDMENT Pub. L. 99–145, title VI, § 681(b), Nov. 8, 1985, 99 Stat. 665, provided that: ‘‘The amendment made by sub- section (a) [amending this section] shall apply with re- spect to costs incurred after September 30, 1985.’’ 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. § 1038. Service credit: certain service in Women’s Army Auxiliary Corps In computing years of active service of any fe- male member of the armed forces, there shall be credited for all purposes, except the right to pro- motion, in addition to any other service that may be credited, all active service performed in the Women’s Army Auxiliary Corps after May 13, 1942, and before September 30, 1943, if that member performed active service in the armed forces after September 29, 1943. Service as an of- ficer in the Women’s Army Auxiliary Corps shall be credited as active service in the status of a commissioned officer, and service as an enrolled member of the Corps shall be credited as active service in the status of an enlisted member. (Added Pub. L. 86–142, § 1(1), Aug. 7, 1959, 73 Stat. 289.) Statutory Notes and Related Subsidiaries ELECTION OF PENSION OR COMPENSATION Pub. L. 86–142, § 2, Aug. 7, 1959, 73 Stat. 289, provided that a person entitled to a pension or compensation under any law administered by the Veterans’ Adminis- tration, based on the active service described in section 1 of Pub. L. 86–142, which added section 1038 to Title 10, Armed Forces, could elect within 1 year after Aug. 7, 1959 to receive that pension or compensation in lieu of any compensation under the Federal Employees’ Com- pensation Act; that such an election is irrevocable; and that the election does not entitle that person to the pension or compensation for any period before the date of election. BACK PAY OR ALLOWANCES Pub. L. 86–142, § 3, Aug. 7, 1959, 73 Stat. 289, provided that: ‘‘No person is entitled to back pay or allowances because of any service credited under section 1 of this Act [enacting this section].’’ § 1039. Crediting of minority service For the purpose of determining eligibility for retirement or transfer to the Fleet Reserve or Fleet Marine Corps Reserve, entitlement to re- tired or retainer pay, and years of service in computing retired or retainer pay of a member of the armed forces, any service which would be creditable but for the fact that it was performed by him under an enlistment or induction en- tered into before he attained the age prescribed by law for that enlistment or induction, shall be credited. (Added Pub. L. 87–165, § 1(1), Aug. 25, 1961, 75 Stat. 401.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 87–165, § 2, Aug. 25, 1961, 75 Stat. 401, provided that: ‘‘Section 1 [enacting this section] applies to serv- ice performed, and retirements or transfers to the Fleet Reserve or the Fleet Marine Corps Reserve effected, be- fore and after this Act takes effect [Aug. 25, 1961].’’ § 1040. Transportation of dependent patients (a)(1) Except as provided in subsection (b), if a dependent accompanying a member of the uni- formed services who is stationed outside the United States or in Alaska or Hawaii and who is on active duty for a period of more than 30 days requires medical attention which is not avail- able in the locality, transportation of the de- pendents at the expense of the United States is authorized to the nearest appropriate medical facility in which adequate medical care is avail- able. On his recovery or when it is administra- tively determined that the patient should be re- moved from the medical facility involved, the dependent may be transported at the expense of the United States to the duty station of the member or to such other place determined to be appropriate under the circumstances. If a de- pendent is unable to travel unattended, travel and transportation allowances may be furnished to necessary attendants. The dependents and any attendants shall be furnished such travel and transportation allowances as specified in regulations prescribed under section 464 of title 37. Travel expenses authorized by this section may include reimbursement for necessary local travel in the vicinity of the medical facility in- volved. The transportation and travel expenses authorized by this section may be paid in ad- vance. (2)(A) Except as provided by subparagraph (E), for purposes of paragraph (1), required medical attention of a dependent includes, in the case of a dependent authorized to accompany a member at a location described in that paragraph, ob- Page 927 TITLE 10—ARMED FORCES § 1040 stetrical anesthesia services for childbirth equivalent to the obstetrical anesthesia services for childbirth available in a military treatment facility in the United States. (B) In the case of a dependent at a remote lo- cation outside the continental United States who elects services described in subparagraph (A) and for whom air transportation would be needed to travel under paragraph (1) to the near- est appropriate medical facility in which ade- quate medical care is available, the Secretary may authorize the dependent to receive trans- portation under that paragraph to the conti- nental United States and be treated at the mili- tary treatment facility that can provide appro- priate obstetrical services that is nearest to the closest port of entry into the continental United States from such remote location. (C) The second through sixth sentences of paragraph (1) shall apply to a dependent pro- vided transportation by reason of this para- graph. (D) The total cost incurred by the United States for the provision of transportation and expenses (including per diem) with respect to a dependent by reason of this paragraph may not exceed the cost the United States would other- wise incur for the provision of transportation and expenses with respect to that dependent under paragraph (1) if the transportation and ex- penses were provided to that dependent without regard to this paragraph. (E) The Secretary may not provide transpor- tation to a dependent under this paragraph if the Secretary determines that— (i) the dependent would otherwise receive obstetrical anesthesia services at a military treatment facility; and (ii) such facility, in carrying out the re- quired number of necessary obstetric cases, would not maintain competency of its obstet- rical staff unless the facility provides such services to such dependent. (b) This section does not authorize transpor- tation and travel expenses for a dependent for elective surgery which is determined to be not medically indicated by a medical authority des- ignated under joint regulations to be prescribed under this section. (c) In this section, the term ‘‘dependent’’ has the meaning given that term in section 1072 of this title. (Added Pub. L. 89–140, § 1(1), Aug. 28, 1965, 79 Stat. 579; amended Pub. L. 96–513, title V, § 511(32), Dec. 12, 1980, 94 Stat. 2922; Pub. L. 98–94, title IX, § 913(b), Sept. 24, 1983, 97 Stat. 640; Pub. L. 98–525, title VI, § 611, title XIV, § 1405(21), Oct. 19, 1984, 98 Stat. 2538, 2623; Pub. L. 99–348, title III, § 304(a)(2), July 1, 1986, 100 Stat. 703; Pub. L. 99–661, div. A, title VI, § 616(a), Nov. 14, 1986, 100 Stat. 3880; Pub. L. 112–81, div. A, title VII, § 705, Dec. 31, 2011, 125 Stat. 1473; Pub. L. 113–66, div. A, title VI, § 621(b), Dec. 26, 2013, 127 Stat. 783; Pub. L. 113–291, div. A, title X, § 1071(f)(11), Dec. 19, 2014, 128 Stat. 3510; Pub. L. 114–92, div. A, title VII, § 721, Nov. 25, 2015, 129 Stat. 869.) Editorial Notes CODIFICATION Another section 1040 was renumbered section 1041 of this title. Another section 1040, related to free postage from combat zones, was added by Pub. L. 89–132, § 9(a), Aug. 21, 1965, 79 Stat. 548, prior to repeal by Pub. L. 89–315, § 3(a), Nov. 1, 1965, 79 Stat. 1164. See section 3401 et seq. of Title 39, Postal Service. AMENDMENTS 2015—Subsec. (a)(2)(F). Pub. L. 114–92 struck out sub- par. (F) which read as follows: ‘‘The authority under this paragraph shall expire on September 30, 2016.’’ 2014—Subsec. (a)(1). Pub. L. 113–291 substituted ‘‘37.’’ for ‘‘37..’’. 2013—Subsec. (a)(1). Pub. L. 113–66, § 621(b)(1), sub- stituted ‘‘travel and transportation allowances may be furnished to necessary attendants. The dependents and any attendants shall be furnished such travel and transportation allowances as specified in regulations prescribed under section 464 of title 37.’’ for ‘‘round-trip transportation and travel expenses may be furnished necessary attendants. In addition to transportation of a dependent at the expense of the United States author- ized under this subsection, reasonable travel expenses incurred in connection with the transportation of the dependent may be paid at the expense of the United States’’. Subsec. (d). Pub. L. 113–66, § 621(b)(2), struck out sub- sec. (d) which read as follows: ‘‘Transportation and travel expenses authorized by this section shall be fur- nished in accordance with joint regulations to be pre- scribed by the Secretary of Transportation, the Sec- retary of Defense, the Secretary of Commerce, and the Secretary of Health and Human Services, which shall require the use of transportation facilities of the United States insofar as practicable.’’ 2011—Subsec. (a). Pub. L. 112–81 designated existing provisions as par. (1) and added par. (2). 1986—Subsec. (a). Pub. L. 99–661 substituted ‘‘In addi- tion to transportation of a dependent at the expense of the United States authorized under this subsection, reasonable travel expenses incurred in connection with the transportation of the dependent may be paid at the expense of the United States. Travel expenses author- ized by this section may include reimbursement for necessary local travel in the vicinity of the medical fa- cility involved. The transportation and travel expenses authorized by this section may be paid in advance’’ for ‘‘, and such expenses may be paid in advance’’. Subsec. (c). Pub. L. 99–348 substituted ‘‘In this sec- tion, the term ‘dependent’ has the meaning given that term in’’ for ‘‘ ‘Dependent’ and ‘uniformed services’ in this section have the meanings of those terms as de- fined in’’. 1984—Subsec. (a). Pub. L. 98–525, § 1405(21), substituted ‘‘30’’ for ‘‘thirty’’. Pub. L. 98–525, § 611, made provisions of section appli- cable to a dependent accompanying a member of the uniformed services stationed in Alaska or Hawaii. 1983—Subsec. (a). Pub. L. 98–94 inserted ‘‘, and such expenses may be paid in advance’’ after ‘‘attendants’’. 1980—Subsec. (d). Pub. L. 96–513 substituted ‘‘Sec- retary of Transportation’’ and ‘‘Secretary of Health and Human Services’’ for ‘‘Secretary of the Treasury’’ and ‘‘Secretary of Health, Education, and Welfare’’, re- spectively. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1986 AMENDMENT Pub. L. 99–661, div. A, title VI, § 616(b), Nov. 14, 1986, 100 Stat. 3880, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall apply only to travel performed on or after the date of the enact- ment of this Act [Nov. 14, 1986].’’ EFFECTIVE DATE OF 1984 AMENDMENT Pub. L. 98–525, title VI, § 611, Oct. 19, 1984, 98 Stat. 2538, provided that the amendment made by that sec- tion is effective Oct. 1, 1984. Page 928 TITLE 10—ARMED FORCES § 1041 EFFECTIVE DATE OF 1983 AMENDMENT Pub. L. 98–94, title IX, § 913(c), Sept. 24, 1983, 97 Stat. 640, provided that: ‘‘The amendments made by sub- sections (a) and (b) [amending this section and section 1036 of this title] shall apply to travel performed by es- corts or attendants of dependents on or after the date of the enactment of this Act [Sept. 24, 1983].’’ 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. § 1041. Replacement of certificate of discharge If satisfactory proof is presented that a person who was discharged honorably or under honor- able conditions has lost his certificate of dis- charge from an armed force or that it was de- stroyed without his procurement or connivance, the Secretary concerned may give that person, or his surviving spouse, a certificate of that dis- charge, indelibly marked to show that it is a certificate in place of the lost or destroyed cer- tificate. A certificate given under this section may not be accepted as a voucher for the pay- ment of a claim against the United States for pay, bounty, or other allowance, or as evidence in any other case. (Added Pub. L. 90–235, § 7(a)(2)(A), Jan. 2, 1968, 81 Stat. 762, § 1040; renumbered § 1041, Pub. L. 96–513, title V, § 511(33)(A), Dec. 12, 1980, 94 Stat. 2922.) § 1042. Copy of certificate of service A fee for a copy of a certificate showing serv- ice in the armed forces may not be charged to— (1) a person discharged or released from the armed forces honorably or under honorable conditions; (2) the next of kin of the person; or (3) a legal representative of the person. (Added Pub. L. 97–258, § 2(b)(2)(B), Sept. 13, 1982, 96 Stat. 1052.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 1042 ......... 31:483b. June 19, 1956, ch. 409, 70 Stat. 297. The words ‘‘armed forces’’ are substituted for ‘‘Army, Navy, Air Force, Marine Corps, or Coast Guard’’ be- cause of 10:101(4). The words ‘‘honorably or’’ are added for consistency with 10:1040. § 1043. Service credit: service in the National Oceanic and Atmospheric Administration or the Public Health Service Active commissioned service in the National Oceanic and Atmospheric Administration or the Public Health Service shall be credited as active commissioned service in the armed forces for purposes of determining the retirement eligi- bility and computing the retired pay of a mem- ber of the armed forces. (Added Pub. L. 98–94, title X, § 1007(b)(1), Sept. 24, 1983, 97 Stat. 662.) § 1044. Legal assistance (a) Subject to the availability of legal staff re- sources, the Secretary concerned may provide legal assistance in connection with their per- sonal civil legal affairs to the following persons: (1) Members of the armed forces who are on active duty. (2) Members and former members entitled to retired or retainer pay or equivalent pay. (3) Officers of the commissioned corps of the Public Health Service or the commissioned of- ficer corps of the National Oceanic and Atmos- pheric Administration who are on active duty or entitled to retired or equivalent pay. (4) Members of reserve components not cov- ered by paragraph (1) or (2) following release from active duty under a call or order to ac- tive duty for more than 30 days issued under a mobilization authority (as determined by the Secretary), for a period of time (prescribed by the Secretary) that begins on the date of the release and is not less than twice the length of the period served on active duty under that call or order to active duty. (5) Dependents of members and former mem- bers described in paragraphs (1), (2), (3), and (4). (6) Survivors of a deceased member or former member described in paragraphs (1), (2), (3), and (4) who were dependents of the member or former member at the time of the death of the member or former member, ex- cept that the eligibility of such survivors shall be determined pursuant to regulations pre- scribed by the Secretary concerned. (7) Civilian employees of the Federal Gov- ernment serving in locations where legal as- sistance from non-military legal assistance providers is not reasonably available, except that the eligibility of civilian employees shall be determined pursuant to regulations pre- scribed by the Secretary concerned. (b) Under such regulations as may be pre- scribed by the Secretary concerned, the Judge Advocate General (as defined in section 801(1) of this title) under the jurisdiction of the Sec- retary, and within the Marine Corps the Staff Judge Advocate to the Commandant of the Ma- rine Corps, is responsible for the establishment and supervision of legal assistance programs under this section. (c) This section does not authorize legal coun- sel to be provided to represent a member or former member of the uniformed services de- scribed in subsection (a), or the dependent of such a member or former member, in a legal proceeding if the member or former member can afford legal fees for such representation without undue hardship. (d)(1) Notwithstanding any law regarding the licensure of attorneys, a judge advocate or civil- ian attorney who is authorized to provide mili- tary legal assistance is authorized to provide that assistance in any jurisdiction, subject to such regulations as may be prescribed by the Secretary concerned. (2) Military legal assistance may be provided only by a judge advocate or a civilian attorney who is a member of the bar of a Federal court or of the highest court of a State and, for purposes of service as a Special Victims’ Counsel under section 1044e of this title, satisfies the addi- tional qualifications and training requirements specified in subsection (d) of such section.