5 U.S.C. § 8338 — Deferred retirement

Page 1043 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 8338 provision of subchapter I of chapter 81 of this title de- nies to an individual an annuity accruing to him under this subchapter on account of service performed by him, or denies any concurrent benefit to him under subchapter I of chapter 81 of this title on account of the death of another individual.’’ Subsec. (g). Pub. L. 100–238 added subsec. (g) and struck out former subsec. (g) which read as follows: ‘‘The right of an individual entitled to an annuity under this subchapter is not affected because he has re- ceived a lump-sum payment for compensation under section 8135 of this title. However, if the annuity is payable on account of the same disability for which compensation under section 8135 of this title has been paid, so much of the compensation as has been paid for a period extended beyond the date the annuity becomes effective, as determined by the Department of Labor, shall be refunded to that Department to be covered into the Employees’ Compensation Fund. Before the indi- vidual may receive the annuity he shall— ‘‘(1) refund to the Department of Labor the amount representing the commuted compensation payments for the extended period; or ‘‘(2) authorize the deduction of that amount from the annuity payable to him under this subchapter, which amount shall be transmitted to the Depart- ment of Labor for reimbursement to the Employees’ Compensation Fund. Deductions from the annuity may be made from ac- crued and accruing payments. When the Department of Labor finds that the financial circumstances of the an- nuitant warrant deferred refunding, deductions from the annuity may be prorated against and paid from ac- cruing payments in such manner as that Department determines.’’ 1983—Subsec. (a). Pub. L. 98–94 inserted provision that a judge of the United States Court of Military Appeals who completes 5 years of civilian service and who is found by the Office to be disabled for useful and effi- cient service as a judge of such court or who is removed for mental or physical disability under section 867(a)(2) of title 10 shall be retired on the judge’s own applica- tion or upon such removal. 1982—Subsec. (d). Pub. L. 97–253, § 302(a)(1), (2), sub- stituted ‘‘180 days’’ for ‘‘1 year’’ in provision relating to restoration of an annuitant to an earning capacity fair- ly comparable to the current rate of pay of the position occupied at the time of retirement, and ‘‘any calendar year’’ for ‘‘each of 2 succeeding calendar years’’. Subsec. (h). Pub. L. 97–253, § 302(a)(3), added subsec. (h). 1980—Subsec. (a). Pub. L. 96–499 provided that an em- ployee was to be considered disabled only if the em- ployee were found by the Office of Personnel Manage- ment to be unable to render useful and efficient service in the employee’s position and was not qualified for re- assignment to a vacant position in the agency at the same grade or level and provided that an employee in the Postal Service was to be considered not qualified for such reassignment if such reassignment were to a position in a different craft or were inconsistent with the terms of the appropriate collective bargaining agreement. 1978—Subsecs. (a) to (c). Pub. L. 95–454 substituted ‘‘Office of Personnel Management’’ and ‘‘Office’’ for ‘‘Civil Service Commission’’ and ‘‘Commission’’, respec- tively, wherever appearing. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2000 AMENDMENT Amendment by Pub. L. 106–553 effective on the first day of the first applicable pay period that begins on Dec. 21, 2000, and applicable only to an individual who is employed as a member of the Supreme Court Police after Dec. 21, 2000, see section 1(a)(2) [title III, § 308(i), (j)] of Pub. L. 106–553, set out in a Supreme Court Police Retirement note under section 8331 of this title. EFFECTIVE DATE OF 1997 AMENDMENT Amendment by Pub. L. 105–61 applicable to any annu- ity commencing before, on, or after Oct. 10, 1997, and ef- fective with regard to any payment made after the first month following Oct. 10, 1997, see section 516(b) of Pub. L. 105–61, set out as a note under section 8334 of this title. EFFECTIVE DATE OF 1988 AMENDMENT Section 124(c) of Pub. L. 100–238 provided that: ‘‘(1) IN GENERAL.—Except as provided in paragraph (2), the amendments made by this section [enacting section 8464a of this title, amending this section, renumbering section 8457 of this title as section 8456, and repealing former section 8456 of this title] shall be effective as of January 1, 1987, and shall apply with respect to benefits payable based on a death or disability occurring on or after that date. ‘‘(2) EXCEPTION.—The amendment made by subsection (a)(1)(A) [amending this section] shall take effect on the date of the enactment of this Act [Jan. 8, 1988] and shall apply with respect to benefits payable based on a death or disability occurring on or after that date.’’ EFFECTIVE DATE OF 1982 AMENDMENT Section 302(c) of Pub. L. 97–253, as amended by Pub. L. 97–346, § 3(i), Oct. 15, 1982, 96 Stat. 1649, provided that: ‘‘(1) Except as provided in paragraphs (2) and (3), the amendments made by subsections (a) and (b) [amending this section and section 8347 of this title] shall take ef- fective October 1, 1982. ‘‘(2) The amendments made by paragraphs (1) and (2) of subsection (a) [amending this section] shall take ef- fect with respect to income earned after December 31, 1982. ‘‘(3) Subsection (h) of section 8337 of title 5, United States Code (as added by subsection (a)) shall apply to any technician (as defined in paragraph (1) of such sub- section (h)) who is separated from employment as a technician on or after October 1, 1982. Such subsection (h) shall also apply to any technician separated from employment as a technician on or after December 31, 1979, and before October 1, 1982, if application therefor is made to the Office of Personnel Management within 12 months after the date of the enactment of this Act [Sept. 8, 1982]. Any annuity resulting from such appli- cation shall commence as of the day after the date such application is received by the Office.’’ EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96–499 effective on 90th day after Dec. 5, 1980, see section 403(c) of Pub. L. 96–499, set out as a note under section 8331 of this title. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–454 effective 90 days after Oct. 13, 1978, see section 907 of Pub. L. 95–454, set out as a note under section 1101 of this title. § 8338. Deferred retirement (a) An employee who is separated from the service or transferred to a position in which he does not continue subject to this subchapter after completing 5 years of civilian service is en- titled to an annuity beginning at the age of 62 years. (b) A Member who, after December 31, 1955, is separated from the service as a Member after completing 5 years of civilian service is entitled to an annuity beginning at the age of 62 years. A Member who is separated from the service after completing 10 or more years of Member service is entitled to an annuity beginning at the age of 60 years. A Member who is separated from the service after completing 20 or more years of service, including 10 or more years of Page 1044 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 8339 Member service, is entitled to a reduced annuity beginning at the age of 50 years. (c) A judge of the United States Court of Ap- peals for the Armed Forces who is separated from the service after completing 5 years of ci- vilian service is entitled to an annuity begin- ning at the age of 62 years. A judge of such court who is separated from the service after com- pleting the term of service for which he was ap- pointed is entitled to an annuity. If an annuity is elected before the judge becomes 60 years of age, it shall be a reduced annuity. (d) An annuity or reduced annuity authorized by this section is computed under section 8339 of this title. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 574; Pub. L. 90–83, § 1(77), Sept. 11, 1967, 81 Stat. 214; Pub. L. 98–94, title XII, § 1256(d), Sept. 24, 1983, 97 Stat. 702; Pub. L. 103–337, div. A, title IX, § 924(d)(1)(A), Oct. 5, 1994, 108 Stat. 2832.) HISTORICAL AND REVISION NOTES 1966 ACT Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 2258. July 31, 1956, ch. 804, § 401 ‘‘Sec. 8’’, 70 Stat. 751. July 7, 1960, Pub. L. 86–604, § 1(c), 74 Stat. 358. July 12, 1960, Pub. L. 86–622, § 2(a), 74 Stat. 410. In subsection (b), the words ‘‘after December 31, 1955’’ are substituted for ‘‘on or after January 1, 1956’’. The word ‘‘hereafter’’ is omitted as unnecessary. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. 1967 ACT This section amends 5 U.S.C. 8338(a) for consistency within the subchapter and to reflect that it is the indi- vidual, rather than the position, that is subject to the subchapter. Editorial Notes AMENDMENTS 1994—Subsec. (c). Pub. L. 103–337 substituted ‘‘Court of Appeals for the Armed Forces’’ for ‘‘Court of Mili- tary Appeals’’. 1983—Subsecs. (c), (d). Pub. L. 98–94 added subsec. (c), and redesignated former subsec. (c) as (d). Statutory Notes and Related Subsidiaries SAVINGS PROVISIONS DEFERRED ANNUITIES UNDER LAWS REPEALED BY PUB. L. 90–83 Pub. L. 90–83, § 10(a), Sept. 11, 1967, 81 Stat. 222, pro- vided that: ‘‘The right to a deferred annuity on satis- faction of the conditions attached thereto is continued notwithstanding the repeal by this Act of the law con- ferring the right.’’ § 8339. Computation of annuity (a) Except as otherwise provided by this sec- tion, the annuity of an employee retiring under this subchapter is— (1) 11⁄2 percent of his average pay multiplied by so much of his total service as does not ex- ceed 5 years; plus (2) 13⁄4 percent of his average pay multiplied by so much of his total service as exceeds 5 years but does not exceed 10 years; plus (3) 2 percent of his average pay multiplied by so much of his total service as exceeds 10 years. However, when it results in a larger annuity, 1 percent of his average pay plus $25 is substituted for the percentage specified by paragraph (1), (2), or (3) of this subsection, or any combination thereof. (b) The annuity of a Congressional employee, or former Congressional employee, retiring under this subchapter is computed under sub- section (a) of this section, except, if he has had— (1) at least 5 years’ service as a Congres- sional employee or Member or any combina- tion thereof; and (2) deductions withheld from his pay or has made deposit covering his last 5 years of civil- ian service; his annuity is computed with respect to his serv- ice as a Congressional employee, his military service not exceeding 5 years, and any Member service, by multiplying 21⁄2 percent of his aver- age pay by the years of that service. (c) The annuity of a Member, or former Mem- ber with title to Member annuity, retiring under this subchapter is computed under subsection (a) of this section, except, if he has had at least 5 years’ service as a Member or Congressional employee or any combination thereof, his annu- ity is computed with respect to— (1) his service as a Member and so much of his military service as is creditable for the purpose of this paragraph; and (2) his Congressional employee service; by multiplying 21⁄2 percent of his average pay by the years of that service. (d)(1) The annuity of an employee retiring under section 8335(b) or 8336(c) of this title is— (A) 21⁄2 percent of his average pay multiplied by so much of his total service as does not ex- ceed 20 years; plus (B) 2 percent of his average pay multiplied by so much of his total service as exceeds 20 years. (2) The annuity of an employee retiring under this subchapter who was employed by the Pan- ama Canal Company or Canal Zone Government on September 30, 1979, is computed with respect to the period of continuous Panama Canal serv- ice from that date, disregarding any break in service of not more than 3 days, by adding— (A) 21⁄2 percent of the employee’s average pay multiplied by so much of that service as does not exceed 20 years; plus (B) 2 percent of the employee’s average pay multiplied by so much of that service as ex- ceeds 20 years. (3) The annuity of an employee retiring under this subchapter who is employed by the Panama Canal Commission at any time during the period beginning October 1, 1990, and ending December 31, 1999, is computed, with respect to any period of service with the Panama Canal Commission, by adding— (A) 21⁄2 percent of the employee’s average pay multiplied by so much of that service as does not exceed 20 years; plus (B) 2 percent of the employee’s average pay multiplied by so much of that service as ex- ceeds 20 years.