10 U.S.C. § 1216 — Secretaries: powers, functions, and duties

Page 1271 TITLE 10—ARMED FORCES § 1216 privileges to any other member of the armed forces who is not a member of a regular compo- nent and who is retired, or to whom retired pay is granted, because of physical disability. (Aug. 10, 1956, ch. 1041, 70A Stat. 100.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 1215 ......... 37:272(i). Oct. 12, 1949, ch. 681, § 402(i), 63 Stat. 820. The words ‘‘is retired, or to whom retired pay is granted’’ are substituted for the words ‘‘heretofore or hereafter retired or granted retirement pay’’. The words ‘‘any other member of the armed forces’’ are sub- stituted for the words ‘‘all 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. § 1216. Secretaries: powers, functions, and duties (a) The Secretary concerned shall prescribe regulations to carry out this chapter within his department. (b) Except as provided in subsection (d), the Secretary concerned has all powers, functions, and duties incident to the determination under this chapter of— (1) the fitness for active duty of any member of an armed force under his jurisdiction; (2) the percentage of disability of any such member at the time of his separation from ac- tive duty; (3) the suitability of any member for re- appointment, reenlistment, or reentry upon active duty in an armed force under his juris- diction; and (4) the entitlement to, and payment of, dis- ability severance pay to any member of an armed force under his jurisdiction. (c) The Secretary concerned or the Secretary of Veterans Affairs, as prescribed by the Presi- dent, has the powers, functions, and duties under this chapter incident to hospitalization, reexaminations, and the payment of disability retired pay within his department or agency. (d) The Secretary concerned may not, with re- spect to any member who is a general officer or flag officer or is a medical officer being proc- essed for retirement under any provisions of this title by reason of age or length of service— (1) retire such member under section 1201 of this title; (2) place such member on the temporary dis- ability retired list pursuant to section 1202 of this title; or (3) separate such member from an armed force pursuant to section 1203 of this title by reason of unfitness to perform the duties of his office, grade, rank, or rating unless the de- termination of the Secretary concerned with re- spect to unfitness is first approved by the Sec- retary of Defense on the recommendation of the Assistant Secretary of Defense for Health Af- fairs. (Aug. 10, 1956, ch. 1041, 70A Stat. 100; Pub. L. 94–225, § 2(a), Mar. 4, 1976, 90 Stat. 202; Pub. L. 96–513, title V, § 511(45), Dec. 12, 1980, 94 Stat. 2924; Pub. L. 98–525, title XIV, § 1405(25), Oct. 19, 1984, 98 Stat. 2623; Pub. L. 99–661, div. A, title XIII, § 1343(a)(7), Nov. 14, 1986, 100 Stat. 3992; Pub. L. 101–189, div. A, title XVI, § 1621(a)(2), Nov. 29, 1989, 103 Stat. 1603; Pub. L. 104–106, div. A, title IX, § 903(f)(2), Feb. 10, 1996, 110 Stat. 402; Pub. L. 104–201, div. A, title IX, § 901, Sept. 23, 1996, 110 Stat. 2617.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 1216(a) ..... 1216(b) ..... 1216(c) ..... 37:283 (1st 17 words). 37:284(a). 37:284 (less (a)). Oct. 12, 1949, ch. 681, §§ 413 (1st 17 words), 414, 63 Stat. 824, 825. In subsection (b), the words ‘‘of any member for re- appointment, reenlistment’’ are inserted for clarity, since they are implied in the words ‘‘reentry into ac- tive service’’. In subsections (b) and (c), the words ‘‘under this chap- ter’’ are inserted for clarity. In subsection (c), the words ‘‘as prescribed by the President’’ are substituted for the words ‘‘under regula- tions promulgated by the President’’. Editorial Notes AMENDMENTS 1996—Subsec. (d). Pub. L. 104–106, § 903(a), (f)(2), which directed amendment of subsec. (d), eff. Jan. 31, 1997, by substituting ‘‘official in the Department of Defense with principal responsibility for health affairs’’ for ‘‘Assistant Secretary of Defense for Health Affairs’’, was repealed by Pub. L. 104–201. 1989—Subsec. (c). Pub. L. 101–189 substituted ‘‘Sec- retary of Veterans Affairs’’ for ‘‘Administrator of Vet- erans’ Affairs’’. 1986—Subsec. (d). Pub. L. 99–661 substituted ‘‘who is a general officer or flag officer or is a medical officer’’ for ‘‘who is in pay grade O–7 or higher or is a Medical Corps officer or medical officer of the Air Force’’ in provisions preceding par. (1). 1984—Subsec. (b). Pub. L. 98–525 struck out ‘‘of this section’’ after ‘‘subsection (d)’’ in provisions preceding par. (1). 1980—Subsec. (d). Pub. L. 96–513 substituted ‘‘Affairs’’ for ‘‘and Environment’’. 1976—Subsec. (b). Pub. L. 94–225, § 2(a)(1), substituted ‘‘Except as provided in subsection (d) of this section, the Secretary’’ for ‘‘The Secretary’’. Subsec. (d). Pub. L. 94–225, § 2(a)(2), added subsec. (d). Statutory Notes and Related Subsidiaries 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 1976 AMENDMENT Pub. L. 94–225, § 2(b), Mar. 4, 1976, 90 Stat. 202, pro- vided that: ‘‘The amendments made by subsection (a) of this section [amending this section] shall apply with respect to unfitness determinations made on or after the date of the enactment of this Act [Mar. 4, 1976] by the Secretaries of the military departments concerned for purposes of sections 1201, 1202, and 1203 of title 10, United States Code.’’ APPLICABILITY OF SUBSECTION (d) Subsec. (d) of this section inapplicable with respect to flag officers of the Coast Guard during any period in which the Coast Guard is not operating as a service in the Navy, see section 2157 of Title 14, Coast Guard. Page 1272 TITLE 10—ARMED FORCES § 1216a Executive Documents EX. ORD. NO. 10122. REGULATIONS GOVERNING DISABILITY PAY, HOSPITALIZATION AND REEXAMINATION Ex. Ord. No. 10122, Apr. 14, 1950, 15 F.R. 2173, as amended by Ex. Ord. 10400, Sept. 27, 1952, 17 F.R. 8648; 1953 Reorg. Plan No. 1, §§ 5, 8, eff. Apr. 11, 1953, 18 F.R. 2053, 67 Stat. 631; Ex. Ord. No. 11733, July 30, 1973, 38 F.R. 20431 provided: By virtue of and pursuant to the authority vested in me by section 414(b) of the Career Compensation Act of 1949, approved October 12, 1949 (Public Law 351, 81st Congress [former section 284(b) of Title 37, now covered by subsecs. (b) and (c) of this section], and as President of the United States and Commander in Chief of the armed forces of the United States, I hereby prescribe the following regulations governing payment of dis- ability retirement pay, hospitalization, and re-exam- ination of members and former members of the uni- formed services: SECTION 1. The terms ‘‘uniformed services’’ and ‘‘Sec- retary’’ as used in these regulations shall have the meaning prescribed therefor by subsections (a) and (f), respectively, of section 102 of the Career Compensation Act of 1949 [section 101(3) and (5) of Title 37, Pay and Allowances of the Uniformed Services]. SEC. 2. (a) Effective as of October 1, 1949, all duties, powers, and functions incident to the payment of dis- ability retirement pay of members or former members of the uniformed services retired for physical disability or receiving disability retirement pay shall, except as provided in subsection (b) of this section, be vested in the Secretary concerned. (b) Effective July 1, 1950, all duties, powers, and func- tions exercised by the Veterans’ Administration pursu- ant to Executive Order No. 8099 of April 28, 1939, as amended by Executive Order No. 8461 of June 28, 1940, relative to the administration of the retirement-pay provisions of section 1 of the act of August 30, 1935, as amended by section 5 of the act of April 3, 1939, 53 Stat. 557 [former section 369a of this title], and amendments thereof, shall, as to cases within their respective juris- dictions, be vested in the Secretary of the Army and the Secretary of the Air Force, and thereafter the Vet- erans’ Administration shall not be charged in any case with any further responsibility in the administration of the said retirement-pay provisions. The said Executive Order No. 8099 as amended by the said Executive Order No. 8461 is hereby amended accordingly. SEC. 3. All duties, powers, and functions incident to the hospitalization, except as provided in section 5 of this order, and re-examination of members of the uni- formed services placed on the temporary disability re- tired list under the provisions of the Career Compensa- tion Act of 1949 shall be vested in the Secretary con- cerned. SEC. 4. Effective May 1, 1950, all duties, powers, and functions incident to the hospitalization of members or former members of the uniformed services permanently retired for physical disability or receiving disability re- tirement pay shall, except as provided in section 5 of this order, be vested in the Secretary concerned: Pro- vided, that all the duties, powers, and functions inci- dent to hospitalization which such members or former members are entitled to and elect to receive in facili- ties of the Veterans’ Administration, other than hos- pitals under the jurisdiction of the uniformed services, shall be vested in the Administrator of Veterans’ Af- fairs. SEC. 5. All duties, powers, and functions incident to the hospitalization of members or former members of the uniformed services placed on the temporary dis- ability retired list or permanently retired for physical disability or receiving disability retirement pay who require hospitalization for chronic diseases shall be vested in the Administrator of Veterans’ Affairs: Pro- vided, that all the duties, powers, and functions inci- dent to hospitalization for such members or former members who elect to receive hospitalization in uni- formed services facilities shall, subject to the avail- ability of space and facilities and the capabilities of the medical and dental staff, be vested in the Secretary concerned: And provided further, that for the purpose of this order, the term ‘‘chronic disease’’ shall be con- strued to include arthritis, malignancy, psychiatric or neuropsychiatric disorder, neurological disabilities, po- liomyelitis with disability residuals and degenerative diseases of the nervous system, severe injuries to the nervous system including quadriplegics, hemiplegics, and paraplegics, tuberculosis, blindness and deafness requiring definitive rehabilitation, major amputees, and such other diseases as may be so defined jointly by the Secretary of Defense, the Administrator of Vet- erans’ Affairs, and the Federal Security Administrator and so described in appropriate regulations of the re- spective departments and agencies concerned. Execu- tive Order No. 9703 of March 12, 1946, prescribing regula- tions relating to the medical care of certain personnel of the Coast Guard, National Oceanic and Atmospheric Administration (formerly Coast and Geodetic Survey), Public Health Service, and the former Lighthouse Serv- ice, is hereby amended to the extent necessary to con- form to the provisions of this section. SEC. 6. Except as provided in section 5 hereof with re- spect to hospitalization for chronic diseases, nothing in this order shall be construed to affect the duties, pow- ers, and functions of the Public Health Service with re- spect to hospitalization and medical examination of members and former members of the Coast Guard and the National Oceanic and Atmospheric Administration (formerly Coast and Geodetic Survey) under the Public Health Service Act, approved July 1, 1944 (58 Stat. 682), as amended [section 201 et seq. of Title 42, The Public Health and Welfare], and the regulations prescribed by the said Executive Order No. 9703 of March 12, 1946. SEC. 7. Nothing in this order shall be construed to af- fect the duties, powers, and functions vested in the Ad- ministrator of Veterans’ Affairs pursuant to the provi- sions of the act of May 24, 1928, entitled ‘‘An Act mak- ing eligible for retirement, under certain conditions, officers and former officers of the Army, Navy, and Ma- rine Corps of the United States, other than officers of the Regular Army, Navy, or Marine Corps, who in- curred physical disability in line of duty while in the service of the United States during the World War’’ (45 Stat. 735, as amended) [section 581 of former Title 38], or by or pursuant to the act of September 26, 1941, enti- tled ‘‘An Act to provide retirement pay and hospital benefits to certain Reserve officers, Army of the United States, disabled while on active duty’’ (55 Stat. 733) [former section 456a of this title]. § 1216a. Determinations of disability: require- ments and limitations on determinations (a) UTILIZATION OF VA SCHEDULE FOR RATING DISABILITIES IN DETERMINATIONS OF DIS- ABILITY.—(1) In making a determination of dis- ability of a member of the armed forces for pur- poses of this chapter, the Secretary concerned— (A) shall, to the extent feasible, utilize the schedule for rating disabilities in use by the Department of Veterans Affairs, including any applicable interpretation of the schedule by the United States Court of Appeals for Vet- erans Claims; and (B) except as provided in paragraph (2), may not deviate from the schedule or any such in- terpretation of the schedule. (2) In making a determination described in paragraph (1), the Secretary concerned may uti- lize in lieu of the schedule described in that paragraph such criteria as the Secretary of De- fense and the Secretary of Veterans Affairs may jointly prescribe for purposes of this subsection if the utilization of such criteria will result in a determination of a greater percentage of dis-