10 U.S.C. § 1436 — Computation of reduction in retired pay;

Page 1343 TITLE 10—ARMED FORCES § 1436 members to whom section 1431 of this title applies on Aug. 13, 1968, see section 3 of Pub. L. 90–485, set out as a note under section 1431 of this title. § 1435. Eligible beneficiaries Only the following persons are eligible to be made the beneficiaries of, or to receive pay- ments under, an annuity elected under this sub- chapter by a member of the armed forces: (1) The spouse of the member on the date when the member is retired or becomes enti- tled to retired or retainer pay or, if the mem- ber was already retired or entitled to retired or retainer pay on November 1, 1953, the spouse on that date. (2) The children of the member who are— (A) unmarried; (B) under eighteen years of age, or incapa- ble of supporting themselves because of a mental defect or physical incapacity exist- ing before their eighteenth birthday, or at least eighteen, but under twenty-three, years of age and pursuing a full-time course of study or training in a high school, trade school, technical or vocational institute, junior college, college, university, or com- parable recognized educational institution; (C) legitimate or adopted children of, or stepchildren in fact dependent for their sup- port upon, the member; (D) living on the date when the member is retired or becomes entitled to retired or re- tainer pay or, if the member was already re- tired or entitled to retired or retainer pay on November 1, 1953, living on that date; and (E) born on or before the date prescribed in clause (D). For the purposes of clause (2)(B), a child is con- sidered to be pursuing a full-time course of study or training during an interval between school years that does not exceed one hundred and fifty days if he has demonstrated to the sat- isfaction of the Secretary concerned that he has a bonafide intention of commencing, resuming, or continuing to pursue a full-time course of study or training in a recognized educational in- stitution immediately after that interval. (Aug. 10, 1956, ch. 1041, 70A Stat. 110; Pub. L. 90–485, § 1(4), (5), Aug. 13, 1968, 82 Stat. 752; Pub. L. 92–425, § 1(2)(A), Sept. 21, 1972, 86 Stat. 706.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 1435(1) ..... 1435(2) ..... 37:371(e). 37:371(f). Aug. 8, 1953, ch. 393, § 2(e), (f), 67 Stat. 501. In clauses (1) and (2), the words ‘‘is retired or becomes entitled to retired or retainer pay’’ are substituted for the words ‘‘retired member’’, since the words ‘‘retired member’’, as defined in the source statute, included former members who have been awarded that pay. In clause (1), the words ‘‘ ‘widow’ includes a widower’’ are omitted as covered by the definition of ‘‘spouse’’ in section 101(32) of this title. Editorial Notes AMENDMENTS 1972—Pub. L. 92–425 substituted ‘‘subchapter’’ for ‘‘chapter’’. 1968—Pub. L. 90–485 inserted provisions in cl. (2)(B) concerning children of the member who are at least 18, but under 23 and pursuing a full-time course of study or training and inserted text following cl. (2)(E) relating to children considered to be pursuing a full-time course of study or training. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90–485 effective on first day of third calendar month following Aug. 13, 1968, see sec- tion 6 of Pub. L. 90–485, set out as a note under section 1431 of this title. § 1436. Computation of reduction in retired pay; withdrawal for severe financial hardship (a) The reduction in the retired or retainer pay of any person who elects an annuity under this subchapter shall be computed by the armed force concerned as of the date when the person becomes eligible for that pay but without regard to any increase in that pay to reflect changes in the Consumer Price Index. It shall be computed under an actuarial equivalent method based on (1) appropriate actuarial tables selected by the Board of Actuaries, and (2) an interest rate of 3 percent a year, or such other rate as the Sec- retary of the Treasury, after considering the av- erage yield on outstanding marketable long- term obligations of the United States during the preceding six months, may specify by August 1 of any year for the following year. The method and tables shall be those in effect on the date as of which the computation is made. (b) Under regulations prescribed under section 1444(a) of this title, the Secretary concerned may, upon application by the retired member, allow the member— (1) to reduce the amount of the annuity spec- ified by him under section 1434(a) and 1434(b) of this title but to not less than the prescribed minimum; or (2) to withdraw from participation in an an- nuity program under this title; or (3) to elect the annuity provided under clause (1) of section 1434(a) of this title in place of the annuity provided under clause (3) of such section, if on the first day for which retired or retainer pay is granted the member had in effect a valid election under clause (3) of such section, and he does not have a child beneficiary who would be eligible for the annu- ity provided under clause (3) of such section. For this purpose, a child (other than a child who is incapable of supporting himself because of a mental defect or physical incapacity ex- isting before his eighteenth birthday) who is at least eighteen, but under twenty-three years of age shall not be considered an eligible beneficiary; or (4) to elect that a child (other than a child who is incapable of supporting himself because of a mental defect or physical incapacity ex- isting before his eighteenth birthday) who is at least eighteen, but under twenty-three years of age shall not be considered eligible for the annuity provided under clause (2) of sec- tion 1434(a) of this title, or for an annuity pro- vided under section 1434(b) of this title, if on the first day for which retired or retainer pay is granted the member had in effect a valid election under clause (2) of section 1434(a) of this title, or under section 1434(b) of this title. Page 1344 TITLE 10—ARMED FORCES § 1436a A retired member may not reduce an annuity under clause (1) of this subsection, or withdraw under clause (2) of this subsection, earlier than the first day of the seventh calendar month be- ginning after he applies for reduction or with- drawal. A change of election under clause (3) of this subsection shall be effective on the first day of the month following the month in which ap- plication is made. An election under clause (4) of this subsection shall be effective on the first day of the month following the month in which ap- plication is made and, if on the effective date there is no surviving child who would be eligible for an annuity provided under clause (2) of sec- tion 1434(a), or under section 1434(b), of this title if the elector died, no deduction shall be made for such an annuity to, or on behalf of, a child from the elector’s retired or retainer pay for that month or any subsequent month. No amounts by which a member’s retired or re- tainer pay is reduced prior to the effective date of a reduction of annuity, withdrawal, change of election, or election under this subsection may be refunded to, or credited on behalf of, the member by virtue of an application made by him under this subsection. (Aug. 10, 1956, ch. 1041, 70A Stat. 110; Pub. L. 87–381, § 4, Oct. 4, 1961, 75 Stat. 811; Pub. L. 90–207, § 2(a)(3), Dec. 16, 1967, 81 Stat. 653; Pub. L. 90–485, § 1(6), Aug. 13, 1968, 82 Stat. 753; Pub. L. 92–425, § 1(2)(A), Sept. 21, 1972, 86 Stat. 706; Pub. L. 104–106, div. A, title XV, § 1505(c), Feb. 10, 1996, 110 Stat. 514.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 1436 ......... 37:373(c). Aug. 8, 1953, ch. 393, § 4(c), 67 Stat. 503. The words ‘‘of any person who elects an annuity’’ are substituted for the words ‘‘of an active or retired mem- ber who has made an election’’. The words ‘‘in each in- dividual case’’ and ‘‘designated in section 8’’ are omit- ted as surplusage. The words ‘‘and as of the date of election in the case of a retired member’’ are omitted as executed. 37:373(c) (1st 23 words of last sentence) is omitted as otherwise covered by the language of the re- vised section. Editorial Notes AMENDMENTS 1996—Subsec. (b). Pub. L. 104–106 made technical cor- rection to directory language of Pub. L. 90–485, § 1(6). See 1968 Amendment note below. 1972—Subsec. (a). Pub. L. 92–425 substituted ‘‘sub- chapter’’ for ‘‘chapter’’. 1968—Subsec. (b). Pub. L. 90–485, as amended by Pub. L. 104–106, substituted provisions authorizing the Sec- retary to allow the member to reduce the amount of the annuity, allow the member to withdraw from par- ticipation in an annuity program, allow the member to elect the annuity provided in section 1434(a)(1) in place of the annuity provided in section 1434(a)(3) under the specified conditions, and allow the member to elect that a child at least 18, but under 23, not be eligible for the specified annuities, setting forth the times when such reduction, withdrawal, or change of election may take place, and disallowing the refunding or crediting of any amount previously withheld, for provisions au- thorizing the Secretary to allow the member to with- draw from participation in an annuity program when- ever the Secretary considers it necessary because of the member’s severe financial hardship, the absence of an eligible beneficiary not of itself to be a basis for such action. 1967—Subsec. (a). Pub. L. 90–207 inserted ‘‘but without regard to any increase in that pay to reflect changes in the Consumer Price Index’’ after ‘‘that pay’’. 1961—Pub. L. 87–381 designated existing provisions as subsec. (a), added subsec. (b), and inserted ‘‘; withdrawal for severe financial hardship’’ in section catchline. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Pub. L. 104–106, div. A, title XV, § 1505(c), Feb. 10, 1996, 110 Stat. 514, provided that the amendment made by that section is effective Aug. 13, 1968, and as if included in Pub. L. 90–485 as originally enacted. EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90–485 effective Aug. 13, 1968, see section 6 of Pub. L. 90–485, set out as a note under section 1431 of this title. EFFECTIVE DATE OF 1967 AMENDMENT Amendment by Pub. L. 90–207 effective Oct. 1, 1967, see section 7 of Pub. L. 90–207, set out as a note under section 203 of Title 37, Pay and Allowances of the Uni- formed Services. § 1436a. Coverage paid up at 30 years and age 70 Effective October 1, 2008, a reduction under this subchapter in the retired or retainer pay of a person electing an annuity under this sub- chapter may not be made for any month after the later of— (1) the month that is the 360th month for which that person’s retired or retainer pay is reduced pursuant to such an election; and (2) the month during which that person at- tains 70 years of age. (Added Pub. L. 106–65, div. A, title VI, § 655(a), Oct. 5, 1999, 113 Stat. 667.) § 1437. Payment of annuity (a) Except as provided in subsections (b) and (c), each annuity payable under this subchapter accrues as of the first day of the month in which the person upon whose pay the annuity is based dies. Payments shall be made in equal install- ments and not later than the fifteenth day of each month following that month. However, no annuity accrues for the month in which entitle- ment thereto ends. The monthly amount of an annuity payable under this subchapter, if not a multiple of $1, shall be rounded to the next lower multiple of $1. (b) Each annuity payable to or on behalf of an eligible child (other than a child who is incapa- ble of supporting himself because of a mental de- fect or physical incapacity existing before his eighteenth birthday) as defined in section 1435(2)(B) of this title who is at least eighteen years of age and pursuing a full-time course of study or training at a recognized educational in- stitution, accrues— (1) as of the first day of the month in which the member upon whose pay the annuity is based dies, if the eligible child’s eighteenth birthday occurs in the same or a preceding month. (2) as of the first day of the month in which the eighteenth birthday of an eligible child oc-