10 U.S.C. § 1434 — Kinds of annuities that may be elected

Page 1341 TITLE 10—ARMED FORCES § 1434 Code [subsection (b) of this section], notwithstanding the requirement of the second sentence of that sec- tion.’’ CHANGE OR REVOCATION OF ELECTION BY CERTAIN OFFICERS Effective date of change or revocation of election by certain officers, see section 3 of Pub. L. 86–155, Aug. 11, 1959, 73 Stat. 336, set out as a note under section 5701 of this title. PUBLIC HEALTH SERVICE Authority vested by this chapter in ‘‘military depart- ments’’, ‘‘the Secretary concerned’’, or ‘‘the Secretary of Defense’’ to be exercised, with respect to commis- sioned officers of Public Health Service, by Secretary of Health and Human Services or his designee, see sec- tion 213a of Title 42, The Public Health and Welfare. NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION Authority vested by this chapter in ‘‘military depart- ments’’, ‘‘the Secretary concerned’’, or ‘‘the Secretary of Defense’’ to be exercised, with respect to commis- sioned officer corps of National Oceanic and Atmos- pheric Administration, by Secretary of Commerce or Secretary’s designee, see section 3071 of Title 33, Navi- gation and Navigable Waters. § 1432. Election of annuity: former members of armed forces A person who was a former member of an armed force on November 1, 1953, and who is granted retired or retainer pay after that date, may, at the time he is granted that pay, make an election as provided in section 1431 of this title. (Aug. 10, 1956, ch. 1041, 70A Stat. 109.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 1432 ......... 37:372(a) (5th sentence). Aug. 8, 1953, ch. 393, § 3(a) (5th sentence), 67 Stat. 502. § 1433. Mental incompetency of member If a person who would be entitled to make an election under section 1431 or 1432 of this title is determined to be mentally incompetent by med- ical officers of the armed force concerned or of the Department of Veterans Affairs, or by a court of competent jurisdiction, and for that reason cannot make the election within the pre- scribed time, the Secretary concerned may make an election for that person upon the re- quest of his spouse or, if there is no spouse, of his children who would be eligible to be made beneficiaries under section 1435 of this title. If the person for whom the Secretary has made an election is later determined to be mentally com- petent by medical officers of the Department of Veterans Affairs or by a court of competent ju- risdiction, he may, within 180 days after that de- termination, change or revoke that election. However, deductions made from his retired or retainer pay before that date may not be re- funded. (Aug. 10, 1956, ch. 1041, 70A Stat. 109; Pub. L. 101–189, div. A, title XVI, § 1621(a)(1), Nov. 29, 1989, 103 Stat. 1602.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 1433 ......... 37:372 (less (a) and (b)). Aug. 8, 1953, ch. 393, § 3 (less (a) and (b)), 67 Stat. 502. The first 19 words are substituted for 37:372(c) (1st 9 words). The words ‘‘who would be eligible to be made beneficiaries under section 1435 of this title’’ are in- serted to reflect the limitations in 37:371(f). The words ‘‘for that reason cannot’’ are substituted for the words ‘‘because of such mental incompetency is incapable of’’. The words ‘‘or is adjudged mentally incompetent’’, ‘‘provided for in this section’’, and ‘‘where appropriate is subsequently adjudged mentally competent’’ are omitted as surplusage. The last sentence is substituted for 37:372(c) (last sentence). Editorial Notes AMENDMENTS 1989—Pub. L. 101–189 substituted ‘‘Department of Vet- erans Affairs’’ for ‘‘Veterans’ Administration’’ in two places. § 1434. Kinds of annuities that may be elected (a) The annuity that a person is entitled to elect under section 1431 or 1432 of this title shall, in conformance with actuarial tables selected by the Board of Actuaries under section 1436(a) of this title, be the amount specified by the elector at the time of the election, but not more than 50 percent nor less than 121⁄2 percent of his retired or retainer pay, in no case less than $25. He may make the annuity payable— (1) to, or on behalf of, the surviving spouse, ending when the spouse dies or, if the spouse remarries before age 60, when the spouse re- marries; (2) in equal shares to, or on behalf of, the surviving children eligible for the annuity at the time each payment is due, ending when there is no surviving eligible child; or (3) to, or on behalf of, the surviving spouse, and after the death of that spouse or the re- marriage of that spouse before age 60, in equal shares to, or on behalf of, the surviving eligi- ble children, ending when there is no surviving eligible child. (b) A person may elect to provide both the an- nuity provided in clause (1) of subsection (a) and that provided in clause (2) of subsection (a), but the combined amount of the annuities may not be more than 50 percent nor less than 121⁄2 per- cent of his retired or retainer pay but in no case less than $25. (c) An election of any annuity under clause (1) or (2) of subsection (a), or any combination of annuities under subsection (b), shall provide that no deduction may be made from the elec- tor’s retired or retainer pay after the last day of the month in which there is no beneficiary who would be eligible for the annuity if the elector died. For the purposes of the preceding sentence, a child (other than a child who is incapable of supporting himself because of a mental defect or physical incapacity existing before his eight- eenth birthday) who is at least eighteen, but under twenty-three years of age, and who is not pursuing a course of study or training defined in section 1435 of this title, shall be considered an Page 1342 TITLE 10—ARMED FORCES § 1434 eligible beneficiary unless the Secretary con- cerned approves an application submitted by the member under section 1436(b)(4) of this title. An election of an annuity under clause (3) of sub- section (a) shall provide that no deduction may be made from the elector’s retired or retainer pay after the last day of the month in which there is no eligible spouse because of death or divorce. (d) Under regulations prescribed under section 1444(a) of this title, a person may, before or after the first day for which retired or retainer pay is granted, provided for allocating, during the pe- riod of the surviving spouse’s eligibility, a part of the annuity under subsection (a)(3) for pay- ment to those of his surviving children who are not children of that spouse. (e) Whenever there is an increase in retired and retainer pay under section 1401a of this title, each annuity that is payable under this subchapter on the day before the effective date of that increase to a spouse or child of a member who died on or before March 20, 1974, shall be in- creased by the same percentage as the percent- age of that increase, effective on the effective date of that increase. (Aug. 10, 1956, ch. 1041, 70A Stat. 109; Pub. L. 87–381, § 3, Oct. 4, 1961, 75 Stat. 811; Pub. L. 90–485, § 1(3), Aug. 13, 1968, 82 Stat. 751; Pub. L. 95–397, title I, § 101(a), Sept. 30, 1978, 92 Stat. 843; Pub. L. 96–513, title V, § 511(56), Dec. 12, 1980, 94 Stat. 2925.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 1434(a) ..... 1434(b) ..... 1434(c) ..... 37:373(a) (less 4th par.). 37:373(b). 37:373(a)(4th par.). Aug. 8, 1953, ch. 393, § 4 (less (c) and (d)), 67 Stat. 502. In subsection (a), the first 17 words are substituted for 37:373(a) (1st 26 words of 1st sentence). The words ‘‘may be 50, 25, or 121⁄2 percent’’ are substituted for the words ‘‘in such amount, expressed as a percentage of the reduced amount of his retired pay * * * in amounts equal to one-half, one-quarter or one-eighth’’. 37:373(a) (last 53 words of 1st sentence of 2d par., and last 53 words of 1st sentence of 3d par.) is omitted as covered by section 1435(2) of this title. Clause (1) is substituted for 37:373(a)(1). Clause (2) is substituted for 37:373(a)(2) (less last 53 words of 1st sentence). Clause (3) is sub- stituted for 37:373(a)(3) (less last 53 words of 1st sen- tence). The word ‘‘eligible’’ is inserted in clauses (2) and (3) to reflect the limitations in 37:371(f). In subsection (c), the first 11 words are substituted for 37:373(a)(4) (1st 24 words). The words ‘‘the annuity’’ are substituted for the words ‘‘an annuity payable under the election made by him’’. Editorial Notes AMENDMENTS 1980—Subsecs. (a), (b). Pub. L. 96–513 substituted ‘‘per- cent’’ for ‘‘per centum’’ wherever appearing. 1978—Subsec. (a)(1). Pub. L. 95–397, § 101(a)(1), sub- stituted ‘‘or, if the spouse remarries before age 60, when the spouse remarries’’ for ‘‘or remarries’’. Subsec. (a)(3). Pub. L. 95–397, § 101(a)(2), substituted ‘‘of that spouse or the remarriage of that spouse before age 60’’ for ‘‘or remarriage of that spouse’’. Subsec. (e). Pub. L. 95–397, § 101(a)(3), added subsec. (e). 1968—Subsec. (a). Pub. L. 90–485 substituted provi- sions allowing election of an annuity amount, in con- formance with the selected actuarial tables, of not more than 50 percent nor less than 121⁄2 percent of re- tired or retired or retainer pay, but in no case less than $25, for provisions allowing election of an annuity amount of 50, 25, or 121⁄2 percent of reduced retired or retainer pay. Subsec. (b). Pub. L. 90–485 substituted provisions that the combined amount of annuities may not be more than 50 percent nor less than 121⁄2 percent of retired or retainer pay, but in no case less than $25, for provisions that the combined amount of annuities may be only 25 or 121⁄2 percent of reduced retired or retainer pay and provisions that the reduction in retired or retainer pay on account of each annuity, and the amount of each an- nuity, be determined in the same manner that it would be determined if the other annuity had not been elect- ed. Subsec. (c). Pub. L. 90–485 made mandatory the provi- sions that an election of any annuity under cls. (1) or (2) of subsec. (a), or any combination of annuities under subsec. (b), and the provision that an election of an an- nuity under cl. (3) of subsec. (a) shall provide that no deduction may be made from the elector’s retired or re- tainer pay after the last day of the month in which there is no beneficiary who would be eligible for the an- nuity if the elector died or there is no eligible spouse because of death or divorce, respectively, and inserted provision determining what constitutes an eligible ben- eficiary. Subsec. (d). Pub. L. 90–485 reenacted subsec. (d) with- out change. 1961—Subsec. (b). Pub. L. 87–381, § 3(1), substituted permission to elect only 25 or 121⁄2 percent of the mem- ber’s reduced retired or retainer pay for each annuity for provisions limiting the combined amount of the an- nuities to not more than 50 percent or the reduced pay, and added that the reduction in pay on account of each annuity, and the amount of each annuity, shall be de- termined as if the other annuity had not been elected. Subsec. (d). Pub. L. 87–381, § 3(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 1978 AMENDMENT Pub. L. 95–397, title I, § 101(b), Sept. 30, 1978, 92 Stat. 843, provided that: ‘‘No benefits shall accrue to any per- son by virtue of the amendments made by subsection (a) [amending this section] for any period prior to the first day of the first calendar month following the month in which this Act is enacted [Sept. 1978] or Octo- ber 1, 1978, whichever is later.’’ EFFECTIVE DATE OF 1968 AMENDMENT For effective date of amendment by Pub. L. 90–485, see section 6 of Pub. L. 90–485, set out as a note under section 1431 of this title. INCREASE IN AMOUNT OF ANNUITY PAYABLE UNDER RETIRED SERVICEMAN’S FAMILY PROTECTION PLAN Pub. L. 95–397, title I, § 102, Sept. 30, 1978, 92 Stat. 843, provided that: ‘‘Each annuity that is payable under subchapter I of chapter 73 of title 10, United States Code, on the day before the date of the enactment of this Act [Sept. 30, 1978] to a spouse or child of a mem- ber of the uniformed services who died on or before March 20, 1974, shall be increased effective as of the first day of the first calendar month following the month in which this Act [See Short Title note set out under section 1431 of this title] is enacted [September 1978], or as of October 1, 1978, whichever is later, by the percentage increase in retired and retainer pay under section 1401a of that title since September 21, 1972.’’ PROVISIONS EFFECTIVE FOR CERTAIN MEMBERS ON AUGUST 13, 1968 Provisions of this section as amended by Pub. L. 90–485 effective immediately and automatically for 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.