10 U.S.C. § 1210 — Members on temporary disability retired

Page 1264 TITLE 10—ARMED FORCES § 1210 that section is effective as of Dec. 1, 1994, and as if in- cluded as an amendment made by the Reserve Officer Personnel Management Act, title XVI of Pub. L. 103–337, as originally enacted. § 1210. Members on temporary disability retired list: periodic physical examination; final de- termination of status (a) A physical examination shall be given at least once every 18 months to each member of the armed forces whose name is on the tem- porary disability retired list to determine whether there has been a change in the dis- ability for which he was temporarily retired. He may be required to submit to those examina- tions while his name is carried on that list. If a member fails to report for an examination under this subsection, after receipt of proper notifica- tion, his disability retired pay may be termi- nated. However, payments to him shall be re- sumed if there was just cause for his failure to report. If payments are so resumed, they may be made retroactive for not more than one year. (b) The Secretary concerned shall make a final determination of the case of each member whose name is on the temporary disability retired list upon the expiration of three years after the date when the member’s name was placed on that list. If, at the time of that determination, the physical disability for which the member’s name was carried on the temporary disability retired list still exists, it shall be considered to be of a permanent nature and stable. (c) If, as a result of a periodic examination under subsection (a), or upon a final determina- tion under subsection (b), it is determined that the member’s physical disability is of a perma- nent nature and stable and is at least 30 percent under the standard schedule of rating disabil- ities in use by the Department of Veterans Af- fairs at the time of the determination, his name shall be removed from the temporary disability retired list and he shall be retired under section 1201 or 1204 of this title, whichever applies. (d) If, as a result of a periodic examination under subsection (a), or upon a final determina- tion under subsection (b), it is determined that the member’s physical disability is of a perma- nent nature and stable and is less than 30 per- cent under the standard schedule of rating dis- abilities in use by the Department of Veterans Affairs at the time of the determination, and if he has at least 20 years of service computed under section 1208 of this title, his name shall be removed from the temporary disability retired list and he shall be retired under section 1201 or 1204 of this title, whichever applies, with retired pay computed under section 1401 of this title. (e) If, as a result of a periodic examination under subsection (a), or upon a final determina- tion under subsection (b), it is determined that the member’s physical disability is less than 30 percent under the standard schedule of rating disabilities in use by the Department of Vet- erans Affairs at the time of the determination, and if he has less than 20 years of service com- puted under section 1208 of this title, his name shall be removed from the temporary disability retired list and he may be separated under sec- tion 1203 or 1206 of this title, whichever applies. (f)(1) If, as a result of a periodic examination under subsection (a), or upon a final determina- tion under subsection (b), it is determined that the member is physically fit to perform the du- ties of his office, grade, rank, or rating, the Sec- retary shall— (A) treat the member as provided in section 1211 of this title; or (B) discharge the member, retire the mem- ber, or transfer the member to the Fleet Re- serve, Fleet Marine Corps Reserve, or inactive Reserve under any other law if, under that law, the member— (i) applies for and qualifies for that retire- ment or transfer; or (ii) is required to be discharged, retired, or eliminated from an active status. (2)(A) For the purpose of paragraph (1)(B), a member shall be considered qualified for retire- ment or transfer to the Fleet Reserve or Fleet Marine Corps Reserve or is required to be dis- charged, retired, or eliminated from an active status if, were the member reappointed or reen- listed under section 1211 of this title, the mem- ber would in all other respects be qualified for or would be required to be retired, transferred to the Fleet Reserve or Fleet Marine Corps Re- serve, discharged, or eliminated from an active status under any other provision of law. (B) The grade of a member retired, trans- ferred, discharged, or eliminated from an active status pursuant to paragraph (1)(B) shall be de- termined under the provisions of law under which the member is retired, transferred, dis- charged, or eliminated. The member’s retired, retainer, severance, readjustment, or separation pay shall be computed as if the member had been reappointed or reenlisted upon removal from the temporary disability retired list and before the retirement, transfer, discharge, or elimination. Notwithstanding section 8301 of title 5, a member who is retired shall be entitled to retired pay effective on the day after the last day on which the member is entitled to dis- ability retired pay. (g) Any member of the armed forces whose name is on the temporary disability retired list, and who is required to travel to submit to a physical examination under subsection (a), is entitled to the travel and transportation allow- ances authorized for members in his retired grade traveling in connection with temporary duty while on active duty. (h) If his name is not sooner removed, the dis- ability retired pay of a member whose name is on the temporary disability retired list termi- nates upon the expiration of three years after the date when his name was placed on that list. (Aug. 10, 1956, ch. 1041, 70A Stat. 95; Pub. L. 99–145, title V, § 513(a)(2), Nov. 8, 1985, 99 Stat. 627; Pub. L. 101–189, div. A, title XVI, § 1621(a)(1), Nov. 29, 1989, 103 Stat. 1602; Pub. L. 114–328, div. A, title V, § 525(a), Dec. 23, 2016, 130 Stat. 2117.) HISTORICAL AND REVISION NOTES Revised section Source (U.S. Code) Source (Statutes at Large) 1210(a) ..... 37:272(e) (less last sen- tence). 37:274(a). 37:274(b) (less 1st sen- tence). Oct. 12, 1949, ch. 681, §§ 402(d) (30th through 55th words), (e) (less 1st proviso of last sen- tence), (f) (as applica- ble to § 402(e)), 404, 63 Stat. 818–821. Page 1265 TITLE 10—ARMED FORCES § 1211 HISTORICAL AND REVISION NOTES—CONTINUED Revised section Source (U.S. Code) Source (Statutes at Large) 1210(b) ..... 37:272(e) (1st 37 words of last proviso of last sen- tence). 1210(c) ..... 37:272(e) (last sentence, less provisos and less clause (2)). 37:272(e) (38th through 45th words of last pro- viso of last sentence). 1210(d) ..... 37:272(f) (as applicable to 37:272(e)). 1210(e) ..... 37:272(e) (clause (2) of last sentence). 37:272(e) (46th word of last proviso of last sen- tence). 1210(f) ..... 37:272(e) (47th through 56th words of last pro- viso of last sentence). 1210(g) ..... 37:274(b) (1st sentence). 1210(h) .... 37:272(d) (30th through 55th words). In subsection (a), the second sentence is substituted for 37:274(a). The word ‘‘resumed’’ is substituted for the words ‘‘reinstated at a later date’’, in 37:274(b). In subsection (b), the last sentence is inserted for clarity to conform to an opinion of the Judge Advocate General of the Army (JAGA 1953/8438, 30 Dec. 1953) and an opinion of the Judge Advocate General of the Navy (JAG: III: 7: WBM: bg. 7 Jan. 1954). In subsection (c), the words ‘‘or upon a final deter- mination under subsection (b)’’ are substituted for the words ‘‘or upon the determination of a period of five years from the date of temporary disability retire- ment’’, in 37:272(e). The words ‘‘at the time of the deter- mination’’ are substituted for the word ‘‘current’’, in 37:272(e). The words ‘‘and he shall be entitled to receive disability retirement pay as prescribed in subsection (d) of this section’’ are omitted as covered by sections 1201 and 1204 of this title. Reference to specific sections on permanent retirement are substituted for the word ‘‘permanently’’, before the word ‘‘retired’’, in 37:272(e). In subsection (d), 37:272(f) (proviso) is omitted as sur- plusage. In subsection (e), the words ‘‘and if he has less than 20 years of service computed under section 1208 of this title’’ are inserted to distinguish the separation re- quirement under this section from retirement require- ments under subsection (d). 37:272(e) (last 19 words of clause (2) of last sentence) is omitted as covered by sec- tions 1203 and 1206 of this title. The words ‘‘at the time of determination’’ are substituted for the word ‘‘cur- rent’’. In subsection (f), the first 39 words are inserted for clarity. In subsection (g), the words ‘‘members in his retired grade traveling in connection with temporary duty’’ are substituted for the words ‘‘the rank, grade, or rat- ing in which retired for temporary duty travel per- formed’’. The words ‘‘for travel performed’’ are omitted as surplusage. Editorial Notes AMENDMENTS 2016—Subsecs. (b), (h). Pub. L. 114–328 substituted ‘‘three years’’ for ‘‘five years’’. 1989—Subsecs. (c) to (e). Pub. L. 101–189 substituted ‘‘Department of Veterans Affairs’’ for ‘‘Veterans’ Ad- ministration’’ wherever appearing. 1985—Subsecs. (b) to (d). Pub. L. 99–145, § 513(a)(2)(A), inserted ‘‘and stable’’ after ‘‘permanent nature’’. Subsec. (f). Pub. L. 99–145, § 513(a)(2)(B), designated ex- isting provisions as par. (1), substituted ‘‘or rating, the Secretary shall—’’ for ‘‘and rating, the Secretary shall treat him as provided in section 1211 of this title’’, added subpars. (A) and (B), and added par. (2). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2016 AMENDMENT Pub. L. 114–328, div. A, title V, § 525(b), Dec. 23, 2016, 130 Stat. 2117, provided that: ‘‘The amendments made by subsection (a) [amending this section] shall take ef- fect on January 1, 2017, and shall apply to members of the Armed Forces whose names are placed on the tem- porary disability retired list on or after that date.’’ § 1211. Members on temporary disability retired list: return to active duty; promotion (a) With his consent, any member of the Army, the Air Force, or the Space Force whose name is on the temporary disability retired list, and who is found to be physically fit to perform the duties of his office, grade, or rank under sec- tion 1210(f) of this title, shall— (1) if a commissioned officer of a regular component, be recalled to active duty and, as soon as practicable, may be reappointed by the President, by and with the advice and consent of the Senate, to the active-duty list in the regular grade held by him when his name was placed on the temporary disability retired list, or in the next higher regular grade; (2) if a warrant officer of a regular compo- nent, be recalled to active duty and, as soon as practicable, be reappointed by the Secretary concerned in the regular grade held by him when his name was placed on the temporary disability retired list, or in the next higher regular warrant grade; (3) if an enlisted member of a regular compo- nent, be reenlisted in the regular grade held by him when his name was placed on the tem- porary disability retired list or in the next higher regular enlisted grade; (4) if a commissioned, warrant, or enlisted Reserve, be reappointed or reenlisted as a Re- serve for service in his reserve component in the reserve grade held by him when his name was placed on the temporary disability retired list, or appointed or enlisted in the next high- er reserve commissioned, warrant, or enlisted grade, as the case may be; (5) if a commissioned, warrant, or enlisted member of the Army National Guard of the United States or the Air National Guard of the United States when the disability was in- curred, and if he cannot be reappointed or re- enlisted as a Reserve for service therein, be appointed or enlisted as a Reserve for service in the Army Reserve or the Air Force Reserve, as the case may be, in a grade corresponding to the reserve grade held by him when his name was placed on the temporary disability retired list, or in the next higher reserve com- missioned, warrant, or enlisted grade, as the case may be; and (6) if a member of the Army, the Air Force, or the Space Force who has no regular or re- serve grade, be reappointed or reenlisted in the Army, the Air Force, or the Space Force, as the case may be, in the temporary grade held by him when his name was placed on the temporary disability retired list, or appointed or enlisted in the next higher temporary grade. (b) With his consent, any member of the naval service or of the Coast Guard whose name is on