2011 US Code
Title 10 - Armed Forces
Subtitle A - General Military Law (§§ 101 - 2925)
Part II - PERSONNEL (§§ 501 - 1805)
Chapter 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY (§§ 1431 - 1460b)
Subchapter II - SURVIVOR BENEFIT PLAN (§§ 1447 - 1455)
Section 1448 - Application of Plan
View MetadataPublication Title | United States Code, 2006 Edition, Supplement 5, Title 10 - ARMED FORCES |
Category | Bills and Statutes |
Collection | United States Code |
SuDoc Class Number | Y 1.2/5: |
Contained Within | Title 10 - ARMED FORCES Subtitle A - General Military Law PART II - PERSONNEL CHAPTER 73 - ANNUITIES BASED ON RETIRED OR RETAINER PAY SUBCHAPTER II - SURVIVOR BENEFIT PLAN Sec. 1448 - Application of Plan |
Contains | section 1448 |
Date | 2011 |
Laws in Effect as of Date | January 3, 2012 |
Positive Law | Yes |
Disposition | standard |
Source Credit | Added Pub. L. 92-425, §1(3), Sept. 21, 1972, 86 Stat. 707; amended Pub. L. 94-496, §1(2), Oct. 14, 1976, 90 Stat. 2375; Pub. L. 95-397, title II, §202, Sept. 30, 1978, 92 Stat. 844; Pub. L. 97-252, title X, §1003(b), Sept. 8, 1982, 96 Stat. 735; Pub. L. 97-295, §1(18), Oct. 12, 1982, 96 Stat. 1290; Pub. L. 98-94, title IX, §941(a)(1), (2), (c)(2), Sept. 24, 1983, 97 Stat. 652, 653; Pub. L. 99-145, title V, §513(b), title VII, §§712(a), 713(a), 715, 716(a), 719(3), (8)(A), 721(a), Nov. 8, 1985, 99 Stat. 628, 670, 671, 673-676; Pub. L. 99-661, div. A, title VI, §§641(b)(1), 642(a), title XIII, §1343(a)(8)(B), Nov. 14, 1986, 100 Stat. 3885, 3886, 3992; Pub. L. 101-189, div. A, title XIV, §1407(a)(2), (3), Nov. 29, 1989, 103 Stat. 1588; Pub. L. 103-337, div. A, title VI, §638, title XVI, §1671(d)(2), Oct. 5, 1994, 108 Stat. 2791, 3015; Pub. L. 104-201, div. A, title VI, §634, Sept. 23, 1996, 110 Stat. 2553; Pub. L. 105-85, div. A, title X, §1073(a)(27), Nov. 18, 1997, 111 Stat. 1901; Pub. L. 105-261, div. A, title VI, §643(a), Oct. 17, 1998, 112 Stat. 2047; Pub. L. 106-65, div. A, title X, §1066(a)(12), Oct. 5, 1999, 113 Stat. 771; Pub. L. 106-398, §1 [[div. A], title VI, §655(a)-(c)(3), title X, §1087(a)(10)], Oct. 30, 2000, 114 Stat. 1654, 1654A-165, 1654A-166, 1654A-290; Pub. L. 107-107, div. A, title VI, §642(a), (c)(1), Dec. 28, 2001, 115 Stat. 1151, 1152; Pub. L. 108-136, div. A, title VI, §§644(a), (b), 645(a), (b)(1), (c), Nov. 24, 2003, 117 Stat. 1517-1519; Pub. L. 108-375, div. A, title X, §1084(d)(10), Oct. 28, 2004, 118 Stat. 2061; Pub. L. 109-364, div. A, title VI, §§643(a), 644(a), title X, §1071(a)(8), Oct. 17, 2006, 120 Stat. 2260, 2261, 2398. |
Statutes at Large References | 86 Stat. 707 87 Stat. 615 90 Stat. 2375 92 Stat. 844, 848 94 Stat. 1707, 1708 95 Stat. 383 96 Stat. 735, 1290, 753 97 Stat. 652, 654 99 Stat. 628 100 Stat. 3885, 3887 101 Stat. 1104 102 Stat. 1991 103 Stat. 1588, 1586 104 Stat. 1580 105 Stat. 239, 1388 106 Stat. 2425 108 Stat. 2791, 2858 110 Stat. 2553, 366, 2581 111 Stat. 1901, 1800, 1801 112 Stat. 2047, 2045 113 Stat. 771, 667, 668 114 Stat. 1654 115 Stat. 1151, 1152 116 Stat. 2573 117 Stat. 1517-1519, 1518 118 Stat. 2061, 1962 120 Stat. 2260, 2261, 2402 |
Public Law References | Public Law 92-425, Public Law 93-155, Public Law 94-496, Public Law 95-397, Public Law 96-402, Public Law 97-35, Public Law 97-252, Public Law 97-295, Public Law 98-94, Public Law 99-145, Public Law 99-149, Public Law 99-661, Public Law 100-180, Public Law 100-456, Public Law 101-189, Public Law 101-510, Public Law 102-40, Public Law 102-190, Public Law 102-484, Public Law 103-337, Public Law 104-106, Public Law 104-201, Public Law 105-85, Public Law 105-261, Public Law 106-65, Public Law 106-398, Public Law 107-107, Public Law 107-314, Public Law 108-136, Public Law 108-375, Public Law 109-364 |
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(a)
(1)
(A) Persons entitled to retired pay.
(B) Persons who would be eligible for reserve-component retired pay but for the fact that they are under 60 years of age.
(2)
(A)
(B)
A person who elects under subparagraph (B) not to participate in the Plan remains eligible, upon reaching 60 years of age and otherwise becoming entitled to retired pay, to participate in the Plan in accordance with eligibility under paragraph (1)(A).
(3)
(A)
(i) not to participate in the Plan;
(ii) to provide an annuity for the person's spouse at less than the maximum level; or
(iii) to provide an annuity for a dependent child but not for the person's spouse.
(B)
(i) not to participate in the Plan;
(ii) to designate under subsection (e)(2) the effective date for commencement of annuity payments under the Plan in the event that the member dies before becoming 60 years of age to be the 60th anniversary of the member's birth (rather than the day after the date of the member's death);
(iii) to provide an annuity for the person's spouse at less than the maximum level; or
(iv) to provide an annuity for a dependent child but not for the person's spouse.
(C)
(i) that the spouse's whereabouts cannot be determined; or
(ii) that, due to exceptional circumstances, requiring the person to seek the spouse's consent would otherwise be inappropriate.
(D)
(E)
(4)
(A)
(B)
(5)
(A)
(B)
(C)
(D)
(E)
(6)
(A)
(i) who is a participant in the Plan and is providing coverage under the Plan for a spouse (or a spouse and child);
(ii) who does not have an eligible spouse beneficiary under the Plan; and
(iii) who remarries,
may elect not to provide coverage under the Plan for the person's spouse.
(B)
(C)
(i) is irrevocable;
(ii) shall be made within one year after the person's remarriage; and
(iii) shall be made in such form and manner as may be prescribed in regulations under section 1455 of this title.
(D)
(i) not to participate in the Plan;
(ii) to provide an annuity for the person's spouse at less than the maximum level; or
(iii) to provide an annuity for a dependent child but not for the person's spouse,
the person's spouse shall be notified of that election.
(E)
(b)
(1)
(A)
(B)
(C)
(D)
(E)
(F)
(i) an election made by the member under paragraph (1) to provide an annuity under the Plan to any person other than a dependent of that member (as defined in section 1072(2) of this title) is vitiated; and
(ii) the amounts by which the member's retired pay was reduced under section 1452 of this title shall be refunded and paid to the person to whom the annuity under the Plan would have been paid pursuant to such election.
(G)
(i)
(ii)
(iii)
(I) the election is vitiated; and
(II) the amount by which the person's retired pay was reduced under section 1452 of this title that is attributable to the election shall be paid in a lump sum to the person who would have been the deceased person's beneficiary under the vitiated election if the deceased person had died after the end of such two-year period.
(2)
(A)
(B)
(C)
(D)
(3)
(A)
(i)
(I) who is a participant in the Plan and is providing coverage for a spouse or a spouse and child (even though there is no beneficiary currently eligible for such coverage), and
(II) who has a former spouse who was not that person's former spouse when that person became eligible to participate in the Plan,
may (subject to subparagraph (B)) elect to provide an annuity to that former spouse.
(ii)
(iii)
(B)
(i) the person was married to that former spouse for at least one year, or
(ii) that former spouse is the parent of issue by that marriage.
(C)
(D)
(E)
(i) the first day of the first month following the month in which the election is received by the Secretary concerned; or
(ii) in the case of a person required (as described in section 1450(f)(3)(B) of this title) to make the election by reason of a court order or filing the date of which is after October 16, 1998, the first day of the first month which begins after the date of that court order or filing.
(4)
(5)
(A) whether the election is being made pursuant to the requirements of a court order; or
(B) whether the election is being made pursuant to a written agreement previously entered into voluntarily by such person as a part of, or incident to, a proceeding of divorce, dissolution, or annulment and (if so) whether such voluntary written agreement has been incorporated in, or ratified or approved by, a court order.
(c)
(d)
(1)
(A) a member who dies while on active duty after—
(i) becoming eligible to receive retired pay;
(ii) qualifying for retired pay except that the member has not applied for or been granted that pay; or
(iii) completing 20 years of active service but before the member is eligible to retire as a commissioned officer because the member has not completed 10 years of active commissioned service; or
(B) a member not described in subparagraph (A) who dies in line of duty while on active duty.
(2)
(A)
(B)
(3)
(A) may not pay an annuity under paragraph (1) or (2); but
(B) shall pay an annuity to that former spouse as if the member had been a participant in the Plan and had made an election under subsection (b) to provide an annuity to the former spouse, or in accordance with that election, as the case may be, if the Secretary receives a written request from the former spouse concerned that the election be deemed to have been made in the same manner as provided in section 1450(f)(3) of this title.
(4)
(5)
(6)
(A)
(B)
(e)
(1) the day after the date of his death; or
(2) the 60th anniversary of his birth.
(f)
(1)
(A) is eligible to provide a reserve-component annuity and dies—
(i) before being notified under section 12731(d) of this title that he has completed the years of service required for eligibility for reserve-component retired pay; or
(ii) during the 90-day period beginning on the date he receives notification under section 12731(d) of this title that he has completed the years of service required for eligibility for reserve-component retired pay if he had not made an election under subsection (a)(2)(B) to participate in the Plan; or
(B) is a member of a reserve component not described in subparagraph (A) and dies from an injury or illness incurred or aggravated in the line of duty during inactive-duty training.
(2)
(3)
(A) may not pay an annuity under paragraph (1) or (2); but
(B) shall pay an annuity to that former spouse as if the person had been a participant in the Plan and had made an election under subsection (b) to provide an annuity to the former spouse, or in accordance with that election, as the case may be, if the Secretary receives a written request from the former spouse concerned that the election be deemed to have been made in the same manner as provided in section 1450(f)(3) of this title.
(4)
(g)
(1)
(A) who is a participant in the Plan and is providing coverage under subsection (a) for a spouse or a spouse and child, but at less than the maximum level; and
(B) who remarries,
may elect, within one year of such remarriage, to increase the level of coverage provided under the Plan to a level not in excess of the current retired pay of that person.
(2)
(3)
(A) the amount that would have been withheld from such person's retired pay under section 1452 of this title if the higher level of coverage had been in effect from the time the person became a participant in the Plan; and
(B) the amount of such person's retired pay actually withheld.
(4)
(5)
(Added Pub. L. 92–425, §1(3), Sept. 21, 1972, 86 Stat. 707; amended Pub. L. 94–496, §1(2), Oct. 14, 1976, 90 Stat. 2375; Pub. L. 95–397, title II, §202, Sept. 30, 1978, 92 Stat. 844; Pub. L. 97–252, title X, §1003(b), Sept. 8, 1982, 96 Stat. 735; Pub. L. 97–295, §1(18), Oct. 12, 1982, 96 Stat. 1290; Pub. L. 98–94, title IX, §941(a)(1), (2), (c)(2), Sept. 24, 1983, 97 Stat. 652, 653; Pub. L. 99–145, title V, §513(b), title VII, §§712(a), 713(a), 715, 716(a), 719(3), (8)(A), 721(a), Nov. 8, 1985, 99 Stat. 628, 670, 671, 673–676; Pub. L. 99–661, div. A, title VI, §§641(b)(1), 642(a), title XIII, §1343(a)(8)(B), Nov. 14, 1986, 100 Stat. 3885, 3886, 3992; Pub. L. 101–189, div. A, title XIV, §1407(a)(2), (3), Nov. 29, 1989, 103 Stat. 1588; Pub. L. 103–337, div. A, title VI, §638, title XVI, §1671(d)(2), Oct. 5, 1994, 108 Stat. 2791, 3015; Pub. L. 104–201, div. A, title VI, §634, Sept. 23, 1996, 110 Stat. 2553; Pub. L. 105–85, div. A, title X, §1073(a)(27), Nov. 18, 1997, 111 Stat. 1901; Pub. L. 105–261, div. A, title VI, §643(a), Oct. 17, 1998, 112 Stat. 2047; Pub. L. 106–65, div. A, title X, §1066(a)(12), Oct. 5, 1999, 113 Stat. 771; Pub. L. 106–398, §1 [[div. A], title VI, §655(a)–(c)(3), title X, §1087(a)(10)], Oct. 30, 2000, 114 Stat. 1654, 1654A–165, 1654A–166, 1654A–290; Pub. L. 107–107, div. A, title VI, §642(a), (c)(1), Dec. 28, 2001, 115 Stat. 1151, 1152; Pub. L. 108–136, div. A, title VI, §§644(a), (b), 645(a), (b)(1), (c), Nov. 24, 2003, 117 Stat. 1517–1519; Pub. L. 108–375, div. A, title X, §1084(d)(10), Oct. 28, 2004, 118 Stat. 2061; Pub. L. 109–364, div. A, title VI, §§643(a), 644(a), title X, §1071(a)(8), Oct. 17, 2006, 120 Stat. 2260, 2261, 2398.)
Amendments2006—Subsec. (b)(1)(E). Pub. L. 109–364, §643(a)(1), inserted “or under subparagraph (G) of this paragraph” before period at end.
Subsec. (b)(1)(G). Pub. L. 109–364, §643(a)(2), added subpar. (G).
Subsec. (d)(2)(B). Pub. L. 109–364, §644(a), substituted “October 7, 2001” for “November 23, 2003”.
Subsec. (d)(6)(A). Pub. L. 109–364, §1071(a)(8), struck out second comma after “November 23, 2003”.
2004—Subsecs. (b)(1)(F), (d)(2)(B), (6)(A). Pub. L. 108–375 substituted “after November 23, 2003,” for “on or after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2004”.
2003—Subsec. (b)(1)(F). Pub. L. 108–136, §645(b)(1), added subpar. (F).
Subsec. (d)(1). Pub. L. 108–136, §645(a)(2), substituted “Except as provided in paragraph (2)(B), the Secretary concerned” for “The Secretary concerned” in introductory provisions.
Subsec. (d)(2). Pub. L. 108–136, §645(a)(1), amended heading and text of par. (2) generally. Prior to amendment, text read as follows: “The Secretary concerned shall pay an annuity under this subchapter to the dependent child of a member described in paragraph (1) if there is no surviving spouse or if the member's surviving spouse subsequently dies.”
Subsec. (d)(6). Pub. L. 108–136, §645(c), added par. (6).
Subsec. (f). Pub. L. 108–136, §644(b), inserted “or Before” after “Dying When” in heading.
Subsec. (f)(1). Pub. L. 108–136, §644(a), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: “The Secretary concerned shall pay an annuity under this subchapter to the surviving spouse of a person who is eligible to provide a reserve-component annuity and who dies—
“(A) before being notified under section 12731(d) of this title that he has completed the years of service required for eligibility for reserve-component retired pay; or
“(B) during the 90-day period beginning on the date he receives notification under section 12731(d) of this title that he has completed the years of service required for eligibility for reserve-component retired pay if he had not made an election under subsection (a)(2)(B) to participate in the Plan.”
2001—Subsec. (d). Pub. L. 107–107 struck out “Retirement-Eligible” before “Members” in heading and amended par. (1) generally. Prior to amendment, par. (1) read as follows:
“(1)
“(A) becoming eligible to receive retired pay;
“(B) qualifying for retired pay except that he has not applied for or been granted that pay; or
“(C) completing 20 years of active service but before he is eligible to retire as a commissioned officer because he has not completed 10 years of active commissioned service.”
2000—Subsec. (a)(2). Pub. L. 106–398, §1 [[div. A], title VI, §655(c)(1)], substituted “who elects under subparagraph (B) not to participate in the Plan” for “described in clauses (i) and (ii) of subparagraph (B) who does not elect to participate in the Plan before the end of the 90-day period referred to in that clause” in concluding provisions.
Subsec. (a)(2)(B). Pub. L. 106–398, §1 [[div. A], title VI, §655(a)], amended heading and text of subpar. (B) generally. Prior to amendment, text read as follows: “A person who (i) is eligible to participate in the Plan under paragraph (1)(B), (ii) is married or has a dependent child when he is notified under section 12731(d) of this title that he has completed the years of service required for eligibility for reserve-component retired pay, and (iii) elects to participate in the Plan (and makes a designation under subsection (e)) before the end of the 90-day period beginning on the date he receives such notification.”
Subsec. (a)(3)(B). Pub. L. 106–398, §1 [[div. A], title VI, §655(b)], substituted “who is eligible to provide” for “who elects to provide” in introductory provisions, added cls. (i) and (ii), and redesignated former cls. (i) and (ii) as (iii) and (iv), respectively.
Subsec. (a)(4)(A). Pub. L. 106–398, §1 [[div. A], title VI, §655(c)(2)(A)], struck out “not to participate in the Plan” after “election under paragraph (2)(A)”.
Subsec. (a)(4)(B). Pub. L. 106–398, §1 [[div. A], title VI, §655(c)(2)(B)], struck out “to participate in the Plan” after “under paragraph (2)(B)”.
Subsec. (b)(3)(E)(ii). Pub. L. 106–398, §1 [[div. A], title X, §1087(a)(10)], struck out second comma after “October 16, 1998”.
Subsec. (e). Pub. L. 106–398, §1 [[div. A], title VI, §655(c)(3)], substituted “a person is required to make a designation under this subsection, the person” for “a person electing to participate in the Plan is required to make a designation under this subsection, the person making such election” in introductory provisions.
1999—Subsec. (b)(3)(E)(ii). Pub. L. 106–65 substituted “after October 16, 1998,” for “on or after the date of the enactment of the subparagraph”.
1998—Subsec. (b)(3)(C). Pub. L. 105–261, §643(a)(1), struck out “
Subsec. (b)(3)(E). Pub. L. 105–261, §643(a)(2), added subpar. (E).
1997—Pub. L. 105–85 substituted “Plan” for “plan” in section catchline.
1996—Pub. L. 104–201 amended section generally, revising and restating provisions relating to application of the Plan and inserting subsec., par., and subpar. headings.
1994—Subsec. (a)(2)(B). Pub. L. 103–337, §1671(d)(2), substituted “12731(d)” for “1331(d)”.
Subsec. (b)(1). Pub. L. 103–337, §638, designated existing provisions as subpar. (A) and added subpars. (B) to (E).
Subsec. (f)(1). Pub. L. 103–337, §1671(d)(2), substituted “12731(d)” for “1331(d)” in subpars. (A) and (B).
1989—Subsec. (a)(1)(B), (2)(B). Pub. L. 101–189, §1407(a)(2), substituted “reserve-component retired pay” for “retired pay under chapter 67 of this title”.
Subsec. (a)(4)(A). Pub. L. 101–189, §1407(a)(3), struck out “or retainer” after “entitled to retired”.
Subsec. (f)(1)(A), (B). Pub. L. 101–189, §1407(a)(2), substituted “reserve-component retired pay” for “retired pay under chapter 67 of this title”.
1986—Subsec. (a)(5). Pub. L. 99–661, §1343(a)(8)(B), substituted “a reserve-component annuity” for “an annuity by virtue of eligibility under paragraph (1)(B)”.
Subsec. (b)(5). Pub. L. 99–661, §641(b)(1), inserted “(A) whether the election is being made pursuant to the requirements of a court order, or (B)”.
Subsec. (d)(2). Pub. L. 99–661, §642(a)(1), substituted “if there is no surviving spouse or if the member's surviving spouse subsequently dies” for “if the member and the member's spouse die as a result of a common accident”.
Subsec. (f)(2). Pub. L. 99–661, §642(a)(2), substituted “if there is no surviving spouse or if the person's surviving spouse subsequently dies” for “if the person and the person's spouse die as a result of a common accident”.
1985—Subsec. (a)(1)(A). Pub. L. 99–145, §719(8)(A), substituted “retired pay” for “retired or retainer pay”.
Subsec. (a)(2)(A). Pub. L. 99–145, §721(a)(1), inserted “(with his spouse's concurrence, if required under paragraph (3))” after “unless he elects”.
Pub. L. 99–145, §719(8)(A), substituted “retired pay” for “retired or retainer pay”.
Subsec. (a)(3). Pub. L. 99–145, §721(a)(2), amended par. (3) generally. Prior to amendment, par. (3) read as follows:
“(A) If a person who is eligible under paragraph (1)(A) to participate in the Plan and who is married elects not to participate in the Plan at the maximum level, or elects to provide an annuity for a dependent child but not for his spouse, or elects to provide an annuity for a former spouse under subsection (b)(2), that person's spouse shall be notified of that election.
“(B) If a person who is eligible under paragraph (1)(B) to participate in the Plan and who is married does not elect to participate in the Plan at the maximum level, or elects to provide an annuity for a dependent child but not for his spouse, or elects to provide an annuity for a former spouse under subsection (b)(2), that person's spouse shall be notified of that action.”
Subsec. (a)(6). Pub. L. 99–149, §715(a), added par. (6).
Subsec. (b)(1). Pub. L. 99–145, §719(3), substituted “a reserve-component annuity” for “an annuity under this paragraph by virtue of eligibility under subsection (a)(1)(B)”.
Subsec. (b)(2). Pub. L. 99–145, §719(3), substituted “a reserve-component annuity” for “an annuity under this paragraph by virtue of eligibility under subsection (a)(1)(B)”.
Pub. L. 99–145, §716(a)(1), inserted “(other than a child who is a beneficiary under an election under paragraph (4))” after “that spouse or child” in second sentence.
Subsec. (b)(3)(B). Pub. L. 99–145, §719(8)(A), substituted “retired pay” for “retired or retainer pay”.
Subsec. (b)(4), (5). Pub. L. 99–145, §716(a)(2), (3), added par. (4) and redesignated former par. (4) as (5).
Subsec. (c). Pub. L. 99–145, §513(b), inserted “disability” before “retired pay”.
Subsec. (d). Pub. L. 99–145, §712(a), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: “If a member of an armed force dies on active duty after he has become entitled to retired or retainer pay, or after he has qualified for that pay except that he has not applied for or been granted that pay, and his spouse is eligible for dependency and indemnity compensation under section 411(a) of title 38 in an amount that is less than the annuity the spouse would have received under this subchapter if it had applied to the member when he died, the Secretary concerned shall pay to the spouse an annuity equal to the difference between that amount of compensation and 55 percent of the retired or retainer pay to which the otherwise eligible spouse described in section 1450(a)(1) of this title would have been entitled if the member had been entitled to that pay based upon his years of active service when he died.”
Subsec. (f). Pub. L. 99–145, §713(a), added subsec. (f).
Subsec. (g). Pub. L. 99–145, §715(b), added subsec. (g).
1983—Subsec. (a)(3). Pub. L. 98–94, §941(c)(2), substituted “provide an annuity for a former spouse under subsection (b)(2),” for “provide an annuity under subsection (b)(2) of this section,” in subpars. (A) and (B).
Subsec. (a)(5). Pub. L. 98–94, §941(a)(1), inserted “except in accordance with subsection (b)(3)”.
Subsec. (b). Pub. L. 98–94, §941(a)(2), amended subsec. (b) generally. Prior to amendment subsec. (b) read as follows:
“(1) A person who is not married and does not have a dependent child when he becomes eligible to participate in the Plan may elect to provide an annuity to a natural person with an insurable interest in that person or to provide an annuity to a former spouse.
“(2) A person who is married, or has a dependent child may elect to provide an annuity to a former spouse instead of providing an annuity to a spouse or dependent child if the election is made in order to carry out the terms of a written agreement entered into voluntarily with the former spouse (without regard to whether such agreement is included in or approved by a court order).
“(3) In the case of a person electing to provide an annuity under paragraph (1) or (2) of this subsection by virtue of eligibility under subsection (a)(1)(B), the election shall include a designation under subsection (e).
“(4) Any person who elects under paragraph (1) or (2) to provide an annuity to a former spouse shall, at the time of making such election, provide the Secretary concerned with a written statement, in a form to be prescribed by that Secretary, signed by such person and the former spouse setting forth whether the election is being made pursuant to a voluntary written agreement previously entered into by such person as a part of or incident to a proceeding of divorce, dissolution, annulment, or legal separation, and if so, whether such voluntary written agreement has been incorporated in or ratified or approved by a court order.”
1982—Pub. L. 97–295, §1(18), substituted “Plan” for “plan” in section catchline.
Subsec. (a)(3). Pub. L. 97–252, §1003(b)(1), inserted in subpars. (A) and (B) identical text “or elects to provide an annuity under subsection (b)(2) of this section,” after “for his spouse,”.
Subsec. (b). Pub. L. 97–252, §1003(b)(2), designated existing first sentence as par. (1), authorized an election to provide an annuity to a former spouse, added pars. (2) and (4), designated existing second sentence as par. (3), and substituted “person electing to provide an annuity under paragraph (1) or (2) of this subsection” for “person providing an annuity under this subsection” and “the election” for “such an election”.
1978—Subsec. (a). Pub. L. 95–397, §202(a), amended subsec. (a) generally, primarily inserting provision that this subchapter shall be known as the Survivor Benefit Plan and provisions of pars. (1)(B), (2)(B) and concluding sentence, (3)(B), (4)(B), and last sentence of (5).
Subsec. (b). Pub. L. 95–397, §202(b), substituted “entitled to retired or retainer pay” for “eligible to participate in the Plan” and inserted provisions relating to the inclusion in an election a designation under subsection (e) by persons providing an annuity under this subsection by virtue of eligibility under subsection (a)(1)(B).
Subsec. (e). Pub. L. 95–397, §202(c), added subsec. (e).
1976—Subsec. (a). Pub. L. 94–496 inserted “or elects to provide an annuity for a dependent child but not for his spouse” after “maximum level”.
Effective Date of 2006 AmendmentPub. L. 109–364, div. A, title VI, §644(b), Oct. 17, 2006, 120 Stat. 2261, provided that: “Any annuity payable to a dependent child under subchapter II of chapter 73 of title 10, United States Code, by reason of the amendment made by subsection (a) [amending this section] shall be payable only for months beginning on or after the date of the enactment of this Act [Oct. 17, 2006].”
Effective Date of 2003 AmendmentPub. L. 108–136, div. A, title VI, §644(c), Nov. 24, 2003, 117 Stat. 1518, provided that: “Subparagraph (B) of section 1448(f)(1) of title 10, United States Code, as added by subsection (a), shall take effect as of September 10, 2001, and shall apply with respect to performance of inactive-duty training (as defined in section 101(d) of title 10, United States Code) on or after that date.”
Effective Date of 2001 AmendmentPub. L. 107–107, div. A, title VI, §642(d), Dec. 28, 2001, 115 Stat. 1152, provided that: “The amendments made by this section [amending this section and section 1451 of this title] shall take effect as of September 10, 2001, and shall apply with respect to deaths of members of the Armed Forces occurring on or after that date.”
Effective Date of 2000 AmendmentPub. L. 106–398, §1 [[div. A], title VI, §655(d)], Oct. 30, 2000, 114 Stat. 1654, 1654A–166, provided that: “The amendments made by this section [amending this section and section 1450 of this title] apply only with respect to a notification under section 12731(d) of title 10, United States Code, made after January 1, 2001, that a member of a reserve component has completed the years of service required for eligibility for reserve-component retired pay.”
Effective Date of 1994 AmendmentAmendment by section 1671(d)(2) of Pub. L. 103–337 effective Dec. 1, 1994, except as otherwise provided, see section 1691 of Pub. L. 103–337, set out as an Effective Date note under section 10001 of this title.
Effective Date of 1986 AmendmentAmendment by section 641 of Pub. L. 99–661 applicable to court orders issued on or after Nov. 14, 1986, see section 641(c) of Pub. L. 99–661, set out as a note under section 1450 of this title.
Section 642(c) of Pub. L. 99–661 provided that: “The amendments made by subsection (a) [amending this section] shall apply only to claims arising on or after March 1, 1986. The amendments made by subsection (b) [amending section 1451 of this title] shall apply to payments for periods after February 28, 1986.”
Effective Date of 1985 AmendmentAmendment by title VII of Pub. L. 99–145 effective Mar. 1, 1986, with prohibition against accrual of benefits to any person by reason of the enactment of such title VII for any period before Mar. 1, 1986, see section 731 of Pub. L. 99–145, set out as a note under section 1447 of this title.
Effective Date of 1983 AmendmentSection 941(b) of Pub. L. 98–94 provided that: “In the case of a person who on the date of the enactment of this Act [Sept. 24, 1983] is a person described in subparagraph (A) of subsection (b)(3) of section 1448 of title 10, United States Code (as amended by subsection (a)(2)), such subsection shall apply to that person as if the one-year period provided for in subparagraph (A) of such subsection began on the date of the enactment of this Act.”
Effective Date of 1982 Amendment; Transition ProvisionsAmendment by Pub. L. 97–252 effective Feb. 1, 1983, and applicable to persons becoming eligible to participate in Survivor Benefit Plan provided for in this subchapter before, on, or after Feb. 1, 1983, see section 1006 of Pub. L. 97–252, set out as an Effective Date; Transition Provisions note under section 1408 of this title.
Effective Date of 1978 AmendmentAmendment by Pub. L. 95–397 effective Oct. 1, 1978, and applicable to annuities payable by virtue of amendment for months beginning on or after such date, see section 210 of Pub. L. 95–397, set out as a note under section 1447 of this title.
Effective Date of 1976 AmendmentAmendment by Pub. L. 94–496 effective Sept. 21, 1972, see section 3 of Pub. L. 94–496, set out as a note under section 1447 of this title.
Effective Date of 1997 Amendments by Section 645 of Pub. L. 105–85Section 645(c) of Pub. L. 105–85 provided that: “The amendments made by this section [amending section 4(e)(1) of Pub. L. 92–425 and section 653(d) of Pub. L. 100–456, set out below] take effect on the first day of the first month beginning after the date of the enactment of this Act [Nov. 18, 1997] and shall apply with respect to payments of benefits for months beginning on or after that date, except that the Secretary of Veterans Affairs may provide, if necessary for administrative implementation, that such amendments shall apply beginning with a later month, not later than the first month beginning more than 180 days after the date of the enactment of this Act.”
TransitionPub. L. 109–364, div. A, title VI, §643(c), Oct. 17, 2006, 120 Stat. 2261, provided that:
“(1)
“(2)
“(3)
Pub. L. 108–375, div. A, title VI, §645, Oct. 28, 2004, 118 Stat. 1962, as amended by Pub. L. 109–364, div. A, title X, §1071(g)(5), Oct. 17, 2006, 120 Stat. 2402, provided that:
“(a)
“(1)
“(2)
“(3)
“(A) is entitled to retired pay; or
“(B) would be entitled to retired pay under chapter 1223 of title 10, United States Code, but for the fact that such member or former member is under 60 years of age.
“(4)
“(A)
“(B)
“(b)
“(1) participate in the Plan at a higher base amount (not in excess of the participant's retired pay); or
“(2) provide annuity coverage under the Plan for the person's spouse or former spouse at a base amount not less than the base amount provided for the dependent child.
“(c)
“(1)
“(2)
“(3)
“(d)
“(e)
“(f)
“(g)
“(h)
“(i)
“(1)
“(A) the total amount by which the retired pay of the person would have been reduced before the effective date of the election if the person had elected to participate in the Survivor Benefit Plan (for the same base amount specified in the election) at the first opportunity that was afforded the member to participate under chapter 73 of title 10, United States Code;
“(B) interest on the amounts by which the retired pay of the person would have been so reduced, computed from the dates on which the retired pay would have been so reduced at such rate or rates and according to such methodology as the Secretary of Defense determines reasonable; and
“(C) any additional amount that the Secretary determines necessary to protect the actuarial soundness of the Department of Defense Military Retirement Fund against any increased risk for the fund that is associated with the election.
“(2)
“(j)
“(1) The term ‘Survivor Benefit Plan’ means the program established under subchapter II of chapter 73 of title 10, United States Code.
“(2) The term ‘Supplemental Survivor Benefit Plan’ means the program established under subchapter III of chapter 73 of title 10, United States Code.
“(3) The term ‘retired pay’ includes retainer pay paid under section 6330 of title 10, United States Code.
“(4) The terms ‘uniformed services’ and ‘Secretary concerned’ have the meanings given those terms in section 101 of title 37, United States Code.
“(5) The term ‘Department of Defense Military Retirement Fund’ means the Department of Defense Military Retirement Fund established under section 1461(a) of title 10, United States Code.”
Open Enrollment Period for Survivor Benefit Plan Commencing March 1, 1999Pub. L. 105–261, div. A, title VI, §642, Oct. 17, 1998, 112 Stat. 2045, as amended by Pub. L. 106–65, div. A, title VI, §654, Oct. 5, 1999, 113 Stat. 667, provided for a one-year open enrollment period beginning on Mar. 1, 1999, during which an eligible retired or former member who was not participating in the Survivor Benefit Plan could elect to participate in the Plan and also elect to participate in the Supplemental Survivor Benefit Plan.
Annuities for Certain Military Surviving SpousesPub. L. 105–85, div. A, title VI, §644, Nov. 18, 1997, 111 Stat. 1800, as amended by Pub. L. 106–65, div. A, title VI, §656(a), (b), title X, §1066(c)(3), Oct. 5, 1999, 113 Stat. 668, 773; Pub. L. 107–314, div. A, title VI, §634, Dec. 2, 202, 116 Stat. 2573, provided that:
“(a)
“(A) became entitled to retired or retainer pay before September 21, 1972, died before March 21, 1974, and was entitled to retired or retainer pay on the date of death; or
“(B) died before October 1, 1978, and at the time of his death would have been entitled to retired pay under chapter 67 [now 1223] of title 10, United States Code (as in effect before December 1, 1994), but for the fact that he was under 60 years of age.
“(2) A qualified surviving spouse for purposes of this section is a surviving spouse who has not remarried.
“(b)
“(2) The amount of an annuity to which a surviving spouse is entitled under this section for any period shall be reduced (but not below zero) by any amount paid to that surviving spouse for the same period under any of the following provisions of law:
“(A) Section 1311(a) of title 38, United States Code (relating to dependency and indemnity compensation payable by the Secretary of Veterans Affairs).
“(B) Chapter 73 of title 10, United States Code.
“(C) Section 4 of Public Law 92–425 (10 U.S.C. 1448 note).
“(3) Whenever after May 1, 2002, retired or retainer pay is increased under section 1401a(b)(2) of title 10, United States Code, each annuity that is payable under this section shall be increased at the same time and by the same total percent.
“(c)
“(d)
“(1) The terms ‘uniformed services’ and ‘Secretary concerned’ have the meanings given such terms in section 101 of title 37, United States Code.
“(2) The term ‘surviving spouse’ has the meaning given such term in paragraph (9) of section 1447 of title 10, United States Code.
“(e)
“(2) No benefit shall accrue to any person by reason of the enactment of this section for any period before December 1997.”
[Pub. L. 106–65, div. A, title VI, §656(c), Oct. 5, 1999, 113 Stat. 668, provided that: “The amendment made by subsection (a) [amending section 644 of Pub. L. 105–85, set out above] shall apply with respect to annuities payable for months beginning after September 30, 1999.”]
Authority for Relief From Previous Overpayments Under Minimum Income Widows ProgramPub. L. 104–106, div. A, title VI, §635, Feb. 10, 1996, 110 Stat. 366, authorized the Secretary of Defense to waive recovery by the United States of any overpayment by the United States that had been made before Feb. 10, 1996, under section 4 of Public Law 92–425, set out below, and that was attributable to failure by the Department of Defense to apply the eligibility provisions of subsection (a) of such section in the case of the person to whom the overpayment had been made.
Open Enrollment Period for Survivor Benefit Plan Commencing April 1, 1992Pub. L. 101–189, div. A, title XIV, §1405, Nov. 29, 1989, 103 Stat. 1586, as amended by Pub. L. 101–510, div. A, title VI, §631(2), title XIV, §1484(l)(4)(B), Nov. 5, 1990, 104 Stat. 1580, 1720; Pub. L. 102–190, div. A, title VI, §653(a)(1), (c)(2), Dec. 5, 1991, 105 Stat. 1388, 1389; Pub. L. 102–484, div. A, title VI, §643, Oct. 23, 1992, 106 Stat. 2425, provided for a one-year open enrollment period beginning on Apr. 1, 1992, during which: (1) an eligible retired or former member who was not participating in the Survivor Benefit Plan could elect to participate in the Plan and also elect to participate in the Supplemental Survivor Benefit Plan, (2) a current participant in the Survivor Benefit Plan who was not participating at the maximum base amount could elect to participate in the Plan at a higher base amount or provide coverage for a previously uncovered spouse or former spouse, and (3) a participant in the Survivor Benefit Plan at the maximum level who was providing annuity coverage for a spouse or former spouse could elect to participate in the Supplemental Survivor Benefit Plan, and directed the Secretary of Defense to submit to committees of Congress a report on the open season not later than June 1, 1990.
Definitions for 1989 AmendmentsSection 1406 of title XIV of div. A of Pub. L. 101–189, as amended by Pub. L. 102–190, div. A, title VI, §653(a)(2), Dec. 5, 1991, 105 Stat. 1388, provided that: “For the purpose of this title [see Short Title of 1989 Amendment note set out under section 1447 of this title]:
“(1) The term ‘Survivor Benefit Plan’ means the program established under subchapter II of chapter 73 of title 10, United States Code.
“(2) The term ‘retired pay’ includes retainer pay paid under section 6330 of title 10, United States Code.
“(3) The terms ‘uniformed services’ and ‘Secretary concerned’ have the meanings given those terms in section 101 of title 37, United States Code.
“(4) The term ‘SBP premium’ means the reduction in retired pay required as a condition of providing an annuity under the Survivor Benefit Plan.
“(5) The term ‘base amount’ has the meaning given that term in section 1447(2) [see 1447(6)] of title 10, United States Code.”
Annuity for Surviving Spouses of Members Who Died Before November 1, 1953, and Who Were Entitled to Retired or Retainer Pay on Date of DeathPub. L. 100–456, div. A, title VI, §653, Sept. 29, 1988, 102 Stat. 1991, as amended by Pub. L. 103–337, div. A, title X, §1070(d)(3), Oct. 5, 1994, 108 Stat. 2858; Pub. L. 105–85, div. A, title VI, §645(a), Nov. 18, 1997, 111 Stat. 1801, provided that:
“(a)
“(A) died before November 1, 1953; and
“(B) was entitled to retired or retainer pay on the date of death.
“(2) A qualified surviving spouse for purposes of this section is a surviving spouse who has not remarried and who is eligible for an annuity under section 4 of Public Law 92–425 (10 U.S.C. 1448 note).
“(b)
“(2) An annuity paid to a surviving spouse under this section shall be reduced by the amount of dependency and indemnity compensation (DIC) to which the surviving spouse is entitled under section 1311(a) of title 38, United States Code.
“(c)
“(d)
“(2) Payment of annuities under this section shall be made by the Secretary of Veterans Affairs. In making such payments, the Secretary shall combine the payment under this section with the payment of any amount due the same person under section 4 of Public Law 92–425 (10 U.S.C. 1448 note), as provided in subsection (e)(1) of that section. The Secretary concerned shall transfer amounts for payments under this section to the Secretary of Veterans Affairs in the same manner as is provided under subsection (e)(2) of section 4 of Public Law 92–425 for payments under that section.
“(e)
“(1) The terms ‘uniformed services’ and ‘Secretary concerned’ have the meanings given those terms in section 101 of title 37, United States Code.
“(2) The term ‘surviving spouse’ has the meaning given the terms ‘widow’ and ‘widower’ in paragraphs (3) and (4), respectively, of section 1447 [see 1447(7), (8)] of title 10, United States Code.
“(f)
Pub. L. 100–180, div. A, title VI, §631, Dec. 4, 1987, 101 Stat. 1104, provided that:
“(a)
“(2) An individual referred to in paragraph (1) is an individual who—
“(A) is providing coverage for a spouse or for a spouse and child under the Plan; and
“(B) remarried before March 1, 1986, and at a time when such individual was a participant in the Plan but did not have an eligible spouse beneficiary under the Plan.
“(b)
“(c)
Section 711(c) of Pub. L. 99–145 provided that person who during period Oct. 19, 1984, to Nov. 8, 1985, became participant in Survivor Benefit Plan under this subchapter could withdraw from Plan before end of one-year period beginning on Nov. 8, 1985, and receive refund of contributions plus interest.
Persons Covered Under Subsections (d) and (f)Section 712(b) of Pub. L. 99–145 provided that:
“(1) Section 1448(d) of title 10, United States Code, as amended by subsection (a), applies to the surviving spouse and dependent children of a person who dies on active duty after September 20, 1972, and the former spouse of a person who dies after September 7, 1982.
“(2) In the case of the surviving spouse and children of a person who dies during the period beginning on September 21, 1972, and ending on October 1, 1985, the Secretary concerned shall take appropriate steps to locate persons eligible for an annuity under section 1448(d) of title 10, United States Code, as amended by subsection (a). Any such person must submit an application to the Secretary for such an annuity before October 1, 1988, to be eligible to receive such annuity. Any such annuity shall be effective only for months after the month in which the Secretary receives such application.”
Section 713(c) of Pub. L. 99–145 provided that:
“(1) Section 1448(f) of title 10, United States Code, as added by subsection (a), shall apply to the surviving spouse and dependent children of any person who dies after September 30, 1978, and the former spouse of a person who dies after September 7, 1982.
“(2) In the case of the surviving spouse and dependents of a person who dies during the period beginning on September 30, 1978, and ending on October 1, 1985, the Secretary concerned shall take appropriate steps to locate persons eligible for an annuity under section 1448(f) of title 10, United States Code, as added by subsection (a). Any such person must submit an application to the Secretary for such an annuity before October 1, 1988, to be eligible to receive such annuity. Any such annuity shall be effective only for months after the month in which the Secretary receives such application.”
Revision for Former Spouse Coverage Already in EffectSection 716(b) of Pub. L. 99–145, as amended by Pub. L. 99–661, div. A, title VI, §645, Nov. 14, 1986, 100 Stat. 3887, provided that person who before Mar. 1, 1986, made election under subsec. (b) of this section to provide annuity for former spouse could change that election to provide annuity for former spouse and dependent children, even though former spouse had died, but such election had to be made not later than Mar. 1, 1987, in case of person who made election before Nov. 8, 1985, and not later than end of one-year period beginning on Nov. 14, 1986, in case of person who made election during period of Nov. 8, 1985, to Feb. 28, 1986.
One-Year Open Period To Switch Computation of SBP AnnuitySection 723(c) of Pub. L. 99–145 provided that person who, before effective date of title VII of Pub. L. 99–145 (see Effective Date of 1985 Amendment note set out under section 1447 of this title) participated in Survivor Benefit Plan under this subchapter, and had elected to provide annuity to former spouse could, with concurrence of such former spouse, elect to terminate such annuity and provide annuity to such former spouse under section 1450(a)(1) of this title, and any such election was to be made before end of 12-month period beginning on Nov. 8, 1985.
One-Year Open Period for New Former Spouse CoverageSection 723(d) of Pub. L. 99–145 provided that person who before effective date of part B of title VII of Pub. L. 99–145 (see Effective Date of 1985 Amendment note set out under section 1447 of this title) was participant in Survivor Benefit Plan and did not elect to provide annuity to former spouse could elect to provide annuity to former spouse under Plan, and that any such election was to be made before end of 12-month period beginning on Nov. 8, 1985.
Open Enrollment Period for Survivor Benefit PlanPub. L. 97–35, title II, §212, Aug. 13, 1981, 95 Stat. 383, as amended by Pub. L. 97–252, title XI, §1119, Sept. 8, 1982, 96 Stat. 753, provided that certain members or former members of the uniformed services who, on Aug. 13, 1981, were not participants in the Survivor Benefit Plan established under this subchapter or were not participants in the Plan at the maximum level, could elect to participate in the Plan or to participate in the Plan at a higher level, during an open enrollment period beginning Oct. 1, 1981, and ending Sept. 30, 1982, for members and former members entitled to retired or retainer pay on Aug. 13, 1981, or beginning on Oct. 1, 1982, and ending on Sept. 30, 1983, for members or former members who on Aug. 13, 1981, would have been entitled to retired pay, but for the fact they were under 60 years of age on that date.
Surviving Spouse; Annuity Payment and Reduction Provisions; Election of Annuity; Definitions; Effective DatePub. L. 96–402, §5, Oct. 9, 1980, 94 Stat. 1707, provided that:
“(a)(1) The Secretary concerned shall pay an annuity to any individual who is the surviving spouse of a member of the uniformed services who—
“(A) died before September 21, 1972;
“(B) was serving on active duty in the uniformed services at the time of his death and had served on active duty for a period of not less than 20 years; and
“(C) was at the time of his death entitled to retired or retainer pay or would have been entitled to that pay except that he had not applied for or been granted that pay.
“(2) An annuity under paragraph (1) shall be paid under the provisions of subchapter II of chapter 73 of title 10, United States Code, in the same manner as if such member had died on or after September 21, 1972.
“(b)(1) The amount of retired or retainer pay to be used as the basis for the computation of an annuity under subsection (a) is the amount of the retired or retainer pay to which the member would have been entitled if the member had been entitled to that pay based upon his years of active service when he died, adjusted by the overall percentage increase in retired and retainer pay under section 1401a of title 10, United States Code (or any prior comparable provision of law), during the period beginning on the date of the member's death and ending on the day before the effective date of this section.
“(2) In addition to any reduction required under the provisions of subchapter II of chapter 73 of title 10, United States Code, the annuity paid to any surviving spouse under this section shall be reduced by any amount such surviving spouse is entitled to receive as an annuity under subchapter I of such chapter.
“(c) If an individual entitled to an annuity under this section is also entitled to an annuity under subchapter II of chapter 73 of title 10, United States Code, based upon a subsequent marriage, the individual may not receive both annuities but must elect which to receive.
“(d) As used in this section:
“(1) The term ‘uniformed services’ means the Armed Forces and the commissioned corps of the Public Health Service and of the National Oceanic and Atmospheric Administration.
“(2) The term ‘surviving spouse’ has the meaning given the terms ‘widow’ and ‘widower’ in section 1447 of title 10, United States Code.
“(3) The term ‘Secretary concerned’ has the meaning given such term in section 101(8) of title 10, United States Code, and includes the Secretary of Commerce, with respect to matters concerning the National Oceanic and Atmospheric Administration, and the Secretary of Health and Human Services, with respect to matters concerning the Public Health Service.”
Provision effective Dec. 1, 1980, applicable to annuities payable for months beginning on or after such date, and prohibiting accrual of benefits for any period before Oct. 9, 1980, see section 7 of Pub. L. 96–402, set out as a note under section 1447 of this title.
Election To Participate in the Survivor Benefit Plan and Withdraw From the Retired Serviceman's Family Protection PlanSection 3 of Pub. L. 92–425, as amended by Pub. L. 93–155, title VIII, §804, Nov. 16, 1973, 87 Stat. 615, provided that:
“(a) The Survivor Benefit Plan established pursuant to clause (3) of the first section of this Act [this subchapter] applies to any person who initially becomes entitled to retired or retainer pay on or after the effective date of this Act [Sept. 21, 1972]. An election made before that date by such a person under section 1431 of title 10, United States Code, is canceled. However, a person who initially becomes entitled to retired or retainer pay within 180 days after the effective date of this Act [Sept. 21, 1972] may, within 180 days after becoming so entitled, elect—
“(1) not to participate in such Survivor Benefit Plan if he is married or has a dependent child; or
“(2) to participate in that Plan, if he is a person covered by section 1448(b) of title 10, United States Code.
“(b) Any person who is entitled to retired or retainer pay on the effective date of this Act [Sept. 21, 1972] may elect to participate in the Survivor Benefit Plan established pursuant to clause (3) of the first section of this Act [this subchapter] at any time within eighteen months after such date. However, such a person who is receiving retired or retainer pay reduced under section 1436(a) of title 10, United States Code, or who is depositing amounts under section 1438 of that title, may elect at any time within eighteen months after the effective date of this Act [Sept. 21, 1972]—
“(1) to participate in the Plan and continue his participation under chapter 73 of that title [this chapter] as in effect on the day before the effective date of this Act [Sept. 21, 1972], except that the total of the annuities elected may not exceed 100 percent of his retired or retainer pay; or
“(2) to participate in the Plan and, notwithstanding section 1436(b) of that title, terminate his participation under chapter 73 of that title [this chapter] as in effect on the day before the effective date of this Act [Sept. 21, 1972].
A person who elects under clause (2) of this subsection is not entitled to a refund of amounts previously deducted from his retired or retainer pay under chapter 73 of title 10, United States Code [this chapter], as in effect on the day before the effective date of this Act [Sept. 21, 1972], or any payments made thereunder on his behalf. A person who is not married or does not have a dependent child on the first anniversary of the effective date of this Act [Sept. 21, 1972], but who later marries or acquires a dependent child, may elect to participate in the Plan under the fourth sentence of section 1448(a) of that title [former subsec. (a) of this section].
“(c) Notwithstanding the provisions of the Survivor Benefit Plan established pursuant to clause (3) of the first section of this Act [this subchapter], and except as otherwise provided in this section, subchapter I of chapter 73 of title 10, United States Code [subchapter I of this chapter] (other than the last two sentences of section 1436(a), section 1443, and section 1444(b)), as in effect on the day before the effective date of this Act [Sept. 21, 1972], shall continue to apply in the case of persons, and their beneficiaries, who have elected annuities under section 1431 or 1432 of that title and who have not elected under subsection (b)(2) of this section to participate in that Plan.
“(d) In this section, ‘base amount’ means—
“(1) the monthly retired or retainer pay to which a person—
“(A) is entitled on the effective date of this Act [Sept. 21, 1972]; or
“(B) later becomes entitled by being advanced on the retired list, performing active duty, or being transferred from the temporary disability retired list to the permanent disability retired list; or
“(2) any amount less than that described in clause (1) designated by that person at the time he makes an election under subsection (a)(2) or (b) of this section, but not less than $300;
as increased from time to time under section 1401a of title 10, United States Code.
“(e) An election made under subsection (a) or (b) of this section is effective on the date it is received by the Secretary concerned, as defined in section 101(5) of title 37, United States Code.
“(f) Sections 1449, 1453, and 1454 of title 10, United States Code, as added by clause (3) of the first section of this Act [as part of this subchapter], are applicable to persons covered by this section.”
Income Supplement for Certain Widows of Retired Members of the Uniformed Forces; Special Annuity for Widows of Commissioned Personnel of the Public Health Service and National Oceanic and Atmospheric Administration in Lieu of VA PensionSection 4 of Pub. L. 92–425, as amended by Pub. L. 94–496, §2, Oct. 14, 1976, 90 Stat. 2375; Pub. L. 95–397, title II, §209, Sept. 30, 1978, 92 Stat. 848; Pub. L. 96–402, §6, Oct. 9, 1980, 94 Stat. 1708; Pub. L. 98–94, title IX, §942(a), Sept. 24, 1983, 97 Stat. 654; Pub. L. 102–40, title IV, §402(d)(2), May 7, 1991, 105 Stat. 239; Pub. L. 103–337, div. A, title X, §1070(d)(4), Oct. 5, 1994, 108 Stat. 2858; Pub. L. 104–201, div. A, title VI, §638(a)–(c), Sept. 23, 1996, 110 Stat. 2581; Pub. L. 105–85, div. A, title VI, §645(b), Nov. 18, 1997, 111 Stat. 1801, provided that:
“(a) A person—
“(1) who, on September 21, 1972, was, or during the period beginning on September 22, 1972, and ending on March 20, 1974, became, a widow of a person who was entitled to retired or retainer pay when he died;
“(2) who is eligible for a pension under subchapter III of chapter 15 of title 38, United States Code, or section 306 of the Veterans’ and Survivors’ Pension Improvement Act of 1978 [set out as note under section 1521 of Title 38]; and
“(3) whose annual income, as determined in establishing that eligibility, is less than the maximum annual rate of pension in effect under section 1541(b) of title 38, United States Code;
shall be paid an annuity by the Secretary concerned unless she is eligible to receive an annuity under the Survivor Benefit Plan established pursuant to clause (3) of the first section of this Act [this subchapter]. However, such a person who is the widow of a retired officer of the Public Health Service or the National Oceanic and Atmospheric Administration, and who would otherwise be eligible for an annuity under this section except that she does not qualify for the pension described in clause (2) of this subsection because the service of her deceased spouse is not considered active duty under section 101(21) of title 38, United States Code, is entitled to an annuity under this section.
“(b) The annuity under subsection (a) of this section shall be in an amount which when added to the widow's income determined under subsection (a)(3) of this section, plus the amount of any annuity being received under sections 1431–1436 of title 10, United States Code, but exclusive of a pension described in subsection (a)(2) of this section, equals the maximum annual rate of pension in effect under section 1541(b) of title 38, United States Code. In addition, the Secretary concerned shall pay to the widow, described in the last sentence of subsection (a) of this section, an amount equal to the pension she would otherwise have been eligible to receive under subchapter III of chapter 15 of title 38, United States Code, if the service of her deceased spouse was considered active duty under section 101(21) of that title.
“(c) The amount of an annuity payable under this section, although counted as income in determining the amount of any pension described in subsection (a)(2) of this section, shall not be considered to affect the eligiblity [sic] of the recipient of such annuity for such pension, even though, as a result of including the amount of the annuity as income, no amount of such pension is due.
“(d) Subsection 1450(i) and section 1453 as added to title 10, United States Code, by clause 3 of the first section of this Act, are applicable to persons covered by this section.
“(e)(1) Payment of annuities under this section shall be made by the Secretary of Veterans Affairs. In making such payments, the Secretary shall combine with the payment under this section payment of any amount due the same person under section 653(d) of the National Defense Authorization Act, Fiscal Year 1989 [Pub. L. 100–456] (10 U.S.C. 1448 note). If appropriate for administrative convenience (or otherwise determined appropriate by the Secretary of Veterans Affairs), that Secretary may combine a payment to any person for any month under this section (and, if applicable, under section 653(d) of the National Defense Authorization Act, Fiscal Year 1989) with any other payment for that month under laws administered by the Secretary so as to provide that person with a single payment for that month.
“(2) The Secretary concerned shall annually transfer to the Secretary of Veterans Affairs such amounts as may be necessary for payments by the Secretary of Veterans Affairs under this section and for costs of the Secretary of Veterans Affairs in administering this section. Such transfers shall be made from amounts that would otherwise be used for payment of annuities by the Secretary concerned under this section. The authority to make such a transfer is in addition to any other authority of the Secretary concerned to transfer funds for a purpose other than the purpose for which the funds were originally made available. In the case of a transfer by the Secretary of a military department, the provisions of section 2215 of title 10, United States Code, do not apply.
“(3) The Secretary concerned shall promptly notify the Secretary of Veterans Affairs of any change in beneficiaries under this section.”
[Section 638(d) of Pub. L. 104–201 provided that: “The amendments made by this section [amending section 4 of Pub. L. 92–425, set out above] take effect on July 1, 1997, and apply with respect to payments of benefits for any month after June 1997.”]
[Section 942(b) of Pub. L. 98–94 provided that: “Any annuity payable by reason of subsection (a) [amending section 4(a)(1) of Pub. L. 92–425, set out above] shall be payable only for months after September 1983.”]
End of 90-Day Period With Respect to Certain IndividualsThe 90-day period, referred to in subsec. (a)(2), (4)(B), with respect to certain individuals shall be considered to end on Mar. 31, 1980, see section 208 of Pub. L. 95–397, set out as a note under section 1447 of this title.
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