1. U.S. Code
  2. title 10
  3. subtitle A
  4. part II
  5. chapter 73
  6. subchapter I
  7. § 1438

Collapse to view only § 1438. Deposits for amounts not deducted

§ 1431. Election of annuity: members of armed forces
(a) This section applies to all members of the armed forces except—
(1) members whose names are on a retired list other than a list maintained under section 12774(a) of this title;
(2) cadets at the United States Military Academy, the United States Air Force Academy, or the Coast Guard Academy; and
(3) midshipmen.
(b) To provide an annuity under section 1434 of this title, a person covered by subsection (a) may elect to receive a reduced amount of the retired pay or retainer pay to which he may become entitled as a result of service in his armed force. Except as otherwise provided in this section, unless it is made before he completes nineteen years of service for which he is entitled to credit in the computation of his basic pay, the election must be made at least two years before the first day for which retired pay or retainer pay is granted. However, if, because of military operations, a member is assigned to an isolated station or is missing, interned in a neutral country, captured by a hostile force, or beleaguered or besieged, and for that reason is unable to make an election before completing nineteen years of that service, he may make the election, to become effective immediately, within one year after he ceases to be assigned to that station or returns to the jurisdiction of his armed force, as the case may be. A member to whom retired pay or retainer pay is granted retroactively, and who is otherwise eligible to make an election, may make the election within ninety days after receiving notice that such pay has been granted to him. An election made after August 13, 1968, is not effective if—
(1) the elector dies during the first thirty-day period he is entitled to retired pay as a result of a physical condition which led to his being granted retired pay under chapter 61 of title 10 with a disability of 100 per centum under the standard schedule of rating disabilities in use by the Department of Veterans Affairs at the time of the determination of the per centum of his disability;
(2) the disability was not the result of injury or disease received in line of duty as a direct result of armed conflict; and
(3) his surviving spouse or children are entitled to dependency and indemnity compensation under chapter 13 of title 38 based upon his death.
(c) An election may be changed or revoked by the elector before the first day for which retired or retainer pay is granted. Unless it is made on the basis of restored mental competency under section 1433 of this title, or unless it is made before the elector completes nineteen years of service for which he is entitled to credit in the computation of his basic pay (in which case only the latest change or revocation shall be effective), the change or revocation is not effective if it is made less than two years before the first day for which retired or retainer pay is granted. The elector may, however, before the first day for which retired or retainer pay is granted, change or revoke his election (provided the change does not increase the amount of the annuity elected) to reflect a change in the marital or dependency status of the member or his family that is caused by death, divorce, annulment, remarriage, or acquisition of a child, if such change or revocation of election is made within two years of such change in marital or dependency status.
(d) If an election made under this section is found to be void for any reason except fraud or willful intent of the member making the election, he may make a corrected election at any time within 90 days after he is notified in writing that the election is void. A corrected election made under this subsection is effective as of the date of the voided election it replaces.
(Aug. 10, 1956, ch. 1041, 70A Stat. 108; Pub. L. 85–861, § 33(a)(11), Sept. 2, 1958, 72 Stat. 1565; Pub. L. 87–381, § 2, Oct. 4, 1961, 75 Stat. 810; Pub. L. 90–485, § 1(1), (2), Aug. 13, 1968, 82 Stat. 751; Pub. L. 96–513, title V, § 511(55), Dec. 12, 1980, 94 Stat. 2925; Pub. L. 99–145, title XIII, § 1301(a)(2), Nov. 8, 1985, 99 Stat. 735; Pub. L. 101–189, div. A, title XVI, § 1621(a)(1), Nov. 29, 1989, 103 Stat. 1602; Pub. L. 104–106, div. A, title XV, § 1501(c)(17), Feb. 10, 1996, 110 Stat. 499.)

CITE AS: 10 USC 1431

§ 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.)

CITE AS: 10 USC 1432

§ 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 medical 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 prescribed time, the Secretary concerned may make an election for that person upon the request 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 competent by medical officers of the Department of Veterans Affairs or by a court of competent jurisdiction, he may, within 180 days after that determination, change or revoke that election. However, deductions made from his retired or retainer pay before that date may not be refunded.

(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.)

CITE AS: 10 USC 1433

§ 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 12½ 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 remarries;
(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 remarriage of that spouse before age 60, in equal shares to, or on behalf of, the surviving eligible children, ending when there is no surviving eligible child.
(b) A person may elect to provide both the annuity 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 12½ percent 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 elector’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 eighteenth 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 eligible beneficiary unless the Secretary concerned approves an application submitted by the member under section 1436(b)(4) of this title. An election of an annuity under clause (3) of subsection (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 period of the surviving spouse’s eligibility, a part of the annuity under subsection (a)(3) for payment 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 increased by the same percentage as the percentage 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.)

CITE AS: 10 USC 1434

§ 1435. Eligible beneficiariesOnly the following persons are eligible to be made the beneficiaries of, or to receive payments under, an annuity elected under this subchapter by a member of the armed forces:
(1) The spouse of the member on the date when the member is retired or becomes entitled to retired or retainer pay or, if the member 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 incapable of supporting themselves because of a mental defect or physical incapacity existing 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 comparable recognized educational institution;
(C) legitimate or adopted children of, or stepchildren in fact dependent for their support upon, the member;
(D) living on the date when the member is retired or becomes entitled to retired or retainer pay or, if the member was already retired 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 considered 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 satisfaction 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 institution 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.)

CITE AS: 10 USC 1435

§ 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 Secretary of the Treasury, after considering the average 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 specified 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 annuity 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 annuity 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 existing 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 existing 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 section 1434(a) of this title, or for an annuity provided 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.
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 beginning after he applies for reduction or withdrawal. 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 application 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 application 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 section 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 retainer 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.)

CITE AS: 10 USC 1436

§ 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 subchapter 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 attains 70 years of age.
(Added Pub. L. 106–65, div. A, title VI, § 655(a), Oct. 5, 1999, 113 Stat. 667.)

CITE AS: 10 USC 1436a

§ 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 installments and not later than the fifteenth day of each month following that month. However, no annuity accrues for the month in which entitlement 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 incapable of supporting himself because of a mental defect 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 institution, 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 occurs, if the member upon whose pay the annuity is based died in a preceding month.
(3) as of the first day of the month in which a child first becomes or again becomes eligible, if that eligible child’s eighteenth birthday and the death of the member upon whose pay the annuity is based both occurred in a preceding month or months.
However, no such annuity is payable or accrues for any month before November 1, 1968.
(c)
(1) Upon application of the beneficiary of a member entitled to retired or retainer pay whose retired or retainer pay has been suspended because the member has been determined to be missing, the Secretary concerned may determine for purposes of this subchapter that the member is presumed dead. Any such determination shall be made in accordance with regulations prescribed under section 1444(a) of this title. The Secretary concerned may not make a determination for purposes of this subchapter that a member is presumed dead unless he finds—
(A) that the member has been missing for at least 30 days; and
(B) that the circumstances under which the member is missing would lead a reasonably prudent person to conclude that the member is dead.
(2) Upon a determination under paragraph (1) with respect to a member, an annuity otherwise payable under this subchapter shall be paid as if the member died on the date as of which the retired or retainer pay of the member was suspended.
(3)
(A) If, after a determination under paragraph (1), the Secretary concerned determines that the member is alive, any annuity being paid under this subchapter by reason of this subsection shall be promptly terminated and the total amount of any annuity payments made by reason of this subsection shall constitute a debt to the United States which may be collected or offset—
(i) from any retired or retainer pay otherwise payable to the member;
(ii) if the member is entitled to compensation under chapter 11 of title 38, from that compensation; or
(iii) if the member is entitled to any other payment from the United States, from that payment.
(B) If the member dies before the full recovery of the amount of annuity payments described in subparagraph (A) has been made by the United States, the remaining amount of such annuity payments may be collected from the member’s beneficiary under this subchapter if that beneficiary was the recipient of the annuity payments made by reason of this subsection.
(Aug. 10, 1956, ch. 1041, 70A Stat. 110; Pub. L. 90–485, § 1(7), Aug. 13, 1968, 82 Stat. 753; Pub. L. 92–425, § 1(2)(A), Sept. 21, 1972, 86 Stat. 706; Pub. L. 96–513, title V, § 511(57), Dec. 12, 1980, 94 Stat. 2925; Pub. L. 98–94, title IX, § 922(a)(14)(A), Sept. 24, 1983, 97 Stat. 642; Pub. L. 98–525, title VI, § 642(a)(1), Oct. 19, 1984, 98 Stat. 2545; Pub. L. 99–145, title XIII, § 1303(a)(9), Nov. 8, 1985, 99 Stat. 739.)

CITE AS: 10 USC 1437

§ 1438. Deposits for amounts not deducted

If, for any period, a person who has been retired or has become entitled to retired or retainer pay, and who has elected an annuity under this subchapter, is not entitled to retired or retainer pay, he must deposit in the Treasury the amount that would otherwise have been deducted from his pay for that period to provide the annuity.

(Aug. 10, 1956, ch. 1041, 70A Stat. 110; Pub. L. 92–425, § 1(2)(A), Sept. 21, 1972, 86 Stat. 706.)

CITE AS: 10 USC 1438

§ 1439. Refund of amounts deducted from retired pay

If a person whose name is on the temporary disability retired list of an armed force, and who has elected an annuity under this subchapter, has his name removed from that list for any reason other than retirement or grant of retired pay, he is entitled to a refund of the difference between the amount by which his retired pay was reduced to provide the annuity and the cost of an amount of term insurance equal to the protection provided for his dependents during the period that he was on that list.

(Aug. 10, 1956, ch. 1041, 70A Stat. 111; Pub. L. 92–425, § 1(2)(A), Sept. 21, 1972, 86 Stat. 706.)

CITE AS: 10 USC 1439

§ 1440. Annuities not subject to legal process

Except as provided in section 1437(c)(3)(B) of this title, no annuity payable under this subchapter is assignable or subject to execution, levy, attachment, garnishment, or other legal process.

(Aug. 10, 1956, ch. 1041, 70A Stat. 111; Pub. L. 92–425, § 1(2)(A), Sept. 21, 1972, 86 Stat. 706; Pub. L. 98–525, title VI, § 642(a)(2), Oct. 19, 1984, 98 Stat. 2546; Pub. L. 99–145, title XIII, § 1303(a)(10), Nov. 8, 1985, 99 Stat. 739.)

CITE AS: 10 USC 1440

§ 1441. Annuities in addition to other payments

An annuity under this subchapter is in addition to any pension or other payment to which the beneficiary is entitled under any other provision of law, and may not be considered as income under any law administered by the Department of Veterans Affairs.

(Aug. 10, 1956, ch. 1041, 70A Stat. 111; Pub. L. 85–857, § 13(v)(1), Sept. 2, 1958, 72 Stat. 1266; Pub. L. 85–861, § 1(31B), Sept. 2, 1958, 72 Stat. 1452; Pub. L. 86–211, § 8(a), Aug. 29, 1959, 73 Stat. 436; Pub. L. 91–588, § 8(b), Dec. 24, 1970, 84 Stat. 1584; Pub. L. 92–425, § 1(2)(A), Sept. 21, 1972, 86 Stat. 706; Pub. L. 101–189, div. A, title XVI, § 1621(a)(1), Nov. 29, 1989, 103 Stat. 1602.)

CITE AS: 10 USC 1441

§ 1442. Recovery of annuity erroneously paid

In addition to other methods of recovery provided by law, the Secretary concerned may authorize the recovery, by deduction from later payments to a person, of any amount erroneously paid to him under this subchapter. However, recovery is not required if, in the judgment of the Secretary concerned, there has been no fault by the person to whom the amount was erroneously paid and recovery would be contrary to the purposes of this subchapter or against equity and good conscience.

(Aug. 10, 1956, ch. 1041, 70A Stat. 111; Pub. L. 92–425, § 1(2)(A), Sept. 21, 1972, 86 Stat. 706; Pub. L. 104–316, title I, § 105(a), Oct. 19, 1996, 110 Stat. 3830.)

CITE AS: 10 USC 1442

[§ 1443. Repealed. Pub. L. 92–425, § 1(2)(B), Sept. 21, 1972, 86 Stat. 706]

CITE AS: 10 USC 1443

§ 1444. Regulations; determinations
(a) The President shall prescribe regulations to carry out this subchapter. Those regulations shall, so far as practicable, be uniform for the armed forces, the National Oceanic and Atmospheric Administration, and the Public Health Service.
(b) Determinations and certifications of eligibility for, and payments of, annuities and other payments or refunds under this subchapter shall be made by the department concerned. However, in the case of a department other than a military department, payments shall be made through the disbursing facilities of the Department of the Treasury.
(Aug. 10, 1956, ch. 1041, 70A Stat. 111; Pub. L. 87–381, § 5, Oct. 4, 1961, 75 Stat. 811; Pub. L. 89–718, § 8(a), Nov. 2, 1966, 80 Stat. 1117; Pub. L. 92–425, § 1(2)(A), (C), Sept. 21, 1972, 86 Stat. 706; Pub. L. 96–513, title V, § 511(58), Dec. 12, 1980, 94 Stat. 2925.)

CITE AS: 10 USC 1444

§ 1444a. Regulations regarding payment of annuity to a representative payee
(a) The regulations prescribed pursuant to section 1444(a) of this title shall provide procedures for the payment of an annuity under this subchapter in the case of—
(1) a person for whom a guardian or other fiduciary has been appointed; and
(2) a minor, mentally incompetent, or otherwise legally disabled person for whom a guardian or other fiduciary has not been appointed.
(b) Those regulations may include the provisions set out in section 1455(d)(2) of this title.
(c) An annuity paid to a person on behalf of an annuitant in accordance with the regulations prescribed pursuant to subsection (a) discharges the obligation of the United States for payment to the annuitant of the amount of the annuity so paid.
(Added Pub. L. 102–190, div. A, title VI, § 654(b)(1), Dec. 5, 1991, 105 Stat. 1390; amended Pub. L. 105–85, div. A, title X, § 1073(a)(26), Nov. 18, 1997, 111 Stat. 1901.)

CITE AS: 10 USC 1444a

§ 1445. Correction of administrative deficiencies

Whenever he considers it necessary, the Secretary concerned may, under regulations prescribed under section 1444(a) of this title, correct any election, or any change or revocation of an election, under this subchapter when he considers it necessary to correct an administrative error. Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States.

(Added Pub. L. 87–381, § 6(1), Oct. 4, 1961, 75 Stat. 811; amended Pub. L. 92–425, § 1(2)(A), Sept. 21, 1972, 86 Stat. 706.)

CITE AS: 10 USC 1445

§ 1446. Restriction on participation
(a) Notwithstanding section 1441 of this title, if a person—
(1) has made an election under this subchapter; and
(2) is retired for physical disability before he completes 19 years of service for which he is entitled to credit in the computation of his basic pay;
and thereafter dies, his beneficiaries are not entitled to the annuities provided under this subchapter until they give proof to the department concerned that they are not eligible for benefits under chapter 11 or 13 of title 38. If the beneficiaries are not eligible for benefits under chapter 11 or 13 of title 38, the annuity shall begin on the first day of the month in which the death occurs.
(b) Whenever the beneficiaries on whose behalf the election was made are restricted, under subsection (a), from participating in the annuities provided under this subchapter, the amount withheld from the elector’s retired or retainer pay as a result of an election under this subchapter shall be refunded to the beneficiaries, less the amount of any annuities paid under this subchapter, and in either case without interest.
(Added Pub. L. 87–381, § 6(1), Oct. 4, 1961, 75 Stat. 811; amended Pub. L. 90–485, § 1(8), Aug. 13, 1968, 82 Stat. 754; Pub. L. 92–425, § 1(2)(A), Sept. 21, 1972, 86 Stat. 706.)

CITE AS: 10 USC 1446