Notes on 10 U.S.C. § 1448 : US Code - Notes

Search Notes on 10 U.S.C. § 1448 : US Code - Notes

(Added Pub. L. 92-425, Sec. 1(3), Sept. 21, 1972, 86 Stat. 707;
amended Pub. L. 94-496, Sec. 1(2), Oct. 14, 1976, 90 Stat. 2375;
Pub. L. 95-397, title II, Sec. 202, Sept. 30, 1978, 92 Stat. 844;
Pub. L. 97-252, title X, Sec. 1003(b), Sept. 8, 1982, 96 Stat. 735;
Pub. L. 97-295, Sec. 1(18), Oct. 12, 1982, 96 Stat. 1290; Pub. L.
98-94, title IX, Sec. 941(a)(1), (2), (c)(2), Sept. 24, 1983, 97
Stat. 652, 653; Pub. L. 99-145, title V, Sec. 513(b), title VII,
Secs. 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, Secs. 641(b)(1), 642(a), title XIII, Sec. 1343(a)(8)(B),
Nov. 14, 1986, 100 Stat. 3885, 3886, 3992; Pub. L. 101-189, div. A,
title XIV, Sec. 1407(a)(2), (3), Nov. 29, 1989, 103 Stat. 1588;
Pub. L. 103-337, div. A, title VI, Sec. 638, title XVI, Sec.
1671(d)(2), Oct. 5, 1994, 108 Stat. 2791, 3015; Pub. L. 104-201,
div. A, title VI, Sec. 634, Sept. 23, 1996, 110 Stat. 2553; Pub. L.
105-85, div. A, title X, Sec. 1073(a)(27), Nov. 18, 1997, 111 Stat.
1901; Pub. L. 105-261, div. A, title VI, Sec. 643(a), Oct. 17,
1998, 112 Stat. 2047; Pub. L. 106-65, div. A, title X, Sec.
1066(a)(12), Oct. 5, 1999, 113 Stat. 771; Pub. L. 106-398, Sec. 1
[[div. A], title VI, Sec. 655(a)-(c)(3), title X, Sec.
1087(a)(10)], Oct. 30, 2000, 114 Stat. 1654, 1654A-165, 1654A-166,
1654A-290; Pub. L. 107-107, div. A, title VI, Sec. 642(a), (c)(1),
Dec. 28, 2001, 115 Stat. 1151, 1152; Pub. L. 108-136, div. A, title
VI, Secs. 644(a), (b), 645(a), (b)(1), (c), Nov. 24, 2003, 117
Stat. 1517-1519; Pub. L. 108-375, div. A, title X, Sec.
1084(d)(10), Oct. 28, 2004, 118 Stat. 2061; Pub. L. 109-364, div.
A, title VI, Secs. 643(a), 644(a), title X, Sec. 1071(a)(8), Oct.
17, 2006, 120 Stat. 2260, 2261, 2398.)
AMENDMENTS
2006 - Subsec. (b)(1)(E). Pub. L. 109-364, Sec. 643(a)(1),
inserted "or under subparagraph (G) of this paragraph" before
period at end.
Subsec. (b)(1)(G). Pub. L. 109-364, Sec. 643(a)(2), added subpar.
(G).
Subsec. (d)(2)(B). Pub. L. 109-364, Sec. 644(a), substituted
"October 7, 2001" for "November 23, 2003".
Subsec. (d)(6)(A). Pub. L. 109-364, Sec. 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, Sec. 645(b)(1), added
subpar. (F).
Subsec. (d)(1). Pub. L. 108-136, Sec. 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, Sec. 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, Sec. 645(c), added par. (6).
Subsec. (f). Pub. L. 108-136, Sec. 644(b), inserted "or Before"
after "Dying When" in heading.
Subsec. (f)(1). Pub. L. 108-136, Sec. 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) Surviving spouse annuity. - The Secretary concerned shall
pay an annuity under this subchapter to the surviving spouse of a
member who dies on active duty after -
"(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, Sec. 1 [[div. A], title
VI, Sec. 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, Sec. 1 [[div. A], title VI,
Sec. 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, Sec. 1 [[div. A], title VI,
Sec. 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, Sec. 1 [[div. A], title VI,
Sec. 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, Sec. 1 [[div. A], title VI,
Sec. 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, Sec. 1 [[div. A], title
X, Sec. 1087(a)(10)], struck out second comma after "October 16,
1998".
Subsec. (e). Pub. L. 106-398, Sec. 1 [[div. A], title VI, Sec.
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, Sec. 643(a)(1), struck
out "effective date," after "Irrevocability," in heading and "Such
an election is effective as of the first day of the first calendar
month following the month in which it is received by the Secretary
concerned." after "section 1450(f) of this title." in text.
Subsec. (b)(3)(E). Pub. L. 105-261, Sec. 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, Sec. 1671(d)(2),
substituted "12731(d)" for "1331(d)".
Subsec. (b)(1). Pub. L. 103-337, Sec. 638, designated existing
provisions as subpar. (A) and added subpars. (B) to (E).
Subsec. (f)(1). Pub. L. 103-337, Sec. 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, Sec.
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, Sec. 1407(a)(3), struck out
"or retainer" after "entitled to retired".
Subsec. (f)(1)(A), (B). Pub. L. 101-189, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 719(8)(A),
substituted "retired pay" for "retired or retainer pay".
Subsec. (a)(2)(A). Pub. L. 99-145, Sec. 721(a)(1), inserted
"(with his spouse's concurrence, if required under paragraph (3))"
after "unless he elects".
Pub. L. 99-145, Sec. 719(8)(A), substituted "retired pay" for
"retired or retainer pay".
Subsec. (a)(3). Pub. L. 99-145, Sec. 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, Sec. 715(a), added par. (6).
Subsec. (b)(1). Pub. L. 99-145, Sec. 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, Sec. 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, Sec. 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, Sec. 719(8)(A), substituted
"retired pay" for "retired or retainer pay".
Subsec. (b)(4), (5). Pub. L. 99-145, Sec. 716(a)(2), (3), added
par. (4) and redesignated former par. (4) as (5).
Subsec. (c). Pub. L. 99-145, Sec. 513(b), inserted "disability"
before "retired pay".
Subsec. (d). Pub. L. 99-145, Sec. 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, Sec. 713(a), added subsec. (f).
Subsec. (g). Pub. L. 99-145, Sec. 715(b), added subsec. (g).
1983 - Subsec. (a)(3). Pub. L. 98-94, Sec. 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, Sec. 941(a)(1), inserted "except
in accordance with subsection (b)(3)".
Subsec. (b). Pub. L. 98-94, Sec. 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, Sec. 1(18), substituted "Plan" for "plan"
in section catchline.
Subsec. (a)(3). Pub. L. 97-252, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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 AMENDMENT
Pub. L. 109-364, div. A, title VI, Sec. 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 AMENDMENT
Pub. L. 108-136, div. A, title VI, Sec. 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 AMENDMENT
Pub. L. 107-107, div. A, title VI, Sec. 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 AMENDMENT
Pub. L. 106-398, Sec. 1 [[div. A], title VI, Sec. 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 AMENDMENT
Amendment 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 AMENDMENT
Amendment 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 AMENDMENT
Amendment 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 AMENDMENT
Section 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 PROVISIONS
Amendment 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 AMENDMENT
Amendment 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 AMENDMENT
Amendment 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. 105-85
Section 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."
TRANSITION
Pub. L. 109-364, div. A, title VI, Sec. 643(c), Oct. 17, 2006,
120 Stat. 2261, provided that:
"(1) Transition period. - In the case of a participant in the
Survivor Benefit Plan who made a covered insurable-interest
election (as defined in paragraph (2)) and whose designated
beneficiary under that election dies before the date of the
enactment of this Act [Oct. 17, 2006] or during the 18-month period
beginning on such date, the time period applicable for purposes of
the limitation in the third sentence of subparagraph (G)(i) of
section 1448(b)(1) of title 10, United States Code, as added by
subsection (a), shall be the two-year period beginning on the date
of the enactment of this Act (rather than the 180-day period
specified in that sentence).
"(2) Covered insurable-interest elections. - For purposes of
paragraph (1), a covered insurable-interest election is an election
under section 1448(b)(1) of title 10, United States Code, made
before the date of the enactment of this Act [Oct. 17, 2006], or
during the 18-month period beginning on such date, by a participant
in the Survivor Benefit Plan to provide an annuity under that plan
to a natural person with an insurable interest in that person.
"(3) Survivor benefit plan. - For purposes of this subsection,
the term 'Survivor Benefit Plan' means the program under subchapter
II of chapter 73 of title 10, United States Code."
ONE-YEAR OPEN ENROLLMENT PERIOD FOR SURVIVOR BENEFIT PLAN
COMMENCING OCTOBER 1, 2005
Pub. L. 108-375, div. A, title VI, Sec. 645, Oct. 28, 2004, 118
Stat. 1962, as amended by Pub. L. 109-364, div. A, title X, Sec.
1071(g)(5), Oct. 17, 2006, 120 Stat. 2402, provided that:
"(a) Persons Not Currently Participating in Survivor Benefit
Plan. -
"(1) Election of sbp coverage. - An eligible retired or former
member may elect to participate in the Survivor Benefit Plan
during the open enrollment period specified in subsection (f).
"(2) Election of supplemental annuity coverage. - An eligible
retired or former member who elects under paragraph (1) to
participate in the Survivor Benefit Plan at the maximum level may
also elect during the open enrollment period to participate in
the Supplemental Survivor Benefit Plan.
"(3) Eligible retired or former member. - For purposes of
paragraphs (1) and (2), an eligible retired or former member is a
member or former member of the uniformed services who on the day
before the first day of the open enrollment period is not a
participant in the Survivor Benefit Plan and -
"(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) Status under sbp of persons making elections. -
"(A) Standard annuity. - A person making an election under
paragraph (1) by reason of eligibility under paragraph (3)(A)
shall be treated for all purposes as providing a standard
annuity under the Survivor Benefit Plan.
"(B) Reserve-component annuity. - A person making an election
under paragraph (1) by reason of eligibility under paragraph
(3)(B) shall be treated for all purposes as providing a reserve-
component annuity under the Survivor Benefit Plan.
"(b) Election To Increase Coverage Under SBP. - A person who on
the day before the first day of the open enrollment period is a
participant in the Survivor Benefit Plan but is not participating
at the maximum base amount or is providing coverage under the Plan
for a dependent child and not for the person's spouse or former
spouse may, during the open enrollment period, elect to -
"(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) Election for Current SBP Participants To Participate in
Supplemental SBP. -
"(1) Election. - A person who is eligible to make an election
under this paragraph may elect during the open enrollment period
to participate in the Supplemental Survivor Benefit Plan.
"(2) Persons eligible. - Except as provided in paragraph (3), a
person is eligible to make an election under paragraph (1) if on
the day before the first day of the open enrollment period the
person is a participant in the Survivor Benefit Plan at the
maximum level, or during the open enrollment period the person
increases the level of such participation to the maximum level
under subsection (b) of this section, and under that Plan is
providing annuity coverage for the person's spouse or a former
spouse.
"(3) Limitation on eligibility for certain sbp participants not
affected by two-tier annuity computation. - A person is not
eligible to make an election under paragraph (1) if (as
determined by the Secretary concerned) the annuity of a spouse or
former spouse beneficiary of that person under the Survivor
Benefit Plan is to be computed under section 1451(e) of title 10,
United States Code. However, such a person may during the open
enrollment period waive the right to have that annuity computed
under such section 1451(e). Any such election is irrevocable. A
person making such a waiver may make an election under paragraph
(1) as in the case of any other participant in the Survivor
Benefit Plan.
"(d) Manner of Making Elections. - An election under this section
shall be made in writing, signed by the person making the election,
and received by the Secretary concerned before the end of the open
enrollment period. Any such election shall be made subject to the
same conditions, and with the same opportunities for designation of
beneficiaries and specification of base amount, that apply under
the Survivor Benefit Plan or the Supplemental Survivor Benefit
Plan, as the case may be. A person making an election under
subsection (a) to provide a reserve-component annuity shall make a
designation described in section 1448(e) of title 10, United States
Code.
"(e) Effective Date for Elections. - Any such election shall be
effective as of the first day of the first calendar month following
the month in which the election is received by the Secretary
concerned.
"(f) Open Enrollment Period. - The open enrollment period under
this section is the one-year period beginning on October 1, 2005.
"(g) Effect of Death of Person Making Election Within Two Years
of Making Election. - If a person making an election under this
section dies before the end of the two-year period beginning on the
effective date of the election, the election is void and the amount
of any reduction in retired pay of the person 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 voided
election if the deceased person had died after the end of such two-
year period.
"(h) Applicability of Certain Provisions of Law. - The provisions
of sections 1449, 1453, and 1454 of title 10, United States Code,
are applicable to a person making an election, and to an election,
under this section in the same manner as if the election were made
under the Survivor Benefit Plan or the Supplemental Survivor
Benefit Plan, as the case may be.
"(i) Premium for Open Enrollment Election. -
"(1) Premiums to be charged. - The Secretary of Defense shall
prescribe in regulations premiums which a person electing under
this section shall be required to pay for participating in the
Survivor Benefit Plan pursuant to the election. The total amount
of the premiums to be paid by a person under the regulations
shall be equal to the sum of -
"(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) Premiums to be credited to retirement fund. - Premiums
paid under the regulations under paragraph (1) shall be credited
to the Department of Defense Military Retirement Fund.
"(j) Definitions. - In this section:
"(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, 1999
Pub. L. 105-261, div. A, title VI, Sec. 642, Oct. 17, 1998, 112
Stat. 2045, as amended by Pub. L. 106-65, div. A, title VI, Sec.
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 SPOUSES
Pub. L. 105-85, div. A, title VI, Sec. 644, Nov. 18, 1997, 111
Stat. 1800, as amended by Pub. L. 106-65, div. A, title VI, Sec.
656(a), (b), title X, Sec. 1066(c)(3), Oct. 5, 1999, 113 Stat. 668,
773; Pub. L. 107-314, div. A, title VI, Sec. 634, Dec. 2, 202, 116
Stat. 2573, provided that:
"(a) Survivor Annuity. - (1) The Secretary concerned shall pay an
annuity to the qualified surviving spouse of each member of the
uniformed services who -
"(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) Amount of Annuity. - (1) An annuity under this section shall
be paid at the rate of $185.58 per month, as adjusted from time to
time under paragraph (3).
"(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) Application Required. - No benefit shall be paid to any
person under this section unless an application for such benefit is
filed with the Secretary concerned by or on behalf of such person.
"(d) Definitions. - For purposes of this section:
"(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) Prospective Applicability. - (1) Annuities under this
section shall be paid for months beginning after November 1997.
"(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, Sec. 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 PROGRAM
Pub. L. 104-106, div. A, title VI, Sec. 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, 1992
Pub. L. 101-189, div. A, title XIV, Sec. 1405, Nov. 29, 1989, 103
Stat. 1586, as amended by Pub. L. 101-510, div. A, title VI, Sec.
631(2), title XIV, Sec. 1484(l)(4)(B), Nov. 5, 1990, 104 Stat.
1580, 1720; Pub. L. 102-190, div. A, title VI, Sec. 653(a)(1),
(c)(2), Dec. 5, 1991, 105 Stat. 1388, 1389; Pub. L. 102-484, div.
A, title VI, Sec. 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 AMENDMENTS
Section 1406 of title XIV of div. A of Pub. L. 101-189, as
amended by Pub. L. 102-190, div. A, title VI, Sec. 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 DEATH
Pub. L. 100-456, div. A, title VI, Sec. 653, Sept. 29, 1988, 102
Stat. 1991, as amended by Pub. L. 103-337, div. A, title X, Sec.
1070(d)(3), Oct. 5, 1994, 108 Stat. 2858; Pub. L. 105-85, div. A,
title VI, Sec. 645(a), Nov. 18, 1997, 111 Stat. 1801, provided
that:
"(a) Annuity. - (1) The Secretary concerned shall pay an annuity
to the qualified surviving spouse of each member of the uniformed
services who -
"(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) Amount of Annuity. - (1) An annuity payable under this
section shall be paid at the rate of $165 per month, as adjusted
from time to time under subsection (c).
"(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) Cost-of-Living Increases. - Whenever 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. The
amount of the increase shall be based on the monthly annuity
payable before any reduction under this section.
"(d) Relationship to Other Programs. - (1) An annuity paid to a
surviving spouse under this section is in addition to any pension
to which the surviving spouse is entitled 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 (38 U.S.C.
1521 note), and any payment made under the provisions of section 4
of Public Law 92-425. An annuity paid under this section shall not
be considered as income for the purposes of eligibility for any
such pension.
"(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) Definitions. - For purposes of this section:
"(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) Effective Date. - Annuities under this section shall be paid
for months beginning after the month in which this Act is enacted
[September 1988]. No benefit shall accrue to any person by reason
of the enactment of this section for any period before the first
month referred to in the preceding sentence. No benefit shall be
paid to any person under this section unless an application for
such benefit has been filed with the Secretary concerned by or on
behalf of such person."
AUTHORITY FOR CERTAIN REMARRIED SURVIVOR BENEFIT PLAN PARTICIPANTS
TO WITHDRAW FROM PLAN
Pub. L. 100-180, div. A, title VI, Sec. 631, Dec. 4, 1987, 101
Stat. 1104, provided that:
"(a) Authority To Withdraw. - (1) An individual who is a
participant in the Survivor Benefit Plan under subchapter II of
chapter 73 of title 10, United States Code, and is described in
paragraph (2) may, with the consent of such individual's spouse,
withdraw from participation in the Plan.
"(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) Applicable Provisions. - An election under subsection (a)
shall be subject to subparagraphs (B) and (D) [see (E)] of section
1448(a)(6) of title 10, United States Code, except that in applying
such subparagraph (B) to subsection (a), the one-year period
referred to in clause (ii) of such subparagraph shall extend until
the end of the one-year period beginning 90 days after the date of
the enactment of this Act [Dec. 4, 1987].
"(c) Treatment of Prior Contributions. - No refund of amounts by
which the retired pay of a participant in the Survivor Benefit Plan
has been reduced by reason of section 1452 of title 10, United
States Code, may be made to an individual who withdraws from the
Survivor Benefit Plan under subsection (a)."
OPTION FOR CERTAIN PARTICIPANTS TO WITHDRAW FROM SURVIVOR BENEFIT
PLAN
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 EFFECT
Section 716(b) of Pub. L. 99-145, as amended by Pub. L. 99-661,
div. A, title VI, Sec. 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 ANNUITY
Section 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 COVERAGE
Section 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 PLAN
Pub. L. 97-35, title II, Sec. 212, Aug. 13, 1981, 95 Stat. 383,
as amended by Pub. L. 97-252, title XI, Sec. 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 DATE
Pub. L. 96-402, Sec. 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 PLAN
Section 3 of Pub. L. 92-425, as amended by Pub. L. 93-155, title
VIII, Sec. 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 PENSION
Section 4 of Pub. L. 92-425, as amended by Pub. L. 94-496, Sec.
2, Oct. 14, 1976, 90 Stat. 2375; Pub. L. 95-397, title II, Sec.
209, Sept. 30, 1978, 92 Stat. 848; Pub. L. 96-402, Sec. 6, Oct. 9,
1980, 94 Stat. 1708; Pub. L. 98-94, title IX, Sec. 942(a), Sept.
24, 1983, 97 Stat. 654; Pub. L. 102-40, title IV, Sec. 402(d)(2),
May 7, 1991, 105 Stat. 239; Pub. L. 103-337, div. A, title X, Sec.
1070(d)(4), Oct. 5, 1994, 108 Stat. 2858; Pub. L. 104-201, div. A,
title VI, Sec. 638(a)-(c), Sept. 23, 1996, 110 Stat. 2581; Pub. L.
105-85, div. A, title VI, Sec. 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 INDIVIDUALS
The 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.