5 U.S.C. § 8332 : US Code - Section 8332: Creditable service

Search 5 U.S.C. § 8332 : US Code - Section 8332: Creditable service

      (a) The total service of an employee or Member is the full years
    and twelfth parts thereof, excluding from the aggregate the
    fractional part of a month, if any.
      (b) The service of an employee shall be credited from the date of
    original employment to the date of separation on which title to
    annuity is based in the civilian service of the Government. Except
    as provided in paragraph (13) (!1) of this subsection, credit may
    not be allowed for a period of separation from the service in
    excess of 3 calendar days. The service includes - 

        (1) employment as a substitute in the postal field service;
        (2) service in the Pan American Sanitary Bureau;
        (3) subject to sections 8334(c) and 8339(i) of this title,
      service performed before July 10, 1960, as an employee of a
      county committee established under section 590h(b) of title 16 or
      of a committee or an association of producers described by
      section 610(b) of title 7;
        (4) service as a student-employee as defined by section 5351 of
      this title only if he later becomes subject to this subchapter;
        (5) a period of satisfactory service of a volunteer or
      volunteer leader under chapter 34 of title 22 only if he later
      becomes subject to this subchapter;
        (6) employment under section 709 of title 32 or any prior
      corresponding provision of law;
        (7) a period of service of a volunteer under part A of title
      VIII of the Economic Opportunity Act of 1964, or a period of
      service of a full-time volunteer enrolled in a program of at
      least one year's duration under part A, B,(!2) or C of title I of
      the Domestic Volunteer Service Act of 1973 only if he later
      becomes subject to this subchapter;

        (8) subject to sections 8334(c) and 8339(i) of this title,
      service performed after February 18, 1929, and before noon on
      January 3, 1971, as a United States Capitol Guide;
        (9) subject to sections 8334(c) and 8339(i) of this title,
      service as a substitute teacher for the government of the
      District of Columbia after July 1, 1955, if such service is not
      credited for benefits under any other retirement system
      established by a law of the United States;
        (10) periods of imprisonment of a foreign national for which
      compensation is provided under section 410 of the Foreign Service
      Act of 1980, if the individual (A) was subject to this subchapter
      during employment with the Government last preceding
      imprisonment, or (B) is qualified for an annuity under this
      subchapter on the basis of other service of the individual;
        (11) subject to sections 8334(c) and 8339(i) of this title,
      service in any capacity of at least 130 days (or its equivalent)
      per calendar year performed after July 1, 1946, for the National
      Committee for a Free Europe; Free Europe Committee, Incorporated;
      Free Europe, Incorporated; Radio Liberation Committee; Radio
      Liberty Committee; subdivisions of any of those organizations;
      Radio Free Europe/Radio Liberty, Incorporated, Radio Free Asia;
      the Asia Foundation; or the Armed Forces Network, Europe (AFN-E),
      but only if such service is not credited for benefits under any
      other retirement system which is established for such entities
      and funded in whole or in part by the Government and only if the
      individual later becomes subject to this subchapter;
        (12) service as a justice or judge of the United States, as
      defined by section 451 of title 28, and service as a judge of a
      court created by Act of Congress in a territory which is invested
      with any jurisdiction of a district court of the United States,
      but no credit shall be allowed for such service if the employee
      is entitled to a salary or an annuity under section 371, 372, or
      373 of title 28;
        (13) subject to sections 8334(c) and 8339(i) of this title,
      service performed on or after December 6, 1967, and before the
      effective date of this paragraph as an employee of the House
      Beauty Shop, only if he serves as such an employee for a period
      of at least five years after such effective date;
        (14) one year of service to be credited for each year in which
      a Native of the Pribilof Islands performs service in the taking
      and curing of fur seal skins and other activities in connection
      with the administration of the Pribilof Islands, notwithstanding
      any period of separation from the service, and regardless of
      whether the Native who performs the service retires before, on,
      or after the effective date of this paragraph;
        (15) subject to sections 8334(c) and 8339(i) of this title,
      service performed on or after January 3, 1969, and before January
      4, 1973, as the Washington Representative for Guam or the
      Washington Representative for the Virgin Islands, only if the
      individual serves as a Member for a period of at least five years
      after January 2, 1973;
        (16) service performed by any individual as an employee
      described in section 2105(c) of this title after June 18, 1952,
      and before January 1, 1966, if (A) such service involved
      conducting an arts and crafts, drama, music, library, service
      club, youth activities, sports, or recreation program (including
      any outdoor recreation program) for personnel of the armed
      forces, and (B) such individual is an employee subject to this
      subchapter on the day before the date of the enactment of the
      Nonappropriated Fund Instrumentalities Employees' Retirement
      Credit Act of 1986; and
        (17) service performed by any individual as an employee paid
      from nonappropriated funds of an instrumentality of the
      Department of Defense or the Coast Guard described in section
      2105(c) that is not covered by paragraph (16) and that is not
      otherwise creditable, if the individual elects (in accordance
      with regulations prescribed by the Office) to have such service
      credited under this paragraph.

    The Office of Personnel Management shall accept the certification
    of the Secretary of Agriculture or his designee concerning service
    for the purpose of this subchapter of the type performed by an
    employee named by paragraph (3) of this subsection. The Office of
    Personnel Management shall accept the certification of the
    Secretary of Commerce or his designee concerning service for the
    purpose of this subchapter of the type performed by an employee
    named by paragraph (14) of this subsection. The Office of Personnel
    Management shall accept the certification of the Capitol Guide
    Board concerning service for the purpose of this subchapter of the
    type described in paragraph (8) of this subsection and performed by
    an employee. The Office of Personnel Management shall accept the
    certification of the Chief Administrative Officer of the House of
    Representatives concerning service for the purpose of this
    subchapter of the type described in paragraph (13) of this
    subsection. For the purpose of paragraph (5) of this subsection - 
        (A) a volunteer and a volunteer leader are deemed receiving pay
      during their service at the respective rates of readjustment
      allowances payable under sections 2504(c) and 2505(1) of title
      22; and
        (B) the period of an individual's service as a volunteer or
      volunteer leader under chapter 34 of title 22 is the period
      between enrollment as a volunteer or volunteer leader and the
      termination of that service by the President or by death or
      resignation.

      The Office of Personnel Management shall accept the certification
    of the Executive Director of the Board for International
    Broadcasting, and the Secretary of State with respect to the Asia
    Foundation and the Secretary of Defense with respect to the Armed
    Forces Network, Europe (AFN-E), concerning services for the
    purposes of this subchapter of the type described in paragraph (11)
    of this subsection. For the purpose of this subchapter, service of
    the type described in paragraph (15) of this subsection shall be
    considered Member service. The Office of Personnel Management shall
    accept, for the purposes of this subchapter, the certification of
    the head of a nonappropriated fund instrumentality of the United
    States concerning service of the type described in paragraph (16)
    or (17) of this subsection which was performed for such
    appropriated fund instrumentality. Service credited under paragraph
    (17) may not also be credited under any other retirement system
    provided for employees paid from nonappropriated funds of a
    nonappropriated fund instrumentality.
      (c)(1) Except as provided in paragraphs (2) and (4) of this
    subsection and subsection (d) of this section - 
        (A) the service of an individual who first becomes an employee
      or Member before October 1, 1982, shall include credit for each
      period of military service performed before the date of the
      separation on which the entitlement to an annuity under this
      subchapter is based, subject to section 8332(j) of this title;
      and
        (B) the service of an individual who first becomes an employee
      or Member on or after October 1, 1982, shall include credit for -
      
          (i) each period of military service performed before January
        1, 1957, and
          (ii) each period of military service performed after December
        31, 1956, and before the separation on which the entitlement to
        annuity under this subchapter is based, only if a deposit (with
        interest, if any) is made with respect to that period, as
        provided in section 8334(j) of this title.

      (2) If an employee or Member is awarded retired pay based on any
    period of military service, the service of the employee or Member
    may not include credit for such period of military service unless
    the retired pay is awarded - 
        (A) based on a service-connected disability - 
          (i) incurred in combat with an enemy of the United States; or
          (ii) caused by an instrumentality of war and incurred in line
        of duty during a period of war as defined by section 1101 of
        title 38; or

        (B) under chapter 1223 of title 10 (or under chapter 67 of that
      title as in effect before the effective date of the Reserve
      Officer Personnel Management Act).

      (3)(A) Notwithstanding paragraph (2) of this subsection, for
    purposes of computing a survivor annuity for a survivor of an
    employee or Member - 
        (i) who was awarded retired pay based on any period of military
      service, and
        (ii) whose death occurs before separation from the service,

    creditable service of the deceased employee or Member shall include
    each period of military service includable under subparagraph (A)
    or (B) of paragraph (1) of this subsection, as applicable. In
    carrying out this subparagraph, any amount deposited under section
    8334(h) of this title shall be taken into account.
      (B) A survivor annuity computed based on an amount which, under
    authority of subparagraph (A), takes into consideration any period
    of military service shall be reduced by the amount of any
    survivor's benefits - 
        (i) payable to a survivor (other than a child) under a
      retirement system for members of the uniformed services;
        (ii) if, or to the extent that, such benefits are based on such
      period of military service.

      (C) The Office of Personnel Management shall prescribe
    regulations to carry out this paragraph, including regulations
    under which - 
        (i) a survivor may elect not to be covered by this paragraph;
      and
        (ii) this paragraph shall be carried out in any case which
      involves a former spouse.

      (4) If, after January 1, 1997, an employee or Member waives
    retired pay that is subject to a court order for which there has
    been effective service on the Secretary concerned for purposes of
    section 1408 of title 10, the military service on which the retired
    pay is based may be credited as service for purposes of this
    subchapter only if the employee or Member authorizes the Director
    to deduct and withhold from the annuity payable to the employee or
    Member under this subchapter an amount equal to the amount that, if
    the annuity payment was instead a payment of the employee's or
    Member's retired pay, would have been deducted and withheld and
    paid to the former spouse covered by the court order under such
    section 1408. The amount deducted and withheld under this paragraph
    shall be paid to that former spouse. The period of civil service
    employment by the employee or Member shall not be taken into
    consideration in determining the amount of the deductions and
    withholding or the amount of the payment to the former spouse. The
    Director of the Office of Personnel Management shall prescribe
    regulations to carry out this paragraph.
      (d) For the purpose of section 8339(c)(1) of this title, a Member
    - 
        (1) shall be allowed credit only for periods of military
      service not exceeding 5 years, plus military service performed by
      the Member on leaving his office, for the purpose of performing
      military service, during a war or national emergency proclaimed
      by the President or declared by Congress and before his final
      separation from service as Member; and
        (2) may not receive credit for military service for which
      credit is allowed for purpose of retired pay under other statute.

      (e) This subchapter does not affect the right of an employee or
    Member to retired pay, pension, or compensation in addition to an
    annuity payable under this subchapter.
      (f) Credit shall be allowed for leaves of absence without pay
    granted an employee while performing military service or while
    receiving benefits under subchapter I of chapter 81 of this title.
    An employee or former employee who returns to duty after a period
    of separation is deemed, for the purpose of this subsection, to
    have been in a leave of absence without pay for that part of the
    period in which he was receiving benefits under subchapter I of
    chapter 81 of this title or any earlier statute on which such
    subchapter is based. Except for a substitute in the postal field
    service and service described in paragraph (14) of subsection (b)
    of this section,,(!3) credit may not be allowed for so much of
    other leaves of absence without pay as exceeds 6 months in the
    aggregate in a calendar year.

      (g) An employee who during the period of a war, or of a national
    emergency as proclaimed by the President or declared by Congress,
    leaves his position to enter the military service is deemed, for
    the purpose of this subchapter, as not separated from his civilian
    position because of that military service, unless he applies for
    and receives a lump-sum credit under this subchapter. However, the
    employee is deemed as not retaining his civilian position after
    December 31, 1956, or after the expiration of 5 years of that
    military service, whichever is later.
      (h) An employee who - 
        (1) has at least 5 years' Member service; and
        (2) serves as a Member at any time after August 2, 1946;

    may not be allowed credit for service which is used in the
    computation of an annuity under section 8339(c) of this title.
      (i) An individual who qualifies as an employee under section
    8331(1)(E) of this title is entitled to credit for his service as a
    United States Commissioner, which is not credited for the purpose
    of this subchapter for service performed by him in a capacity other
    than Commissioner, on the basis of - 
        (1) 1/313 of a year for each day on which he performed service
      as a Commissioner before July 1, 1945; and
        (2) 1/260 of a year for each day on which he performed service
      as a Commissioner after June 30, 1945.

    Credit for service performed as Commissioner may not exceed 313
    days in a year before July 1, 1945, or 260 days in a year after
    June 30, 1945. For the purpose of this subchapter, the employment
    and pay of a Commissioner is deemed on a daily basis when actually
    employed.
      (j)(1) Notwithstanding any other provision of this section,
    military service, except military service covered by military leave
    with pay from a civilian position, performed by an individual after
    December 1956, the period of an individual's services as a
    volunteer under part A of title VIII of the Economic Opportunity
    Act of 1964, the period of an individual's service as a full-time
    volunteer enrolled in a program of at least 1 year's duration under
    part A, B,(!2) or C of title I of the Domestic Volunteer Service
    Act of 1973, and the period of an individual's service as a
    volunteer or volunteer leader under chapter 34 of title 22, shall
    be excluded in determining the aggregate period of service on which
    an annuity payable under this subchapter to the individual or to
    his spouse, former spouse or child is based, if the individual,
    spouse, former spouse, or child is entitled, or would on proper
    application be entitled, at the time of that determination, to
    monthly old-age or survivors benefits under section 402 of title 42
    based on the individual's wages and self-employment income. If the
    military service or service as a volunteer under part A of title
    VIII of the Economic Opportunity Act of 1964, as a full-time
    volunteer enrolled in a program of at least 1 year's duration under
    part A, B,(!2) or C of title I of the Domestic Volunteer Service
    Act of 1973, or as a volunteer or volunteer leader under chapter 34
    of title 22 is not excluded by the preceding sentence, but on
    becoming 62 years of age, the individual or spouse, former spouse
    (!4) becomes entitled, or would on proper application be entitled,
    to the described benefits, the Office of Personnel Management shall
    redetermine the aggregate period of service on which the annuity is
    based, effective as of the first day of the month in which he or
    she becomes 62 years of age, so as to exclude that service. The
    Secretary of Health, Education, and Welfare, on request of the
    Office, shall inform the Office whether or not the individual,
    spouse, former spouse, or child is entitled at any named time to
    the described benefits. For the purpose of this subsection, the
    period of an individual's service as a volunteer or volunteer
    leader under chapter 34 of title 22 is the period between
    enrollment as a volunteer or volunteer leader and termination of
    that service by the President or by death or resignation, and the
    period of an individual's service as a volunteer under part A of
    title VIII of the Economic Opportunity Act of 1964 or under part A,
    B,(!2) or C of title I of the Domestic Volunteer Service Act of
    1973 is the period between enrollment as a volunteer and
    termination of that service by the Director of the Office of
    Economic Opportunity or the Chief Executive Officer of the
    Corporation for National and Community Service, as appropriate, or
    by death or resignation.

      (2) The provisions of paragraph (1) of this subsection relating
    to credit for military service shall not apply to - 
        (A) any period of military service of an employee or Member
      with respect to which the employee or Member has made a deposit
      with interest, if any, under section 8334(j) of this title; or
        (B) the service of any employee or Member described in section
      8332(c)(1)(B) of this title.

      (3) The provisions of paragraph (1) relating to credit for
    service as a volunteer or volunteer leader under the Economic
    Opportunity Act of 1964, part A, B,(!2) or C of title I of the
    Domestic Volunteer Service Act of 1973, or the Peace Corps Act
    shall not apply to any period of service as a volunteer or
    volunteer leader of an employee or Member with respect to which the
    employee or Member has made the deposit with interest, if any,
    required by section 8334(l).
      (k)(1) An employee who enters on approved leave without pay to
    serve as a full-time officer or employee of an organization
    composed primarily of employees as defined by section 8331(1) of
    this title, within 60 days after entering on that leave without
    pay, may file with his employing agency an election to receive full
    retirement credit for his periods of that leave without pay and
    arrange to pay currently into the Fund, through his employing
    agency, amounts equal to the retirement deductions and agency
    contributions that would be applicable if he were in pay status. If
    the election and all payments provided by this paragraph are not
    made, the employee may not receive credit for the periods of leave
    without pay occurring after July 17, 1966, notwithstanding the
    third (!5) sentence of subsection (f) of this section. For the
    purpose of the preceding sentence, "employee" includes an employee
    who was on approved leave without pay and serving as a full-time
    officer or employee of such an organization on July 18, 1966, and
    who filed a similar election before September 17, 1966.

      (2) An employee may deposit with interest an amount equal to
    retirement deductions representing any period or periods of
    approved leave without pay while serving, before July 18, 1966, as
    a full-time officer or employee of an organization composed
    primarily of employees as defined by section 8331(1) of this title.
    An employee who makes the deposit shall be allowed full retirement
    credit for the period or periods of leave without pay. If the
    employee dies, a survivor as defined by section 8331(10) of this
    title may make the deposit. If the deposit is not made in full,
    retirement credit shall be allowed in accordance with the third
    (!5) sentence of subsection (f) of this section.
      (l)(1) Any employee or Member who - 
        (A) is of Japanese ancestry; and
        (B) while a citizen of the United States or an alien lawfully
      admitted to the United States for permanent residence, was
      interned or otherwise detained at any time during World War II in
      any camp, installation, or other facility in the United States,
      or in any territory or possession of the United States, under any
      policy or program of the United States respecting individuals of
      Japanese ancestry which was established during World War II in
      the interests of national security pursuant to - 
          (i) Executive Order Numbered 9066, dated February 19, 1942;
          (ii) section 67 of the Act entitled "An Act to provide a
        government for the Territory of Hawaii", approved April 30,
        1900 (chapter 339, Fifty-sixth Congress; 31 Stat. 153);
          (iii) Executive Order Numbered 9489, dated October 18, 1944;
          (iv) sections 4067 through 4070 of the Revised Statutes of
        the United States; or
          (v) any other statute, rule, regulation, or order; or

        (C) is of Aleut ancestry and while a citizen of the United
      States was interned or otherwise detained in, or relocated to any
      camp, installation, or other facility in the Territory of Alaska
      which was established during World War II for the purpose of the
      internment, detention, or relocation of Aleuts pursuant to any
      statute, rule, regulation, or order;

    shall be allowed credit (as civilian service) for any period during
    which such employee or Member was so interned or otherwise detained
    after such employee became 18 years of age.
      (2) For the purpose of this subsection, "World War II" means the
    period beginning on December 7, 1941, and ending on December 31,
    1946.
      (m)(1) Upon application to the Office of Personnel Management,
    any individual who is an employee on the date of the enactment of
    this subsection, and who has on such date or thereafter acquires 5
    years or more of creditable civilian service under this section
    (exclusive of service for which credit is allowed under this
    subsection) shall be allowed credit (as service as a Congressional
    employee) for service before the date of the enactment of this
    subsection while employed by the Democratic Senatorial Campaign
    Committee, the Republican Senatorial Campaign Committee, the
    Democratic National Congressional Committee, or the Republican
    National Congressional Committee, if - 
        (A) such employee has at least 4 years and 6 months of service
      on such committees as of December 12, 1980; and
        (B) such employee makes a deposit to the Fund in an amount
      equal to the amount which would be required under section 8334(c)
      of this title if such service were service as a Congressional
      employee.

      (2) Upon application to the Office of Personnel Management, any
    individual who was an employee on the date of enactment of this
    paragraph, and who has on such date or thereafter acquires 5 years
    or more of creditable civilian service under this section
    (exclusive of service for which credit is allowed under this
    subsection) shall be allowed credit (as service as a congressional
    employee) for service before December 31, 1990, while employed by
    the Democratic Senatorial Campaign Committee, the Republican
    Senatorial Campaign Committee, the Democratic National
    Congressional Committee, or the Republican National Congressional
    Committee, if - 
        (A) such employee has at least 4 years and 6 months of service
      on such committees as of December 31, 1990; and
        (B) such employee makes a deposit to the Fund in an amount
      equal to the amount which would be required under section 8334(c)
      if such service were service as a congressional employee.

      (3) The Office shall accept the certification of the President of
    the Senate (or his designee) or the Speaker of the House (or his
    designee), as the case may be, concerning the service of, and the
    amount of compensation received by, an employee with respect to
    which credit is to be sought under this subsection.
      (4) An individual receiving credit for service for any period
    under this subsection shall not be granted credit for such service
    under the provisions of the Social Security Act.
      (n) Any employee who - 
        (1) served in a position in which the employee was excluded
      from coverage under this subchapter because the employee was
      covered under a retirement system established under section 10 of
      the Federal Reserve Act; and
        (2) transferred without a break in service to a position to
      which the employee was appointed by the President, with the
      advice and consent of the Senate, and in which position the
      employee is subject to this subchapter,

    shall be treated for all purposes of this subchapter as if any
    service that would have been creditable under the retirement system
    established under section 10 of the Federal Reserve Act was service
    performed while subject to this subchapter if any employee and
    employer deductions, contributions or rights with respect to the
    employee's service are transferred from such retirement system to
    the Fund.
      (o)(1) Notwithstanding any other provision of this subchapter,
    the service of an individual finally convicted of an offense
    described in paragraph (2) shall not be taken into account for
    purposes of this subchapter, except that this sentence applies only
    to service rendered as a Member (irrespective of when rendered).
    Any such individual (or other person determined under section
    8342(c), if applicable) shall be entitled to be paid so much of
    such individual's lump-sum credit as is attributable to service to
    which the preceding sentence applies.
      (2)(A) An offense described in this paragraph is any offense
    described in subparagraph (B) for which the following apply:
        (i) Every act or omission of the individual (referred to in
      paragraph (1)) that is needed to satisfy the elements of the
      offense occurs while the individual is a Member.
        (ii) Every act or omission of the individual that is needed to
      satisfy the elements of the offense directly relates to the
      performance of the individual's official duties as a Member.
        (iii) The offense is committed after the date of enactment of
      this subsection.

      (B) An offense described in this subparagraph is only the
    following, and only to the extent that the offense is a felony:
        (i) An offense under section 201 of title 18 (relating to
      bribery of public officials and witnesses).
        (ii) An offense under section 219 of title 18 (relating to
      officers and employees acting as agents of foreign principals).
        (iii) An offense under section 1343 of title 18 (relating to
      fraud by wire, radio, or television, including as part of a
      scheme to deprive citizens of honest services thereby).
        (iv) An offense under section 104(a) of the Foreign Corrupt
      Practices Act of 1977 (relating to prohibited foreign trade
      practices by domestic concerns).
        (v) An offense under section 1957 of title 18 (relating to
      engaging in monetary transactions in property derived from
      specified unlawful activity).
        (vi) An offense under section 1512 of title 18 (relating to
      tampering with a witness, victim, or an informant).
        (vii) An offense under chapter 96 of title 18 (relating to
      racketeer influenced and corrupt organizations).
        (viii) An offense under section 371 of title 18 (relating to
      conspiracy to commit offense or to defraud United States), to the
      extent of any conspiracy to commit an act which constitutes - 
          (I) an offense under clause (i), (ii), (iii), (iv), (v),
        (vi), or (vii); or
          (II) an offense under section 207 of title 18 (relating to
        restrictions on former officers, employees, and elected
        officials of the executive and legislative branches).

        (ix) Perjury committed under section 1621 of title 18 in
      falsely denying the commission of an act which constitutes - 
          (I) an offense under clause (i), (ii), (iii), (iv), (v),
        (vi), or (vii); or
          (II) an offense under clause (viii), to the extent provided
        in such clause.

        (x) Subornation of perjury committed under section 1622 of
      title 18 in connection with the false denial or false testimony
      of another individual as specified in clause (ix).

      (3) An individual convicted of an offense described in paragraph
    (2) shall not, after the date of the final conviction, be eligible
    to participate in the retirement system under this subchapter or
    chapter 84 while serving as a Member.
      (4) The Office of Personnel Management shall prescribe any
    regulations necessary to carry out this subsection. Such
    regulations shall include - 
        (A) provisions under which interest on any lump-sum payment
      under the second sentence of paragraph (1) shall be limited in a
      manner similar to that specified in the last sentence of section
      8316(b); and
        (B) provisions under which the Office may provide for - 
          (i) the payment, to the spouse or children of any individual
        referred to in the first sentence of paragraph (1), of any
        amounts which (but for this clause) would otherwise have been
        nonpayable by reason of such first sentence, subject to
        paragraph (5); and
          (ii) an appropriate adjustment in the amount of any lump-sum
        payment under the second sentence of paragraph (1) to reflect
        the application of clause (i).

      (5) Regulations to carry out clause (i) of paragraph (4)(B) shall
    include provisions to ensure that the authority to make any payment
    to the spouse or children of an individual under such clause shall
    be available only to the extent that the application of such clause
    is considered necessary and appropriate taking into account the
    totality of the circumstances, including the financial needs of the
    spouse or children, whether the spouse or children participated in
    an offense described in paragraph (2) of which such individual was
    finally convicted, and what measures, if any, may be necessary to
    ensure that the convicted individual does not benefit from any such
    payment.
      (6) For purposes of this subsection - 
        (A) the terms "finally convicted" and "final conviction" refer
      to a conviction (i) which has not been appealed and is no longer
      appealable because the time for taking an appeal has expired, or
      (ii) which has been appealed and the appeals process for which is
      completed;
        (B) the term "Member" has the meaning given such term by
      section 2106, notwithstanding section 8331(2); and
        (C) the term "child" has the meaning given such term by section
      8341.