§ 1406. Retired pay base for members who first became members before September 8, 1980: final basic pay (a) USE OF RETIRED PAY BASE IN COMPUTING RETIRED PAY. (1) GENERAL RULE.-The retired pay or retainer pay of any person entitled to that pay who first became a member of a uniformed service before September 8, 1980, is computed using the retired pay base or retainer pay base determined under this section. (2) EXCEPTION FOR RECOMPUTATION.-Recomputation of retired or retainer pay to reflect later active duty is provided for under section 1402 of this title without reference to a retired pay base or retainer pay base. (b) RETIREMENT UNDER SUBTITLE A OR E. (1) DISABILITY, WARRANT OFFICER, AND DOPMA RETIREMENT.-In the case of a person whose retired pay is computed under this subtitle, the retired pay base is determined in accordance with the following table. (2) RATE OF BASIC PAY TO BE USED.-The rate of basic pay to be used under paragraph (1) is the rate applicable on the date of the member's retirement. (d) RETIREMENT FOR MEMBERS OF THE NAVY AND MARINE CORPS.-In the case of a member whose retired pay is computed under section 6333 of this title, who is advanced on the retired list under section 6151 or 6334 of this title, or who is entitled to retainer pay under section 6330 of this title, the retired pay base or retainer pay base is determined in accordance with the following table. 633 634 Monthly basic pay of member's retired grade." (2) NON-REGULAR SERVICE RETIREMENT.-In the case of a person who is entitled to retired pay under section 12731 of this title, the retired pay base is the monthly basic pay, determined at the rates applicable on the date when retired pay is granted, of the highest grade held satisfactorily by the person at any time in the armed forces. For purposes of the preceding sentence, the highest grade in which a person served satisfactorily as an officer shall be determined in accordance with section 1370(d) of this title. (c) VOLUNTARY RETIREMENT FOR MEMBERS OF THE ARMY. (1) IN GENERAL.-In the case of a member whose retired pay is computed under section 3991 of this title or who is entitled to retired 6330 6151 6334 Basic pay of the grade the officer would hold if he had not received an appointment described in section 6325(b). Basic pay of the pay grade in which the member was serving on the day before retirement. Basic pay that the member received at the time of transfer to the Fleet Reserve or Fleet Marine Corps Reserve. Basic pay of the grade to which the member is advanced under section 6151. Basic pay of the grade to which the member is advanced under section 6334. If the rate specified is less than the pay of any warrant officer grade satisfactorily held by the member on active duty, use the monthly basic pay of that warrant officer grade. (e) VOLUNTARY RETIREMENT FOR MEMBERS OF THE AIR FORCE. (1) IN GENERAL.-In the case of a member whose retired pay is computed under section 8991 of this title or who is entitled to retired pay computed under section 8992 of this title, (2) RATE OF BASIC PAY TO BE USED.-The rate of basic pay to be used under paragraph (1) is the rate applicable on the date of the member's retirement. (f) COAST GUARD.-In the case of a member who is retired under any section of title 14, the member's retired pay is computed under section 423(a) of title 14 in the manner provided in that section. (g) COMMISSIONED CORPS OF NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION.-In the case of an officer whose retired pay is computed under section 16 of the Coast and Geodetic Survey Commissioned Officers' Act of 1948 (33 U.S.C. 8530), the retired pay base is the basic pay of the rank with which the officer retired. (h) COMMISSIONED CORPS OF PUBLIC HEALTH SERVICE. In the case of an officer who is retired under section 210(g) or 211(a) of the Public Health Service Act (42 U.S.C. 211(g), 212(a)), the retired pay base is determined as follows: (1) MANDATORY RETIREMENT.-If the officer is retired under section 210(g) of such Act, the retired pay base is the basic pay of the permanent grade held by the officer at the time of retirement. (2) VOLUNTARY RETIREMENT.-If the officer is retired under section 211(a) of such Act, the retired pay base is the basic pay of the highest grade held by the officer and in which, in the case of a temporary promotion to such grade, the officer has performed active duty for not less than six months. (i) SPECIAL RULE FOR FORMER CHAIRMEN AND VICE CHAIRMEN OF THE JCS, CHIEFS OF SERVICE, AND SENIOR ENLISTED MEMBERS. (1) ÎN GENERAL.-For the purposes of subsections (b) through (e), in determining the rate of basic pay to apply in the determination of the retired pay base of a member who has served as Chairman or Vice Chairman of the Joint Chiefs of Staff, as a Chief of Service, or as the senior enlisted member of an armed force, the highest rate of basic pay applicable to the member while serving in that position shall be used, if that rate is higher than the rate otherwise authorized by this section. (2) DEFINITIONS.-In this subsection: (A) The term "Chief of Service" means any of the following: (i) Chief of Staff of the Army. (ii) Chief of Naval Operations. (iii) Chief of Staff of the Air Force. (iv) Commandant of the Marine Corps. (v) Commandant of the Coast Guard. (B) The term "senior enlisted member" means any of the following: (i) Sergeant Major of the Army. (ii) Master Chief Petty Officer of the Navy. (iii) Chief Master Sergeant of the Air Force. (iv) Sergeant Major of the Marine Corps. (v) Master Chief Petty Officer of the Coast Guard. (Added Pub. L. 99-348, title I, § 104(b), July 1, 1986, 100 Stat. 686; amended Pub. L. 100-180, div. A, title V, § 512(d)(2), title XIII, § 1314(b)(6), Dec. 4, 1987, 101 Stat. 1090, 1175; Pub. L. 100-456, div. A, title XII, § 1233(c), Sept. 29, 1988, 102 Stat. 2057; Pub. L. 102-190, div. A, title XI, § 1131(7), Dec. 5, 1991, 105 Stat. 1506; Pub. L. 103-337, div. A, title XVI, § 1662(j)(4), Oct. 5, 1994, 108 Stat. 3004.) PRIOR PROVISIONS A prior section 1406 was renumbered section 12738 of this title. AMENDMENTS 1994-Subsec. (b). Pub. L. 103-337 substituted "Subtitle A or E" for "Subtitle A" in subsec. heading, designated existing provisions as par. (1), inserted par. (1) heading, in table struck out item for section 1331 which related to monthly basic pay of highest grade held satisfactorily by person at any time in armed forces, renumbered footnotes 3 and 4 as 2 and 3, respectively, and struck out former footnote 2 which provided for computations at rates applicable on date when retired pay is granted, and added par. (2). 1991-Subsec. (b). Pub. L. 102-190 substituted "580" for "564" in table. 1988-Subsec. (b). Pub. L. 100-456 substituted "satis. factorily by person" for "satisfactory by person" in item relating to section 1331 in table. 1987-Subsec. (d). Pub. L. 100-180, § 512(d)(2), inserted "or 6334" after "6151" in text, and inserted item relating to section 6334 at end of table. Subsec. (i). Pub. L. 100-180, § 1314(b)(6), inserted "and Vice Chairmen" after "Chairmen" in heading and inserted "or Vice Chairman" after "Chairman" in par. (1). EFFECTIVE DATE OF 1994 AMENDMENT Amendment by 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 1991 AMENDMENT Amendment by Pub. L. 102-190 effective Feb. 1, 1992, see section 1132 of Pub. L. 102-190, set out as a note under section 521 of this title. GRADE ON TRANSFER TO RETIRED RESERVE Section 1688 of title XVI of Pub. L. 103-337 provided that: "In determining the highest grade held satisfactorily by a person at any time in the Armed Forces for the purposes of paragraph (2) of section 1406(b) of title 10, United States Code, as added by this title, the requirement for satisfactory service on the reserve active-status list contained in section 1370(d) of title 10. United States Code, as added by this title, shall apply only to reserve commissioned officers who are promoted to a higher grade as a result of selection for SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1401, 3991, § 1407. Retired pay base for members who first (a) USE OF RETIRED PAY BASE IN COMPUTING (b) HIGH-THREE AVERAGE.-The retired pay base or retainer pay base of a person under this section is the person's high-three average determined under subsection (c) or (d). (c) COMPUTATION OF HIGH-THREE AVERAGE FOR MEMBERS ENTITLED TO RETIRED OR RETAINER PAY FOR REGULAR SERVICE. (1) GENERAL RULE.-The high-three average of a member entitled to retired or retainer pay under any provision of law other than section 1204 or 1205 or section 1331 of this title is the amount equal to (A) the total amount of monthly basic pay to which the member was entitled for the 36 months (whether or not consecutive) out of all the months of active service of the member for which the monthly basic pay to which the member was entitled was the highest, divided by (B) 36. (2) SPECIAL RULE FOR SHORT-TERM DISABILITY RETIREES.-In the case of a member who is entitled to retired pay under section 1201 or 1202 of this title and who has completed less than 36 months of active service, the member's high-three average (notwithstanding paragraph (1)) is the amount equal to (A) the total amount of basic pay to which the member was entitled during the period of the member's active service, divided by (B) the number of months (including any fraction thereof) of the member's active service. (d) COMPUTATION OF HIGH-THREE AVERAGE FOR MEMBERS AND FORMER MEMBERS ENTITLED TO RETIRED PAY For NonREGULAR SERVICE. (1) RETIRED PAY UNDER CHAPTER 67.1-The (A) the total amount of monthly basic 'See References in Text note below. which the member or former member would (2) NONREGULAR SERVICE DISABILITY RETIRED PAY.-The high-three average of a member entitled to retired pay under section 1204 or 1205 of this title is the amount equal to— (A) the total amount of monthly basic pay to which the member was entitled during the member's high-36 months (or to which the member would have been entitled if the member had served on active duty during the entire period of the member's high-36 months), divided by (B) 36. (3) SPECIAL RULE FOR SHORT-TERM DISABILITY RETIREES.-In the case of a member who is entitled to retired pay under section 1204 or 1205 of this title and who was a member for less than 36 months before being retired under that section, the member's high-three average (notwithstanding paragraph (2)) is the amount equal to (A) the total amount of basic pay to which the member was entitled during the entire period the member was a member of a uniformed service before being so retired (or to which the member would have been entitled if the member had served on active duty during the entire period the member was a member of a uniformed service before being so retired), divided by (B) the number of months (including any fraction thereof) which the member was a member before being so retired. (4) HIGH-36 MONTHS.-The high-36 months of a member or former member whose retired pay is covered by paragraph (1) or (2) are the 36 months (whether or not consecutive) out of all the months before the member or former member became entitled to retired pay for which the monthly basic pay to which the member or former member was entitled (or would have been entitled if serving on active duty during those months) was the highest. In the case of a former member, only months during which the former member was a member of a uniformed service may be used for purposes of the preceding sentence. (e) LIMITATION FOR ENlisted MEMBERS RETIRING WITH LESS THAN 30 YEARS' SERVICE.-In the case of a member who is retired under section 3914 or 8914 of this title or who is transferred to the Fleet Reserve or Fleet Marine Corps Reserve under section 6330 of this title, the member's high-36 average shall be computed using only rates of basic pay applicable to months of active duty of the member as an enlisted member. (Added Pub. L. 99-348, title I, § 104(b), July 1, 1986, 100 Stat. 689; amended Pub. L. 101-189, div. A, title VI, § 651(a), (b)(2), Nov. 29, 1989, 103 Stat. 1459, 1460; Pub. L. 103-337, div. A, title XVI, § 1662(j)(5), Oct. 5, 1994, 108 Stat. 3004.) મારી 1 REFERENCES IN TEXT Section 1331 of this title, referred to in subsecs. (c)(1) and (d)(1), was renumbered section 12731 of this title and amended generally by Pub. L. 103-337, div. A, title XVI, § 1662(j)(1), Oct. 5, 1994, 108 Stat. 2998, 2999. A new section 1331 was added by section 1662(j)(7) of Pub. L. 103-337. Chapter 67 of this title, referred to in subsec. (d)(1), was transferred to part II of subtitle E of this title, renumbered as chapter 1223, and amended generally by Pub. L. 103-337, div. A, title XVI, § 1662(j)(1), Oct. 5, 1994, 108 Stat. 2998. A new chapter 67 (§ 1331) of this title was added by section 1662(j)(7) of Pub. L. 103-337. PRIOR PROVISIONS A prior section 1407, added Pub. L. 96-342, title VIII, § 813(a)(1), Sept. 8, 1980, 94 Stat. 1100; amended Pub. L. 96-513, title I, § 113(c), title V, §§ 501(21), 511(53), Dec. 12, 1980, 94 Stat. 2877, 2908, 2925, related to determination of retired base pay, prior to repeal by Pub. L. 99-348, § 104(b). 1994-Subsec. AMENDMENTS (c)(2)(B). Pub. L. 103-337, § 1662(j)(5)(A), which directed substitution of "chapter 1223" for "chapter 67", could not be executed because the words "chapter 67" did not appear subsequent to amendment by Pub. L. 101-189, § 651(a)(2), (4). See 1989 Amendment note below. Subsec. (f)(2). Pub. L. 103-337, § 1662(j)(5)(B), which directed amendment of subsec. (f)(2) by substituting "Chapter 1223" for "Chapter 67" in heading and "section 12731" for "section 1331" in text, could not be executed because of previous repeal of subsec. (f) by Pub. L. 101-189, § 651(a)(2). See 1989 Amendment note below. 1989-Subsec. (b). Pub. L. 101-189, § 651(a)(1), (b)(2), substituted "person" for "member", "person's" for "member's", and "subsection (c) or (d)" for "subsection (c)". Subsec. (c). Pub. L. 101-189, § 651(a)(2), (4), added subsec. (c) and struck out former subsec. (c) which related to computation of high-three average. Subsec. (d). Pub. L. 101-189, § 651(a)(4), added subsec. (d). Former subsec. (d) redesignated (e). Subsec. (e). Pub. L. 101-189, § 651(a)(2), (3), redesignated subsec. (d) as (e) and struck out former subsec. (e) which related to special rules for short-term disability retirees. Subsecs. (f), (g). Pub. L. 101-189, § 651(a)(2), struck out subsec. (f) which related to special rule for members retiring with non-regular service, and subsec. (g) which defined the term "years of creditable service". EFFECTIVE DATE OF 1994 AMENDMENT Amendment by 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. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1401, 1402a. 3991, 3992, 6151, 6333, 6334, 8991, 8992, 12739 of this title; title 14 sections 357, 423, 424; title 33 section 8530; title 42 sections 211, 212. § 1408. Payment of retired or retainer pay in compliance with court orders (a) DEFINITIONS.-In this section: (1) The term “court" means Guam, (A) any court of competent jurisdiction of any State, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, the Virgin Islands, the Northern Mariana Islands, and the Trust Territory of the Pacific Islands; (B) any court of the United States (as defined in section 451 of title 28) having competent jurisdiction; and (C) any court of competent jurisdiction of a foreign country with which the United States has an agreement requiring the United States to honor any court order of such country. (2) The term "court order" means a final decree of divorce, dissolution, annulment, or legal separation issued by a court, or a court ordered, ratified, or approved property settlement incident to such a decree (including a final decree modifying the terms of a previously issued decree of divorce, dissolution, annulment, or legal separation, or a court or dered, ratified, or approved property settlement incident to such previously issued decree), which (A) is issued in accordance with the laws of the jurisdiction of that court; (B) provides for (i) payment of child support (as defined in section 462(b) of the Social Security Act (42 U.S.C. 662(b))); (ii) payment of alimony (as defined in section 462(c) of the Social Security Act (42 U.S.C. 662(c))); or (iii) division of property (including a division of community property); and (C) in the case of a division of property, specifically provides for the payment of an amount, expressed in dollars or as a percentage of disposable retired pay, from the disposable retired pay of a member to the spouse or former spouse of that member. (3) The term "final decree" means a decree from which no appeal may be taken or from which no appeal has been taken within the time allowed for taking such appeals under the laws applicable to such appeals, or a decree from which timely appeal has been taken and such appeal has been finally decided under the laws applicable to such appeals. (4) The term "disposable retired pay" means the total monthly retired pay to which a member is entitled less amounts which (A) are owed by that member to the United States for previous overpayments of retired pay and for recoupments required by law resulting from entitlement to retired pay; (B) are deducted from the retired pay of such member as a result of forfeitures of retired pay ordered by a court-martial or as a result of a waiver of retired pay required by law in order to receive compensation under title 5 or title 38; (C) in the case of a member entitled to retired pay under chapter 61 of this title, are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member's disability on the date when the member was retired (or the date on which the member's name was placed on the temporary disability retired list); or (D) are deducted because of an election under chapter 73 of this title to provide an annuity to a spouse or former spouse to whom payment of a portion of such member's retired pay is being made pursuant to a court order under this section. (5) The term "member" includes a former member entitled to retired pay under section 1331 of this title. (6) The term "spouse or former spouse" means the husband or wife, or former husband or wife, respectively, of a member who, on or before the date of a court order, was married to that member. (7) The term "retired pay" includes retainer pay. (b) EFFECTIVE SERVICE OF PROCESS.-For the purposes of this section (1) service of a court order is effective if (A) an appropriate agent of the Secretary concerned designated for receipt of service of court orders under regulations prescribed pursuant to subsection (i) or, if no agent has been so designated, the Secretary concerned, is personally served or is served by certified or registered mail, return receipt requested; (B) the court order is regular on its face; (C) the court order or other documents served with the court order identify the member concerned and include, if possible, the social security number of such member; and (D) the court order or other documents served with the court order certify that the rights of the member under the Soldiers' and Sailors' Civil Relief Act of 1940 (50 U.S.C. App. 501 et seq.) were observed; and (2) a court order is regular on its face if the order (A) is issued by a court of competent jurisdiction; (B) is legal in form; and (C) includes nothing on its face that provides reasonable notice that it is issued without authority of law. (c) AUTHORITY FOR COURT TO TREAT RETIRED PAY AS PROPERTY OF THE MEMBER AND Spouse.(1) Subject to the limitations of this section, a court may treat disposable retired pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court. A court may not treat retired pay as property in any proceeding to divide or partition any amount of retired pay of a member as the property of the member and the member's spouse or former spouse if a final decree of divorce, dissolution, annulment, or legal separation (including a court ordered, ratified, or approved property settlement incident to such decree) affecting the member and the member's spouse or former spouse (A) was issued before June 25, 1981, and (B) did not treat (or reserve jurisdiction to treat) any amount of retired pay of the member as property of the member and the member's spouse or former spouse. 'See References in Text note below. (2) Notwithstanding any other provision of law, this section does not create any right, title, or interest which can be sold, assigned, transferred, or otherwise disposed of (including by inheritance) by a spouse or former spouse. Payments by the Secretary concerned under subsection (d) to a spouse or former spouse with respect to a division of retired pay as the property of a member and the member's spouse under this subsection may not be treated as amounts received as retired pay for service in the uniformed services. (3) This section does not authorize any court to order a member to apply for retirement or retire at a particular time in order to effectuate any payment under this section. (4) A court may not treat the disposable retired pay of a member in the manner described in paragraph (1) unless the court has jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court. (d) PAYMENTS BY SECRETARY CONCERNED TO SPOUSE OR FORMER SPOUSE.-(1) After effective service on the Secretary concerned of a court order providing for the payment of child support or alimony or, with respect to a division of property, specifically providing for the payment of an amount of the disposable retired pay from a member to the spouse or a former spouse of the member, the Secretary shall make payments (subject to the limitations of this section) from the disposable retired pay of the member to the spouse or former spouse in an amount sufficient to satisfy the amount of child support and alimony set forth in the court order and, with respect to a division of property, in the amount of disposable retired pay specifically provided for in the court order. In the case of a member entitled to receive retired pay on the date of the effective service of the court order, such payments shall begin not later than 90 days after the date of effective service. In the case of a member not entitled to receive retired pay on the date of the effective service of the court order, such payments shall begin not later than 90 days after the date on which the member first becomes entitled to receive retired pay. (2) If the spouse or former spouse to whom payments are to be made under this section was not married to the member for a period of 10 years or more during which the member performed at least 10 years of service creditable in determining the member's eligibility for retired pay, payments may not be made under this section to the extent that they include an amount resulting from the treatment by the court under subsection (c) of disposable retired pay of the member as property of the member or property of the member and his spouse. (3) Payments under this section shall not be made more frequently than once each month, and the Secretary concerned shall not be required to vary normal pay and disbursement cycles for retired pay in order to comply with a court order. |