§1452. Reduction in retired pay

(a) Spouse and Former Spouse Annuities.-

(1) Required reduction in retired pay.-Except as provided in subsection (b), the retired pay of a participant in the Plan who is providing spouse coverage (as described in paragraph (5)) shall be reduced as follows:

(A) Standard annuity.-If the annuity coverage being provided is a standard annuity, the reduction shall be as follows:

(i) Disability and nonregular service retirees.-In the case of a person who is entitled to retired pay under chapter 61 or chapter 67 ¹ of this title, the reduction shall be in whichever of the alternative reduction amounts is more favorable to that person.

(ii) Members as of enactment of flat-rate reduction.-In the case of a person who first became a member of a uniformed service before March 1, 1990, the reduction shall be in whichever of the alternative reduction amounts is more favorable to that person.

(iii) New entrants after enactment of flat-rate reduction.-In the case of a person who first becomes a member of a uniformed service on or after March 1, 1990, and who is entitled to retired pay under a provision of law other than chapter 61 or chapter 67 ¹ of this title, the reduction shall be in an amount equal to 6½ percent of the base amount.

(iv) Alternative reduction amounts.-For purposes of clauses (i) and (ii), the alternative reduction amounts are the following:

(I) An amount equal to 6½ percent of the base amount.

(II) An amount equal to 2½ percent of the first $337 (as adjusted after November 1, 1989, under paragraph (4)) of the base amount plus 10 percent of the remainder of the base amount.

(B) Reserve-component annuity.-If the annuity coverage being provided is a reserve-component annuity, the reduction shall be in whichever of the following amounts is more favorable to that person:

(i) An amount equal to 6½ percent of the base amount plus an amount determined in accordance with regulations prescribed by the Secretary of Defense as a premium for the additional coverage provided through reserve-component annuity coverage under the Plan.

(ii) An amount equal to 2½ percent of the first $337 (as adjusted after November 1, 1989, under paragraph (4)) of the base amount plus 10 percent of the remainder of the base amount plus an amount determined in accordance with regulations prescribed by the Secretary of Defense as a premium for the additional coverage provided through reserve-component annuity coverage under the Plan.

(2) If there is a dependent child as well as a spouse or former spouse, the amount prescribed under paragraph (1) shall be increased by an amount prescribed under regulations of the Secretary of Defense.

(3) The reduction in retired pay prescribed by paragraph (1) shall not be applicable during any month in which there is no eligible spouse or former spouse beneficiary.

(4)(A) Whenever there is an increase in the rates of basic pay of members of the uniformed services effective on or after October 1, 1985, the amounts under paragraph (1) with respect to which the percentage factor of 2½ is applied shall be increased by the overall percentage of such increase in the rates of basic pay. The increase under the preceding sentence shall apply only with respect to persons whose retired pay is computed based on the rates of basic pay in effect on or after the date of such increase in rates of basic pay.

(B) In addition to the increase under paragraph (4)(A), the amounts under paragraph (1) with respect to which the percentage factor of 2½ is applied shall be further increased at the same time and by the same percentage as an increase in retired pay under section 1401a of this title effective on or after October 1, 1985. Such increase under the preceding sentence shall apply only with respect to persons who initially participate in the Plan on a date which is after both the effective date of such increase under section 1401a and the effective date of the rates of basic pay upon which their retired pay is computed.

(5) For the purposes of paragraph (1), a participant in the Plan who is providing spouse coverage is a participant who-

(A) has (i) a spouse or former spouse, or (ii) a spouse or former spouse and a dependent child; and

(B) has not elected to provide an annuity to a person designated by him under section 1448(b)(1) of this title or, having made such an election, has changed his election in favor of his spouse under section 1450(f) of this title.

(b) Child-Only Annuities.-

(1) Required reduction in retired pay.-The retired pay of a participant in the Plan who is providing child-only coverage (as described in paragraph (4)) shall be reduced by an amount prescribed under regulations by the Secretary of Defense.

(2) No reduction when no child.-There shall be no reduction in retired pay under paragraph (1) for any month during which the participant has no eligible dependent child.

(3) Special rule for certain rcsbp participants.-In the case of a participant in the Plan who is participating in the Plan under an election under section 1448(a)(2)(B) of this title and who provided child-only coverage during a period before the participant becomes entitled to receive retired pay, the retired pay of the participant shall be reduced by an amount prescribed under regulations by the Secretary of Defense to reflect the coverage provided under the Plan during the period before the participant became entitled to receive retired pay. A reduction under this paragraph is in addition to any reduction under paragraph (1) and is made without regard to whether there is an eligible dependent child during a month for which the reduction is made.

(4) Child-only coverage defined.-For the purposes of this subsection, a participant in the Plan who is providing child-only coverage is a participant who has a dependent child and who-

(A) does not have an eligible spouse or former spouse; or

(B) has a spouse or former spouse but has elected to provide an annuity for dependent children only.

(c) The retired pay of a person who has elected to provide an annuity to a person designated by him under section 1450(a)(4) of this title shall be reduced-

(1) in the case of a person providing a standard annuity, by 10 percent plus 5 percent for each full five years the individual designated is younger than that person; or

(2) in the case of a person providing a reserve-component annuity, by an amount prescribed under regulations of the Secretary of Defense.

However, the total reduction under clause (1) may not exceed 40 percent. The reduction in retired pay prescribed by this subsection shall continue during the lifetime of the person designated under section 1450(a)(4) of this title or until the person receiving retired pay changes his election under section 1450(f) of this title. Computation of a member's retired pay for purposes of this subsection shall be made without regard to any reduction under section 1409(b)(2) of this title.

(d) If a person who has elected to participate in the Plan has been awarded retired pay and is not entitled to that pay for any period, he must deposit in the Treasury the amount that would otherwise have been deducted from his pay for that period, except when he is called or ordered to active duty for a period of more than 30 days.

(e) When a person who has elected to participate in the Plan waives his retired pay for the purposes of subchapter III of chapter 83 of title 5, he shall not be required to make the deposit otherwise required by subsection (d) as long as that waiver is in effect unless, in accordance with section 8339(i) of title 5, he has notified the Office of Personnel Management that he does not desire any spouse surviving him to receive an annuity under section 8341(b) of title 5.

(f) Except as provided in section 1450(e) of this title, a person is not entitled to any refunds of amounts deducted from retired pay under this section unless the amounts were deducted through administrative error.

(g)(1) Notwithstanding any other provision of this subchapter but subject to paragraphs (2) and (3), any person who has elected to participate in the Plan and who is suffering from a service-connected disability rated by the Department of Veterans Affairs as totally disabling and has suffered from such disability while so rated for a continuous period of 10 or more years (or, if so rated for a lesser period, has suffered from such disability while so rated for a continuous period of not less than 5 years from the date of such person's last discharge or release from active duty) may discontinue participation in the Plan by submitting to the Secretary concerned a request to discontinue participation in the Plan. Any such person's participation in the Plan shall be discontinued effective on the first day of the first month following the month in which a request under this paragraph is received by the Secretary concerned. Effective on such date, the Secretary concerned shall discontinue the reduction being made in such person's retired pay on account of participation in the Plan or, in the case of a person who has been required to make deposits in the Treasury on account of participation in the Plan, such person may discontinue making such deposits effective on such date. Any request under this paragraph to discontinue participation in the Plan shall be in such form and shall contain such information as the Secretary concerned may require by regulation.

(2) A person described in paragraph (1) may not discontinue participation in the Plan under such paragraph without the written consent of the beneficiary or beneficiaries of such person under the Plan.

(3) The Secretary concerned shall furnish promptly to each person who files a request under paragraph (1) to discontinue participation in the Plan a written statement of the advantages of participating in the Plan and the possible disadvantages of discontinuing participation. A person may withdraw a request made under paragraph (1) if it is withdrawn within 30 days after having been submitted to the Secretary concerned.

(4) Upon the death of any person described in paragraph (1) who has discontinued participation in the Plan in accordance with this subsection, any amounts deducted from the retired pay of the deceased under this section shall be refunded to the widow or widower.

(5) Any person described in paragraph (1) who had discontinued participation in the Plan may again elect to participate in the Plan if (A) at any time after having discontinued participation in the Plan the Department of Veterans Affairs reduces such person's service-connected disability rating to less than total, and (B) such person applies to the Secretary concerned, within such period of time after the reduction in such person's service-connected disability rating has been made as the Secretary concerned may prescribe, to again participate in the Plan and includes in such application such information as the Secretary concerned may require. Such person's participation in the Plan under this paragraph is effective beginning on the first day of the month after the month in which the Secretary concerned receives the application for resumption of participation in the Plan, and the Secretary concerned shall begin making reductions in such person's retired pay, or require such person to make deposits in the Treasury under subsection (d), as appropriate, effective on such day.

(h) Whenever retired pay is increased under section 1401a of this title (or any other provision of law), the amount of the reduction to be made under subsection (a) or (b) in the retired pay of any person shall be increased at the same time and by the same percentage as such retired pay is so increased.

(i) When the retired pay of a person who first became a member of a uniformed service on or after August 1, 1986, and who is a participant in the Plan is recomputed under section 1410 of this title upon the person's becoming 62 years of age, the amount of the reduction in such retired pay under this section shall be recomputed (effective on the effective date of the recomputation of such retired pay under section 1410 of this title) so as to be the amount equal to the amount of such reduction that would be in effect on that date if increases in such retired pay under section 1401a(b) of this title, and increases in reductions in such retired pay under subsection (h), had been computed as provided in paragraph (2) of section 1401a(b) of this title (rather than under paragraph (3) of that section).

(Added Pub. L. 92–425, §1(3), Sept. 21, 1972, 86 Stat. 710 ; amended Pub. L. 94–496, §1(4), (5), Oct. 14, 1976, 90 Stat. 2375 ; Pub. L. 95–397, title II, §205, Sept. 30, 1978, 92 Stat. 847 ; Pub. L. 96–402, §4, Oct. 9, 1980, 94 Stat. 1706 ; Pub. L. 97–22, §11(a)(3), (5), July 10, 1981, 95 Stat. 137 ; Pub. L. 99–145, title VII, §§714(a), 719(7), (8), 723(b)(2), Nov. 8, 1985, 99 Stat. 672 , 675-677; Pub. L. 99–348, title III, §301(a)(3), July 1, 1986, 100 Stat. 702 ; Pub. L. 99–661, div. A, title XIII, §1343(a)(8)(E), Nov. 14, 1986, 100 Stat. 3992 ; Pub. L. 100–224, §3(b), Dec. 30, 1987, 101 Stat. 1537 ; Pub. L. 101–189, div. A, title XIV, §§1402(a)–(c), 1407(a)(9), title XVI, §1621(a)(1), Nov. 29, 1989, 103 Stat. 1577 , 1578, 1589, 1602; Pub. L. 101–510, div. A, title XIV, §1484(l)(4)(C)(ii), Nov. 5, 1990, 104 Stat. 1720 ; Pub. L. 103–337, div. A, title VI, §637(a), Oct. 5, 1994, 108 Stat. 2790 .)

References in Text

Chapter 67 of this title, referred to in subsec. (a)(1)(A)(i), (iii), 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.

Amendments

1994-Subsec. (b). Pub. L. 103–337 amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: "The retired pay of a person to whom section 1448 of this title applies who has a dependent child but does not have an eligible spouse or former spouse, or who has a spouse or former spouse but has elected to provide an annuity for dependent children only, shall, as long as he has an eligible dependent child, be reduced by an amount prescribed under regulations of the Secretary of Defense."

1990-Subsec. (h). Pub. L. 101–510 made clarifying amendment to directory language of Pub. L. 101–189, §1407(a)(9), see 1989 Amendment note below.

1989-Subsec. (a). Pub. L. 101–189, §1402(a), inserted heading.

Subsec. (a)(1). Pub. L. 101–189, §1402(a), added par. (1) and struck out former par. (1) which read as follows: "Except as provided in subsection (b), the retired pay of a person to whom section 1448 of this title applies who has a spouse or former spouse, or who has a spouse or former spouse and a dependent child, and who has not elected to provide an annuity to a person designated by him under section 1450(a)(4) of this title, or who had elected to provide such an annuity to such a person but has changed his election in favor of his spouse under section 1450(f) of this title, shall be reduced each month-

"(A) by an amount equal to 2½ percent of the first $300 (as adjusted from time to time under paragraph (4)) of the base amount plus 10 percent of the remainder of the base amount, if the person is providing a standard annuity; or

"(B) by an amount prescribed under regulations of the Secretary of Defense, if the person is providing a reserve-component annuity."

Subsec. (a)(4)(A), (B). Pub. L. 101–189, §1402(c), substituted "amounts under paragraph (1)" for "amount under paragraph (1)(A)".

Subsec. (a)(5). Pub. L. 101–189, §1402(b), added par. (5).

Subsec. (g)(1), (5). Pub. L. 101–189, §1621(a)(1), substituted "Department of Veterans Affairs" for "Veterans' Administration".

Subsec. (h). Pub. L. 101–189, §1407(a)(9), as amended by Pub. L. 101–510, inserted "(or any other provision of law)" after "Whenever retired pay is increased under section 1401a of this title" and substituted "such retired pay is so increased" for "such retired pay is increased under section 1401a of this title".

1987-Subsec. (i). Pub. L. 100–224 added subsec. (i).

1986-Subsec. (c). Pub. L. 99–348 inserted provision that computation of a member's retired pay for purposes of this subsection be made without regard to any reduction under section 1409(b)(2) of this title.

Subsec. (h). Pub. L. 99–661 struck out "and retainer" after "Whenever retired".

1985-Pub. L. 99–145, §719(8)(B), struck out "or retainer" after "retired" in section catchline.

Subsec. (a)(1). Pub. L. 99–145, §714(a)(1), (2), designated existing first sentence of subsec. (a) as par. (1); redesignated cl. (1) as (A), inserting "(as adjusted from time to time under paragraph (4))" after "$300" and substituting "a standard annuity" for "an annuity by virtue of eligibility under section 1448(a)(1)(A) of this title"; and redesignated cl. (2) as (B), substituting "a reserve-component annuity" for "an annuity by virtue of eligibility under section 1448(a)(1)(B)".

Pub. L. 99–145, §719(8)(A), substituted "retired pay" for "retired or retainer pay".

Pub. L. 99–145, §723(b)(2)(1), inserted "or former spouse" after first two references to "spouse".

Subsec. (a)(2). Pub. L. 99–145, §714(a)(3), designated existing second sentence of subsec. (a) as par. (2), and substituted "If there is a dependent child as well as a spouse or former spouse, the amount prescribed under paragraph (1)" for "As long as there is an eligible spouse and a dependent child, that amount".

Subsec. (a)(3). Pub. L. 99–145, §714(a)(4), designated existing third sentence of subsec. (a) as par. (3), substituted "paragraph (1)" for "the first sentence of this subsection", and inserted "or former spouse" after "eligible spouse".

Pub. L. 99–145, §719(8)(A), substituted "retired pay" for "retired or retainer pay".

Subsec. (a)(4). Pub. L. 99–145, §714(a)(5), added par. (4).

Subsec. (b). Pub. L. 99–145, §723(b)(2)(2), inserted "or former spouse" after "spouse" in two places.

Pub. L. 99–145, §719(8)(A), substituted "retired pay" for "retired or retainer pay".

Subsec. (c). Pub. L. 99–145, §719(7), (8)(A), substituted "retired pay" for "retired or retainer pay" in three places, and substituted "a standard annuity" for "the annuity by virtue of eligibility under section 1448(a)(1)(A) of this title" in cl. (1), "a reserve-component annuity" for "the annuity by virtue of eligibility under section 1448(a)(1)(B) of this title" in cl. (2), and "this subsection" for "this section" in third sentence.

Subsecs. (d) to (h). Pub. L. 99–145, §719(8)(A), substituted "retired pay" for "retired or retainer pay" wherever appearing.

1981-Subsec. (e). Pub. L. 97–22, §11(a)(3), substituted "Office of Personnel Management" for "Civil Service Commission".

Subsec. (g)(4). Pub. L. 97–22, §11(a)(5), substituted "this section" for "section 1452 of this title".

1980-Subsecs. (g), (h). Pub. L. 96–402, added subsecs. (g) and (h).

1978-Subsec. (a). Pub. L. 95–397, §205(a), substituted pars. (1) and (2) for "by an amount equal to 2½ percent of the first $300 of the base amount plus 10 percent of the remainder of the base amount" after "shall be reduced each month".

Subsec. (c). Pub. L. 95–397, §205(b), substituted pars. (1) and (2) for "by 10 percent plus 5 percent for each full 5 years the individual designated is younger than that person. However, the total reduction may not exceed 40 percent. The reduction in retired or retainer pay prescribed by this subsection shall continue during the lifetime of the person designated under section 1450(a)(4) of this title or until the person receiving retired or retainer pay changes his election under section 1450(f)", and inserted provision following par. (2) that the total reduction under clause (1) may not exceed 40 percent, and that the reduction in retired or retainer pay shall continue during the lifetime of the person designated under section 1450(a)(4) of this title or until the person changes his election under section 1450(f) of this title.

1976-Subsec. (a). Pub. L. 94–496, §1(4), (5)(A), substituted "Except as provided in subsection (b), the retired or retainer pay" for "The retired or retainer pay", "(a)(4)" for "(a)(3)", and inserted provision prohibiting a reduction in retired or retainer pay during any month in which there is no eligible spouse beneficiary.

Subsec. (b). Pub. L. 94–496, §1(5)(B), inserted "or who has a spouse but has elected to provide an annuity for dependent children only," after "spouse,".

Subsec. (c). Pub. L. 94–496, §1(4), (5)(C), substituted "(a)(4)" for "(a)(3)", and inserted provision directing that reduction in retired or retainer pay continue during the lifetime of a beneficiary designated under section 1450(a)(4) of this title or until such person change his election pursuant to section 1450(f) of this title.

Effective Date of 1994 Amendment

Section 637(b) of Pub. L. 103–337 provided that:

"(1) Except as provided in paragraph (2), the amendment made by subsection (a) [amending this section] applies to any election for child-only coverage under a reserve-component annuity under the Survivor Benefit Plan, whether made before, on, or after the date of the enactment of this Act [Oct. 5, 1994].

"(2) Paragraph (1) does not apply in a case of an election referred to in that paragraph that was made before the date of the enactment of this Act if the participant was informed, in writing, before the date of the enactment of this Act that no reduction in the participant's retired pay for child-only coverage would be made during a period when there was no eligible dependent child."

Effective Date of 1990 Amendment

Section 1484(l)(4)(C) of Pub. L. 101–510 provided that the amendment made by that section is effective Nov. 29, 1989.

Effective Date of 1985 Amendment

Section 714(b) of title VII of Pub. L. 99–145 provided that: "The amendments made by clause (5) of subsection (a) [amending this section] shall apply only with respect to persons who first participate in the Plan on or after the effective date of this title [see note below]."

Amendment by title VII of Pub. L. 99–145 effective Mar. 1, 1986, except as otherwise provided, 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 1980 Amendment

Amendment by Pub. L. 96–402 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.

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. 11, 1972, see section 3 of Pub. L. 94–496, set out as a note under section 1447 of this title.

Recomputation of SBP Premium for Current Participants

Section 1402(d) of Pub. L. 101–189 provided that:

"(1) Recomputation.-The Secretary concerned shall recompute the SBP premium of persons described in paragraph (2). Any such recomputation shall take effect on March 1, 1990.

"(2) Persons covered.-A person referred to in paragraph (1) as described in this paragraph is a person who on March 1, 1990-

"(A) is entitled to retired pay;

"(B) is providing spouse coverage (as described in paragraph (5) of section 1452 of title 10, United States Code, as added by subsection (b)); and

"(C) is subject to an SBP premium in excess of 6½ percent of the base amount of that person under the Survivor Benefit Plan.

"(3) Amount of recomputed premium.-The amount of an SBP premium recomputed under this subsection shall be 6½ percent of the base amount under the Survivor Benefit Plan of the person whose premium is recomputed.

"(4) SBP premium defined.-For purposes of this subsection, the term 'SBP premium' means a reduction in retired pay under section 1452 of title 10, United States Code."

Section Referred to in Other Sections

This section is referred to in sections 1448, 1450, 1451, 1455, 1460, 1460a of this title; title 26 section 122.

¹ See References in Text note below.