§853h. Separation pay of officers

(a) Authorization of payment

An officer who is separated under section 853g of this title and who has completed more than three years of continuous active service immediately before that separation is entitled to separation pay computed under subsection (b) of this section unless the Secretary of Commerce determines that the conditions under which the officer is separated do not warrant payment of that pay.

(b) Amount of pay; five or more years; three to five years

(1) In the case of an officer who has completed five or more years of continuous active service immediately before that separation, the amount of separation pay which may be paid to the officer under this section is 10 percent of the product of (A) the years of active service creditable to the officer, and (B) twelve times the monthly basic pay to which the officer was entitled at the time of separation.

(2) In the case of an officer who has completed three but fewer than five years of continuous active service immediately before that separation, the amount of separation pay which may be paid to the officer under this section is one-half of the amount computed under paragraph (1).

(c) Determination of officer's years of service

In determining an officer's years of active service for the purpose of computing separation pay under this section, each full month of service that is in addition to the number of full years of service creditable to the officer is counted as one-twelfth of a year and any remaining fractional part of a month is disregarded.

(d) Previously received pay excluded from determination of years of creditable service

A period for which an officer has previously received separation pay, severance pay, or readjustment pay under any other provision of law based on service in a uniformed service may not be included in determining the years of creditable service that may be counted in computing the separation pay of the officer under this section.

(e) Deduction from retired pay of amount of prior payments; deduction from disability compensation of amount of separation pay; exception

(1) An officer who has received separation pay under this section, or separation pay, severance pay, or readjustment pay under any other provision of law, based on service in a uniformed service and who later qualifies for retired pay under this Act shall have deducted from each payment of retired pay so much of that pay as is based on the service for which the officer received that separation pay, severance pay, or readjustment pay until the total amount deducted is equal to the total amount of separation pay, severance pay, and readjustment pay received.

(2) An officer who has received separation pay under this section may not be deprived, by reason of receipt of that pay, of any disability compensation to which the officer is entitled under the laws administered by the Secretary of Veterans Affairs, but there shall be deducted from that disability compensation an amount equal to the total amount of separation pay received, less the amount of Federal income tax withheld from such pay (such withholding being at the flat withholding rate for Federal income tax withholding, as in effect pursuant to regulations prescribed under chapter 24 of title 26). Notwithstanding the preceding sentence, no deduction may be made from disability compensation for the amount of separation pay received because of an earlier discharge, separation, or release from a period of active duty if the disability which is the basis for that disability compensation was incurred or aggravated during a later period of active duty.

(June 3, 1948, ch. 390, §9, 62 Stat. 299 ; Pub. L. 87–649, §9(b)(1), Sept. 7, 1962, 76 Stat. 495 ; Pub. L. 98–498, title III, §320(a)(1), Oct. 19, 1984, 98 Stat. 2307 ; Pub. L. 102–54, §13(m)(1), June 13, 1991, 105 Stat. 277 ; Pub. L. 105–85, div. A, title VI, §652(a), (b), Nov. 18, 1997, 111 Stat. 1803 , 1804.)

References in Text

This Act, referred to in subsec. (e)(1), means act June 3, 1948, ch. 390, 62 Stat. 297 , as amended, known as the "Coast and Geodetic Survey Commissioned Officers' Act of 1948", which enacted section 853a et seq. of this title, amended sections 852a, 852b, 854a, and 864d of this title, and repealed sections 851a, 854b, 854c, 864b, and 864c of this title, and enacted provisions set out as a note under section 853a of this title. For complete classification of this Act to the Code, see Short Title note set out under section 853a of this title and Tables.

Amendments

1997-Subsec. (b)(1). Pub. L. 105–85, §652(a)(1), struck out ", or $30,000, whichever is less" before period at end.

Subsec. (b)(2). Pub. L. 105–85, §652(a)(2), struck out ", but in no event more than $15,000" before period at end.

Subsec. (d). Pub. L. 105–85, §652(a)(3), designated par. (1) as subsec. (d) and struck out par. (2) which read as follows: "The total amount that an officer may receive in separation pay under this section and separation pay, severance pay, and readjustment pay under any other provision of law based on service in a uniformed service may not exceed $30,000."

Subsec. (e)(2). Pub. L. 105–85, §652(b), inserted before period at end of first sentence ", less the amount of Federal income tax withheld from such pay (such withholding being at the flat withholding rate for Federal income tax withholding, as in effect pursuant to regulations prescribed under chapter 24 of title 26)".

1991-Subsec. (e)(2). Pub. L. 102–54 substituted "Secretary of Veterans Affairs" for "Veterans' Administration".

1984-Subsec. (a). Pub. L. 98–498 designated existing provisions as subsec. (a) and substituted "An officer" for "Any officer in the grade of lieutenant or lieutenant (junior grade)" and further substituted provisions setting forth the method of computation for former provisions which also set forth the basis for computation.

Subsecs. (b) to (e). Pub. L. 98–498 added subsecs. (b) to (e).

1962-Pub. L. 87–649 substituted "basic pay" for "active-duty pay with longevity credit" in two places.

Effective Date of 1997 Amendment

Section 652(c) of Pub. L. 105–85 provided that: "The amendments made by this section [amending this section] shall take effect as of October 1, 1997, and shall apply to payments of separation pay that are made after September 30, 1997."

Effective Date of 1962 Amendment

Amendment by Pub. L. 87–649 effective Nov. 1, 1962, see section 15 of Pub. L. 87–649, set out as an Effective Date note preceding section 101 of Title 37, Pay and Allowances of the Uniformed Services.