
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 10USC1431]

 
                         TITLE 10--ARMED FORCES
 
                    Subtitle A--General Military Law
 
                           PART II--PERSONNEL
 
         CHAPTER 73--ANNUITIES BASED ON RETIRED OR RETAINER PAY
 
        SUBCHAPTER I--RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN
 
Sec. 1431. Election of annuity: members of armed forces

    (a) This section applies to all members of the armed forces except--
        (1) members whose names are on a retired list other than a list 
    maintained under section 12774(a) of this title;
        (2) cadets at the United States Military Academy, the United 
    States Air Force Academy, or the Coast Guard Academy; and
        (3) midshipmen.

    (b) To provide an annuity under section 1434 of this title, a person 
covered by subsection (a) may elect to receive a reduced amount of the 
retired pay or retainer pay to which he may become entitled as a result 
of service in his armed force. Except as otherwise provided in this 
section, unless it is made before he completes nineteen years of service 
for which he is entitled to credit in the computation of his basic pay, 
the election must be made at least two years before the first day for 
which retired pay or retainer pay is granted. However, if, because of 
military operations, a member is assigned to an isolated station or is 
missing, interned in a neutral country, captured by a hostile force, or 
beleaguered or besieged, and for that reason is unable to make an 
election before completing nineteen years of that service, he may make 
the election, to become effective immediately, within one year after he 
ceases to be assigned to that station or returns to the jurisdiction of 
his armed force, as the case may be. A member to whom retired pay or 
retainer pay is granted retroactively, and who is otherwise eligible to 
make an election, may make the election within ninety days after 
receiving notice that such pay has been granted to him. An election made 
after August 13, 1968, is not effective if--
        (1) the elector dies during the first thirty-day period he is 
    entitled to retired pay as a result of a physical condition which 
    led to his being granted retired pay under chapter 61 of title 10 
    with a disability of 100 per centum under the standard schedule of 
    rating disabilities in use by the Department of Veterans Affairs at 
    the time of the determination of the per centum of his disability;
        (2) the disability was not the result of injury or disease 
    received in line of duty as a direct result of armed conflict; and
        (3) his surviving spouse or children are entitled to dependency 
    and indemnity compensation under chapter 13 of title 38 based upon 
    his death.

    (c) An election may be changed or revoked by the elector before the 
first day for which retired or retainer pay is granted. Unless it is 
made on the basis of restored mental competency under section 1433 of 
this title, or unless it is made before the elector completes nineteen 
years of service for which he is entitled to credit in the computation 
of his basic pay (in which case only the latest change or revocation 
shall be effective), the change or revocation is not effective if it is 
made less than two years before the first day for which retired or 
retainer pay is granted. The elector may, however, before the first day 
for which retired or retainer pay is granted, change or revoke his 
election (provided the change does not increase the amount of the 
annuity elected) to reflect a change in the marital or dependency status 
of the member or his family that is caused by death, divorce, annulment, 
remarriage, or acquisition of a child, if such change or revocation of 
election is made within two years of such change in marital or 
dependency status.
    (d) If an election made under this section is found to be void for 
any reason except fraud or willful intent of the member making the 
election, he may make a corrected election at any time within 90 days 
after he is notified in writing that the election is void. A corrected 
election made under this subsection is effective as of the date of the 
voided election it replaces.

(Aug. 10, 1956, ch. 1041, 70A Stat. 108; Pub. L. 85-861, Sec. 33(a)(11), 
Sept. 2, 1958, 72 Stat. 1565; Pub. L. 87-381, Sec. 2, Oct. 4, 1961, 75 
Stat. 810; Pub. L. 90-485, Sec. 1(1), (2), Aug. 13, 1968, 82 Stat. 751; 
Pub. L. 96-513, title V, Sec. 511(55), Dec. 12, 1980, 94 Stat. 2925; 
Pub. L. 99-145, title XIII, Sec. 1301(a)(2), Nov. 8, 1985, 99 Stat. 735; 
Pub. L. 101-189, div. A, title XVI, Sec. 1621(a)(1), Nov. 29, 1989, 103 
Stat. 1602; Pub. L. 104-106, div. A, title XV, Sec. 1501(c)(17), Feb. 
10, 1996, 110 Stat. 499.)

                                          Historical and Revision Notes
                                                    1956 Act
-------------------------------------------------------------------------------
---------------------------------
            Revised section                      Source (U.S. Code)            
   Source (Statutes at Large)
-------------------------------------------------------------------------------
---------------------------------
1431(a)...............................  37:371 (less (e) and (f)).           Au
g. 8, 1953, ch. 393, Secs.  2
                                        37:372(a) (2d sentence).              (
less (e) and (f)), 3(a) (less 5th
1431(b)...............................  37:372(a) (less 2d, 5th, 6th, and     s
entence), (b), 67 Stat. 501, 502;
                                         last sentences).                     A
pr. 29, 1954, ch. 176, 68 Stat.
                                        37:372(b) (less last sentence).       6
4.
1431(c)...............................  37:372(a) (6th and last sentences).
1431(d)...............................  37:372(b) (last sentence).
-------------------------------------------------------------------------------
---------------------------------

    In subsection (a), the language of the revised subsection is 
substituted for 37:371(b) and (c), to make clear that the section was 
intended to include enlisted members and members of the Army, or the Air 
Force, without component. The words ``the United States Air Force 
Academy'' are inserted to reflect its establishment by the Air Force 
Academy Act (68 Stat. 47). The words ``retirement pay'' are omitted as 
covered by the words ``retired pay''. The words ``equivalent pay'' are 
omitted as surplusage. 37:371(c) (less 1st 21 words) is omitted as 
executed, since the persons described must have completed 18 years of 
the required service on the effective date of the source statute and 
exercised the option by 180 days after that date. 37:371(a) is omitted, 
since the revised chapter applies only to the armed forces. 37:371(d) is 
omitted, since the words ``person entitled to retired or retainer pay'', 
or their equivalent, are used throughout the revised chapter. 37:371(g) 
is omitted, since the words ``retired or retainer pay'' are used 
throughout the revised chapter. 37:371(h) is omitted as unnecessary in 
view of the definitions contained in section 101(5), (7), and (8). 
37:372(a) (2d sentence) is omitted as surplusage.
    In subsection (b), 37:372(a) (last 28 words of 1st sentence) is 
omitted as covered by section 1434 of this title. The words ``or naval'' 
are omitted as covered by the word ``military''. The last sentence is 
substituted for 37:372(a) (4th sentence, less 61st through 81st words). 
37:372(a) (3d sentence, and 61st through 85th words of 4th sentence) and 
37:372(b) (less last sentence) are omitted as executed.
    In subsection (c), the words ``is retired or becomes entitled to 
retired or retainer pay'' are substituted for the words ``his 
retirement'' and ``he retires'' since, under sections 1331-1333 of this 
title, a person may be granted retired pay without having been retired. 
The last eight words are substituted for 37:372(a) (7th through 17th 
words of last sentence). 37:372(a) (last sentence, less 1st 17 words) is 
omitted as surplusage.

                            1958 Act

    The change makes clear that section 1431 applies to a person who, 
because of military operations, is missing under any circumstances.


                               Amendments

    1996--Subsec. (a)(1). Pub. L. 104-106 substituted ``section 
12774(a)'' for ``section 1376(a)''.
    1989--Subsec. (b)(1). Pub. L. 101-189 substituted ``Department of 
Veterans Affairs'' for ``Veterans' Administration''.
    1985--Subsec. (b)(3). Pub. L. 99-145 substituted ``surviving 
spouse'' for ``widow''.
    1980--Subsec. (b). Pub. L. 96-513 substituted ``August 13, 1968,'' 
for ``the date of enactment of this amendment''.
    1968--Subsec. (b). Pub. L. 90-485, Sec. 1(1), increased from 
eighteen to nineteen the number of years of service the annuitant must 
complete, decreased from three to two years before eligibility the time 
required to make an election, and inserted provisions that an election 
made after Aug. 13, 1968 will not be effective if the conditions of cls. 
(1) to (3) are satisfied.
    Subsec. (c). Pub. L. 90-485, Sec. 1(2), decreased from three to two 
years before the first day for which retired or retainer pay is granted 
the time required to change or revoke an election when the ground of 
restored mental competency is not present, inserted provision that any 
change or revocation in an election after the completion of 19 years of 
service is effective if made before the first day for which retired or 
retainer pay is granted, and provided for a change or revocation in an 
election before the first day for which retired or retainer pay is 
granted when there is a change in marital or dependency status, if such 
change or revocation of election is made within two years of such change 
in marital or dependency status.
    1961--Subsec. (a). Pub. L. 87-381 substituted ``other than a list 
maintained under section 1376(a) of this title'' for ``or who are in the 
Retired Reserve'', redesignated pars. (4) and (5) as (2) and (3), and 
struck out former pars. (2) and (3) which related to reserves on an 
inactive status list, and members assigned to the inactive National 
Guard, respectively.
    Subsec. (b). Pub. L. 87-381 required that unless the election is 
made before 18 years of service, it must be made at least three years 
before the first day for which retired or retainer pay is granted, 
inserted assignment to an isolated station among the reasons permitting 
a delayed election, changed the period within which to make such delayed 
election from within six months after return to the jurisdiction of his 
armed force, to within one year after he ceases to be assigned to the 
isolated station or his return to the jurisdiction of his armed force, 
and if the member is retroactively granted retired or retainer pay, and 
is eligible for an election, he may elect within 90 days after notice of 
such grant.
    Subsec. (c). Pub. L. 87-381 substituted ``the first day for which 
retired or retainer pay is granted'' for ``his retirement or before he 
becomes entitled to retired or retainer pay'', the requirement that the 
change or revocation is not effective if made less than 3 years before 
the first day for which retired or retainer pay is granted, for a 
required period of five years after change or revocation before 
retirement or becoming entitled to retired or retainer pay, and deleted 
``If he revokes the election, he may not change or withdraw the 
revocation.''
    Subsec. (d). Pub. L. 87-381 substituted permission to make a 
corrected election within 90 days after notice that the election is void 
for any reason, except fraud or willful intent of the member making 
election, with such election effective as of the date of the election it 
replaces, for provisions which denied the ability to revoke any election 
by a person retired or granted retired or retainer pay before Nov. 1, 
1953, and who elected within 180 days after that date to receive reduced 
pay to provide for an annuity.
    1958--Subsec. (b). Pub. L. 85-861 struck out ``in action'' after 
``he is missing''.


                    Effective Date of 1996 Amendment

    Section 1501(c) of Pub. L. 104-106 provided that the amendment made 
by that section is effective as of Dec. 1, 1994, and as if included as 
an amendment made by the Reserve Officer Personnel Management Act, title 
XVI of Pub. L. 103-337, as originally enacted.


                    Effective Date of 1980 Amendment

    Amendment by Pub. L. 96-513 effective Dec. 12, 1980, see section 
701(b)(3) of Pub. L. 96-513, set out as a note under section 101 of this 
title.


                    Effective Date of 1968 Amendment

    Section 6 of Pub. L. 90-485 provided in part that: ``Clause (1) and 
clause (6) of section 1 [amending this section and section 1436 of this 
title], and sections 2, 3, and 4 of this Act [amending section 1331 [now 
12731] of this title and enacting material set out as notes under this 
section] are effective on the date of enactment [Aug. 13, 1968]. 
Remaining provisions of this Act [amending this section and sections 
1434, 1435, 1437, and 1446 of this title, and enacting provisions set 
out as a note under this section] are effective on the first day of the 
third calendar month following the date of enactment.''


                    Effective Date of 1958 Amendment

    Amendment by Pub. L. 85-861 effective Aug. 10, 1956, see section 
33(g) of Pub. L. 85-861, set out as a note under section 101 of this 
title.


                      Short Title of 1978 Amendment

    Section 1 of Pub. L. 95-397, Sept. 30, 1978, 92 Stat. 843, provided: 
``That this Act [amending sections 1076, 1331 [now 12731], 1434, and 
1447 to 1452 of this title and enacting provisions set out as notes 
under sections 1076, 1434, 1447, and 1448 of this title] may be cited as 
the `Uniformed Services Survivors' Benefits Amendments of 1978'.''


       Provisions Effective for Certain Members on August 13, 1968

    Section 3 of Pub. L. 90-485 provided that: ``For members to whom 
section 1431 of title 10, United States Code [this section], applies on 
the date of enactment of this Act [Aug. 13, 1968], the provisions of 
section 1434(c) of that title, as amended by this Act [section 1(3) of 
Pub. L. 90-485] are effective immediately and automatically''.


            Election of Annuity Made Prior to August 13, 1968

    Section 4 of Pub. L. 90-485 provided that: ``A retired member who 
elected an annuity under chapter 73 of title 10, United States Code 
[this chapter], before the date of enactment of this Act [Aug. 13, 
1968], but did not make the election that was then provided by section 
1434(c) of that title, may, before the first day of the thirteenth 
calendar month beginning after the date of enactment of this Act, make 
that election. That election becomes effective on the first day of the 
month following the month in which the election is made. Under 
regulations prescribed under section 1444(a) of this title, on or before 
the effective date the retired member must pay the total additional 
amount that would otherwise have been deducted from his retired or 
retainer pay to reflect such an election, had it been effective when he 
retired, plus the interest which would have accrued on that additional 
amount up to the effective date, except that if an undue hardship or 
financial burden would otherwise result payment may be made in from two 
to twelve monthly installments when the monthly amounts involved are 
$25, or less, or in from two to thirty-six monthly installments when the 
monthly amounts involved exceed $25. No amounts by which a member's 
retired or retainer pay was reduced may be refunded to, or credited on 
behalf of, the retired member by virtue of an application made by him 
under this section. A retired member described in the first sentence of 
this section, who does not make the election provided under this 
section, will not be allowed under section 1436(b) of title 10, to 
reduce an annuity or withdraw from participation in an annuity program 
under that title.''


   Elections Subject to Cost Tables Applicable on Date of Retirement; 
Annuities Payable to Beneficiaries Eligible Under Law in Effect the Day 
                        Prior to August 13, 1968

    Section 5 of Pub. L. 90-485 provided, effective on the first day of 
the third calendar month following Aug. 13, 1968, that: 
``Notwithstanding any other provision of this Act [see Effective Date of 
1968 Amendment note set out above], elections in effect on the date of 
enactment [Aug. 13, 1968] will remain under the cost tables applicable 
on the date of retirement, and the annuities provided thereunder shall 
be payable to those eligible beneficiaries prescribed under the law in 
effect on the day prior to the date of enactment of this Act.''


  Applicability of Provisions in Effect on the Day Prior to August 13, 
                                  1968

    Section 6 of Pub. L. 90-485 provided in part that: ``Notwithstanding 
any other provision of this Act [see Effective Date of 1968 Amendment 
note set out above], any member to whom section 1431 of title 10, United 
States Code [this section], applies on the date of enactment of this Act 
[Aug. 13, 1968] may, before the first day of the thirteenth calendar 
month beginning after the date of enactment of this Act, submit a 
written application to the Secretary concerned requesting that an 
election or a change or revocation of election made by such member prior 
to the date of enactment of this Act shall continue to be governed by 
the provisions of section 1431(b) or (c) of title 10, United States Code 
[subsec. (b) or (c) of this section] as in effect on the day before the 
date of enactment of this Act.''


     Interim Authority for Selection of Commanders and Captains for 
                       Continuation on Active Duty

    Section 3(q) of Pub. L. 88-130 rendered election, change, or 
revocation of election under this section effective if made prior to the 
convening date of the board which considers Coast Guard commanders and 
captains for continuation.


   Change or Revocation of an Election Filed Prior to October 4, 1961

    Section 7 of Pub. L. 87-381 provided that: ``Any person who, before 
the date of enactment of this Act [Oct. 4, 1961], has filed a change or 
revocation, subject to section 1431(c) of title 10, United States Code 
[subsec. (c) of this section], of an election made under section 1431(b) 
of that title [subsec. (b) of this section], which change or revocation 
would be ineffective if the first day for which retired or retainer pay 
is granted were to be the date of enactment of this Act [Oct. 4, 1961], 
shall have that change or revocation become effective on that date, or 
three years after the date upon which it was filed, whichever is 
later.''


Provisions Applicable to Certain Persons Retiring After October 4, 1961, 
                             for Disability

    Section 8 of Pub. L. 87-381 provided that: ``Any person who--
        ``(1) made an election before the date of enactment of this Act 
    [Oct. 4, 1961], which would be effective if he retired on the day 
    before such date; and
        ``(2) hereafter retires for physical disability before 
    completing 18 years of service for which he is entitled to credit in 
    the computation of his basic pay--
shall be considered as having applicable to him all of the provisions of 
chapter 73 of title 10, United States Code [this chapter], existing on 
the date preceding the date of enactment of this Act [Oct. 4, 1961], 
except that any revocation or change of an election is not effective 
until three years after the date of filing such revocation or change, or 
the date of enactment of this Act [Oct. 4, 1961], whichever is later.''


  Change or Revocation of Election by Certain Colonels and Lieutenant 
                                Colonels

    Pub. L. 86-616, Sec. 11, July 12, 1960, 74 Stat. 396, provided that: 
``Notwithstanding section 1431 of title 10, United States Code [this 
section], a change or revocation of an election made under that section 
by an officer who is retired under section 10 of this Act [set out as a 
note under section 3297 of this title] is effective if made at such a 
time that it would have been effective had he been retired on the 
earliest date prescribed for an officer of his kind by section 3916, 
3921, 8916, or 8921 of title 10, as appropriate.''


Change or Revocation of Election by Certain Officers of Regular Navy and 
                          Regular Marine Corps

    Pub. L. 86-616, Sec. 13, July 12, 1960, 74 Stat. 396, provided that: 
``An officer who has been considered but not recommended for 
continuation on the active list under section 1 of the Act of August 11, 
1959. Public Law 86-155 (73 Stat. 333) [set out as a note under section 
5701 of this title], and who retired or retires voluntarily before the 
second day of the month following the month in which this Act is enacted 
[July 1960], may, within six months following the enactment of this Act 
[July 12, 1960], affirm a change or revocation of an election made under 
section 1431 of title 10, United States Code [this section], before his 
retirement, if the change or revocation would have been effective under 
section 3 of the Act of August 11, 1959, Public Law 86-155, as amended 
by this Act [set out as a note under section 5701 of this title], but 
for his voluntary retirement. If an officer takes no action under this 
section, his currently valid election under section 1431 of title 10, 
United States Code [this section], shall remain unchanged. The 
computation of the revised reduction in retired pay in the case of an 
officer who affirms a change of election under this section shall be in 
accordance with section 1436 of title 10, United States Code, and 
according to the conditions that existed on the day the officer became 
eligible for retired pay. An affirmation or revocation made under this 
section is effective on the first day of the month in which made. No 
refund may be made and no additional payment may be required with 
respect to any period before that date.''


                Election of Annuity by Certain Personnel

    Pub. L. 86-197, Sec. 4, Aug. 25, 1959, 73 Stat. 426, provided that: 
``Any person who, on the effective date of this Act [August 25, 1959], 
would not have completed 18 years of service for which he is entitled to 
credit in the computation of his basic pay under the laws in effect 
prior to the effective date of this Act, and who, as a result of the 
enactment of this Act [amending sections 1332 [now 12732], 3683, 3926, 
6324, 8683 and 8926 of this title, and enacting provisions set out as 
notes under sections 3441 and 12732 of this title], is credited with 
more than 17 years of such service, shall be allowed twelve months from 
the effective date of this Act to make the election provided by section 
1431(b) of title 10, United States Code [subsection (b) of this 
section], notwithstanding the requirement of the second sentence of that 
section.''


          Change or Revocation of Election by Certain Officers

    Effective date of change or revocation of election by certain 
officers, see section 3 of Pub. L. 86-155, Aug. 11, 1959, 73 Stat. 336, 
set out as a note under section 5701 of this title.


                          Public Health Service

    Authority vested by this chapter in ``military departments'', ``the 
Secretary concerned'', or ``the Secretary of Defense'' to be exercised, 
with respect to commissioned officers of Public Health Service, by 
Secretary of Health and Human Services or his designee, see section 213a 
of Title 42, The Public Health and Welfare.


             National Oceanic and Atmospheric Administration

    Authority vested by this chapter in ``military departments'', ``the 
Secretary concerned'', or ``the Secretary of Defense'' to be exercised, 
with respect to commissioned officer corps of National Oceanic and 
Atmospheric Administration, by Secretary of Commerce or his designee, 
see section 857a of Title 33, Navigation and Navigable Waters.

                  Section Referred to in Other Sections

    This section is referred to in sections 1432, 1433, 1434 of this 
title.
