§ 1448. Application of Plan

Pub. L. 108–375, div. A, title VI, § 645, Oct. 28, 2004, 118 Stat. 1962, as amended by Pub. L. 109–364, div. A, title X, § 1071(g)(5), Oct. 17, 2006, 120 Stat. 2402, provided that: “(a) Persons Not Currently Participating in Survivor Benefit Plan.—“(1) Election of sbp coverage.—An eligible retired or former member may elect to participate in the Survivor Benefit Plan during the open enrollment period specified in subsection (f). “(2) Election of supplemental annuity coverage.—An eligible retired or former member who elects under paragraph (1) to participate in the Survivor Benefit Plan at the maximum level may also elect during the open enrollment period to participate in the Supplemental Survivor Benefit Plan. “(3) Eligible retired or former member.—For purposes of paragraphs (1) and (2), an eligible retired or former member is a member or former member of the uniformed services who on the day before the first day of the open enrollment period is not a participant in the Survivor Benefit Plan and—“(A) is entitled to retired pay; or “(B) would be entitled to retired pay under chapter 1223 of title 10, United States Code, but for the fact that such member or former member is under 60 years of age. “(4) Status under sbp of persons making elections.—“(A) Standard annuity.—A person making an election under paragraph (1) by reason of eligibility under paragraph (3)(A) shall be treated for all purposes as providing a standard annuity under the Survivor Benefit Plan. “(B) Reserve-component annuity.—A person making an election under paragraph (1) by reason of eligibility under paragraph (3)(B) shall be treated for all purposes as providing a reserve-component annuity under the Survivor Benefit Plan. “(b) Election To Increase Coverage Under SBP.—A person who on the day before the first day of the open enrollment period is a participant in the Survivor Benefit Plan but is not participating at the maximum base amount or is providing coverage under the Plan for a dependent child and not for the person’s spouse or former spouse may, during the open enrollment period, elect to—“(1) participate in the Plan at a higher base amount (not in excess of the participant’s retired pay); or “(2) provide annuity coverage under the Plan for the person’s spouse or former spouse at a base amount not less than the base amount provided for the dependent child. “(c) Election for Current SBP Participants To Participate in Supplemental SBP.—“(1) Election.—A person who is eligible to make an election under this paragraph may elect during the open enrollment period to participate in the Supplemental Survivor Benefit Plan. “(2) Persons eligible.—Except as provided in paragraph (3), a person is eligible to make an election under paragraph (1) if on the day before the first day of the open enrollment period the person is a participant in the Survivor Benefit Plan at the maximum level, or during the open enrollment period the person increases the level of such participation to the maximum level under subsection (b) of this section, and under that Plan is providing annuity coverage for the person’s spouse or a former spouse. “(3) Limitation on eligibility for certain sbp participants not affected by two-tier annuity computation.—A person is not eligible to make an election under paragraph (1) if (as determined by the Secretary concerned) the annuity of a spouse or former spouse beneficiary of that person under the Survivor Benefit Plan is to be computed under section 1451(e) of title 10, United States Code. However, such a person may during the open enrollment period waive the right to have that annuity computed under such section 1451(e). Any such election is irrevocable. A person making such a waiver may make an election under paragraph (1) as in the case of any other participant in the Survivor Benefit Plan. “(d) Manner of Making Elections.—An election under this section shall be made in writing, signed by the person making the election, and received by the Secretary concerned before the end of the open enrollment period. Any such election shall be made subject to the same conditions, and with the same opportunities for designation of beneficiaries and specification of base amount, that apply under the Survivor Benefit Plan or the Supplemental Survivor Benefit Plan, as the case may be. A person making an election under subsection (a) to provide a reserve-component annuity shall make a designation described in section 1448(e) of title 10, United States Code. “(e) Effective Date for Elections.—Any such election shall be effective as of the first day of the first calendar month following the month in which the election is received by the Secretary concerned. “(f) Open Enrollment Period.—The open enrollment period under this section is the one-year period beginning on October 1, 2005. “(g) Effect of Death of Person Making Election Within Two Years of Making Election.—If a person making an election under this section dies before the end of the two-year period beginning on the effective date of the election, the election is void and the amount of any reduction in retired pay of the person that is attributable to the election shall be paid in a lump sum to the person who would have been the deceased person’s beneficiary under the voided election if the deceased person had died after the end of such two-year period. “(h) Applicability of Certain Provisions of Law.—The provisions of sections 1449, 1453, and 1454 of title 10, United States Code, are applicable to a person making an election, and to an election, under this section in the same manner as if the election were made under the Survivor Benefit Plan or the Supplemental Survivor Benefit Plan, as the case may be. “(i) Premium for Open Enrollment Election.—“(1) Premiums to be charged.—The Secretary of Defense shall prescribe in regulations premiums which a person electing under this section shall be required to pay for participating in the Survivor Benefit Plan pursuant to the election. The total amount of the premiums to be paid by a person under the regulations shall be equal to the sum of—“(A) the total amount by which the retired pay of the person would have been reduced before the effective date of the election if the person had elected to participate in the Survivor Benefit Plan (for the same base amount specified in the election) at the first opportunity that was afforded the member to participate under chapter 73 of title 10, United States Code; “(B) interest on the amounts by which the retired pay of the person would have been so reduced, computed from the dates on which the retired pay would have been so reduced at such rate or rates and according to such methodology as the Secretary of Defense determines reasonable; and “(C) any additional amount that the Secretary determines necessary to protect the actuarial soundness of the Department of Defense Military Retirement Fund against any increased risk for the fund that is associated with the election. “(2) Premiums to be credited to retirement fund.—Premiums paid under the regulations under paragraph (1) shall be credited to the Department of Defense Military Retirement Fund. “(j) Definitions.—In this section:“(1) The term ‘Survivor Benefit Plan’ means the program established under subchapter II of chapter 73 of title 10, United States Code. “(2) The term ‘Supplemental Survivor Benefit Plan’ means the program established under subchapter III of chapter 73 of title 10, United States Code. “(3) The term ‘retired pay’ includes retainer pay paid under section 6330 [now 8330] of title 10, United States Code. “(4) The terms ‘uniformed services’ and ‘Secretary concerned’ have the meanings given those terms in section 101 of title 37, United States Code. “(5) The term ‘Department of Defense Military Retirement Fund’ means the Department of Defense Military Retirement Fund established under section 1461(a) of title 10, United States Code.”

Open Enrollment Period for Survivor Benefit Plan Commencing March 1, 1999

Pub. L. 105–261, div. A, title VI, § 642, Oct. 17, 1998, 112 Stat. 2045, as amended by Pub. L. 106–65, div. A, title VI, § 654, Oct. 5, 1999, 113 Stat. 667, provided for a one-year open enrollment period beginning on Mar. 1, 1999, during which an eligible retired or former member who was not participating in the Survivor Benefit Plan could elect to participate in the Plan and also elect to participate in the Supplemental Survivor Benefit Plan.

Annuities for Certain Military Surviving Spouses

Pub. L. 105–85, div. A, title VI, § 644, Nov. 18, 1997, 111 Stat. 1800, as amended by Pub. L. 106–65, div. A, title VI, § 656(a), (b), title X, § 1066(c)(3), Oct. 5, 1999, 113 Stat. 668, 773; Pub. L. 107–314, div. A, title VI, § 634, Dec. 2, 202, 116 Stat. 2573, provided that: “(a) Survivor Annuity.—(1) The Secretary concerned shall pay an annuity to the qualified surviving spouse of each member of the uniformed services who—“(A) became entitled to retired or retainer pay before September 21, 1972, died before March 21, 1974, and was entitled to retired or retainer pay on the date of death; or “(B) died before October 1, 1978, and at the time of his death would have been entitled to retired pay under chapter 67 [now 1223] of title 10, United States Code (as in effect before December 1, 1994), but for the fact that he was under 60 years of age. “(2) A qualified surviving spouse for purposes of this section is a surviving spouse who has not remarried. “(b) Amount of Annuity.—(1) An annuity under this section shall be paid at the rate of $185.58 per month, as adjusted from time to time under paragraph (3). “(2) The amount of an annuity to which a surviving spouse is entitled under this section for any period shall be reduced (but not below zero) by any amount paid to that surviving spouse for the same period under any of the following provisions of law:“(A) Section 1311(a) of title 38, United States Code (relating to dependency and indemnity compensation payable by the Secretary of Veterans Affairs). “(B) Chapter 73 of title 10, United States Code. “(C) Section 4 of Public Law 92–425 (10 U.S.C. 1448 note). “(3) Whenever after May 1, 2002, retired or retainer pay is increased under section 1401a(b)(2) of title 10, United States Code, each annuity that is payable under this section shall be increased at the same time and by the same total percent. “(c) Application Required.—No benefit shall be paid to any person under this section unless an application for such benefit is filed with the Secretary concerned by or on behalf of such person. “(d) Definitions.—For purposes of this section:“(1) The terms ‘uniformed services’ and ‘Secretary concerned’ have the meanings given such terms in section 101 of title 37, United States Code. “(2) The term ‘surviving spouse’ has the meaning given such term in paragraph (9) of section 1447 of title 10, United States Code. “(e) Prospective Applicability.—(1) Annuities under this section shall be paid for months beginning after November 1997. “(2) No benefit shall accrue to any person by reason of the enactment of this section for any period before December 1997.”

[Pub. L. 106–65, div. A, title VI, § 656(c), Oct. 5, 1999, 113 Stat. 668, provided that: “The amendment made by subsection (a) [amending section 644 of Pub. L. 105–85, set out above] shall apply with respect to annuities payable for months beginning after September 30, 1999.” ]

Authority for Relief From Previous Overpayments Under Minimum Income Widows Program

Pub. L. 104–106, div. A, title VI, § 635, Feb. 10, 1996, 110 Stat. 366, authorized the Secretary of Defense to waive recovery by the United States of any overpayment by the United States that had been made before Feb. 10, 1996, under section 4 of Public Law 92–425, set out below, and that was attributable to failure by the Department of Defense to apply the eligibility provisions of subsection (a) of such section in the case of the person to whom the overpayment had been made.

Open Enrollment Period for Survivor Benefit Plan Commencing April 1, 1992

Pub. L. 101–189, div. A, title XIV, § 1405, Nov. 29, 1989, 103 Stat. 1586, as amended by Pub. L. 101–510, div. A, title VI, § 631(2), title XIV, § 1484(l)(4)(B), Nov. 5, 1990, 104 Stat. 1580, 1720; Pub. L. 102–190, div. A, title VI, § 653(a)(1), (c)(2), Dec. 5, 1991, 105 Stat. 1388, 1389; Pub. L. 102–484, div. A, title VI, § 643, Oct. 23, 1992, 106 Stat. 2425, provided for a one-year open enrollment period beginning on Apr. 1, 1992, during which: (1) an eligible retired or former member who was not participating in the Survivor Benefit Plan could elect to participate in the Plan and also elect to participate in the Supplemental Survivor Benefit Plan, (2) a current participant in the Survivor Benefit Plan who was not participating at the maximum base amount could elect to participate in the Plan at a higher base amount or provide coverage for a previously uncovered spouse or former spouse, and (3) a participant in the Survivor Benefit Plan at the maximum level who was providing annuity coverage for a spouse or former spouse could elect to participate in the Supplemental Survivor Benefit Plan, and directed the Secretary of Defense to submit to committees of Congress a report on the open season not later than June 1, 1990.

Definitions for 1989 Amendments

Pub. L. 101–189, div. A, title XIV, § 1406, Nov. 29, 1989, 103 Stat. 1588, as amended by Pub. L. 102–190, div. A, title VI, § 653(a)(2), Dec. 5, 1991, 105 Stat. 1388, provided that: “For the purpose of this title [see Short Title of 1989 Amendment note set out under section 1447 of this title]: “(1) The term ‘Survivor Benefit Plan’ means the program established under subchapter II of chapter 73 of title 10, United States Code. “(2) The term ‘retired pay’ includes retainer pay paid under section 6330 [now 8330] of title 10, United States Code. “(3) The terms ‘uniformed services’ and ‘Secretary concerned’ have the meanings given those terms in section 101 of title 37, United States Code. “(4) The term ‘SBP premium’ means the reduction in retired pay required as a condition of providing an annuity under the Survivor Benefit Plan. “(5) The term ‘base amount’ has the meaning given that term in section 1447(2) [see 1447(6)] of title 10, United States Code.”

Annuity for Surviving Spouses of Members Who Died Before November 1, 1953, and Who Were Entitled to Retired or Retainer Pay on Date of Death

Pub. L. 100–456, div. A, title VI, § 653, Sept. 29, 1988, 102 Stat. 1991, as amended by Pub. L. 103–337, div. A, title X, § 1070(d)(3), Oct. 5, 1994, 108 Stat. 2858; Pub. L. 105–85, div. A, title VI, § 645(a), Nov. 18, 1997, 111 Stat. 1801, provided that: “(a) Annuity.—(1) The Secretary concerned shall pay an annuity to the qualified surviving spouse of each member of the uniformed services who—“(A) died before November 1, 1953; and “(B) was entitled to retired or retainer pay on the date of death. “(2) A qualified surviving spouse for purposes of this section is a surviving spouse who has not remarried and who is eligible for an annuity under section 4 of Public Law 92–425 (10 U.S.C. 1448 note). “(b) Amount of Annuity.—(1) An annuity payable under this section shall be paid at the rate of $165 per month, as adjusted from time to time under subsection (c). “(2) An annuity paid to a surviving spouse under this section shall be reduced by the amount of dependency and indemnity compensation (DIC) to which the surviving spouse is entitled under section 1311(a) of title 38, United States Code. “(c) Cost-of-Living Increases.—Whenever retired or retainer pay is increased under section 1401a(b)(2) of title 10, United States Code, each annuity that is payable under this section shall be increased at the same time and by the same total percent. The amount of the increase shall be based on the monthly annuity payable before any reduction under this section. “(d) Relationship to Other Programs.—(1) An annuity paid to a surviving spouse under this section is in addition to any pension to which the surviving spouse is entitled under subchapter III of chapter 15 of title 38, United States Code, or section 306 of the Veterans’ and Survivors’ Pension Improvement Act of 1978 (38 U.S.C. 1521 note), and any payment made under the provisions of section 4 of Public Law 92–425. An annuity paid under this section shall not be considered as income for the purposes of eligibility for any such pension. “(2) Payment of annuities under this section shall be made by the Secretary of Veterans Affairs. In making such payments, the Secretary shall combine the payment under this section with the payment of any amount due the same person under section 4 of Public Law 92–425 (10 U.S.C. 1448 note), as provided in subsection (e)(1) of that section. The Secretary concerned shall transfer amounts for payments under this section to the Secretary of Veterans Affairs in the same manner as is provided under subsection (e)(2) of section 4 of Public Law 92–425 for payments under that section. “(e) Definitions.—For purposes of this section:“(1) The terms ‘uniformed services’ and ‘Secretary concerned’ have the meanings given those terms in section 101 of title 37, United States Code. “(2) The term ‘surviving spouse’ has the meaning given the terms ‘widow’ and ‘widower’ in paragraphs (3) and (4), respectively, of section 1447 [see 1447(7), (8)] of title 10, United States Code. “(f) Effective Date.—Annuities under this section shall be paid for months beginning after the month in which this Act is enacted [September 1988]. No benefit shall accrue to any person by reason of the enactment of this section for any period before the first month referred to in the preceding sentence. No benefit shall be paid to any person under this section unless an application for such benefit has been filed with the Secretary concerned by or on behalf of such person.”

Authority for Certain Remarried Survivor Benefit Plan Participants To Withdraw From Plan

Pub. L. 100–180, div. A, title VI, § 631, Dec. 4, 1987, 101 Stat. 1104, provided that: “(a) Authority To Withdraw.—(1) An individual who is a participant in the Survivor Benefit Plan under subchapter II of chapter 73 of title 10, United States Code, and is described in paragraph (2) may, with the consent of such individual’s spouse, withdraw from participation in the Plan. “(2) An individual referred to in paragraph (1) is an individual who—“(A) is providing coverage for a spouse or for a spouse and child under the Plan; and “(B) remarried before March 1, 1986, and at a time when such individual was a participant in the Plan but did not have an eligible spouse beneficiary under the Plan. “(b) Applicable Provisions.—An election under subsection (a) shall be subject to subparagraphs (B) and (D) [see (E)] of section 1448(a)(6) of title 10, United States Code, except that in applying such subparagraph (B) to subsection (a), the one-year period referred to in clause (ii) of such subparagraph shall extend until the end of the one-year period beginning 90 days after the date of the enactment of this Act [Dec. 4, 1987]. “(c) Treatment of Prior Contributions.—No refund of amounts by which the retired pay of a participant in the Survivor Benefit Plan has been reduced by reason of section 1452 of title 10, United States Code, may be made to an individual who withdraws from the Survivor Benefit Plan under subsection (a).”

Option for Certain Participants To Withdraw From Survivor Benefit Plan

Pub. L. 99–145, title VII, § 711(c), Nov. 8, 1985, 99 Stat. 670, provided that person who during period Oct. 19, 1984, to Nov. 8, 1985, became participant in Survivor Benefit Plan under this subchapter could withdraw from Plan before end of one-year period beginning on Nov. 8, 1985, and receive refund of contributions plus interest.

Persons Covered Under Subsections (d) and (f)

Pub. L. 99–145, title VII, § 712(b), Nov. 8, 1985, 99 Stat. 671, provided that: “(1) Section 1448(d) of title 10, United States Code, as amended by subsection (a), applies to the surviving spouse and dependent children of a person who dies on active duty after September 20, 1972, and the former spouse of a person who dies after September 7, 1982. “(2) In the case of the surviving spouse and children of a person who dies during the period beginning on September 21, 1972, and ending on October 1, 1985, the Secretary concerned shall take appropriate steps to locate persons eligible for an annuity under section 1448(d) of title 10, United States Code, as amended by subsection (a). Any such person must submit an application to the Secretary for such an annuity before October 1, 1988, to be eligible to receive such annuity. Any such annuity shall be effective only for months after the month in which the Secretary receives such application.”

Pub. L. 99–145, title VII, § 713(c), Nov. 8, 1985, 99 Stat. 672, provided that: “(1) Section 1448(f) of title 10, United States Code, as added by subsection (a), shall apply to the surviving spouse and dependent children of any person who dies after September 30, 1978, and the former spouse of a person who dies after September 7, 1982. “(2) In the case of the surviving spouse and dependents of a person who dies during the period beginning on September 30, 1978, and ending on October 1, 1985, the Secretary concerned shall take appropriate steps to locate persons eligible for an annuity under section 1448(f) of title 10, United States Code, as added by subsection (a). Any such person must submit an application to the Secretary for such an annuity before October 1, 1988, to be eligible to receive such annuity. Any such annuity shall be effective only for months after the month in which the Secretary receives such application.”

Revision for Former Spouse Coverage Already in Effect

Pub. L. 99–145, title VII, § 716(b), Nov. 8, 1985, 99 Stat. 674, as amended by Pub. L. 99–661, div. A, title VI, § 645, Nov. 14, 1986, 100 Stat. 3887, provided that person who before Mar. 1, 1986, made election under subsec. (b) of this section to provide annuity for former spouse could change that election to provide annuity for former spouse and dependent children, even though former spouse had died, but such election had to be made not later than Mar. 1, 1987, in case of person who made election before Nov. 8, 1985, and not later than end of one-year period beginning on Nov. 14, 1986, in case of person who made election during period of Nov. 8, 1985, to Feb. 28, 1986.

One-Year Open Period To Switch Computation of SBP Annuity

Pub. L. 99–145, title VII, § 723(c), Nov. 8, 1985, 99 Stat. 677, provided that person who, before effective date of title VII of Pub. L. 99–145 (see Effective Date of 1985 Amendment note set out under section 1447 of this title) participated in Survivor Benefit Plan under this subchapter, and had elected to provide annuity to former spouse could, with concurrence of such former spouse, elect to terminate such annuity and provide annuity to such former spouse under section 1450(a)(1) of this title, and any such election was to be made before end of 12-month period beginning on Nov. 8, 1985.

One-Year Open Period for New Former Spouse Coverage

Pub. L. 99–145, title VII, § 723(d), Nov. 8, 1985, 99 Stat. 677, provided that person who before effective date of part B of title VII of Pub. L. 99–145 (see Effective Date of 1985 Amendment note set out under section 1447 of this title) was participant in Survivor Benefit Plan and did not elect to provide annuity to former spouse could elect to provide annuity to former spouse under Plan, and that any such election was to be made before end of 12-month period beginning on Nov. 8, 1985.

Open Enrollment Period for Survivor Benefit Plan

Pub. L. 97–35, title II, § 212, Aug. 13, 1981, 95 Stat. 383, as amended by Pub. L. 97–252, title XI, § 1119, Sept. 8, 1982, 96 Stat. 753, provided that certain members or former members of the uniformed services who, on Aug. 13, 1981, were not participants in the Survivor Benefit Plan established under this subchapter or were not participants in the Plan at the maximum level, could elect to participate in the Plan or to participate in the Plan at a higher level, during an open enrollment period beginning Oct. 1, 1981, and ending Sept. 30, 1982, for members and former members entitled to retired or retainer pay on Aug. 13, 1981, or beginning on Oct. 1, 1982, and ending on Sept. 30, 1983, for members or former members who on Aug. 13, 1981, would have been entitled to retired pay, but for the fact they were under 60 years of age on that date.

Surviving Spouse; Annuity Payment and Reduction Provisions; Election of Annuity; Definitions; Effective Date

Pub. L. 96–402, § 5, Oct. 9, 1980, 94 Stat. 1707, provided that: “(a)(1) The Secretary concerned shall pay an annuity to any individual who is the surviving spouse of a member of the uniformed services who—“(A) died before September 21, 1972; “(B) was serving on active duty in the uniformed services at the time of his death and had served on active duty for a period of not less than 20 years; and “(C) was at the time of his death entitled to retired or retainer pay or would have been entitled to that pay except that he had not applied for or been granted that pay. “(2) An annuity under paragraph (1) shall be paid under the provisions of subchapter II of chapter 73 of title 10, United States Code, in the same manner as if such member had died on or after September 21, 1972. “(b)(1) The amount of retired or retainer pay to be used as the basis for the computation of an annuity under subsection (a) is the amount of the retired or retainer pay to which the member would have been entitled if the member had been entitled to that pay based upon his years of active service when he died, adjusted by the overall percentage increase in retired and retainer pay under section 1401a of title 10, United States Code (or any prior comparable provision of law), during the period beginning on the date of the member’s death and ending on the day before the effective date of this section. “(2) In addition to any reduction required under the provisions of subchapter II of chapter 73 of title 10, United States Code, the annuity paid to any surviving spouse under this section shall be reduced by any amount such surviving spouse is entitled to receive as an annuity under subchapter I of such chapter. “(c) If an individual entitled to an annuity under this section is also entitled to an annuity under subchapter II of chapter 73 of title 10, United States Code, based upon a subsequent marriage, the individual may not receive both annuities but must elect which to receive. “(d) As used in this section:“(1) The term ‘uniformed services’ means the Armed Forces and the commissioned corps of the Public Health Service and of the National Oceanic and Atmospheric Administration. “(2) The term ‘surviving spouse’ has the meaning given the terms ‘widow’ and ‘widower’ in section 1447 of title 10, United States Code. “(3) The term ‘Secretary concerned’ has the meaning given such term in section 101(8) of title 10, United States Code [now 10 U.S.C. 101(a)(9)], and includes the Secretary of Commerce, with respect to matters concerning the National Oceanic and Atmospheric Administration, and the Secretary of Health and Human Services, with respect to matters concerning the Public Health Service.”

Provision 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.

Election To Participate in the Survivor Benefit Plan and Withdraw From the Retired Serviceman’s Family Protection Plan

Pub. L. 92–425, § 3, Sept. 21, 1972, 86 Stat. 711, as amended by Pub. L. 93–155, title VIII, § 804, Nov. 16, 1973, 87 Stat. 615, provided that: “(a) The Survivor Benefit Plan established pursuant to clause (3) of the first section of this Act [this subchapter] applies to any person who initially becomes entitled to retired or retainer pay on or after the effective date of this Act [Sept. 21, 1972]. An election made before that date by such a person under section 1431 of title 10, United States Code, is canceled. However, a person who initially becomes entitled to retired or retainer pay within 180 days after the effective date of this Act [Sept. 21, 1972] may, within 180 days after becoming so entitled, elect—“(1) not to participate in such Survivor Benefit Plan if he is married or has a dependent child; or “(2) to participate in that Plan, if he is a person covered by section 1448(b) of title 10, United States Code. “(b) Any person who is entitled to retired or retainer pay on the effective date of this Act [Sept. 21, 1972] may elect to participate in the Survivor Benefit Plan established pursuant to clause (3) of the first section of this Act [this subchapter] at any time within eighteen months after such date. However, such a person who is receiving retired or retainer pay reduced under section 1436(a) of title 10, United States Code, or who is depositing amounts under section 1438 of that title, may elect at any time within eighteen months after the effective date of this Act [Sept. 21, 1972]—“(1) to participate in the Plan and continue his participation under chapter 73 of that title [this chapter] as in effect on the day before the effective date of this Act [Sept. 21, 1972], except that the total of the annuities elected may not exceed 100 percent of his retired or retainer pay; or “(2) to participate in the Plan and, notwithstanding section 1436(b) of that title, terminate his participation under chapter 73 of that title [this chapter] as in effect on the day before the effective date of this Act [Sept. 21, 1972]. A person who elects under clause (2) of this subsection is not entitled to a refund of amounts previously deducted from his retired or retainer pay under chapter 73 of title 10, United States Code [this chapter], as in effect on the day before the effective date of this Act [Sept. 21, 1972], or any payments made thereunder on his behalf. A person who is not married or does not have a dependent child on the first anniversary of the effective date of this Act [Sept. 21, 1972], but who later marries or acquires a dependent child, may elect to participate in the Plan under the fourth sentence of section 1448(a) of that title [former subsec. (a) of this section]. “(c) Notwithstanding the provisions of the Survivor Benefit Plan established pursuant to clause (3) of the first section of this Act [this subchapter], and except as otherwise provided in this section, subchapter I of chapter 73 of title 10, United States Code [subchapter I of this chapter] (other than the last two sentences of section 1436(a), section 1443, and section 1444(b)), as in effect on the day before the effective date of this Act [Sept. 21, 1972], shall continue to apply in the case of persons, and their beneficiaries, who have elected annuities under section 1431 or 1432 of that title and who have not elected under subsection (b)(2) of this section to participate in that Plan. “(d) In this section, ‘base amount’ means—“(1) the monthly retired or retainer pay to which a person—“(A) is entitled on the effective date of this Act [Sept. 21, 1972]; or “(B) later becomes entitled by being advanced on the retired list, performing active duty, or being transferred from the temporary disability retired list to the permanent disability retired list; or “(2) any amount less than that described in clause (1) designated by that person at the time he makes an election under subsection (a)(2) or (b) of this section, but not less than $300; as increased from time to time under section 1401a of title 10, United States Code. “(e) An election made under subsection (a) or (b) of this section is effective on the date it is received by the Secretary concerned, as defined in section 101(5) of title 37, United States Code. “(f) Sections 1449, 1453, and 1454 of title 10, United States Code, as added by clause (3) of the first section of this Act [as part of this subchapter], are applicable to persons covered by this section.”

Income Supplement for Certain Widows of Retired Members of the Uniformed Forces; Special Annuity for Widows of Commissioned Personnel of the Public Health Service and National Oceanic and Atmospheric Administration in Lieu of VA Pension

Pub. L. 92–425, § 4, Sept. 21, 1972, 86 Stat. 712, as amended by Pub. L. 94–496, § 2, Oct. 14, 1976, 90 Stat. 2375; Pub. L. 95–397, title II, § 209, Sept. 30, 1978, 92 Stat. 848; Pub. L. 96–402, § 6, Oct. 9, 1980, 94 Stat. 1708; Pub. L. 98–94, title IX, § 942(a), Sept. 24, 1983, 97 Stat. 654; Pub. L. 102–40, title IV, § 402(d)(2), May 7, 1991, 105 Stat. 239; Pub. L. 103–337, div. A, title X, § 1070(d)(4), Oct. 5, 1994, 108 Stat. 2858; Pub. L. 104–201, div. A, title VI, § 638(a)–(c), Sept. 23, 1996, 110 Stat. 2581; Pub. L. 105–85, div. A, title VI, § 645(b), Nov. 18, 1997, 111 Stat. 1801, provided that: “(a) A person—“(1) who, on September 21, 1972, was, or during the period beginning on September 22, 1972, and ending on March 20, 1974, became, a widow of a person who was entitled to retired or retainer pay when he died; “(2) who is eligible for a pension under subchapter III of chapter 15 of title 38, United States Code, or section 306 of the Veterans’ and Survivors’ Pension Improvement Act of 1978 [set out as note under section 1521 of Title 38]; and “(3) whose annual income, as determined in establishing that eligibility, is less than the maximum annual rate of pension in effect under section 1541(b) of title 38, United States Code; shall be paid an annuity by the Secretary concerned unless she is eligible to receive an annuity under the Survivor Benefit Plan established pursuant to clause (3) of the first section of this Act [this subchapter]. However, such a person who is the widow of a retired officer of the Public Health Service or the National Oceanic and Atmospheric Administration, and who would otherwise be eligible for an annuity under this section except that she does not qualify for the pension described in clause (2) of this subsection because the service of her deceased spouse is not considered active duty under section 101(21) of title 38, United States Code, is entitled to an annuity under this section. “(b) The annuity under subsection (a) of this section shall be in an amount which when added to the widow’s income determined under subsection (a)(3) of this section, plus the amount of any annuity being received under sections 1431–1436 of title 10, United States Code, but exclusive of a pension described in subsection (a)(2) of this section, equals the maximum annual rate of pension in effect under section 1541(b) of title 38, United States Code. In addition, the Secretary concerned shall pay to the widow, described in the last sentence of subsection (a) of this section, an amount equal to the pension she would otherwise have been eligible to receive under subchapter III of chapter 15 of title 38, United States Code, if the service of her deceased spouse was considered active duty under section 101(21) of that title. “(c) The amount of an annuity payable under this section, although counted as income in determining the amount of any pension described in subsection (a)(2) of this section, shall not be considered to affect the eligiblity [sic] of the recipient of such annuity for such pension, even though, as a result of including the amount of the annuity as income, no amount of such pension is due. “(d) Subsection 1450(i) and section 1453 as added to title 10, United States Code, by clause 3 of the first section of this Act, are applicable to persons covered by this section. “(e)(1) Payment of annuities under this section shall be made by the Secretary of Veterans Affairs. In making such payments, the Secretary shall combine with the payment under this section payment of any amount due the same person under section 653(d) of the National Defense Authorization Act, Fiscal Year 1989 [Pub. L. 100–456] (10 U.S.C. 1448 note). If appropriate for administrative convenience (or otherwise determined appropriate by the Secretary of Veterans Affairs), that Secretary may combine a payment to any person for any month under this section (and, if applicable, under section 653(d) of the National Defense Authorization Act, Fiscal Year 1989) with any other payment for that month under laws administered by the Secretary so as to provide that person with a single payment for that month. “(2) The Secretary concerned shall annually transfer to the Secretary of Veterans Affairs such amounts as may be necessary for payments by the Secretary of Veterans Affairs under this section and for costs of the Secretary of Veterans Affairs in administering this section. Such transfers shall be made from amounts that would otherwise be used for payment of annuities by the Secretary concerned under this section. The authority to make such a transfer is in addition to any other authority of the Secretary concerned to transfer funds for a purpose other than the purpose for which the funds were originally made available. In the case of a transfer by the Secretary of a military department, the provisions of section 2215 of title 10, United States Code, do not apply. “(3) The Secretary concerned shall promptly notify the Secretary of Veterans Affairs of any change in beneficiaries under this section.”

[Pub. L. 104–201, div. A, title VI, § 638(d), Sept. 23, 1996, 110 Stat. 2581, provided that: “The amendments made by this section [amending section 4 of Pub. L. 92–425, set out above] take effect on July 1, 1997, and apply with respect to payments of benefits for any month after June 1997.” ]

[Pub. L. 98–94, title IX, § 942(b), Sept. 24, 1983, 97 Stat. 654, provided that: “Any annuity payable by reason of subsection (a) [amending section 4(a)(1) of Pub. L. 92–425, set out above] shall be payable only for months after September 1983.” ]

End of 90-Day Period With Respect to Certain Individuals

The 90-day period, referred to in subsec. (a)(2), (4)(B), with respect to certain individuals shall be considered to end on Mar. 31, 1980, see section 208 of Pub. L. 95–397, set out as a note under section 1447 of this title.