|
U.S. Code as of:
01/19/04
Section 1448. Application of Plan
(a) General Rules for Participation in the Plan. -
(1) Name of plan; eligible participants. - The program
established by this subchapter shall be known as the Survivor
Benefit Plan. The following persons are eligible to participate
in the Plan:
(A) Persons entitled to retired pay.
(B) Persons who would be eligible for reserve-component
retired pay but for the fact that they are under 60 years of
age.
(2) Participants in the plan. - The Plan applies to the
following persons, who shall be participants in the Plan:
(A) Standard annuity participants. - A person who is eligible
to participate in the Plan under paragraph (1)(A) and who is
married or has a dependent child when he becomes entitled to
retired pay, unless he elects (with his spouse's concurrence,
if required under paragraph (3)) not to participate in the Plan
before the first day for which he is eligible for that pay.
(B) Reserve-component annuity participants. - A person who
(i) is eligible to participate in the Plan under paragraph
(1)(B), and (ii) is married or has a dependent child when he is
notified under section 12731(d) of this title that he has
completed the years of service required for eligibility for
reserve-component retired pay, unless the person elects (with
his spouse's concurrence, if required under paragraph (3)) not
to participate in the Plan before the end of the 90-day period
beginning on the date on which he receives that notification.
A person who elects under subparagraph (B) not to participate in
the Plan remains eligible, upon reaching 60 years of age and
otherwise becoming entitled to retired pay, to participate in the
Plan in accordance with eligibility under paragraph (1)(A).
(3) Elections. -
(A) Spousal consent for certain elections respecting standard
annuity. - A married person who is eligible to provide a
standard annuity may not without the concurrence of the
person's spouse elect -
(i) not to participate in the Plan;
(ii) to provide an annuity for the person's spouse at less
than the maximum level; or
(iii) to provide an annuity for a dependent child but not
for the person's spouse.
(B) Spousal consent for certain elections respecting
reserve-component annuity. - A married person who is eligible
to provide a reserve-component annuity may not without the
concurrence of the person's spouse elect -
(i) not to participate in the Plan;
(ii) to designate under subsection (e)(2) the effective
date for commencement of annuity payments under the Plan in
the event that the member dies before becoming 60 years of
age to be the 60th anniversary of the member's birth (rather
than the day after the date of the member's death);
(iii) to provide an annuity for the person's spouse at less
than the maximum level; or
(iv) to provide an annuity for a dependent child but not
for the person's spouse.
(C) Exception when spouse unavailable. - A person may make an
election described in subparagraph (A) or (B) without the
concurrence of the person's spouse if the person establishes to
the satisfaction of the Secretary concerned -
(i) that the spouse's whereabouts cannot be determined; or
(ii) that, due to exceptional circumstances, requiring the
person to seek the spouse's consent would otherwise be
inappropriate.
(D) Construction with former spouse election provisions. -
This paragraph does not affect any right or obligation to elect
to provide an annuity for a former spouse (or for a former
spouse and dependent child) under subsection (b)(2).
(E) Notice to spouse of election to provide former spouse
annuity. - If a married person who is eligible to provide a
standard annuity elects to provide an annuity for a former
spouse (or for a former spouse and dependent child) under
subsection (b)(2), that person's spouse shall be notified of
that election.
(4) Irrevocability of elections. -
(A) Standard annuity. - An election under paragraph (2)(A) is
irrevocable if not revoked before the date on which the person
first becomes entitled to retired pay.
(B) Reserve-component annuity. - An election under paragraph
(2)(B) is irrevocable if not revoked before the end of the
90-day period referred to in that paragraph.
(5) Participation by person marrying after retirement, etc. -
(A) Election to participate in plan. - A person who is not
married and has no dependent child upon becoming eligible to
participate in the Plan but who later marries or acquires a
dependent child may elect to participate in the Plan.
(B) Manner and time of election. - Such an election must be
written, signed by the person making the election, and received
by the Secretary concerned within one year after the date on
which that person marries or acquires that dependent child.
(C) Limitation on revocation of election. - Such an election
may not be revoked except in accordance with subsection (b)(3).
(D) Effective date of election. - The election is effective
as of the first day of the first calendar month following the
month in which the election is received by the Secretary
concerned.
(E) Designation if rcsbp election. - In the case of a person
providing a reserve-component annuity, such an election shall
include a designation under subsection (e).
(6) Election out of plan by person with spouse coverage who
remarries. -
(A) General rule. - A person -
(i) who is a participant in the Plan and is providing
coverage under the Plan for a spouse (or a spouse and child);
(ii) who does not have an eligible spouse beneficiary under
the Plan; and
(iii) who remarries,
may elect not to provide coverage under the Plan for the
person's spouse.
(B) Effect of election on retired pay. - If such an election
is made, reductions in the retired pay of that person under
section 1452 of this title shall not be made.
(C) Terms and conditions of election. - An election under
this paragraph -
(i) is irrevocable;
(ii) shall be made within one year after the person's
remarriage; and
(iii) shall be made in such form and manner as may be
prescribed in regulations under section 1455 of this title.
(D) Notice to spouse. - If a person makes an election under
this paragraph -
(i) not to participate in the Plan;
(ii) to provide an annuity for the person's spouse at less
than the maximum level; or
(iii) to provide an annuity for a dependent child but not
for the person's spouse,
the person's spouse shall be notified of that election.
(E) Construction with former spouse election provisions. -
This paragraph does not affect any right or obligation to elect
to provide an annuity to a former spouse under subsection (b).
(b) Insurable Interest and Former Spouse Coverage. -
(1) Coverage for person with insurable interest. -
(A) General rule. - A person who is not married and does not
have a dependent child upon becoming eligible to participate in
the Plan may elect to provide an annuity under the Plan to a
natural person with an insurable interest in that person. In
the case of a person providing a reserve-component annuity,
such an election shall include a designation under subsection
(e).
(B) Termination of coverage. - An election under subparagraph
(A) for a beneficiary who is not the former spouse of the
person providing the annuity may be terminated. Any such
termination shall be made by a participant by the submission to
the Secretary concerned of a request to discontinue
participation in the Plan, and such participation in the Plan
shall be discontinued effective on the first day of the first
month following the month in which the request 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.
(C) Form for discontinuation. - A request under subparagraph
(B) to discontinue participation in the Plan shall be in such
form and shall contain such information as may be required
under regulations prescribed by the Secretary of Defense.
(D) Withdrawal of request for discontinuation. - The
Secretary concerned shall furnish promptly to each person who
submits a request under subparagraph (B) to discontinue
participation in the Plan a written statement of the advantages
and disadvantages of participating in the Plan and the possible
disadvantages of discontinuing participation. A person may
withdraw the request to discontinue participation if withdrawn
within 30 days after having been submitted to the Secretary
concerned.
(E) Consequences of discontinuation. - Once participation is
discontinued, benefits may not be paid in conjunction with the
earlier participation in the Plan and premiums paid may not be
refunded. Participation in the Plan may not later be resumed
except through a qualified election under paragraph (5) of
subsection (a).
(F) Vitiation of election by disability retiree who dies of
disability-related cause. - If a member retired on or after the
date of the enactment of the National Defense Authorization Act
for Fiscal Year 2004 under chapter 61 of this title dies within
one year after the date on which the member is so retired and
the cause of death is related to a disability for which the
member was retired under that chapter (as determined under
regulations prescribed by the Secretary of Defense) -
(i) an election made by the member under paragraph (1) to
provide an annuity under the Plan to any person other than a
dependent of that member (as defined in section 1072(2) of
this title) is vitiated; and
(ii) the amounts by which the member's retired pay was
reduced under section 1452 of this title shall be refunded
and paid to the person to whom the annuity under the Plan
would have been paid pursuant to such election.
(2) Former spouse coverage upon becoming a participant in the
plan. -
(A) General rule. - A person who has a former spouse upon
becoming eligible to participate in the Plan may elect to
provide an annuity to that former spouse.
(B) Effect of former spouse election on spouse or dependent
child. - In the case of a person with a spouse or a dependent
child, such an election prevents payment of an annuity to that
spouse or child (other than a child who is a beneficiary under
an election under paragraph (4)), including payment under
subsection (d).
(C) Designation if more than one former spouse. - If there is
more than one former spouse, the person shall designate which
former spouse is to be provided the annuity.
(D) Designation if rcsbp election. - In the case of a person
providing a reserve-component annuity, such an election shall
include a designation under subsection (e).
(3) Former spouse coverage by persons already participating in
plan. -
(A) Election of coverage. -
(i) Authority for election. - A person -
(I) who is a participant in the Plan and is providing
coverage for a spouse or a spouse and child (even though
there is no beneficiary currently eligible for such
coverage), and
(II) who has a former spouse who was not that person's
former spouse when that person became eligible to
participate in the Plan,
may (subject to subparagraph (B)) elect to provide an annuity
to that former spouse.
(ii) Termination of previous coverage. - Any such election
terminates any previous coverage under the Plan.
(iii) Manner and time of election. - Any such election must
be written, signed by the person making the election, and
received by the Secretary concerned within one year after the
date of the decree of divorce, dissolution, or annulment.
(B) Limitation on election. - A person may not make an
election under subparagraph (A) to provide an annuity to a
former spouse who that person married after becoming eligible
for retired pay unless -
(i) the person was married to that former spouse for at
least one year, or
(ii) that former spouse is the parent of issue by that
marriage.
(C) Irrevocability, etc. - An election under this paragraph
may not be revoked except in accordance with section 1450(f) of
this title. This paragraph does not provide the authority to
change a designation previously made under subsection (e).
(D) Notice to spouse. - If a person who is married makes an
election to provide an annuity to a former spouse under this
paragraph, that person's spouse shall be notified of the
election.
(E) Effective date of election. - An election under this
paragraph is effective as of -
(i) the first day of the first month following the month in
which the election is received by the Secretary concerned; or
(ii) in the case of a person required (as described in
section 1450(f)(3)(B) of this title) to make the election by
reason of a court order or filing the date of which is after
October 16, 1998, the first day of the first month which
begins after the date of that court order or filing.
(4) Former spouse and child coverage. - A person who elects to
provide an annuity for a former spouse under paragraph (2) or (3)
may, at the time of the election, elect to provide coverage under
that annuity for both the former spouse and a dependent child, if
the child resulted from the person's marriage to that former
spouse.
(5) Disclosure of whether election of former spouse coverage is
required. - A person who elects to provide an annuity to a former
spouse under paragraph (2) or (3) shall, at the time of making
the election, provide the Secretary concerned with a written
statement (in a form to be prescribed by that Secretary and
signed by such person and the former spouse) setting forth -
(A) whether the election is being made pursuant to the
requirements of a court order; or
(B) whether the election is being made pursuant to a written
agreement previously entered into voluntarily by such person as
a part of, or incident to, a proceeding of divorce,
dissolution, or annulment and (if so) whether such voluntary
written agreement has been incorporated in, or ratified or
approved by, a court order.
(c) Persons on Temporary Disability Retired List. - The
application of the Plan to a person whose name is on the temporary
disability retired list terminates when his name is removed from
that list and he is no longer entitled to disability retired pay.
(d) Coverage for Survivors of Members Who Die on Active Duty. -
(1) Surviving spouse annuity. - Except as provided in paragraph
(2)(B), the Secretary concerned shall pay an annuity under this
subchapter to the surviving spouse of -
(A) a member who dies while on active duty after -
(i) becoming eligible to receive retired pay;
(ii) qualifying for retired pay except that the member has
not applied for or been granted that pay; or
(iii) completing 20 years of active service but before the
member is eligible to retire as a commissioned officer
because the member has not completed 10 years of active
commissioned service; or
(B) a member not described in subparagraph (A) who dies in
line of duty while on active duty.
(2) Dependent children. -
(A) Annuity when no eligible surviving spouse. - In the case
of a member described in paragraph (1), the Secretary concerned
shall pay an annuity under this subchapter to the member's
dependent children under section 1450(a)(2) of this title as
applicable.
(B) Optional annuity when there is an eligible surviving
spouse. - In the case of a member described in paragraph (1)
who dies on or after the date of the enactment of the National
Defense Authorization Act for Fiscal Year 2004 and for whom
there is a surviving spouse eligible for an annuity under
paragraph (1), the Secretary may pay an annuity under this
subchapter to the member's dependent children under section
1450(a)(3) of this title, if applicable, instead of paying an
annuity to the surviving spouse under paragraph (1), if the
Secretary concerned, in consultation with the surviving spouse,
determines it appropriate to provide an annuity for the
dependent children under this paragraph instead of an annuity
for the surviving spouse under paragraph (1).
(3) Mandatory former spouse annuity. - If a member described in
paragraph (1) is required under a court order or spousal
agreement to provide an annuity to a former spouse upon becoming
eligible to be a participant in the Plan or has made an election
under subsection (b) to provide an annuity to a former spouse,
the Secretary -
(A) may not pay an annuity under paragraph (1) or (2); but
(B) shall pay an annuity to that former spouse as if the
member had been a participant in the Plan and had made an
election under subsection (b) to provide an annuity to the
former spouse, or in accordance with that election, as the case
may be, if the Secretary receives a written request from the
former spouse concerned that the election be deemed to have
been made in the same manner as provided in section 1450(f)(3)
of this title.
(4) Priority. - An annuity that may be provided under this
subsection shall be provided in preference to an annuity that may
be provided under any other provision of this subchapter on
account of service of the same member.
(5) Computation. - The amount of an annuity under this
subsection is computed under section 1451(c) of this title.
(6) Deemed election. -
(A) Annuity for dependent. - In the case of a member
described in paragraph (1) who dies on or after the date of the
enactment of the National Defense Authorization Act for Fiscal
Year 2004, the Secretary concerned may, if no other annuity is
payable on behalf of the member under this subchapter, pay an
annuity to a natural person who has an insurable interest in
such member as if the annuity were elected by the member under
subsection (b)(1). The Secretary concerned may pay such an
annuity under this paragraph only in the case of a person who
is a dependent of that member (as defined in section 1072(2) of
this title).
(B) Computation of annuity. - An annuity under this
subparagraph shall be computed under section 1451(b) of this
title as if the member had retired for total disability on the
date of death with reductions as specified under section
1452(c) of this title, as applicable to the ages of the member
and the natural person with an insurable interest.
(e) Designation for Commencement of Reserve-Component Annuity. -
In any case in which a person is required to make a designation
under this subsection, the person shall designate whether, in the
event he dies before becoming 60 years of age, the annuity provided
shall become effective on -
(1) the day after the date of his death; or
(2) the 60th anniversary of his birth.
(f) Coverage of Survivors of Persons Dying When or Before
Eligible To Elect Reserve-Component Annuity. -
(1) Surviving spouse annuity. - The Secretary concerned shall
pay an annuity under this subchapter to the surviving spouse of a
person who -
(A) is eligible to provide a reserve-component annuity and
dies -
(i) before being notified under section 12731(d) of this
title that he has completed the years of service required for
eligibility for reserve-component retired pay; or
(ii) during the 90-day period beginning on the date he
receives notification under section 12731(d) of this title
that he has completed the years of service required for
eligibility for reserve-component retired pay if he had not
made an election under subsection (a)(2)(B) to participate in
the Plan; or
(B) is a member of a reserve component not described in
subparagraph (A) and dies from an injury or illness incurred or
aggravated in the line of duty during inactive-duty training.
(2) Dependent child annuity. - The Secretary concerned shall
pay an annuity under this subchapter to the dependent child of a
person described in paragraph (1) if there is no surviving spouse
or if the person's surviving spouse subsequently dies.
(3) Mandatory former spouse annuity. - If a person described in
paragraph (1) is required under a court order or spousal
agreement to provide an annuity to a former spouse upon becoming
eligible to be a participant in the Plan or has made an election
under subsection (b) to provide an annuity to a former spouse,
the Secretary -
(A) may not pay an annuity under paragraph (1) or (2); but
(B) shall pay an annuity to that former spouse as if the
person had been a participant in the Plan and had made an
election under subsection (b) to provide an annuity to the
former spouse, or in accordance with that election, as the case
may be, if the Secretary receives a written request from the
former spouse concerned that the election be deemed to have
been made in the same manner as provided in section 1450(f)(3)
of this title.
(4) Computation. - The amount of an annuity under this
subsection is computed under section 1451(c) of this title.
(g) Election To Increase Coverage Upon Remarriage. -
(1) Election. - A person -
(A) who is a participant in the Plan and is providing
coverage under subsection (a) for a spouse or a spouse and
child, but at less than the maximum level; and
(B) who remarries,
may elect, within one year of such remarriage, to increase the
level of coverage provided under the Plan to a level not in
excess of the current retired pay of that person.
(2) Payment required. - Such an election shall be contingent on
the person paying to the United States the amount determined
under paragraph (3) plus interest on such amount at a rate
determined under regulations prescribed by the Secretary of
Defense.
(3) Amount to be paid. - The amount referred to in paragraph
(2) is the amount equal to the difference between -
(A) the amount that would have been withheld from such
person's retired pay under section 1452 of this title if the
higher level of coverage had been in effect from the time the
person became a participant in the Plan; and
(B) the amount of such person's retired pay actually
withheld.
(4) Manner of making election. - An election under paragraph
(1) shall be made in such manner as the Secretary shall prescribe
and shall become effective upon receipt of the payment required
by paragraph (2).
(5) Disposition of payments. - A payment received under this
subsection by the Secretary of Defense shall be deposited into
the Department of Defense Military Retirement Fund. Any other
payment received under this subsection shall be deposited in the
Treasury as miscellaneous receipts.
|
|