§ 1401. PRESERVATION OF TITLE TO SUNKEN MILITARY CRAFT AND ASSOCIATED CONTENTS.

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(a)Disability, Non-Regular Service, Warrant Officer, and DOPMA Retirement.— The monthly retired pay of a person entitled thereto under this subtitle is computed according to the following table. For each case covered by a section of this title named in the column headed “For sections”, retired pay is computed by taking, in order, the steps prescribed opposite it in columns 1, 2, and 3, as modified by the applicable footnotes. Formula No.For sectionsColumn 1 TakeColumn 2 Multiply byColumn 3 Add 1 Before applying percentage factor, credit each full month of service that is in addition to the number of full years of service creditable to the member as one-twelfth of a year and disregard any remaining fractional part of a month. 112011204Retired pay base as computed under section 1406(b) or 1407.As member elects—

(1)the retired pay multiplier determined for the member under section 1409 of this title; 1 or

(2)the percentage of disability, not to exceed 75%, on date when retired. 212021205Retired pay base as computed under section 1406(b) or 1407.As member elects—

(1)the retired pay multiplier determined for the member under section 1409 of this title; 1 or

(2)the percentage of disability, not to exceed 75%, on date when his name was placed on temporary disability retired list.Amount necessary to increase product of columns 1 and 2 to 50% of retired pay base upon which computation is based. 4580126312931305Retired pay base as computed under section 1406(b) or 1407.The retired pay multiplier prescribed in section 1409 for the years of service credited to him under section 1405. 5633634635636125112521253Retired pay base as computed under section 1406(b) or 1407.The retired pay multiplier prescribed in section 1409 for the years of service credited to him under section 1405.

(b)Use of Most Favorable Formula.— If a person would otherwise be entitled to retired pay computed under more than one formula of the table in subsection

(a)or of any other provision of law, the person is entitled to be paid under the applicable formula that is most favorable to him.

(Aug. 10, 1956, ch. 1041, 70A Stat. 106; Pub. L. 85–422, §§ 6(7), 11(a)(2), May 20, 1958, 72 Stat. 129, 131; Pub. L. 88–132, § 5(h)(1), Oct. 2, 1963, 77 Stat. 214; Pub. L. 89–132, § 6, Aug. 21, 1965, 79 Stat. 547; Pub. L. 90–207, § 3(1), Dec. 16, 1967, 81 Stat. 653; Pub. L. 92–455, § 1, Oct. 2, 1972, 86 Stat. 761; Pub. L. 96–342, title VIII, § 813(b)(1), Sept. 8, 1980, 94 Stat. 1102; Pub. L. 96–513, title I, § 113(a), title V, § 511(49), Dec. 12, 1980, 94 Stat. 2876, 2924; Pub. L. 98–94, title IX, §§ 922(a)(1), 923(a)(1), (2)(A), Sept. 24, 1983, 97 Stat. 641, 642;

Pub. L. 98–557, § 35(b), Oct. 30, 1984, 98 Stat. 2877; Pub. L. 99–348, title II, § 201(a), July 1, 1986, 100 Stat. 691; Pub. L. 102–484, div. A, title X, § 1052(18), Oct. 23, 1992, 106 Stat. 2500; Pub. L. 103–337, div. A, title XVI, § 1662(j)(2), Oct. 5, 1994, 108 Stat. 3004; Pub. L. 109–163, div. A, title V, § 509(d)(1)(A), Jan. 6, 2006, 119 Stat. 3231; Pub. L. 109–364, div. A, title V, § 502(d)(1), Oct. 17, 2006, 120 Stat. 2177; Pub. L. 111–383, div. A, title VI, § 631(a), Jan. 7, 2011, 124 Stat. 4239;

Pub. L. 112–239, div. A, title X, § 1076(f)(19), Jan. 2, 2013, 126 Stat. 1952; Pub. L. 114–92, div. A, title VI, § 631(c)(1)(A), Nov. 25, 2015, 129 Stat. 843.)

In the introductory paragraph, the applicability of the rule stated in the third sentence to situations not expressly covered by the laws named in the source statutes above is a practical construction that the rule must be reciprocally applied in all cases.

In formula No. 1, the words “whichever is earlier”, in 37:272(d) (clause (2)), are omitted, since they are contrary to the rule stated in 37:272(e) (1st proviso of last sentence).

In formula No. 3, the computation is based on monthly pay instead of annual pay to conform to the other formulas of the revised section. The words “basic pay” are substituted for the words “base and longevity pay” to conform to the terminology of the Career Compensation Act of 1949 (37 U.S.C. 231 et seq.). The words “which he would receive if serving, at the time granted such pay, on active duty” are omitted as surplusage and to conform to the other formulas of the revised section, since the effect of these words is covered by footnote 1. The words “at any time” are substituted for the words “during his entire period of service”.

Footnotes 1 and 2 reflect the long-standing construction of those provisions dealing with computation of retired pay which do not specifically provide that the member is entitled to compute his retired pay on the basis of the monthly basic pay to which he would be entitled if he were on active duty in his retired grade. The pertinent basic computation provisions for such retirement either provide for computation of retired pay on the same basis as the provisions dealing with higher retired grade, or the basic retirement provisions were enacted after the provisions authorizing higher retired grade.

The words “at rates applicable on date of retirement * * * and adjust to reflect later changes in permanent rates”, in footnote 1; and all of footnote 2; are based on the source statutes incorporated in the formulas to which footnotes 1 and 2 apply, as interpreted in an opinion of the Judge Advocate General of the Army (1953/4120, 14 May 1953).

In footnote 3, the words “and disregard a part of a year that is less than six months” are made applicable to formulas Nos. 1 and 2. The legislative history of the Career Compensation Act of 1949 (Hearings before the Committee on Armed Services of the Senate on H.R. 5007, 81st Congress, First Session, page 313, July 6, 1949) indicates that the provisions, upon which formulas Nos. 1 and 2 are based, should be construed to require that a fraction of less than one-half of a year be disregarded. It also indicates that other retirement laws that are also silent on this point should be similarly construed.

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