§ 1402. PROHIBITIONS.

4,145 words·~19 min read·/usc/title-10/section-1402

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(a)However, an officer who was ordered to active duty (other than for training) in the grade that he holds on the retired list under former section 6150 of this title, or under any other law that authorized advancement on the retired list based upon a special commendation for the performance of duty in actual combat, may have his retired pay recomputed under this subsection on the basis of the rate of basic pay applicable to that grade upon his release from that active duty only if he has been entitled, for a continuous period of at least three years, to basic pay at that rate. If, upon his release from that active duty, he has been entitled to the basic pay of that grade for a continuous period of at least three years, but he does not qualify under the preceding sentence, he may have his retired pay recomputed under this subsection on the basis of the rate of basic pay prescribed for that grade by the rates of basic pay replaced by those in effect upon his release from that duty.

(b)A member of an armed force who first became a member of a uniformed service before September 8, 1980, and who has been retired other than for physical disability, and who while on active duty incurs a physical disability of at least 30 percent for which he would otherwise be eligible for retired pay under chapter 61 of this title, is entitled, upon his release from active duty, to retired pay under subsection (d).

(c)A member of an armed force who first became a member of a uniformed service before September 8, 1980, and who—

(1)was retired for physical disability under section 1201 or 1204 of this title or any other law or whose name is on the temporary disability retired list;

(2)incurs, while on active duty after retirement or after his name was placed on that list, a physical disability that is in addition to or that aggravates the physical disability for which he was retired or for which his name was placed on the temporary disability retired list; and

(3)is qualified under section 1201, 1202, 1204, or 1205 of this title;

is entitled, upon his release from active duty, to retired pay under subsection (d).

(d)If, while on active duty after retirement or after his name was placed on the temporary disability retired list, a member covered by this subsection was promoted to a higher grade in which he served satisfactorily, as determined by the Secretary concerned, he is entitled to retired pay based on the monthly basic pay to which he would be entitled if he were on active duty in that higher grade.

(e)Notwithstanding subsection (a), a member covered by that subsection may elect, upon his release from active duty, to have his retired pay or retainer pay—

(1)computed according to the formula set forth in subsection

(a)but using the rate of basic pay under which his retired pay or retainer pay was computed when he entered on active duty; and

(2)increased by any applicable adjustments in that pay under section 1401a of this title after he initially became entitled to that pay.

(1)In the case of a member who is entitled to recompute retired pay under this section upon release from active duty served after retiring under section 7314 or 9314 of this title, the member’s retired pay as recomputed under another provision of this section shall be increased by 10 percent of the amount so recomputed if the member has been credited by the Secretary concerned with extraordinary heroism in the line of duty during any period of active duty service in the armed forces.

(2)Except in the case of a member who served during the Vietnam Era (as that term is defined in section 12731 of this title), the amount of the retired pay as recomputed under another provision of this section and as increased under paragraph

(1)may not exceed the amount equal to 75 percent of the monthly rate of basic pay upon which the recomputation of such retired pay is based.

(3)The determination of the Secretary concerned as to extraordinary heroism is conclusive for all purposes.

(Aug. 10, 1956, ch. 1041, 70A Stat. 107; Pub. L. 86–559, § 1(5), June 30, 1960, 74 Stat. 265; Pub. L. 88–132, § 5(l)(1), Oct. 2, 1963, 77 Stat. 214; Pub. L. 90–207, § 2(a)(2), Dec. 16, 1967, 81 Stat. 653; Pub. L. 96–342, title VIII, § 813(b)(2), Sept. 8, 1980, 94 Stat. 1102; Pub. L. 96–513, title V, § 511(50), Dec. 12, 1980, 94 Stat. 2924; Pub. L. 98–94, title IX, §§ 922(a)(3), (4), 923(a)(1), (2)(B), (C), Sept. 24, 1983, 97 Stat. 641, 642; Pub. L. 99–348, title II, § 201(b)(3), title III, § 304(a)(3), (b)(3), July 1, 1986, 100 Stat. 694, 703;

Pub. L. 102–484, div. A, title VI, § 642(a), Oct. 23, 1992, 106 Stat. 2424; Pub. L. 110–181, div. A, title VI, § 646(b), Jan. 28, 2008, 122 Stat. 160; Pub. L. 111–383, div. A, title VI, § 631(b), Jan. 7, 2011, 124 Stat. 4239; Pub. L. 115–232, div. A, title VIII, § 809(a), Aug. 13, 2018, 132 Stat. 1840; Pub. L. 118–159, div. A, title VI, § 604(1), Dec. 23, 2024, 138 Stat. 1931.)

In subsection (a), columns 1 and 2 of the table are based on 37:316 (1st proviso). Column 4 is based on 37:316 (last proviso). Footnote 1 is based on 37:316 (2d proviso). 37:316 (3d proviso) is omitted as operationally obsolete.

In subsections

(a)and (d), the words “and disregard a part of a year that is less than six months” are added to footnote 1 to conform to footnote 3 of section 1401 of this title.

In subsection (b), the words “for which he would otherwise be eligible for retired pay under chapter 61 of this title” are substituted for the words “in accordance with the standard schedule of rating disabilities in current use by the Veterans’ Administration” and “if qualified”.

In subsection (c), the requirement that the physical disability incurred be 30 percent or more is omitted as surplusage, since it is also required that the member be qualified for physical disability retirement under section 1201 or 1204 of this title.

In subsection (d), the rules stated in 37:316 (2d and last provisos) are repeated in column 4 of the table and the footnote to the table, since they apply to all cases of increased pay for active duty performed after retirement.

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