10 U.S.C. § 1074g (2024) — Title 10: ARMED FORCES / Chapter 55 / Section 1074g: Pharmacy benefits program
Pharmacy benefits program
Status: in_force

(a) Pharmacy Benefits.—(1) The Secretary of Defense, after consulting with the other administering Secretaries, shall establish an effective, efficient, integrated pharmacy benefits program under this chapter (hereinafter in this section referred to as the "pharmacy benefits program").

(2)(A) The pharmacy benefits program shall include a uniform formulary of pharmaceutical agents, which shall assure the availability of pharmaceutical agents in the complete range of therapeutic classes. The selection for inclusion on the uniform formulary of particular pharmaceutical agents in each therapeutic class shall be based on the relative clinical and cost effectiveness of the agents in such class. With respect to members of the uniformed services, such uniform formulary shall include pharmaceutical agents on the joint uniform formulary established under section 715 of the National Defense Authorization Act for Fiscal Year 2016.

(B) In considering the relative clinical effectiveness of agents under subparagraph (A), the Secretary shall presume inclusion in a therapeutic class of a pharmaceutical agent, unless the Pharmacy and Therapeutics Committee established under subsection (b) finds that a pharmaceutical agent does not have a significant, clinically meaningful therapeutic advantage in terms of safety, effectiveness, or clinical outcome over the other drugs included on the uniform formulary.

(C) In considering the relative cost effectiveness of agents under subparagraph (A), the Secretary shall rely on the evaluation by the Pharmacy and Therapeutics Committee of the costs of agents in a therapeutic class in relation to the safety, effectiveness, and clinical outcomes of such agents.

(D) The Secretary shall establish procedures for the selection of particular pharmaceutical agents for the uniform formulary. Such procedures shall be established so as best to accomplish, in the judgment of the Secretary, the objectives set forth in paragraph (1). Except as provided in subparagraph (F), no pharmaceutical agent may be excluded from the uniform formulary except upon the recommendation of the Pharmacy and Therapeutics Committee.

(E) Pharmaceutical agents included on the uniform formulary shall be available to eligible covered beneficiaries through—

(i) facilities of the uniformed services, consistent with the scope of health care services offered in such facilities and additional determinations by the Pharmacy and Therapeutics Committee of the relative clinical and cost effectiveness of the agents;

(ii) retail pharmacies designated or eligible under the TRICARE program or the Civilian Health and Medical Program of the Uniformed Services to provide pharmaceutical agents to covered beneficiaries; or

(iii) the national mail-order pharmacy program.

(F)(i) The Secretary may implement procedures to place selected over-the-counter drugs on the uniform formulary and to make such drugs available to eligible covered beneficiaries. An over-the-counter drug may be included on the uniform formulary only if the Pharmacy and Therapeutics Committee established under subsection (b) finds that the over-the-counter drug is cost effective and clinically effective. If the Pharmacy and Therapeutics Committee recommends an over-the-counter drug for inclusion on the uniform formulary, the drug shall be considered to be in the same therapeutic class of pharmaceutical agents, as determined by the Committee, as similar prescription drugs.

(ii) Regulations prescribed by the Secretary to carry out clause (i) shall include the following with respect to over-the-counter drugs included on the uniform formulary:

(I) A determination of the means and conditions under paragraphs (5) and (6) through which over-the-counter drugs will be available to eligible covered beneficiaries and the amount of cost sharing that such beneficiaries will be required to pay for over-the-counter drugs, if any, except that no such cost sharing may be required for a member of a uniformed service on active duty.

(II) Any terms and conditions for the dispensing of over-the-counter drugs to eligible covered beneficiaries.

(3) The pharmacy benefits program shall assure the availability of clinically appropriate pharmaceutical agents to members of the armed forces, including, where appropriate, agents not included on the uniform formulary described in paragraph (2).

(4) The pharmacy benefits program may provide that prior authorization be required for certain pharmaceutical agents to assure that the use of such agents is clinically appropriate.

(5) The pharmacy benefits program shall assure the availability to eligible covered beneficiaries of pharmaceutical agents not included on the uniform formulary. Such pharmaceutical agents shall be available through the national mail-order pharmacy program under terms and conditions that shall include cost-sharing by the eligible covered beneficiary as specified in paragraph (6).

(6)(A) In the case of any of the years 2018 through 2027, the cost-sharing amounts under this subsection for eligible covered beneficiaries shall be determined in accordance with the following table:

For:The cost-sharing amount for a 30-day supply of a retail generic is:The cost-sharing amount for a 30-day supply of a retail formulary is:The cost-sharing amount for a 90-day supply of a mail order generic is:The cost-sharing amount for a 90-day supply of a mail order formulary is:The cost-sharing amount for a 90-day supply of a mail order non-formulary is:

2018
$11
$28
$7
$24
$53

2019
$11
$28
$7
$24
$53

2020
$13
$33
$10
$29
$60

2021
$13
$33
$10
$29
$60

2022
$14
$38
$12
$34
$68

2023
$14
$38
$12
$34
$68

2024
$16
$43
$13
$38
$76

2025
$16
$43
$13
$38
$76

2026
$16
$48
$14
$44
$85

2027
$16
$48
$14
$44
$85

(B) For any year after 2027, the cost-sharing amounts under this subsection for eligible covered beneficiaries shall be equal to the cost-sharing amounts for the previous year adjusted by an amount, if any, determined by the Secretary to reflect changes in the costs of pharmaceutical agents and prescription dispensing, rounded to the nearest dollar.

(C) Notwithstanding subparagraphs (A) and (B), the cost-sharing amounts under this subsection for a dependent of a member of the uniformed services who dies while on active duty, a member retired under chapter 61 of this title, or a dependent of a member retired under such chapter shall be equal to the cost-sharing amounts, if any, for 2017.

(D) Notwithstanding subparagraphs (A), (B), and (C), the Secretary may selectively waive or reduce cost-sharing amounts under this subsection for a dependent of a member of the uniformed services described in section 1074(c)(3)(B) of this title if the dependent is enrolled in the TRICARE Prime Remote program and accompanies the member to the duty assignment of the member at the expense of the Federal Government.

(E) Notwithstanding subparagraphs (A), (B), and (C), the cost-sharing amount under this subsection for any prescription contraceptive on the uniform formulary provided through a retail pharmacy described in paragraph (2)(E)(ii) or through the national mail-order pharmacy program is $0.

(7) The Secretary shall establish procedures for eligible covered beneficiaries to receive pharmaceutical agents that are not included on the uniform formulary but that are considered to be clinically necessary. Such procedures shall include peer review procedures under which the Secretary may determine that there is a clinical justification for the use of a pharmaceutical agent that is not on the uniform formulary, in which case the pharmaceutical agent shall be provided under the same terms and conditions as an agent on the uniform formulary. Such procedures shall also include an expeditious appeals process for an eligible covered beneficiary, or a network or uniformed provider on behalf of the beneficiary, to establish clinical justification for the use of a pharmaceutical agent that is not on the uniform formulary.

(8) In carrying out this subsection, the Secretary shall ensure that an eligible covered beneficiary may continue to receive coverage for any maintenance pharmaceutical that is not on the uniform formulary and that was prescribed for the beneficiary before October 5, 1999, and stabilized the medical condition of the beneficiary.

(9)(A) Beginning on October 1, 2015, the pharmacy benefits program shall require eligible covered beneficiaries generally to refill non-generic prescription maintenance medications through military treatment facility pharmacies or the national mail-order pharmacy program.

(B) The Secretary shall determine the maintenance medications subject to the requirement under subparagraph (A). The Secretary shall ensure that—

(i) such medications are generally available to eligible covered beneficiaries through retail pharmacies only for an initial filling of a 30-day or less supply; and

(ii) any refills of such medications are obtained through a military treatment facility pharmacy or the national mail-order pharmacy program.

(C) The Secretary may exempt the following prescription maintenance medications from the requirement of subparagraph (A):

(i) Medications that are for acute care needs.

(ii) Such other medications as the Secretary determines appropriate.

(10) Notwithstanding paragraphs (2), (5), and (6), in order to encourage the use by covered beneficiaries of pharmaceutical agents that provide the best clinical effectiveness to covered beneficiaries and the Department of Defense (as determined by the Secretary, including considerations of better care, healthier people, and smarter spending), the Secretary may, upon the recommendation of the Pharmacy and Therapeutics Committee established under subsection (b) and review by the Uniform Formulary Beneficiary Advisory Panel established under subsection (c)—

(A) exclude from the pharmacy benefits program any pharmaceutical agent that the Secretary determines provides very little or no clinical effectiveness to covered beneficiaries and the Department under the program; and

(B) give preferential status to any non-generic pharmaceutical agent on the uniform formulary by treating it, for purposes of cost-sharing under paragraph (6), as a generic product under the TRICARE retail pharmacy program and mail order pharmacy program.

(b) Establishment of Committee.—(1) The Secretary of Defense shall, in consultation with the Secretaries of the military departments, establish a Pharmacy and Therapeutics Committee for the purpose of developing the uniform formulary of pharmaceutical agents required by subsection (a), reviewing such formulary on a periodic basis, and making additional recommendations regarding the formulary as the committee determines necessary and appropriate. The committee shall include representatives of pharmacies of the uniformed services facilities and representatives of providers in facilities of the uniformed services. Committee members shall have expertise in treating the medical needs of the populations served through such entities and in the range of pharmaceutical and biological medicines available for treating such populations. The committee shall function under procedures established by the Secretary under the regulations prescribed under subsection (j).

(2) The committee shall meet at least quarterly and shall, during meetings, consider for inclusion on the uniform formulary under the standards established in subsection (a) any drugs newly approved by the Food and Drug Administration.

(c) Advisory Panel.—(1) Concurrent with the establishment of the Pharmacy and Therapeutics Committee under subsection (b), the Secretary shall establish a Uniform Formulary Beneficiary Advisory Panel to review and comment on the development of the uniform formulary. The Secretary shall consider the comments of the panel before implementing the uniform formulary or implementing changes to the uniform formulary.

(2) The Secretary shall determine the size and membership of the panel established under paragraph (1), which shall include members that represent—

(A) nongovernmental organizations and associations that represent the views and interests of a large number of eligible covered beneficiaries;

(B) contractors responsible for the TRICARE retail pharmacy program;

(C) contractors responsible for the national mail-order pharmacy program; and

(D) TRICARE network providers.

(d) Procedures.—(1) In the operation of the pharmacy benefits program under subsection (a), the Secretary of Defense shall assure through management and new contractual arrangements that financial resources are aligned such that the cost of prescriptions is borne by the organization that is financially responsible for the health care of the eligible covered beneficiary.

(2) The Secretary shall use a modification to the bid price adjustment methodology in the managed care support contracts current as of October 5, 1999, to ensure equitable and timely reimbursement to the TRICARE managed care support contractors for pharmaceutical products delivered in the nonmilitary environments. The methodology shall take into account the "at-risk" nature of the contracts as well as managed care support contractor pharmacy costs attributable to changes to pharmacy service or formulary management at military medical treatment facilities, and other military activities and policies that affect costs of pharmacy benefits provided through the Civilian Health and Medical Program of the Uniformed Services. The methodology shall also account for military treatment facility costs attributable to the delivery of pharmaceutical products in the military facility environment which were prescribed by a network provider.

(3) With respect to the TRICARE retail pharmacy program described in subsection (a)(2)(E)(ii), the Secretary shall ensure that a contract entered into with a TRICARE pharmacy program contractor includes requirements described in section 1860D–12(b)(6) of the Social Security Act (42 U.S.C. 1395w–112(b)(6)) to ensure the provision of information regarding the pricing standard for prescription drugs.

(e) Pharmacy Data Transaction Service.—The Secretary of Defense shall implement the use of the Pharmacy Data Transaction Service in all fixed facilities of the uniformed services under the jurisdiction of the Secretary, in the TRICARE retail pharmacy program, and in the national mail-order pharmacy program.

(f) Procurement of Pharmaceuticals by TRICARE Retail Pharmacy Program.—With respect to any prescription filled after January 28, 2008, the TRICARE retail pharmacy program shall be treated as an element of the Department of Defense for purposes of the procurement of drugs by Federal agencies under section 8126 of title 38 to the extent necessary to ensure that pharmaceuticals paid for by the Department of Defense that are provided by pharmacies under the program to eligible covered beneficiaries under this section are subject to the pricing standards in such section 8126.

(g) Sharing of Information With State Prescription Drug Monitoring Programs.—(1) The Secretary of Defense shall establish and maintain a program (to be known as the "Military Health System Prescription Drug Monitoring Program") in accordance with this subsection. The program shall include a special emphasis on drugs provided through facilities of the uniformed services.

(2) The program shall be—

(A) comparable to prescription drug monitoring programs operated by States, including such programs approved by the Secretary of Health and Human Services under section 399O of the Public Health Service Act (42 U.S.C. 280g–3); and

(B) applicable to designated controlled substance prescriptions under the pharmacy benefits program.

(3)(A) The Secretary shall establish appropriate procedures for the bi-directional sharing of patient-specific information regarding prescriptions for designated controlled substances between the program and State prescription drug monitoring programs.

(B) The purpose of sharing of information under this paragraph shall be to prevent misuse and diversion of opioid medications and other designated controlled substances.

(C) Any disclosure of patient-specific information by the Secretary under this paragraph is an authorized disclosure for purposes of the health information privacy regulations promulgated under the Health Insurance Portability and Accountability Act of 1996 (Public Law 104–191).

(4)(A) Any procedures developed pursuant to paragraph (3)(A) shall include appropriate safeguards, as determined by the Secretary, concerning cyber security of Department of Defense systems and operational security of Department personnel.

(B) To the extent the Secretary considers appropriate, the program may be treated as comparable to a State program for purposes of bi-directional sharing of controlled substance prescription information.

(5) For purposes of this subsection, any reference to a program operated by a State includes any program operated by a county, municipality, or other subdivision within that State.

(h) Labeling.—The Secretary of Defense shall ensure that drugs made available through the facilities of the armed forces under the jurisdiction of the Secretary include labels and other labeling that are in compliance with the requirements of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.).

(i) Definitions.—In this section:

(1) The term "eligible covered beneficiary" means a covered beneficiary for whom eligibility to receive pharmacy benefits through the means described in subsection (a)(2)(E) is established under this chapter or another provision of law.

(2) The term "pharmaceutical agent" means drugs, biological products, and medical devices under the regulatory authority of the Food and Drug Administration.

(3) The term "over-the-counter drug" means a drug that is not subject to section 503(b) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 353(b)).

(4) The term "prescription drug" means a drug that is subject to section 503(b) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 353(b)).

(j) Regulations.—The Secretary of Defense shall, after consultation with the other administering Secretaries, prescribe regulations to carry out this section.

(Added Pub. L. 106–65, div. A, title VII, §701(a)(1), Oct. 5, 1999, 113 Stat. 677; amended Pub. L. 106–398, §1 [[div. A], title X, §1087(a)(5)], Oct. 30, 2000, 114 Stat. 1654, 1654A–290; Pub. L. 107–107, div. A, title X, §1048(c)(4), Dec. 28, 2001, 115 Stat. 1226; Pub. L. 108–136, div. A, title VII, §725, Nov. 24, 2003, 117 Stat. 1535; Pub. L. 108–375, div. A, title VII, §714, Oct. 28, 2004, 118 Stat. 1985; Pub. L. 110–181, div. A, title VII, §703(a), Jan. 28, 2008, 122 Stat. 188; Pub. L. 111–84, div. A, title X, §1073(a)(10), Oct. 28, 2009, 123 Stat. 2473; Pub. L. 112–239, div. A, title VII, §§702, 712(a), Jan. 2, 2013, 126 Stat. 1798, 1802; Pub. L. 113–291, div. A, title VII, §702(a)–(c)(1), Dec. 19, 2014, 128 Stat. 3410; Pub. L. 114–92, div. A, title VII, §§702, 715(f), Nov. 25, 2015, 129 Stat. 860, 867; Pub. L. 115–91, div. A, title VII, §§702(a), (b)(1), 714, title X, §1081(a)(24), Dec. 12, 2017, 131 Stat. 1433, 1434, 1438, 1595; Pub. L. 115–232, div. A, title VII, §715(a), Aug. 13, 2018, 132 Stat. 1813; Pub. L. 116–92, div. A, title VII, §713(a), (b), Dec. 20, 2019, 133 Stat. 1446; Pub. L. 118–159, div. A, title VII, §§702, 707(a), Dec. 23, 2024, 138 Stat. 1942, 1944.)

Editorial Notes

References in Text

Section 715 of the National Defense Authorization Act for Fiscal Year 2016, referred to in subsec. (a)(2)(A), is section 715 of Pub. L. 114–92, which is set out as a note under this section.

The Health Insurance Portability and Accountability Act of 1996, referred to in subsec. (g)(3)(C), is Pub. L. 104–191, Aug. 21, 1996, 110 Stat. 1936. For complete classification of this Act to the Code, see Short Title of 1996 Amendments note set out under section 201 of Title 42, The Public Health and Welfare, and Tables.

The Federal Food, Drug, and Cosmetic Act, referred to in subsec. (h), is act June 25, 1938, ch. 675, 52 Stat. 1040, which is classified generally to chapter 9 (§301 et seq.) of Title 21, Food and Drugs. For complete classification of this Act to the Code, see section 301 of Title 21 and Tables.

Amendments

2024—Subsec. (a)(6)(D). Pub. L. 118–159, §702, added subpar. (D).

Subsec. (a)(6)(E). Pub. L. 118–159, §707(a), added subpar. (E).

2019—Subsec. (b)(1). Pub. L. 116–92, §713(b), substituted "under subsection (j)" for "under subsection (h)".

Subsecs. (h) to (j). Pub. L. 116–92, §713(a), added subsec. (h) and redesignated former subsecs. (h) and (i) as (i) and (j), respectively.

2018—Subsecs. (g) to (i). Pub. L. 115–232 added subsec. (g) and redesignated former subsecs. (g) and (h) as (h) and (i), respectively.

2017—Subsec. (a)(6). Pub. L. 115–91, §702(a), amended par. (6) generally, substituting provisions relating to cost-sharing amounts for the years 2018 through 2027 and for any year after 2027 for provisions relating to cost-sharing amounts, limitation on requirements for medicare-eligible beneficiaries, and increases beginning on Oct. 1, 2016.

Subsec. (a)(9)(B), (C). Pub. L. 115–91, §1081(a)(24), realigned margins.

Subsec. (a)(10). Pub. L. 115–91, §702(b)(1), added par. (10).

Subsec. (d)(3). Pub. L. 115–91, §714, added par. (3).

2015—Subsec. (a)(2)(A). Pub. L. 114–92, §715(f), inserted at end "With respect to members of the uniformed services, such uniform formulary shall include pharmaceutical agents on the joint uniform formulary established under section 715 of the National Defense Authorization Act for Fiscal Year 2016."

Subsec. (a)(6)(A)(i)(I). Pub. L. 114–92, §702(a)(1)(A), substituted "$10" for "$8".

Subsec. (a)(6)(A)(i)(II). Pub. L. 114–92, §702(a)(1)(B), substituted "$24" for "$20".

Subsec. (a)(6)(A)(ii)(II). Pub. L. 114–92, §702(a)(2)(A), substituted "$20" for "$16".

Subsec. (a)(6)(A)(ii)(III). Pub. L. 114–92, §702(a)(2)(B), substituted "$49" for "$46".

Subsec. (a)(6)(C)(i). Pub. L. 114–92, §702(b)(1), substituted "Beginning October 1, 2016," for "Beginning October 1, 2013,".

Subsec. (a)(6)(C)(ii). Pub. L. 114–92, §702(b)(2), added cl. (ii) and struck out former cl. (ii) which read as follows: "If the amount of the increase otherwise provided for a year by clause (i) is less than $1, the increase shall not be made for such year, but shall be carried over to, and accumulated with, the amount of the increase for the subsequent year or years and made when the aggregate amount of increases carried over under this clause for a year is $1 or more."

2014—Subsec. (a)(5). Pub. L. 113–291, §702(a), substituted "the national mail-order pharmacy program" for "at least one of the means described in paragraph (2)(E)" and "shall include cost-sharing by the eligible covered beneficiary as specified in paragraph (6)." for "may include cost sharing by the eligible covered beneficiary in addition to any such cost sharing applicable to agents on the uniform formulary."

Subsec. (a)(6)(A)(i)(I). Pub. L. 113–291, §702(b)(1)(A), substituted "$8" for "$5".

Subsec. (a)(6)(A)(i)(II). Pub. L. 113–291, §702(b)(1)(B), substituted "$20." for "$17; and".

Subsec. (a)(6)(A)(i)(III). Pub. L. 113–291, §702(b)(1)(C), struck out subcl. (III) which read as follows: "in the case of nonformulary agents, $44."

Subsec. (a)(6)(A)(ii)(II). Pub. L. 113–291, §702(b)(2)(A), substituted "$16" for "$13".

Subsec. (a)(6)(A)(ii)(III). Pub. L. 113–291, §702(b)(2)(B), substituted "$46" for "$43".

Subsec. (a)(9). Pub. L. 113–291, §702(c)(1), which directed amendment of such section by adding par. (9) at the end, was executed by adding par. (9) at the end of subsec. (a), to reflect the probable intent of Congress.

2013—Subsec. (a)(2)(D). Pub. L. 112–239, §702(a)(1), (c)(2)(A), substituted "Except as provided in subparagraph (F), no pharmaceutical agent may be excluded" for "No pharmaceutical agent may be excluded" and struck out at end "The Secretary shall begin to implement the uniform formulary not later than October 1, 2000.".

Subsec. (a)(2)(F). Pub. L. 112–239, §702(a)(2), added subpar. (F).

Subsec. (a)(6)(A). Pub. L. 112–239, §712(a)(1), added subpar. (A) and struck out former subpar. (A) which read as follows: "The Secretary, in the regulations prescribed under subsection (g), may establish cost sharing requirements (which may be established as a percentage or fixed dollar amount) under the pharmacy benefits program for generic, formulary, and nonformulary agents. For nonformulary agents, cost sharing shall be consistent with common industry practice and not in excess of amounts generally comparable to 20 percent for beneficiaries covered by section 1079 of this title or 25 percent for beneficiaries covered by section 1086 of this title."

Subsec. (a)(6)(C). Pub. L. 112–239, §712(a)(2), added subpar. (C).

Subsec. (b)(1). Pub. L. 112–239, §702(c)(1), substituted "subsection (h)" for "subsection (g)".

Subsec. (b)(2). Pub. L. 112–239, §702(c)(2)(B), substituted "The committee" for "Not later than 90 days after the establishment of the Pharmacy and Therapeutics Committee by the Secretary, the committee shall convene to design a proposed uniform formulary for submission to the Secretary. After such 90-day period, the committee".

Subsec. (d)(2). Pub. L. 112–239, §702(c)(2)(C), substituted "The Secretary" for "Effective not later than April 5, 2000, the Secretary" and "the managed care support contracts current as of October 5, 1999," for "the current managed care support contracts".

Subsec. (g)(3), (4). Pub. L. 112–239, §702(b), added pars. (3) and (4).

2009—Subsec. (f). Pub. L. 111–84 substituted "after January 28, 2008" for "on or after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2008".

2008—Subsecs. (f) to (h). Pub. L. 110–181 added subsec. (f) and redesignated former subsecs. (f) and (g) as (g) and (h), respectively.

2004—Subsec. (a)(2)(E)(i). Pub. L. 108–375, §714(b), inserted before semicolon at end "and additional determinations by the Pharmacy and Therapeutics Committee of the relative clinical and cost effectiveness of the agents".

Subsec. (a)(6). Pub. L. 108–375, §714(a), designated existing provisions as subpar. (A) and added subpar. (B).

2003—Subsec. (b)(1). Pub. L. 108–136, §725(1), substituted "facilities and representatives of providers in facilities of the uniformed services" for "facilities, contractors responsible for the TRICARE retail pharmacy program, contractors responsible for the national mail-order pharmacy program, providers in facilities of the uniformed services, and TRICARE network providers" in second sentence.

Subsec. (c)(2). Pub. L. 108–136, §725(2), substituted "represent—" for "represent nongovernmental", inserted "(A) nongovernmental" before "organizations", substituted "beneficiaries;" for "beneficiaries.", and added subpars. (B) to (D).

2001—Subsec. (a)(8). Pub. L. 107–107 substituted "October 5, 1999," for "the date of the enactment of this section".

2000—Subsec. (a)(6). Pub. L. 106–398, §1 [[div. A], title X, §1087(a)(5)(A)], substituted "in the regulations prescribed" for "as part of the regulations established".

Subsec. (a)(7). Pub. L. 106–398, §1 [[div. A], title X, §1087(a)(5)(B)], substituted "that are not included on the uniform formulary but that are" for "not included on the uniform formulary, but,".

Subsec. (b)(1). Pub. L. 106–398, §1 [[div. A], title X, §1087(a)(5)(C)], substituted "prescribed under" for "required by" in last sentence.

Subsec. (d)(2). Pub. L. 106–398, §1 [[div. A], title X, §1087(a)(5)(D)], substituted "Effective not later than April 5, 2000, the Secretary shall use" for "Not later than 6 months after the date of the enactment of this section, the Secretary shall utilize".

Subsec. (e). Pub. L. 106–398, §1 [[div. A], title X, §1087(a)(5)(E)], substituted "The" for "Not later than April 1, 2000, the" and inserted "in" before "the TRICARE" and before "the national".

Subsec. (f). Pub. L. 106–398, §1 [[div. A], title X, §1087(a)(5)(F)], substituted "In this section:" for "As used in this section—" in introductory provisions, "The term" for "the term" in pars. (1) and (2), and a period for "; and" at end of par. (1).

Subsec. (g). Pub. L. 106–398, §1 [[div. A], title X, §1087(a)(5)(G)], substituted "prescribe" for "promulgate".

Statutory Notes and Related Subsidiaries

Effective Date of 2013 Amendment

Pub. L. 112–239, div. A, title VII, §712(b), Jan. 2, 2013, 126 Stat. 1802, provided that:

"(1) In general.—The cost-sharing requirements under subparagraph (A) of section 1074g(a)(6) of title 10, United States Code, as amended by subsection (a)(1), shall apply with respect to prescriptions obtained under the TRICARE pharmacy benefits program on or after such date as the Secretary of Defense shall specify, but not later than the date that is 45 days after the date of the enactment of this Act [Jan. 2, 2013].

"(2) Federal register.—The Secretary shall publish notice of the effective date of the cost-sharing requirements specified under paragraph (1) in the Federal Register."

Regulations

Pub. L. 115–91, div. A, title VII, §702(b)(3), Dec. 12, 2017, 131 Stat. 1434, provided that: "In order to implement expeditiously the reforms authorized by the amendments made by paragraphs (1) and (2) [amending this section and section 1079 of this title], the Secretary of Defense may prescribe such changes to the regulations implementing the TRICARE program (as defined in section 1072 of title 10, United States Code) as the Secretary considers appropriate—

"(A) by prescribing an interim final rule; and

"(B) not later than one year after prescribing such interim final rule and considering public comments with respect to such interim final rule, by prescribing a final rule."

Pub. L. 110–181, div. A, title VII, §703(b), Jan. 28, 2008, 122 Stat. 188, as amended by Pub. L. 110–417, [div. A], title X, §1061(b)(3), Oct. 14, 2008, 122 Stat. 4613; Pub. L. 111–84, div. A, title X, §1073(c)(12), Oct. 28, 2009, 123 Stat. 2475, provided that: "The Secretary of Defense shall, after consultation with the other administering Secretaries under chapter 55 of title 10, United States Code, modify the regulations under subsection (h) [now subsection (j)] of section 1074g of title 10, United States Code (as redesignated by subsection (a)(1) of this section), to implement the requirements of subsection (f) of section 1074g of title 10, United States Code (as inserted by subsection (a)(2) of this section). The Secretary shall so modify such regulations not later than December 31, 2007."

[Pub. L. 111–84, div. A, title X, §1073(c), Oct. 28, 2009, 123 Stat. 2474, provided that the amendment made by section 1073(c)(12) to section 1061(b)(3) of Pub. L. 110–417, included in the credit set out above, is effective as of Oct. 14, 2008, and as if included in Pub. L. 110–417 as enacted.]

Termination of Advisory Panels

Advisory panels established after Jan. 5, 1973, to terminate not later than the expiration of the 2-year period beginning on the date of their establishment, unless, in the case of a panel established by the President or an officer of the Federal Government, such panel is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a panel established by Congress, its duration is otherwise provided for by law. See sections 1001(2) and 1013 of Title 5, Government Organization and Employees.

Pilot Program on Receipt of Non-Generic Prescription Maintenance Medications Under TRICARE Pharmacy Benefits Program

Pub. L. 116–283, div. A, title VII, §706, Jan. 1, 2021, 134 Stat. 3689, as amended by Pub. L. 117–81, div. A, title VII, §706, Dec. 27, 2021, 135 Stat. 1781, provided that:

"(a) Pilot Program.—

"(1) Authority.—Subject to paragraph (2), the Secretary of Defense shall carry out a pilot program under which eligible covered beneficiaries may elect to receive non-generic prescription maintenance medications selected by the Secretary under subsection (c) through military medical treatment facility pharmacies, retail pharmacies, or the national mail-order pharmacy program, notwithstanding section 1074g(a)(9) of title 10, United States Code.

"(2) Requirement.—The Secretary may carry out the pilot program under paragraph (1) only if the Secretary determines that the total costs to the Department of Defense for eligible covered beneficiaries to receive non-generic prescription maintenance medications under the pilot program will not exceed the total costs to the Department for such beneficiaries to receive such medications under the national mail-order pharmacy program pursuant to section 1074g(a)(9) of title 10, United States Code. In making such determination, the Secretary shall consider all manufacturer discounts, refunds and rebates, pharmacy transaction fees, and all other costs.

"(b) Duration.—If the Secretary carries out the pilot program under subsection (a)(1), the Secretary shall carry out the pilot program for a three-year period beginning not later than March 1, 2022.

"(c) Selection of Medication.—If the Secretary carries out the pilot program under subsection (a)(1), the Secretary shall select non-generic prescription maintenance medications described in section 1074g(a)(9)(C)(ii) of title 10, United States Code, to be covered by the pilot program.

"(d) Notification.—If the Secretary carries out the pilot program under subsection (a)(1), in providing each eligible covered beneficiary with an explanation of benefits, the Secretary shall notify the beneficiary of whether the medication that the beneficiary is prescribed is covered by the pilot program.

"(e) Reimbursement.—If the Secretary carries out the pilot program under subsection (a)(1), reimbursement of retail pharmacies for medication under the pilot program may not exceed the amount of reimbursement paid to the national mail-order pharmacy program under section 1074g of title 10, United States Code, for the same medication, after consideration of all manufacturer discounts, refunds, rebates, pharmacy transaction fees, and other costs.

"(f) Briefing and Reports.—

"(1) Briefing.—Not later than 90 days after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2022 [Dec. 27, 2021], the Secretary shall provide to the Committees on Armed Services of the House of Representatives and the Senate a briefing on the implementation of the pilot program under subsection (a)(1) or on the determination of the Secretary under subsection (a)(2) that the Secretary is not permitted to carry out the pilot program.

"(2) Interim report.—If the Secretary carries out the pilot program under subsection (a)(1), not later than 18 months after the commencement of the pilot program, the Secretary shall submit to the Committees on Armed Services of the House of Representatives and the Senate a report on the pilot program.

"(3) Comptroller general report.—

"(A) In general.—If the Secretary carries out the pilot program under subsection (a)(1), not later than March 1, 2025, the Comptroller General of the United States shall submit to the Committees on Armed Services of the House of Representatives and the Senate a report on the pilot program.

"(B) Elements.—The report under subparagraph (A) shall include the following:

"(i) The number of eligible covered beneficiaries who participated in the pilot program and an assessment of the satisfaction of such beneficiaries with the pilot program.

"(ii) The rate by which eligible covered beneficiaries elected to receive non-generic prescription maintenance medications at a retail pharmacy pursuant to the pilot program, and how such rate affected military medical treatment facility pharmacies and the national mail-order pharmacy program.

"(iii) The amount of cost savings realized by the pilot program, including with respect to—

     "(I) dispensing fees incurred at retail pharmacies compared to the national mail-order pharmacy program for brand name prescription drugs;

     "(II) administrative fees;

     "(III) any costs paid by the United States for the drugs in addition to the procurement costs;

     "(IV) the use of military medical treatment facilities; and

     "(V) copayments paid by eligible covered beneficiaries.

"(iv) A comparison of supplemental rebates between retail pharmacies and other points of sale.

"(g) Rule of Construction.—Nothing in this section may be construed to affect—

"(1) the ability of the Secretary to carry out section 1074g(a)(9)(C) of title 10, United States Code, after the date on which the pilot program is completed; or

"(2) the prices established for medications under section 8126 of title 38, United States Code.

"(h) Definitions.—In this section:

"(1) The term 'eligible covered beneficiary' has the meaning given that term in section 1074g(i) of title 10, United States Code.

"(2) The terms 'military medical treatment facility pharmacies', 'retail pharmacies', and 'the national mail-order pharmacy program' mean the methods for receiving prescription drugs as described in clauses (i), (ii), and (iii), respectively, of section 1074g(a)(2)(E) of title 10, United States Code."

Policy To Address Prescription Opioid Safety

Pub. L. 116–283, div. A, title VII, §719, Jan. 1, 2021, 134 Stat. 3696, provided that:

"(a) Requirement.—The Secretary of Defense shall develop a policy and tracking mechanism to monitor and provide oversight of opioid prescribing to ensure that the provider practices of medication-prescribing health professionals across the military health system conform with—

"(1) the clinical practice guidelines of the Department of Defense and the Department of Veterans Affairs; and

"(2) the prescribing guidelines published by the Centers for Disease Control and Prevention and the Food and Drug Administration.

"(b) Elements.—The requirements under subsection (a) shall include the following:

"(1) Providing oversight and accountability of opioid prescribing practices that are outside of the recommended parameters for dosage, supply, and duration as identified in the guideline published by the Centers for Disease Control and Prevention titled 'CDC Guideline for Prescribing Opioids for Chronic Pain—United States, 2016', or such successor guideline, and the guideline published by the Department of Defense and Department of Veterans Affairs titled 'DoD/VA Management of Opioid Therapy (OT) for Chronic Pain Clinical Practice Guideline, 2017' or such successor guideline.

"(2) Implementing oversight and accountability responsibilities for opioid prescribing safety as specified in paragraph (1).

"(3) Implementing systems to ensure that the prescriptions in the military health system data repository are appropriately documented and that the processing date and the metric quantity field for opioid prescriptions in liquid form are consistent within the electronic health record system known as 'MHS GENESIS'.

"(4) Implementing opioid prescribing controls within the electronic health record system known as 'MHS GENESIS' and document if an overdose reversal drug was co-prescribed.

"(5) Developing metrics that can be used by the Defense Health Agency and each military medical treatment facility to actively monitor and limit the overprescribing of opioids and to monitor the co-prescribing of overdose reversal drugs as accessible interventions.

"(6) Developing a report that tracks progression toward reduced levels of opioid use and includes an identification of prevention best practices established by the Department.

"(7) Developing and implementing a plan to improve communication and value-based initiatives between pharmacists and medication-prescribing health professionals across the military health system."

Implementation

Pub. L. 116–92, div. A, title VII, §713(c), Dec. 20, 2019, 133 Stat. 1446, provided that: "Beginning not later than 90 days after the date of the enactment of this Act [Dec. 20, 2019], the Secretary of Defense shall implement subsection (h) of section 1074g of title 10, United States Code, as added by subsection (a)."

Reimbursement by Department of Defense to Entities Carrying Out State Vaccination Programs for Costs of Vaccines Provided to Covered Beneficiaries

Pub. L. 114–328, div. A, title VII, §719, Dec. 23, 2016, 130 Stat. 2226, as amended by Pub. L. 115–91, div. A, title VII, §718, Dec. 12, 2017, 131 Stat. 1440, provided that:

"(a) Reimbursement.—

"(1) In general.—The Secretary of Defense shall reimburse an amount determined under paragraph (2) to an entity carrying out a State vaccination program for the cost of vaccines provided to covered beneficiaries through such program.

"(2) Amount of reimbursement.—

"(A) In general.—Except as provided in subparagraph (B), the amount determined under this paragraph with respect to a State vaccination program shall be the amount assessed by the entity carrying out such program to purchase vaccines provided to covered beneficiaries through such program.

"(B) Limitation.—The amount determined under this paragraph to provide vaccines to covered beneficiaries through a State vaccination program may not exceed the amount that the Department would reimburse an entity under the TRICARE program for providing vaccines to the number of covered beneficiaries who were involved in the applicable State vaccination program.

"(b) Definitions.—In this section:

"(1) Covered beneficiary; tricare program.—The terms 'covered beneficiary' and 'TRICARE program' have the meanings given those terms in section 1072 of title 10, United States Code.

"(2) State vaccination program.—The term 'State vaccination program' means a vaccination program that provides vaccinations to individuals in a State and is carried out by an entity (including an agency of the State) within the State."

Pilot Program for Prescription Drug Acquisition Cost Parity in the TRICARE Pharmacy Benefits Program

Pub. L. 114–328, div. A, title VII, §743, Dec. 23, 2016, 130 Stat. 2238, provided that:

"(a) Authority to Establish Pilot Program.—The Secretary of Defense may conduct a pilot program to evaluate whether, in carrying out the TRICARE pharmacy benefits program under section 1074g of title 10, United States Code, extending additional discounts for prescription drugs filled at retail pharmacies will maintain or reduce prescription drug costs for the Department of Defense.

"(b) Elements of Pilot Program.—In carrying out the pilot program under subsection (a), the Secretary shall require that for prescription medications, including non-generic maintenance medications, that are dispensed to TRICARE beneficiaries that are not Medicare eligible, through any TRICARE participating retail pharmacy, including small business pharmacies, manufacturers shall pay rebates such that those medications are available to the Department at the lowest rate available. In addition to utilizing the authority under section 1074g(f) of title 10, United States Code, the Secretary shall have the authority to enter into a blanket purchase agreement with prescription drug manufacturers for supplemental discounts for prescription drugs dispensed in the pilot to be paid in the form of manufacturer's rebates.

"(c) Consultation.—The Secretary shall develop the pilot program in consultation with—

"(1) the Secretaries of the military departments;

"(2) the Chief of the Pharmacy Operations Division of the Defense Health Agency; and

"(3) stakeholders, including TRICARE beneficiaries and retail pharmacies.

"(d) Duration of Pilot Program.—If the Secretary carries out the pilot program under subsection (a), the Secretary shall commence such pilot program no later than October 1, 2017, and shall terminate such program no later than September 30, 2018.

"(e) Reports.—If the Secretary carries out the pilot program under subsection (a), the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives reports on the pilot program as follows:

"(1) Not later than 90 days after the date of the enactment of this Act [Dec. 23, 2016], a report containing an implementation plan for the pilot program.

"(2) Not later than 180 days after the date on which the pilot program commences, an interim report on the pilot program.

"(3) Not later than 90 days after the date on which the pilot program terminates, a final report describing the results of the pilot program, including—

"(A) any recommendations of the Secretary to expand such program;

"(B) an analysis of the changes in prescription drug costs for the Department of Defense relating to the pilot program;

"(C) an analysis of the impact on beneficiary access to prescription drugs;

"(D) a survey of beneficiary satisfaction with the pilot program; and

"(E) a summary of any fraud and abuse activities related to the pilot and actions taken in response by the Department."

Joint Uniform Formulary for Transition of Care

Pub. L. 114–92, div. A, title VII, §715, Nov. 25, 2015, 129 Stat. 866, provided that:

"(a) Joint Formulary.—Not later than June 1, 2016, the Secretary of Defense and the Secretary of Veterans Affairs shall jointly establish a joint uniform formulary for the Department of Veterans Affairs and the Department of Defense with respect to pharmaceutical agents that are critical for the transition of an individual from receiving treatment furnished by the Secretary of Defense to treatment furnished by the Secretary of Veterans Affairs.

"(b) Selection.—The Secretaries shall select for inclusion on the joint uniform formulary established under subsection (a) pharmaceutical agents relating to—

"(1) the control of pain, sleep disorders, and psychiatric conditions, including post-traumatic stress disorder; and

"(2) any other conditions determined appropriate by the Secretaries.

"(c) Report.—Not later than July 1, 2016, the Secretaries shall jointly submit to the appropriate congressional committees a report on the joint uniform formulary established under subsection (a), including a list of the pharmaceutical agents selected for inclusion on the formulary.

"(d) Construction.—Nothing in this section shall be construed to prohibit the Secretary of Defense and the Secretary of Veterans Affairs from each maintaining the respective uniform formularies of the Department of the Secretary.

"(e) Definitions.—In this section:

"(1) The term 'appropriate congressional committees' means—

"(A) the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives]; and

"(B) the Committees on Veterans' Affairs of the House of Representatives and the Senate.

"(2) The term 'pharmaceutical agent' has the meaning given that term in section 1074g(g) [now 1074g(i)] of title 10, United States Code.

"(f) Conforming Amendment.—[Amended this section.]"

Pilot Program on Medication Therapy Management Under TRICARE Program

Pub. L. 113–291, div. A, title VII, §726, Dec. 19, 2014, 128 Stat. 3419, provided that:

"(a) Establishment.—In accordance with section 1092 of title 10, United States Code, the Secretary of Defense shall carry out a pilot program to evaluate the feasibility and desirability of including medication therapy management as part of the TRICARE program.

"(b) Elements of Pilot Program.—In carrying out the pilot program under subsection (a), the Secretary shall ensure the following:

"(1) Patients who participate in the pilot program are patients who—

"(A) have more than one chronic condition; and

"(B) are prescribed more than one medication.

"(2) Medication therapy management services provided under the pilot program are focused on improving patient use and outcomes of prescription medications.

"(3) The design of the pilot program considers best commercial practices in providing medication therapy management services, including practices under the prescription drug program under part D of title XVIII of the Social Security Act (42 U.S.C. 1395w–101 et seq.).

"(4) The pilot program includes methods to measure the effect of medication therapy management services on—

"(A) patient use and outcomes of prescription medications; and

"(B) the costs of health care.

"(c) Locations.—

"(1) Selection.—The Secretary shall carry out the pilot program under subsection (a) in not less than three locations.

"(2) First location criteria.—Not less than one location selected under paragraph (1) shall meet the following criteria:

"(A) The location is a pharmacy at a military medical treatment facility.

"(B) The patients participating in the pilot program at such location generally receive primary care services from health care providers at such facility.

"(3) Second location criteria.—Not less than one location selected under paragraph (1) shall meet the following criteria:

"(A) The location is a pharmacy at a military medical treatment facility.

"(B) The patients participating in the pilot program at such location generally do not receive primary care services from health care providers at such facility.

"(4) Third location criterion.—Not less than one location selected under paragraph (1) shall be a pharmacy located at a location other than a military medical treatment facility.

"(d) Duration.—The Secretary shall carry out the pilot program under subsection (a) for a period determined appropriate by the Secretary that is not less than two years.

"(e) Report.—Not later than 30 months after the date on which the Secretary commences the pilot program under subsection (a), the Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the pilot program that includes—

"(1) information on the effect of medication therapy management services on—

"(A) patient use and outcomes of prescription medications; and

"(B) the costs of health care;

"(2) the recommendations of the Secretary with respect to incorporating medication therapy management into the TRICARE program; and

"(3) such other information as the Secretary determines appropriate.

"(f) Definitions.—In this section:

"(1) The term 'medication therapy management' means professional services provided by qualified pharmacists to patients to improve the effective use and outcomes of prescription medications provided to the patients.

"(2) The term 'TRICARE program' has the meaning given that term in section 1072 of title 10, United States Code."

Pilot Program for Refills of Maintenance Medications for TRICARE for Life Beneficiaries Through the TRICARE Mail-Order Pharmacy Program

Pub. L. 112–239, div. A, title VII, §716, Jan. 2, 2013, 126 Stat. 1804, as amended by Pub. L. 113–291, div. A, title VII, §702(c)(2), Dec. 19, 2014, 128 Stat. 3411; Pub. L. 115–91, div. A, title X, §1051(r)(2), Dec. 12, 2017, 131 Stat. 1565, provided that:

"(a) In General.—The Secretary of Defense shall conduct a pilot program to refill prescription maintenance medications for each TRICARE for Life beneficiary through the national mail-order pharmacy program under section 1074g(a)(2)(E)(iii) of title 10, United States Code.

"(b) Medications Covered.—

"(1) Determination.—The Secretary shall determine the prescription maintenance medications included in the pilot program under subsection (a).

"(2) Supply.—In carrying out the pilot program under subsection (a), the Secretary shall ensure that the medications included in the program are generally available to a TRICARE for Life beneficiary—

"(A) for an initial filling of a 30-day or less supply through—

"(i) retail pharmacies under clause (ii) of section 1074g(a)(2)(E) of title 10, United States Code; and

"(ii) facilities of the uniformed services under clause (i) of such section; and

"(B) for a refill of such medications through—

"(i) the national mail-order pharmacy program; and

"(ii) such facilities of the uniformed services.

"(3) Exemption.—The Secretary may exempt the following prescription maintenance medications from the requirements in paragraph (2):

"(A) Such medications that are for acute care needs.

"(B) Such other medications as the Secretary determines appropriate.

"(c) Nonparticipation.—

"(1) Opt out.—The Secretary shall give TRICARE for Life beneficiaries who have been covered by the pilot program under subsection (a) for a period of one year an opportunity to opt out of continuing to participate in the program.

"(2) Waiver.—The Secretary may waive the requirement of a TRICARE for Life beneficiary to participate in the pilot program under subsection (a) if the Secretary determines, on an individual basis, that such waiver is appropriate.

"(d) Regulations.—The Secretary shall prescribe regulations to carry out the pilot program under subsection (a), including regulations with respect to—

"(1) the prescription maintenance medications included in the pilot program pursuant to subsection (b)(1); and

"(2) addressing instances where a TRICARE for Life beneficiary covered by the pilot program attempts to refill such medications at a retail pharmacy rather than through the national mail-order pharmacy program or a facility of the uniformed services.

"(e) Sunset.—The Secretary may not carry out the pilot program under subsection (a) after September 30, 2015.

"(f) TRICARE for Life Beneficiary Defined.—In this section, the term 'TRICARE for Life beneficiary' means a TRICARE beneficiary enrolled in the Medicare wraparound coverage option of the TRICARE program made available to the beneficiary by reason of section 1086(d) of title 10, United States Code."

Education and Training on Use of Pharmaceuticals in Rehabilitation Programs for Wounded Warriors

Pub. L. 111–383, div. A, title VII, §716, Jan. 7, 2011, 124 Stat. 4250, provided that:

"(a) Education and Training Required.—The Secretary of Defense shall develop and implement training, available through the Internet or other means, on the use of pharmaceuticals in rehabilitation programs for seriously ill or injured members of the Armed Forces.

"(b) Recipients of Training.—The training developed and implemented under subsection (a) shall be training for each category of individuals as follows:

"(1) Patients in or transitioning to a wounded warrior unit, with special accommodation in such training for such patients with cognitive disabilities.

"(2) Nonmedical case managers.

"(3) Military leaders.

"(4) Family members.

"(c) Elements of Training.—The training developed and implemented under subsection (a) shall include the following:

"(1) An overview of the fundamentals of safe prescription drug use.

"(2) Familiarization with the benefits and risks of using pharmaceuticals in rehabilitation therapies.

"(3) Examples of the use of pharmaceuticals for individuals with multiple, complex injuries, including traumatic brain injury and post-traumatic stress disorder.

"(4) Familiarization with means of finding additional resources for information on pharmaceuticals.

"(5) Familiarization with basic elements of pain and pharmaceutical management.

"(6) Familiarization with complementary and alternative therapies.

"(d) Tailoring of Training.—The training developed and implemented under subsection (a) shall appropriately tailor the elements specified in subsection (c) for and among each category of individuals set forth in subsection (b).

"(e) Review of Pharmacy.—

"(1) Review.—The Secretary shall review all policies and procedures of the Department of Defense regarding the use of pharmaceuticals in rehabilitation programs for seriously ill or injured members of the Armed Forces.

"(2) Recommendations.—Not later than September 20, 2011, the Secretary shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] any recommendations for administrative or legislative action with respect to the review under paragraph (1) as the Secretary considers appropriate."

Demonstration Project on Coverage of Selected Over-the-Counter Drugs Under the Pharmacy Benefits Program

Pub. L. 109–364, div. A, title VII, §705, Oct. 17, 2006, 120 Stat. 2280, as amended by Pub. L. 111–383, div. A, title X, §1075(g)(5), Jan. 7, 2011, 124 Stat. 4377, provided that:

"(a) Requirement to Conduct Demonstration.—The Secretary of Defense shall conduct a demonstration project under section 1092 of title 10, United States Code, to allow particular over-the-counter drugs to be included on the uniform formulary under section 1074g of such title.

"(b) Elements of Demonstration Project.—

"(1) Inclusion of certain over-the-counter drugs.—(A) As part of the demonstration project, the Secretary shall modify uniform formulary specifications under section 1074g(a) of such title to include an over-the-counter drug (referred to in this section as an 'OTC drug') on the uniform formulary if the Pharmacy and Therapeutics Committee finds that the OTC drug is cost-effective and therapeutically equivalent to a prescription drug. If the Pharmacy and Therapeutics Committee makes such a finding, the OTC drug shall be considered to be in the same therapeutic class of pharmaceutical agents as the prescription drug.

"(B) An OTC drug shall be made available to a beneficiary through the demonstration project, but only if—

"(i) the beneficiary has a prescription for a drug requiring a prescription; and

"(ii) pursuant to subparagraph (A), the OTC drug—

"(I) is on the uniform formulary; and

"(II) has been determined to be therapeutically equivalent to the prescription drug.

"(2) Conduct through military facilities, retail pharmacies, or mail order program.—The Secretary shall conduct the demonstration project through at least two of the means described in subparagraph (E) of section 1074g(a)(2) of such title through which OTC drugs are provided and may conduct the demonstration project throughout the entire pharmacy benefits program or at a limited number of sites. If the project is conducted at a limited number of sites, the number of sites shall be not less than five in each TRICARE region for each of the two means described in such subparagraph.

"(3) Period of demonstration.—The Secretary shall provide for conducting the demonstration project for a period of time necessary to evaluate the feasibility and cost effectiveness of the demonstration. Such period shall be at least as long as the period covered by pharmacy contracts in existence on the date of the enactment of this Act [Oct. 17, 2006] (including any extensions of the contracts), or five years, whichever is shorter.

"(4) Implementation deadline.—Implementation of the demonstration project shall begin not later than May 1, 2007.

"(c) Evaluation of Demonstration Project.—The Secretary shall evaluate the demonstration project for the following:

"(1) The costs and benefits of providing OTC drugs under the pharmacy benefits program in each of the means chosen by the Secretary to conduct the demonstration project.

"(2) The clinical effectiveness of providing OTC drugs under the pharmacy benefits program.

"(3) Customer satisfaction with the demonstration project.

"(d) Report.—Not later than two years after implementation of the demonstration project begins, the Secretary shall submit to the Committees on Armed Services of the Senate and House of Representatives a report on the demonstration project. The report shall contain—

"(1) the evaluation required by subsection (c);

"(2) recommendations for improving the provision of OTC drugs under the pharmacy benefits program; and

"(3) recommendations on whether permanent authority should be provided to cover OTC drugs under the pharmacy benefits program.

"(e) Continuation of Demonstration Project.—If the Secretary recommends in the report under subsection (d) that permanent authority should be provided, the Secretary may continue the demonstration project for up to one year after submitting the report.

"(f) Definitions.—In this section:

"(1) The term 'drug' means a drug, including a biological product, within the meaning of section 1074g(f)(2) [now 1074g(i)(2)] of title 10, United States Code.

"(2) The term 'OTC drug' has the meaning indicated for such term in subsection (b)(1)(A).

"(3) The term 'over-the-counter drug' means a drug that is not subject to section 503(b) of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 353(b)].

"(4) The term 'prescription drug' means a drug that is subject to section 503(b) of the Federal Food, Drug, and Cosmetic Act."

Interoperability of Department of Veterans Affairs and Department of Defense Pharmacy Data Systems

Pub. L. 107–314, div. A, title VII, §724, Dec. 2, 2002, 116 Stat. 2598, provided that:

"(a) Interoperability.—The Secretary of Veterans Affairs and the Secretary of Defense shall seek to ensure that on or before October 1, 2004, the Department of Veterans Affairs pharmacy data system and the Department of Defense pharmacy data system (known as the 'Pharmacy Data Transaction System') are interoperable for both Department of Defense beneficiaries and Department of Veterans Affairs beneficiaries by achieving real-time interface, data exchange, and checking of prescription drug data of outpatients, and using national standards for the exchange of outpatient medication information.

"(b) Alternative Requirement.—If the interoperability specified in subsection (a) is not achieved by October 1, 2004, as determined jointly by the Secretary of Defense and the Secretary of Veterans Affairs, the Secretary of Veterans Affairs shall adopt the Department of Defense Pharmacy Data Transaction System for use by the Department of Veterans Affairs health care system. Such system shall be fully operational not later than October 1, 2005.

"(c) Implementation Funding for Alternative Requirement.—The Secretary of Defense shall transfer to the Secretary of Veterans Affairs, or shall otherwise bear the cost of, an amount sufficient to cover three-fourths of the cost to the Department of Veterans Affairs for computer programming activities and relevant staff training expenses related to implementation of subsection (b). Such amount shall be determined in such manner as agreed to by the two Secretaries."

Deadline for Establishment of Committee

Pub. L. 106–65, div. A, title VII, §701(b), Oct. 5, 1999, 113 Stat. 680, directed the Secretary of Defense to establish the Pharmacy and Therapeutics Committee required by subsec. (b) of this section not later than 30 days after Oct. 5, 1999.

Reports Required

Pub. L. 106–65, div. A, title VII, §701(c), Oct. 5, 1999, 113 Stat. 680, directed the Secretary of Defense to submit reports to Congress, not later than Apr. 1 and Oct. 1 of fiscal years 2000 and 2001, on the implementation of the uniform formulary required under subsec. (a) of this section, the results of a survey conducted by the Secretary of prescribers for military medical treatment facilities and TRICARE contractors, the operation of the Pharmacy Data Transaction Service required by subsec. (e) of this section, and any other actions taken by the Secretary to improve management of the pharmacy benefits program under this section.

Study for Design of Pharmacy Benefit for Certain Covered Beneficiaries

Pub. L. 106–65, div. A, title VII, §701(d), Oct. 5, 1999, 113 Stat. 680, required the Secretary of Defense to prepare and submit to Congress, by Apr. 15, 2001, a study on a design for a comprehensive pharmacy benefit for covered beneficiaries under chapter 55 of title 10, who are entitled to benefits under part A, and enrolled under part B, of title XVIII of the Social Security Act, and to provide an estimate of the costs of implementing and operating such design, prior to repeal by Pub. L. 107–107, div. A, title VII, §723, Dec. 28, 2001, 115 Stat. 1168.
10 U.S.C. § 9462 (2024) — Title 10: ARMED FORCES / Chapter 953 / Section 9462: Support of athletic programs
Support of athletic programs
Status: in_force

(a) Corporation for Support Authorized.—(1) The Secretary of the Air Force may, in accordance with the laws of the State of incorporation, establish a corporation (in this section referred to as the "corporation") to support the athletic programs of the Academy. All stock of the corporation shall be owned by the United States and held in the name of and voted by the Secretary of the Air Force.

(2) The corporation shall operate exclusively for charitable, educational, and civic purposes to support the athletic programs of the Academy.

(b) Corporate Organization.—The corporation shall be organized and operated—

(1) as a nonprofit corporation under section 501(c)(3) of the Internal Revenue Code of 1986;

(2) in accordance with this section; and

(3) pursuant to the laws of the State of incorporation, its articles of incorporation, and its bylaws.

(c) Corporate Board of Directors.—(1) The members of the board of directors of the corporation shall serve without compensation as members of the board, except for reasonable travel and other related expenses for attendance at meetings of the board.

(2) The Secretary of the Air Force may authorize military and civilian personnel of the Department of the Air Force under section 1033 of this title to serve, in their official capacities, as members of the board of directors of the corporation, but such personnel shall not hold more than one-third of the directorships.

(d) Transfers From Nonappropriated Fund Operation.—The Secretary of the Air Force may, subject to the acceptance of the corporation, transfer to the corporation all title to and ownership of the assets and liabilities of the Air Force nonappropriated fund instrumentality whose functions include providing support for the athletic programs of the Academy, including bank accounts and financial reserves in its accounts, equipment, supplies, and other personal property, but excluding any interest in real property.

(e) Acceptance of Support.—

(1) Support received from the corporation.—Notwithstanding section 1342 of title 31, the Secretary of the Air Force may accept from the corporation funds, supplies, equipment, and services for the support of the athletic programs of the Academy.

(2) Funds received from other sources.—The Secretary may charge fees for the support of the athletic programs of the Academy. The Secretary may accept and retain fees for services and other benefits provided incident to the operation of its athletic programs, including fees from the National Collegiate Athletic Association, fees from athletic conferences, game guarantees from other educational institutions, fees for ticketing or licensing, and other consideration provided incidental to the execution of the athletic programs of the Academy.

(3) Limitations.—The Secretary shall ensure that contributions accepted under this subsection do not—

(A) reflect unfavorably on the ability of the Department of the Air Force, any of its employees, or any member of the armed forces to carry out any responsibility or duty in a fair and objective manner; or

(B) compromise the integrity or appearance of integrity of any program of the Department of the Air Force, or any individual involved in such a program.

(f) Leases and Licenses.—

(1) In general.—The Secretary of the Air Force may, in accordance with section 2667 of this title, enter into leases or licenses with the corporation for the purpose of supporting the athletic programs of the Academy. Consideration provided under such a lease or license may be provided in the form of funds, supplies, equipment, and services for the support of the athletic programs of the Academy.

(2) Support services.—The Secretary may provide support services to the corporation without charge while the corporation conducts its support activities at the Academy. In this paragraph, the term "support services" includes utilities, office furnishings and equipment, communications services, records staging and archiving, audio and video support, and security systems in conjunction with the leasing or licensing of property. Any such support services may only be provided without any liability of the United States to the corporation.

(g) Contracts and Cooperative Agreements.—The Secretary of the Air Force may enter into contracts and cooperative agreements with the corporation for the purpose of supporting the athletic programs of the Academy. Notwithstanding section 3201(e) of this title, the Secretary may enter such contracts or cooperative agreements on a sole source basis pursuant to section 3204(a)(5) of this title. Notwithstanding chapter 63 of title 31, a cooperative agreement under this section may be used to acquire property, services, or travel for the direct benefit or use of the athletic programs of the Academy.

(h) Trademarks and Service Marks.—

(1) Licensing, marketing, and sponsorship agreements.—An agreement under subsection (g) may, consistent with section 2260 of this title (other than subsection (d) of such section), authorize the corporation to enter into licensing, marketing, and sponsorship agreements relating to trademarks and service marks identifying the Academy, subject to the approval of the Secretary of the Air Force.

(2) Limitations.—No licensing, marketing, or sponsorship agreement may be entered into under paragraph (1) if—

(A) such agreement would reflect unfavorably on the ability of the Department of the Air Force, any of its employees, or any member of the armed forces to carry out any responsibility or duty in a fair and objective manner; or

(B) the Secretary determines that the use of the trademark or service mark would compromise the integrity or appearance of integrity of any program of the Department of the Air Force, or any individual involved in such a program.

(i) Retention and Use of Funds.—Any funds received under this section may be retained for use in support of the athletic programs of the Academy and shall remain available until expended.

(Added Pub. L. 111–84, div. A, title V, §528(a), Oct. 28, 2009, 123 Stat. 2289, §9362; amended Pub. L. 113–291, div. A, title V, §554, Dec. 19, 2014, 128 Stat. 3377; renumbered §9462, Pub. L. 115–232, div. A, title VIII, §806(a)(3), Aug. 13, 2018, 132 Stat. 1832; Pub. L. 116–283, div. A, title IX, §923(d)(15), title XVIII, §1883(b)(2), Jan. 1, 2021, 134 Stat. 3815, 4294.)

Editorial Notes

References in Text

Section 501(c)(3) of the Internal Revenue Code of 1986, referred to in subsec. (b)(1), is classified to section 501(c)(3) of Title 26, Internal Revenue Code.

Amendments

2021—Subsec. (c)(2). Pub. L. 116–283, §923(d)(15), substituted "personnel of the Department of the Air Force" for "personnel of the Air Force".

Subsec. (g). Pub. L. 116–283, §1883(b)(2), substituted "section 3201(e)" for "section 2304(k)" and "section 3204(a)(5)" for "section 2304(c)(5)".

2018—Pub. L. 115–232 renumbered section 9362 of this title as this section.

2014—Subsecs. (e) to (i). Pub. L. 113–291 added subsecs. (e) to (i) and struck out former subsecs. (e) to (g) which related to acceptance of gifts, leases of real and personal property, and cooperative agreements, respectively.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by section 1883(b)(2) of Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.

Effective Date of 2018 Amendment

Amendment by Pub. L. 115–232 effective Feb. 1, 2019, with provision for the coordination of amendments and special rule for certain redesignations, see section 800 of Pub. L. 115–232, set out as a note preceding section 3001 of this title.
10 U.S.C. § 3322 (2024) — Title 10: ARMED FORCES / Chapter 242 / Section 3322: Cost contracts
Cost contracts
Status: in_force

(a) Cost-plus-a-percentage-of-cost System of Contracting Prohibited.—The cost-plus-a-percentage-of-cost system of contracting may not be used.

(b) Cost-plus-a-fixed-fee Contracts.—The fee for performing a cost-plus-a-fixed-fee contract for experimental, developmental, or research work may not be more than 15 percent of the estimated cost of the contract, not including the fee. The fee for performing a cost-plus-a-fixed-fee contract for architectural or engineering services for a public work or utility plus the cost of those services to the contractor may not be more than 6 percent of the estimated cost of that work or project, not including fees. The fee for performing any other cost-plus-a-fixed-fee contract may not be more than 10 percent of the estimated cost of the contract, not including the fee. Determinations under this subsection of the estimated costs of a contract or project shall be made by the head of the agency at the time the contract is made.

(c) Advance Notice of Certain Subcontracts.—

(1) In general.—Except as provided in paragraph (2), each cost contract and each cost-plus-a-fixed-fee contract shall provide for notice to the agency by the contractor before the making, under the prime contract, of—

(A) a cost-plus-a-fixed-fee subcontract; or

(B) a fixed-price subcontract or purchase order involving more than the greater of (i) the simplified acquisition threshold, or (ii) 5 percent of the estimated cost of the prime contract.

(2) Exception.—Paragraph (1) shall not apply to a prime contract with a contractor that maintains a purchasing system approved by the contracting officer for the contract.

(d) Limitation on Certain Options.—

(1) In general.—Except as provided by paragraph (2), a covered contract shall limit the number of low-rate production lots for any production quantities procured using fixed-priced options under such covered contract to not more than one.

(2) Waiver.—

(A) In general.—The service acquisition executive of the military department concerned or, in the case of program that is a joint program, the Secretary of Defense may waive the limit required under paragraph (1) with respect to the number of low-rate production lots for a production quantity under a covered contract if such service acquisition executive or the Secretary of Defense, as applicable, determines that such waiver is in the best interest of the Department of Defense.

(B) Delegation limit.—Neither a service acquisition executive nor the Secretary of Defense may delegate the authority under subparagraph (A) to waive the limit required under paragraph (1) below the level of a service acquisition executive.

(3) Definitions.—In this subsection:

(A) The term "covered contract" means a cost reimbursement contract for the development of a major system.

(B) The term "low-rate initial production" has the same meaning as in section 4231 of this title.

(C) The term "major system" has the meaning given such term in section 3041 of this title.

(Added and amended Pub. L. 116–283, div. A, title XVIII, §1817(a), (c), (e), (f), Jan. 1, 2021, 134 Stat. 4186, 4187; Pub. L. 118–159, div. A, title VIII, §802(a), Dec. 23, 2024, 138 Stat. 1965.)

Editorial Notes

Codification

For derivation of subsec. (a) of this section, see Codification note related to subsec. (a) of section 2306 of this title set out under section 3321 of this title.

The text of subsec. (d) of section 2306 of this title, which was transferred to this section, redesignated as subsec. (b), and amended by Pub. L. 116–283, §1817(e), (f)(2), was based on act Aug. 10, 1956, ch. 1041, 70A Stat. 131.

The text of subsec. (e) of section 2306 of this title, which was transferred to this section, redesignated as subsec. (c), and amended by Pub. L. 116–283, §1817(e), (f)(3), was based on act Aug. 10, 1956, ch. 1041, 70A Stat. 131; Pub. L. 98–369, div. B, title VII, §2724, July 18, 1984, 98 Stat. 1193; Pub. L. 102–25, title VII, §701(d)(3), Apr. 6, 1991, 105 Stat. 114; Pub. L. 103–355, title IV, 4401(c), Oct. 13, 1994, 108 Stat. 3348; Pub. L. 108–136, div. A, title VIII, §842, Nov. 24, 2003, 117 Stat. 1552.

Amendments

2024—Subsec. (d). Pub. L. 118–159 added subsec. (d).

2021—Subsec. (a). Pub. L. 116–283, §1817(c), (f)(1), transferred first sentence of subsec. (a) of section 3321 of this title to this section, designated it as subsec. (a), and inserted heading.

Subsec. (b). Pub. L. 116–283, §1817(e), (f)(2), redesignated subsec. (d) of section 2306 of this title as subsec. (b) of this section and inserted heading.

Subsec. (c). Pub. L. 116–283, §1817(e), (f)(3), redesignated subsec. (e) of section 2306 of this title as subsec. (c) of this section, inserted subsec. and par. headings, and realigned margin of par. (2).

Statutory Notes and Related Subsidiaries

Effective Date

Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an Effective Date of 2021 Amendment note preceding section 3001 of this title.

Conforming Regulations

Pub. L. 118–159, div. A, title VIII, §802(b), Dec. 23, 2024, 138 Stat. 1965, provided that: "Not later than 120 days after the date of the enactment of this Act [Dec. 23, 2024], the Secretary of Defense shall revise the Department of Defense Supplement to the Federal Acquisition Regulation to implement subsection (d) of section 3322 of title 10, United States Code, as added by subsection (a) of this section."
10 U.S.C. § 1448 (2024) — Title 10: ARMED FORCES / Chapter 73 / Subchapter II / Section 1448: Application of Plan
Application of Plan
Status: in_force

(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) or under subparagraph (G) of this paragraph.

(F) Vitiation of election by disability retiree who dies of disability-related cause.—If a member retired after November 23, 2003, 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.

(G) Election of new beneficiary upon death of previous beneficiary.—

(i) Authority for election.—If the reason for discontinuation in the Plan is the death of the beneficiary, the participant in the Plan may elect a new beneficiary. Any such beneficiary must be a natural person with an insurable interest in the participant. Such an election may be made only during the 180-day period beginning on the date of the death of the previous beneficiary.

(ii) Procedures.—Such an election shall be in writing, signed by the participant, and made in such form and manner as the Secretary concerned may prescribe. Such an election shall be effective the first day of the first month following the month in which the election is received by the Secretary.

(iii) Vitiation of election by participant who dies within two years of election.—If a person providing an annuity under a election under clause (i) dies before the end of the two-year period beginning on the effective date of the election—

(I) the election is vitiated; and

(II) the amount by which the person's retired pay was reduced under section 1452 of this title 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 vitiated election if the deceased person had died after the end of such two-year period.

(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.

(6) Special needs trusts for sole benefit of certain dependent children.—A person who has established a supplemental or special needs trust under subparagraph (A) or (C) of section 1917(d)(4) of the Social Security Act (42 U.S.C. 1396p(d)(4)) for the sole benefit of a dependent child considered disabled under section 1614(a)(3) of that Act (42 U.S.C. 1382c(a)(3)) who is incapable of self-support because of mental or physical incapacity may elect to provide an annuity to that supplemental or special needs trust.

(7) Effect of death of former spouse beneficiary.—

(A) Termination of participation in plan.—A person who elects to provide an annuity to a former spouse under paragraph (2) or (3) and whose former spouse subsequently dies is no longer a participant in the Plan, effective on the date of death of the former spouse.

(B) Authority for election of new spouse beneficiary.—If a person's participation in the Plan is discontinued by reason of the death of a former spouse beneficiary, the person may elect to resume participation in the Plan and to elect a new spouse beneficiary as follows:

(i) Married on the date of death of former spouse.—A person who is married at the time of the death of the former spouse beneficiary may elect to provide coverage to that person's spouse. Such an election must be received by the Secretary concerned within one year after the date of death of the former spouse beneficiary.

(ii) Marriage after death of former spouse beneficiary.—A person who is not married at the time of the death of the former spouse beneficiary and who later marries may elect to provide spouse coverage. Such an election must be received by the Secretary concerned within one year after the date on which that person marries.

(C) Effective date of election.—The effective date of election under this paragraph shall be as follows:

(i) An election under subparagraph (B)(i) is effective as of the first day of the first calendar month following the death of the former spouse beneficiary.

(ii) An election under subparagraph (B)(ii) 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.

(D) Level of coverage.—A person making an election under subparagraph (B) may not reduce the base amount previously elected.

(E) Procedures.—An election under this paragraph shall be in writing, signed by the participant, and made in such form and manner as the Secretary concerned may prescribe.

(F) Irrevocability.—An election under this paragraph is irrevocable.

(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), 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.—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 subsection (a)(2) or (a)(4) of section 1450 of this title as applicable.

(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 after November 23, 2003, 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 children annuity.—

(A) Annuity when no eligible surviving spouse.—In the case of a person described in paragraph (1), the Secretary concerned shall pay an annuity under this subchapter to the dependent children of that person under section 1450(a)(2) of this title as applicable.

(B) Optional annuity when there is an eligible surviving spouse.—The Secretary may pay an annuity under this subchapter to the dependent children of a person described in paragraph (1) 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 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.

(5) Deemed election to provide an annuity for dependent.—Paragraph (6) of subsection (d) shall apply in the case of a member described in paragraph (1) who dies after November 23, 2003, when no other annuity is payable on behalf of the member under this subchapter.

(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.

(Added Pub. L. 92–425, §1(3), Sept. 21, 1972, 86 Stat. 707; amended Pub. L. 94–496, §1(2), Oct. 14, 1976, 90 Stat. 2375; Pub. L. 95–397, title II, §202, Sept. 30, 1978, 92 Stat. 844; Pub. L. 97–252, title X, §1003(b), Sept. 8, 1982, 96 Stat. 735; Pub. L. 97–295, §1(18), Oct. 12, 1982, 96 Stat. 1290; Pub. L. 98–94, title IX, §941(a)(1), (2), (c)(2), Sept. 24, 1983, 97 Stat. 652, 653; Pub. L. 99–145, title V, §513(b), title VII, §§712(a), 713(a), 715, 716(a), 719(3), (8)(A), 721(a), Nov. 8, 1985, 99 Stat. 628, 670, 671, 673–676; Pub. L. 99–661, div. A, title VI, §§641(b)(1), 642(a), title XIII, §1343(a)(8)(B), Nov. 14, 1986, 100 Stat. 3885, 3886, 3992; Pub. L. 101–189, div. A, title XIV, §1407(a)(2), (3), Nov. 29, 1989, 103 Stat. 1588; Pub. L. 103–337, div. A, title VI, §638, title XVI, §1671(d)(2), Oct. 5, 1994, 108 Stat. 2791, 3015; Pub. L. 104–201, div. A, title VI, §634, Sept. 23, 1996, 110 Stat. 2553; Pub. L. 105–85, div. A, title X, §1073(a)(27), Nov. 18, 1997, 111 Stat. 1901; Pub. L. 105–261, div. A, title VI, §643(a), Oct. 17, 1998, 112 Stat. 2047; Pub. L. 106–65, div. A, title X, §1066(a)(12), Oct. 5, 1999, 113 Stat. 771; Pub. L. 106–398, §1 [[div. A], title VI, §655(a)–(c)(3), title X, §1087(a)(10)], Oct. 30, 2000, 114 Stat. 1654, 1654A–165, 1654A–166, 1654A–290; Pub. L. 107–107, div. A, title VI, §642(a), (c)(1), Dec. 28, 2001, 115 Stat. 1151, 1152; Pub. L. 108–136, div. A, title VI, §§644(a), (b), 645(a), (b)(1), (c), Nov. 24, 2003, 117 Stat. 1517–1519; Pub. L. 108–375, div. A, title X, §1084(d)(10), Oct. 28, 2004, 118 Stat. 2061; Pub. L. 109–364, div. A, title VI, §§643(a), 644(a), title X, §1071(a)(8), Oct. 17, 2006, 120 Stat. 2260, 2261, 2398; Pub. L. 113–291, div. A, title VI, §624(a)(2)(B), Dec. 19, 2014, 128 Stat. 3403; Pub. L. 114–92, div. A, title VI, §641(a), Nov. 25, 2015, 129 Stat. 852; Pub. L. 114–328, div. A, title VI, §642(b), (c), Dec. 23, 2016, 130 Stat. 2165; Pub. L. 116–92, div. A, title VI, §622(d), Dec. 20, 2019, 133 Stat. 1427; Pub. L. 118–159, div. A, title XVII, §1701(a)(22), Dec. 23, 2024, 138 Stat. 2204.)

Editorial Notes

Amendments

2024—Subsec. (d)(1). Pub. L. 118–159 substituted "paragraph (2)" for "paragraph (2)(B)" in introductory provisions.

2019—Subsec. (d)(2). Pub. L. 116–92 struck out subpar. (A) designation and heading before "In the case of a member described in paragraph (1)" and struck out subpar. (B) which read as follows: "Optional annuity when there is an eligible surviving spouse.—In the case of a member described in paragraph (1) who dies after October 7, 2001, 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 subsection (a)(3) or (a)(4) of section 1450 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)."

2016—Subsec. (f)(2). Pub. L. 114–328, §642(b), amended par. (2) generally. Prior to amendment, text read as follows: "The Secretary concerned shall pay an annuity under this subchapter to the dependent child, or to a special needs trust pursuant to section 1450(a)(4) of this title, of a person described in paragraph (1) if there is no surviving spouse or if the person's surviving spouse subsequently dies."

Subsec. (f)(5). Pub. L. 114–328, §642(c), added par. (5).

2015—Subsec. (b)(7). Pub. L. 114–92 added par. (7).

2014—Subsec. (b)(6). Pub. L. 113–291, §624(a)(2)(B)(i), added par. (6).

Subsec. (d)(2)(A). Pub. L. 113–291, §624(a)(2)(B)(ii)(I), substituted "subsection (a)(2) or (a)(4) of section 1450" for "section 1450(a)(2)".

Subsec. (d)(2)(B). Pub. L. 113–291, §624(a)(2)(B)(ii)(II), substituted "subsection (a)(3) or (a)(4) of section 1450" for "section 1450(a)(3)".

Subsec. (f)(2). Pub. L. 113–291, §624(a)(2)(B)(iii), inserted ", or to a special needs trust pursuant to section 1450(a)(4) of this title," after "dependent child".

2006—Subsec. (b)(1)(E). Pub. L. 109–364, §643(a)(1), inserted "or under subparagraph (G) of this paragraph" before period at end.

Subsec. (b)(1)(G). Pub. L. 109–364, §643(a)(2), added subpar. (G).

Subsec. (d)(2)(B). Pub. L. 109–364, §644(a), substituted "October 7, 2001" for "November 23, 2003".

Subsec. (d)(6)(A). Pub. L. 109–364, §1071(a)(8), struck out second comma after "November 23, 2003".

2004—Subsecs. (b)(1)(F), (d)(2)(B), (6)(A). Pub. L. 108–375 substituted "after November 23, 2003," for "on or after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2004".

2003—Subsec. (b)(1)(F). Pub. L. 108–136, §645(b)(1), added subpar. (F).

Subsec. (d)(1). Pub. L. 108–136, §645(a)(2), substituted "Except as provided in paragraph (2)(B), the Secretary concerned" for "The Secretary concerned" in introductory provisions.

Subsec. (d)(2). Pub. L. 108–136, §645(a)(1), amended heading and text of par. (2) generally. Prior to amendment, text read as follows: "The Secretary concerned shall pay an annuity under this subchapter to the dependent child of a member described in paragraph (1) if there is no surviving spouse or if the member's surviving spouse subsequently dies."

Subsec. (d)(6). Pub. L. 108–136, §645(c), added par. (6).

Subsec. (f). Pub. L. 108–136, §644(b), inserted "or Before" after "Dying When" in heading.

Subsec. (f)(1). Pub. L. 108–136, §644(a), reenacted heading without change and amended text generally. Prior to amendment, text read as follows: "The Secretary concerned shall pay an annuity under this subchapter to the surviving spouse of a person who is eligible to provide a reserve-component annuity and who dies—

"(A) 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

"(B) 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."

2001—Subsec. (d). Pub. L. 107–107 struck out "Retirement-Eligible" before "Members" in heading and amended par. (1) generally. Prior to amendment, par. (1) read as follows:

"(1) Surviving spouse annuity.—The Secretary concerned shall pay an annuity under this subchapter to the surviving spouse of a member who dies on active duty after—

"(A) becoming eligible to receive retired pay;

"(B) qualifying for retired pay except that he has not applied for or been granted that pay; or

"(C) completing 20 years of active service but before he is eligible to retire as a commissioned officer because he has not completed 10 years of active commissioned service."

2000—Subsec. (a)(2). Pub. L. 106–398, §1 [[div. A], title VI, §655(c)(1)], substituted "who elects under subparagraph (B) not to participate in the Plan" for "described in clauses (i) and (ii) of subparagraph (B) who does not elect to participate in the Plan before the end of the 90-day period referred to in that clause" in concluding provisions.

Subsec. (a)(2)(B). Pub. L. 106–398, §1 [[div. A], title VI, §655(a)], amended heading and text of subpar. (B) generally. Prior to amendment, text read as follows: "A person who (i) is eligible to participate in the Plan under paragraph (1)(B), (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, and (iii) elects to participate in the Plan (and makes a designation under subsection (e)) before the end of the 90-day period beginning on the date he receives such notification."

Subsec. (a)(3)(B). Pub. L. 106–398, §1 [[div. A], title VI, §655(b)], substituted "who is eligible to provide" for "who elects to provide" in introductory provisions, added cls. (i) and (ii), and redesignated former cls. (i) and (ii) as (iii) and (iv), respectively.

Subsec. (a)(4)(A). Pub. L. 106–398, §1 [[div. A], title VI, §655(c)(2)(A)], struck out "not to participate in the Plan" after "election under paragraph (2)(A)".

Subsec. (a)(4)(B). Pub. L. 106–398, §1 [[div. A], title VI, §655(c)(2)(B)], struck out "to participate in the Plan" after "under paragraph (2)(B)".

Subsec. (b)(3)(E)(ii). Pub. L. 106–398, §1 [[div. A], title X, §1087(a)(10)], struck out second comma after "October 16, 1998".

Subsec. (e). Pub. L. 106–398, §1 [[div. A], title VI, §655(c)(3)], substituted "a person is required to make a designation under this subsection, the person" for "a person electing to participate in the Plan is required to make a designation under this subsection, the person making such election" in introductory provisions.

1999—Subsec. (b)(3)(E)(ii). Pub. L. 106–65 substituted "after October 16, 1998," for "on or after the date of the enactment of the subparagraph".

1998—Subsec. (b)(3)(C). Pub. L. 105–261, §643(a)(1), struck out "effective date," after "Irrevocability," in heading and "Such an election is effective as of the first day of the first calendar month following the month in which it is received by the Secretary concerned." after "section 1450(f) of this title." in text.

Subsec. (b)(3)(E). Pub. L. 105–261, §643(a)(2), added subpar. (E).

1997—Pub. L. 105–85 substituted "Plan" for "plan" in section catchline.

1996—Pub. L. 104–201 amended section generally, revising and restating provisions relating to application of the Plan and inserting subsec., par., and subpar. headings.

1994—Subsec. (a)(2)(B). Pub. L. 103–337, §1671(d)(2), substituted "12731(d)" for "1331(d)".

Subsec. (b)(1). Pub. L. 103–337, §638, designated existing provisions as subpar. (A) and added subpars. (B) to (E).

Subsec. (f)(1). Pub. L. 103–337, §1671(d)(2), substituted "12731(d)" for "1331(d)" in subpars. (A) and (B).

1989—Subsec. (a)(1)(B), (2)(B). Pub. L. 101–189, §1407(a)(2), substituted "reserve-component retired pay" for "retired pay under chapter 67 of this title".

Subsec. (a)(4)(A). Pub. L. 101–189, §1407(a)(3), struck out "or retainer" after "entitled to retired".

Subsec. (f)(1)(A), (B). Pub. L. 101–189, §1407(a)(2), substituted "reserve-component retired pay" for "retired pay under chapter 67 of this title".

1986—Subsec. (a)(5). Pub. L. 99–661, §1343(a)(8)(B), substituted "a reserve-component annuity" for "an annuity by virtue of eligibility under paragraph (1)(B)".

Subsec. (b)(5). Pub. L. 99–661, §641(b)(1), inserted "(A) whether the election is being made pursuant to the requirements of a court order, or (B)".

Subsec. (d)(2). Pub. L. 99–661, §642(a)(1), substituted "if there is no surviving spouse or if the member's surviving spouse subsequently dies" for "if the member and the member's spouse die as a result of a common accident".

Subsec. (f)(2). Pub. L. 99–661, §642(a)(2), substituted "if there is no surviving spouse or if the person's surviving spouse subsequently dies" for "if the person and the person's spouse die as a result of a common accident".

1985—Subsec. (a)(1)(A). Pub. L. 99–145, §719(8)(A), substituted "retired pay" for "retired or retainer pay".

Subsec. (a)(2)(A). Pub. L. 99–145, §721(a)(1), inserted "(with his spouse's concurrence, if required under paragraph (3))" after "unless he elects".

Pub. L. 99–145, §719(8)(A), substituted "retired pay" for "retired or retainer pay".

Subsec. (a)(3). Pub. L. 99–145, §721(a)(2), amended par. (3) generally. Prior to amendment, par. (3) read as follows:

"(A) If a person who is eligible under paragraph (1)(A) to participate in the Plan and who is married elects not to participate in the Plan at the maximum level, or elects to provide an annuity for a dependent child but not for his spouse, or elects to provide an annuity for a former spouse under subsection (b)(2), that person's spouse shall be notified of that election.

"(B) If a person who is eligible under paragraph (1)(B) to participate in the Plan and who is married does not elect to participate in the Plan at the maximum level, or elects to provide an annuity for a dependent child but not for his spouse, or elects to provide an annuity for a former spouse under subsection (b)(2), that person's spouse shall be notified of that action."

Subsec. (a)(6). Pub. L. 99–145, §715(a), added par. (6).

Subsec. (b)(1). Pub. L. 99–145, §719(3), substituted "a reserve-component annuity" for "an annuity under this paragraph by virtue of eligibility under subsection (a)(1)(B)".

Subsec. (b)(2). Pub. L. 99–145, §719(3), substituted "a reserve-component annuity" for "an annuity under this paragraph by virtue of eligibility under subsection (a)(1)(B)".

Pub. L. 99–145, §716(a)(1), inserted "(other than a child who is a beneficiary under an election under paragraph (4))" after "that spouse or child" in second sentence.

Subsec. (b)(3)(B). Pub. L. 99–145, §719(8)(A), substituted "retired pay" for "retired or retainer pay".

Subsec. (b)(4), (5). Pub. L. 99–145, §716(a)(2), (3), added par. (4) and redesignated former par. (4) as (5).

Subsec. (c). Pub. L. 99–145, §513(b), inserted "disability" before "retired pay".

Subsec. (d). Pub. L. 99–145, §712(a), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows: "If a member of an armed force dies on active duty after he has become entitled to retired or retainer pay, or after he has qualified for that pay except that he has not applied for or been granted that pay, and his spouse is eligible for dependency and indemnity compensation under section 411(a) of title 38 in an amount that is less than the annuity the spouse would have received under this subchapter if it had applied to the member when he died, the Secretary concerned shall pay to the spouse an annuity equal to the difference between that amount of compensation and 55 percent of the retired or retainer pay to which the otherwise eligible spouse described in section 1450(a)(1) of this title would have been entitled if the member had been entitled to that pay based upon his years of active service when he died."

Subsec. (f). Pub. L. 99–145, §713(a), added subsec. (f).

Subsec. (g). Pub. L. 99–145, §715(b), added subsec. (g).

1983—Subsec. (a)(3). Pub. L. 98–94, §941(c)(2), substituted "provide an annuity for a former spouse under subsection (b)(2)," for "provide an annuity under subsection (b)(2) of this section," in subpars. (A) and (B).

Subsec. (a)(5). Pub. L. 98–94, §941(a)(1), inserted "except in accordance with subsection (b)(3)".

Subsec. (b). Pub. L. 98–94, §941(a)(2), amended subsec. (b) generally. Prior to amendment subsec. (b) read as follows:

"(1) A person who is not married and does not have a dependent child when he becomes eligible to participate in the Plan may elect to provide an annuity to a natural person with an insurable interest in that person or to provide an annuity to a former spouse.

"(2) A person who is married, or has a dependent child may elect to provide an annuity to a former spouse instead of providing an annuity to a spouse or dependent child if the election is made in order to carry out the terms of a written agreement entered into voluntarily with the former spouse (without regard to whether such agreement is included in or approved by a court order).

"(3) In the case of a person electing to provide an annuity under paragraph (1) or (2) of this subsection by virtue of eligibility under subsection (a)(1)(B), the election shall include a designation under subsection (e).

"(4) Any person who elects under paragraph (1) or (2) to provide an annuity to a former spouse shall, at the time of making such election, provide the Secretary concerned with a written statement, in a form to be prescribed by that Secretary, signed by such person and the former spouse setting forth whether the election is being made pursuant to a voluntary written agreement previously entered into by such person as a part of or incident to a proceeding of divorce, dissolution, annulment, or legal separation, and if so, whether such voluntary written agreement has been incorporated in or ratified or approved by a court order."

1982—Pub. L. 97–295, §1(18), substituted "Plan" for "plan" in section catchline.

Subsec. (a)(3). Pub. L. 97–252, §1003(b)(1), inserted in subpars. (A) and (B) identical text "or elects to provide an annuity under subsection (b)(2) of this section," after "for his spouse,".

Subsec. (b). Pub. L. 97–252, §1003(b)(2), designated existing first sentence as par. (1), authorized an election to provide an annuity to a former spouse, added pars. (2) and (4), designated existing second sentence as par. (3), and substituted "person electing to provide an annuity under paragraph (1) or (2) of this subsection" for "person providing an annuity under this subsection" and "the election" for "such an election".

1978—Subsec. (a). Pub. L. 95–397, §202(a), amended subsec. (a) generally, primarily inserting provision that this subchapter shall be known as the Survivor Benefit Plan and provisions of pars. (1)(B), (2)(B) and concluding sentence, (3)(B), (4)(B), and last sentence of (5).

Subsec. (b). Pub. L. 95–397, §202(b), substituted "entitled to retired or retainer pay" for "eligible to participate in the Plan" and inserted provisions relating to the inclusion in an election a designation under subsection (e) by persons providing an annuity under this subsection by virtue of eligibility under subsection (a)(1)(B).

Subsec. (e). Pub. L. 95–397, §202(c), added subsec. (e).

1976—Subsec. (a). Pub. L. 94–496 inserted "or elects to provide an annuity for a dependent child but not for his spouse" after "maximum level".

Statutory Notes and Related Subsidiaries

Effective Date of 2019 Amendment

Pub. L. 116–92, div. A, title VI, §622(f), Dec. 20, 2019, 133 Stat. 1428, provided that: "This section [amending this section and sections 1450 and 1451 of this title and enacting provisions set out as notes under this section and section 1450 of this title] and the amendments made by this section shall take effect on the first day of the first month that begins after the date of the enactment of this Act [Dec. 20, 2019], except subsections (d) and (e) of this section [amending this section and enacting provisions set out as a note below] and the amendments made thereby shall take effect on January 1, 2023."

Effective Date of 2016 Amendment

Pub. L. 114–328, div. A, title VI, §642(e), Dec. 23, 2016, 130 Stat. 2165, provided that:

"(1) Payment.—No annuity benefit under subchapter II of chapter 73 of title 10, United States Code, shall accrue to any person by reason of the amendments made by this section [amending this section and sections 1450 and 1451 of this title] for any period before the date of the enactment of this Act [Dec. 23, 2016].

"(2) Elections.—For any death that occurred before the date of the enactment of this Act with respect to which an annuity under such subchapter is being paid (or could be paid) to a surviving spouse, the Secretary concerned may, within six months of that date and in consultation with the surviving spouse, determine it appropriate to provide an annuity for the dependent children of the decedent under paragraph 1448(f)(2)(B) of title 10, United States Code, as added by subsection (b), instead of an annuity for the surviving spouse. Any such determination and resulting change in beneficiary shall be effective as of the first day of the first month following the date of the determination."

Effective Date of 2015 Amendment

Pub. L. 114–92, div. A, title VI, §641(b), Nov. 25, 2015, 129 Stat. 853, provided that: "Paragraph (7) of section 1448(b) of title 10, United States Code, as added by subsection (a), shall apply with respect to any person whose former spouse beneficiary dies on or after the date of the enactment of this Act [Nov. 25, 2015]."

Effective Date of 2006 Amendment

Pub. L. 109–364, div. A, title VI, §644(b), Oct. 17, 2006, 120 Stat. 2261, provided that: "Any annuity payable to a dependent child under subchapter II of chapter 73 of title 10, United States Code, by reason of the amendment made by subsection (a) [amending this section] shall be payable only for months beginning on or after the date of the enactment of this Act [Oct. 17, 2006]."

Effective Date of 2003 Amendment

Pub. L. 108–136, div. A, title VI, §644(c), Nov. 24, 2003, 117 Stat. 1518, provided that: "Subparagraph (B) of section 1448(f)(1) of title 10, United States Code, as added by subsection (a), shall take effect as of September 10, 2001, and shall apply with respect to performance of inactive-duty training (as defined in section 101(d) of title 10, United States Code) on or after that date."

Effective Date of 2001 Amendment

Pub. L. 107–107, div. A, title VI, §642(d), Dec. 28, 2001, 115 Stat. 1152, provided that: "The amendments made by this section [amending this section and section 1451 of this title] shall take effect as of September 10, 2001, and shall apply with respect to deaths of members of the Armed Forces occurring on or after that date."

Effective Date of 2000 Amendment

Pub. L. 106–398, §1 [[div. A], title VI, §655(d)], Oct. 30, 2000, 114 Stat. 1654, 1654A–166, provided that: "The amendments made by this section [amending this section and section 1450 of this title] apply only with respect to a notification under section 12731(d) of title 10, United States Code, made after January 1, 2001, that a member of a reserve component has completed the years of service required for eligibility for reserve-component retired pay."

Effective Date of 1997 Amendment

Pub. L. 105–85, div. A, title VI, §645(c), Nov. 18, 1997, 111 Stat. 1801, provided that: "The amendments made by this section [amending section 4(e)(1) of Pub. L. 92–425 and section 653(d) of Pub. L. 100–456, set out as notes below] take effect on the first day of the first month beginning after the date of the enactment of this Act [Nov. 18, 1997] and shall apply with respect to payments of benefits for months beginning on or after that date, except that the Secretary of Veterans Affairs may provide, if necessary for administrative implementation, that such amendments shall apply beginning with a later month, not later than the first month beginning more than 180 days after the date of the enactment of this Act."

Effective Date of 1994 Amendment

Amendment by section 1671(d)(2) of Pub. L. 103–337 effective Dec. 1, 1994, except as otherwise provided, see section 1691 of Pub. L. 103–337, set out as an Effective Date note under section 10001 of this title.

Effective Date of 1986 Amendment

Amendment by section 641 of Pub. L. 99–661 applicable to court orders issued on or after Nov. 14, 1986, see section 641(c) of Pub. L. 99–661, set out as a note under section 1450 of this title.

Pub. L. 99–661, div. A, title VI, §642(c), Nov. 14, 1986, 100 Stat. 3886, provided that: "The amendments made by subsection (a) [amending this section] shall apply only to claims arising on or after March 1, 1986. The amendments made by subsection (b) [amending section 1451 of this title] shall apply to payments for periods after February 28, 1986."

Effective Date of 1985 Amendment

Amendment by title VII of Pub. L. 99–145 effective Mar. 1, 1986, with prohibition against accrual of benefits to any person by reason of the enactment of such title VII for any period before Mar. 1, 1986, see section 731 of Pub. L. 99–145, set out as a note under section 1447 of this title.

Effective Date of 1983 Amendment

Pub. L. 98–94, title IX, §941(b), Sept. 24, 1983, 97 Stat. 653, provided that: "In the case of a person who on the date of the enactment of this Act [Sept. 24, 1983] is a person described in subparagraph (A) of subsection (b)(3) of section 1448 of title 10, United States Code (as amended by subsection (a)(2)), such subsection shall apply to that person as if the one-year period provided for in subparagraph (A) of such subsection began on the date of the enactment of this Act."

Effective Date of 1982 Amendment; Transition Provisions

Amendment by Pub. L. 97–252 effective Feb. 1, 1983, and applicable to persons becoming eligible to participate in Survivor Benefit Plan provided for in this subchapter before, on, or after Feb. 1, 1983, see section 1006 of Pub. L. 97–252, set out as an Effective Date; Transition Provisions note under section 1408 of this title.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–397 effective Oct. 1, 1978, and applicable to annuities payable by virtue of amendment for months beginning on or after such date, see section 210 of Pub. L. 95–397, set out as a note under section 1447 of this title.

Effective Date of 1976 Amendment

Amendment by Pub. L. 94–496 effective Sept. 21, 1972, see section 3 of Pub. L. 94–496, set out as a note under section 1447 of this title.

Survivor Benefit Plan Open Season

Pub. L. 117–263, div. A, title VI, §643, Dec. 23, 2022, 136 Stat. 2634, provided that:

"(a) Elections by 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 season described in subsection (e).

"(2) Eligible retired or former members.—For purposes of paragraph (1), an eligible retired or former member is a member or former member of the uniformed services who, on or before the day before the first day of the open season described in subsection (e)—

"(A) is entitled to retired pay; or

"(B) would be entitled to retired pay under chapter 1223 of title 10, United States Code (or chapter 67 of such title as in effect before October 5, 1994), but for the fact that such member or former member is under 60 years of age.

"(3) Status under SBP of persons making elections.—

"(A) Standard annuity.—A person making an election under paragraph (1) by reason of eligibility under paragraph (2)(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 (2)(B) shall be treated for all purposes as providing a reserve-component annuity under the Survivor Benefit Plan.

"(4) Premiums for open season.—

"(A) Premiums to be charged.—The Secretary of Defense shall prescribe in regulations premiums that a person who makes an election under paragraph (1) shall be required to pay for participating in the Survivor Benefit Plan pursuant to the election.

"(B) Amount of premiums.—The total amount of the premiums to be paid by a person under the regulations prescribed under subparagraph (A) shall be equal to the sum of—

"(i) the total amount by which the retired pay of the person would have been reduced before the effective date of the election under subsection (d) 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 person to participate under chapter 73 of title 10, United States Code;

"(ii) interest on the amount by which the retired pay of the person would have been so reduced, computed from the date on which the retired pay would have been so reduced at such rate or rates and according to such methodology as the Secretary determines reasonable; and

"(iii) 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.

"(C) Premiums to be credited to retirement fund.—Premiums paid under the regulations prescribed under subparagraph (A) shall be credited to the Department of Defense Military Retirement Fund.

"(b) Elections by Persons Currently Participating in Survivor Benefit Plan.—

"(1) Election of to discontinue SBP participation.—A person participating in the Survivor Benefit Plan on the day before the first day of the open season described in subsection (e) may elect to discontinue such participation during the open season.

"(2) Consent of beneficiaries.—

"(A) In general.—Except as provided in subparagraph (B), a person described in paragraph (1) may not make an election under that paragraph without the concurrence of—

"(i) each designated beneficiary of such person under the Survivor Benefit Plan; and

"(ii) the spouse of such person, if such person is married.

"(B) Exception when beneficiary unavailable.—A person may make an election under paragraph (1) without a concurrence required under subparagraph (2) if the person establishes to the satisfaction of the Secretary concerned—

"(i) that the whereabouts of the spouse or beneficiary, as the case may be, cannot be determined; or

"(ii) that, due to exceptional circumstances, requiring the person to seek the consent of the spouse or beneficiary, as the case may be, would otherwise be inappropriate.

"(3) Treatment of premiums.—

"(A) Discontinuation of reductions in pay.—As of the effective date under subsection (d) of an election by a person under paragraph (1), the Secretary concerned shall discontinue the reduction being made in the retired pay of the person arising from participation in the Survivor Benefit Plan or, in the case of a person who has been required to make deposits in the Treasury on account of participation in the Survivor Benefit Plan, that person may discontinue making such deposits effective on such effective date.

"(B) Treatment of previous reductions.—A person who makes an election under paragraph (1) is not entitled to a refund of any reduction or deposit described in subparagraph (A) made before such effective date.

"(c) Manner of Making Elections.—

"(1) In general.—An election under subsection (a) or (b) shall be made in writing, signed by the person making the election, and received by the Secretary concerned before the end of the open season described in subsection (e).

"(2) Conditions.—Except as provided in paragraph (3), an election under subsection (a) 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.

"(3) Election must be voluntary.—An election under subsection (a) or (b) is not effective unless the person making the election declares the election to be voluntary. An election under subsection (a) or (b) to participate or not to participate in the Survivor Benefit Plan may not be required by any court. An election by a person under subsection (a) to participate in the Survivor Benefit Plan is not subject to the concurrence of a spouse or former spouse of the person.

"(4) Designation with respect to reserve-component annuity.—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.

"(d) Effective Date for Elections.—An election under subsection (a) or (b) shall be effective on the first day of the first calendar month following the month in which the election is received by the Secretary concerned.

"(e) Open Season Described.—The open season described in this subsection is the period beginning on the date of the enactment of this Act [Dec. 23, 2022] and ending on January 1, 2024.

"(f) 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 subsection (a) or (b) in the same manner as if the election were made under the Survivor Benefit Plan.

"(g) Definitions.—In this section:

"(1) The terms 'base amount', 'reserve-component annuity', and 'standard annuity' have the meanings given those terms in section 1447 of title 10, United States Code.

"(2) The term 'Department of Defense Military Retirement Fund' means the fund established under section 1461(a) of title 10, United States Code.

"(3) The term 'retired pay' includes retainer pay.

"(4) The terms 'Secretary concerned' and 'uniformed services' have the meanings given those terms in section 101 of title 37, United States Code.

"(5) The term 'Survivor Benefit Plan' means the program established under subchapter II of chapter 73 of title 10, United States Code."

Restoration of Eligibility for Previously Eligible Spouses

Pub. L. 116–92, div. A, title VI, §622(e), Dec. 20, 2019, 133 Stat. 1428, provided that: "The Secretary of the military department concerned shall restore annuity eligibility to any eligible surviving spouse who, in consultation with the Secretary, previously elected to transfer payment of such annuity to a surviving child or children under the provisions of section 1448(d)(2)(B) of title 10, United States Code, as in effect on the day before the effective date provided under subsection (f) [set out as an Effective Date of 2019 Amendment note above]. Such eligibility shall be restored whether or not payment to such child or children subsequently was terminated due to loss of dependent status or death. For the purposes of this subsection, an eligible spouse includes a spouse who was previously eligible for payment of such annuity and is not remarried, or remarried after having attained age 55, or whose second or subsequent marriage has been terminated by death, divorce or annulment."

Applicability to Former Spouse Deaths Before Enactment of Pub. L. 114–92

Pub. L. 114–92, div. A, title VI, §641(c), Nov. 25, 2015, 129 Stat. 853, provided that:

"(1) In general.—A person—

"(A) who before the date of the enactment of this Act [Nov. 25, 2015] had a former spouse beneficiary under the Survivor Benefit Plan who died before that date; and

"(B) who on the date of the enactment of this Act is married,

may elect to provide spouse coverage for such spouse under the Plan, regardless of whether the person married such spouse before or after the death of the former spouse beneficiary. Any such election may only be made during the one-year period beginning on the date of the enactment of this Act.

"(2) Effective date of election if married at least a year at death former spouse.—If the person providing the annuity was married to the spouse beneficiary for at least one year at the time of the death of the former spouse beneficiary, the effective date of such election shall be the first day of the first month after the death of the former spouse beneficiary.

"(3) Other effective date.—If the person providing the annuity married the spouse beneficiary after (or during the one-year period preceding) the death of the former spouse beneficiary, the effective date of the election shall be the first day of the first month following the first anniversary of the person's marriage to the spouse beneficiary.

"(4) Responsibility for premiums.—A person electing to participate in the Plan under this subsection shall be responsible for payment of all premiums due from the effective date of the election."

Transition

Pub. L. 109–364, div. A, title VI, §643(c), Oct. 17, 2006, 120 Stat. 2261, provided that:

"(1) Transition period.—In the case of a participant in the Survivor Benefit Plan who made a covered insurable-interest election (as defined in paragraph (2)) and whose designated beneficiary under that election dies before the date of the enactment of this Act [Oct. 17, 2006] or during the 18-month period beginning on such date, the time period applicable for purposes of the limitation in the third sentence of subparagraph (G)(i) of section 1448(b)(1) of title 10, United States Code, as added by subsection (a), shall be the two-year period beginning on the date of the enactment of this Act (rather than the 180-day period specified in that sentence).

"(2) Covered insurable-interest elections.—For purposes of paragraph (1), a covered insurable-interest election is an election under section 1448(b)(1) of title 10, United States Code, made before the date of the enactment of this Act [Oct. 17, 2006], or during the 18-month period beginning on such date, by a participant in the Survivor Benefit Plan to provide an annuity under that plan to a natural person with an insurable interest in that person.

"(3) Survivor benefit plan.—For purposes of this subsection, the term 'Survivor Benefit Plan' means the program under subchapter II of chapter 73 of title 10, United States Code."

One-Year Open Enrollment Period for Survivor Benefit Plan Commencing October 1, 2005

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.
10 U.S.C. § 777 (2024) — Title 10: ARMED FORCES / Chapter 45 / Section 777: Wearing of insignia of higher grade before promotion (frocking): authority; restrictions
Wearing of insignia of higher grade before promotion (frocking): authority; restrictions
Status: in_force

(a) Authority.—An officer in a grade below the grade of major general or, in the case of the Navy, rear admiral, who has been selected for promotion to the next higher grade may be authorized, under regulations and policies of the Department of Defense and subject to subsection (b), to wear the insignia for that next higher grade. An officer who is so authorized to wear the insignia of the next higher grade is said to be "frocked" to that grade.

(b) Restrictions.—An officer may not be authorized to wear the insignia for a grade as described in subsection (a) unless—

(1) the Senate has given its advice and consent to the appointment of the officer to that grade;

(2) the officer is serving in, or has received orders to serve in, a position for which that grade is authorized; and

(3) in the case of an officer selected for promotion to a grade above colonel or, in the case of an officer of the Navy, a grade above captain—

(A) authority for that officer to wear the insignia of that grade has been approved by the Secretary of Defense (or a civilian officer within the Office of the Secretary of Defense whose appointment was made with the advice and consent of the Senate and to whom the Secretary delegates such approval authority); and

(B) the Secretary of Defense has submitted to Congress a written notification of the intent to authorize the officer to wear the insignia for that grade.

(c) Benefits Not To Be Construed as Accruing.—(1) Authority provided to an officer as described in subsection (a) to wear the insignia of the next higher grade may not be construed as conferring authority for that officer to—

(A) be paid the rate of pay provided for an officer in that grade having the same number of years of service as that officer; or

(B) assume any legal authority associated with that grade.

(2) The period for which an officer wears the insignia of the next higher grade under such authority may not be taken into account for any of the following purposes:

(A) Seniority in that grade.

(B) Time of service in that grade.

(d) Limitation on Number of Officers Frocked to Specified Grades.—(1) The total number of colonels, Navy captains, brigadier generals, and rear admirals (lower half) on the active-duty list who are authorized as described in subsection (a) to wear the insignia for the next higher grade may not exceed 85.

(2) The number of officers of an armed force on the active-duty list, or for the Space Force, the Space Force officer list, who are authorized as described in subsection (a) to wear the insignia for a grade to which a limitation on total number applies under section 523(a) of this title for a fiscal year may not exceed 1 percent, or, for the grades of colonel and Navy captain, 2 percent, of the total number provided for the officers in that grade in that armed force in the administration of the limitation under that section for that fiscal year.

(Added Pub. L. 104–106, div. A, title V, §503(a)(1), Feb. 10, 1996, 110 Stat. 294; amended Pub. L. 105–85, div. A, title V, §505, Nov. 18, 1997, 111 Stat. 1726; Pub. L. 106–65, div. A, title V, §502, Oct. 5, 1999, 113 Stat. 590; Pub. L. 108–136, div. A, title V, §509(a), Nov. 24, 2003, 117 Stat. 1458; Pub. L. 108–375, div. A, title V, §503, Oct. 28, 2004, 118 Stat. 1875; Pub. L. 109–163, div. A, title V, §§503(c), 504, Jan. 6, 2006, 119 Stat. 3226; Pub. L. 111–383, div. A, title V, §505(b), Jan. 7, 2011, 124 Stat. 4210; Pub. L. 118–31, div. A, title XVII, §1722(e), Dec. 22, 2023, 137 Stat. 671.)

Editorial Notes

Amendments

2023—Subsec. (d)(2). Pub. L. 118–31 inserted ", or for the Space Force, the Space Force officer list," after "active-duty list".

2011—Subsec. (b)(3)(B). Pub. L. 111–383 struck out "and a period of 30 days has elapsed after the date of the notification" after "grade".

2006—Subsec. (a). Pub. L. 109–163, §503(c), inserted "in a grade below the grade of major general or, in the case of the Navy, rear admiral," after "An officer" in first sentence.

Subsec. (d)(1). Pub. L. 109–163, §504(1), substituted "colonels, Navy captains, brigadier generals, and rear admirals (lower half)" for "brigadier generals and Navy rear admirals (lower half)" and "the next higher grade may not exceed 85" for "the grade of major general or rear admiral, as the case may be, may not exceed 30".

Subsec. (d)(2), (3). Pub. L. 109–163, §504(2), (3), redesignated par. (3) as (2) and struck out former par. (2) which read as follows: "The total number of colonels and Navy captains on the active-duty list who are authorized as described in subsection (a) to wear the insignia for the grade of brigadier general or rear admiral (lower half), as the case may be, may not exceed 55."

2004—Subsec. (d). Pub. L. 108–375 added par. (1) and redesignated former pars. (1) and (2) as (2) and (3), respectively.

2003—Subsec. (b)(3). Pub. L. 108–136 added par. (3).

1999—Subsec. (d)(1). Pub. L. 106–65 substituted "55." for "the following:" and struck out subpars. (A) to (C) which read as follows:

"(A) During fiscal years 1996 and 1997, 75.

"(B) During fiscal year 1998, 55.

"(C) After fiscal year 1998, 35."

1997—Subsec. (d)(2). Pub. L. 105–85 inserted ", or, for the grades of colonel and Navy captain, 2 percent," after "1 percent".

Statutory Notes and Related Subsidiaries

Effective Date of 2003 Amendment

Pub. L. 108–136, div. A, title V, §509(b), Nov. 24, 2003, 117 Stat. 1459, provided that: "Paragraph (3) of subsection (b) of section 777 of title 10, United States Code, as added by subsection (a), shall not apply with respect to the wearing by an officer of insignia for a grade that was authorized under that section before the date of the enactment of this Act [Nov. 24, 2003]."

Temporary Variation of Limitations on Numbers of Frocked Officers

Pub. L. 104–106, div. A, title V, §503(b), Feb. 10, 1996, 110 Stat. 294, provided that in the administration of former subsec. (d)(2) of this section, the percent limitation applied under that section for fiscal year 1996 would be 2 percent, rather than 1 percent.