### §1302. Determination of pay grade

(a) With respect to a veteran who died in the active military, naval, air, or space service, such veteran's pay grade shall be determined as of the date of such veteran's death or as of the date of a promotion after death while in a missing status.

(b) With respect to a veteran who did not die in the active military, naval, air, or space service, such veteran's pay grade shall be determined as of—

(1) the time of such veteran's last discharge or release from active duty under conditions other than dishonorable; or

(2) the time of such veteran's discharge or release from any period of active duty for training or inactive duty training, if such veteran's death results from service-connected disability incurred during such period and if such veteran was not thereafter discharged or released under conditions other than dishonorable from active duty.

(c) The pay grade of any veteran described in section 106(b) of this title shall be that to which such veteran would have been assigned upon final acceptance or entry upon active duty.

(d) If a veteran has satisfactorily served on active duty for a period of six months or more in a pay grade higher than that specified in subsection (a) or (b) and any subsequent discharge or release from active duty was under conditions other than dishonorable, the higher pay grade shall be used if it will result in greater monthly payments to such veteran's surviving spouse under this chapter. The determination as to whether an individual has served satisfactorily for the required period in a higher pay grade shall be made by the Secretary of the department in which such higher pay grade was held.

(e) The pay grade of any person not otherwise described in this section, but who had a compensable status on the date of such person's death under laws administered by the Secretary, shall be determined by the head of the department under which such person performed the services by which such person obtained such status (taking into consideration such person's duties and responsibilities) and certified to the Secretary. For the purposes of this chapter, such person shall be deemed to have been on active duty while performing such services.

(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1126, §402; Pub. L. 86–492, June 8, 1960, 74 Stat. 161; Pub. L. 89–622, §1, Oct. 4, 1966, 80 Stat. 873; Pub. L. 91–96, §1, Oct. 27, 1969, 83 Stat. 144; Pub. L. 92–169, §2, Nov. 24, 1971, 85 Stat. 489; Pub. L. 94–433, title IV, §405(1)–(3), Sept. 30, 1976, 90 Stat. 1379; Pub. L. 102–54, §14(b)(2), June 13, 1991, 105 Stat. 283; renumbered §1302 and amended Pub. L. 102–83, §§4(a)(1), (b)(1), (2)(E), 5(a), Aug. 6, 1991, 105 Stat. 403–406; Pub. L. 116–283, div. A, title IX, §926(a)(17), Jan. 1, 2021, 134 Stat. 3830.)

#### **Editorial Notes**

#### Amendments

2021—Subsecs. (a), (b). Pub. L. 116–283 substituted "air, or space service" for "or air service".

1991—Pub. L. 102–83, §5(a), renumbered section 402 of this title as this section.

Subsec. (d). Pub. L. 102–54 substituted "department" for "Department".

Subsec. (e). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator" before period at end of first sentence.

Pub. L. 102–83, §4(a)(1), substituted "administered by the Secretary" for "administered by the Veterans' Administration".

1976—Subsec. (a). Pub. L. 94–433, §405(1), substituted "such veteran's" for "his" in two places.

Subsec. (b). Pub. L. 94–433, §405(1), substituted "such veteran's" for "his" in introductory clause and items (1) and (2) and "such veteran" for "he" in item (2).

Subsec. (c). Pub. L. 94–433, §405(2), substituted "such veteran" for "he".

Subsec. (d). Pub. L. 94–433, §405(2), substituted "such veteran's surviving spouse" for "his widow".

Subsec. (e). Pub. L. 94–433, §405(3), substituted "such person's" for "his" in two places and "such person" for "he".

1971—Subsec. (a). Pub. L. 92–169 provided, with regard to determination of veteran's pay grade at date of his death, that in the case of a promotion after death while the veteran is in a missing status, the pay grade determination date is the date of such promotion.

1969—Pub. L. 91–96 substituted "Determination of pay grade" for "Computation of basic pay" in section catchline.

Subsec. (a). Pub. L. 91–96 substituted provisions determining the pay grade of a veteran who died in the active service for provisions determining the basic pay of a veteran who died in the active service as that prescribed on Jan. 1, 1957, or on the date of his death (whichever is the later date) for a member of a uniformed service on active duty of the same rank and years of service.

Subsec. (b). Pub. L. 91–96 substituted provisions determining the pay grade of a veteran who did not die in the active service for provisions determining the basic pay of a veteran who did not die in the active service as that prescribed on Jan. 1, 1957, or on the date of his death (whichever is the later date) for a member of a uniformed service on active duty of the same rank and years of service.

Subsec. (c). Pub. L. 91–96 redesignated former subsec. (c)(1) as (c) and substituted "pay grade" for "basic pay" and "assigned" for "entitled". Former subsec. (c)(2) redesignated (e).

Subsec. (d). Pub. L. 91–96 substituted provisions determining the applicability of a higher pay grade of a veteran who had served six months or more in a pay grade higher than that specified in subsec. (a) or (b) for provisions determining the basic pay of a veteran who had served six months or more in a rank higher than that specified in the former provisions of subsec. (a) or (b).

Subsec. (e). Pub. L. 91–96 redesignated former subsec. (c)(2) as (e), substituted "pay grade" for "basic pay", and struck out "and years of service" after "responsibilities".

1966—Subsec. (d). Pub. L. 89–622 substituted "any subsequent discharge or release from active duty was under conditions other than dishonorable" for "was so serving in such rank within one hundred and twenty days before death in the active military, naval, or air service or before last discharge or release from active duty under conditions other than dishonorable".

1960—Subsec. (d). Pub. L. 86–492 added subsec. (d).

#### **Statutory Notes and Related Subsidiaries**

#### Effective Date of 1976 Amendment

Amendment by Pub. L. 94–433 effective Oct. 1, 1976, see section 406 of Pub. L. 94–433, set out as a note under section 1101 of this title.

#### Effective Date of 1971 Amendment

Pub. L. 92–169, §3, Nov. 24, 1971, 85 Stat. 489, provided that: "For the purposes of chapter 13 of title 38, United States Code, this Act [amending this section and section 552 of Title 37, Pay and Allowances of the Uniformed Services] becomes effective upon the date of enactment [Nov. 24, 1971]. For all other purposes this Act becomes effective as of February 28, 1961."

#### Effective Date of 1969 Amendment

Pub. L. 91–96, §8, Oct. 27, 1969, 83 Stat. 146, provided that: "This Act [amending this section and sections 322 [now 1122], 401 [now 1301], 403, 411 [now 1311], and 421 [now 1321] of this title] shall take effect on the first day of the second calendar month which begins after the date of enactment [Oct. 27, 1969]."

#### Effective Date of 1966 Amendment

Pub. L. 89–622, §2, Oct. 4, 1966, 80 Stat. 873, provided that: "The amendment made by this Act [amending this section] shall take effect on the first day of the second calendar month after the date of enactment of this Act [Oct. 4, 1966]."