[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 296 Introduced in House (IH)]







111th CONGRESS
  1st Session
                                H. R. 296

To amend title 10, United States Code, to revise the process by which a 
   member of the Armed Forces is retired for disability and becomes 
          eligible for retirement pay, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            January 8, 2009

 Mr. Buyer (for himself, Mr. Boozman, Mr. Rooney, Mr. Stearns, and Ms. 
Ginny Brown-Waite of Florida) introduced the following bill; which was 
              referred to the Committee on Armed Services

_______________________________________________________________________

                                 A BILL


 
To amend title 10, United States Code, to revise the process by which a 
   member of the Armed Forces is retired for disability and becomes 
          eligible for retirement pay, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Armed Forces Disability Retirement 
Enhancement Act''.

SEC. 2. REVISED PROCESS FOR DISABILITY RETIREMENT FOR MEMBERS OF THE 
              ARMED FORCES.

    (a) In General.--Chapter 61 of title 10, United States Code, is 
amended--
            (1) by inserting before section 1201 the following:

``SUBCHAPTER I--FORMER PROCESS FOR RETIREMENT OR SEPARATION OF MEMBERS 
                             FOR DISABILITY

``Sec. 1200. Applicability of subchapter: members retired or separated 
              before effective date of Armed Forces Disability 
              Retirement Enhancement Act; certain members on temporary 
              disability retired list as of effective date
    ``(a) In General.--Except as provided in subsection (b), this 
subchapter applies to the retirement or separation for disability of 
members as follows:
            ``(1) Members who are eligible for retirement for 
        disability or separation for disability before the end of the 
        one-year period beginning on the date of the enactment of the 
        Armed Forces Disability Retirement Enhancement Act.
            ``(2) Members on the temporary disability retired list as 
        of the end of such period who--
                    ``(A) are eligible for retirement under the 
                provisions of subchapter II in accordance with section 
                1206c of this title; but
                    ``(B) do not elect to retire under the provisions 
                of subchapter II as otherwise provided in section 1206c 
                of this title.
    ``(b) Inapplicability to Certain Members.--For provisions relating 
to the applicability of subchapter II to the retirement for disability 
of certain members otherwise covered by this subchapter under 
subsection (a)(1), see section 1206b of this title.'';
            (2) by transferring section 1206a to appear after section 
        1207a and redesignating such section, as so transferred, as 
        section 1207b; and
            (3) by inserting after section 1206 the following:

    ``SUBCHAPTER II--REVISED PROCESS FOR RETIREMENT OF MEMBERS FOR 
                               DISABILITY

``Sec. 1206a. Applicability of subchapter: members retired on or after 
              effective date of Armed Forces Disability Retirement 
              Enhancement Act
    ``(a) In General.--This subchapter applies to the retirement of 
members for disability (including the placement of members on the 
temporary disability retired list in accordance with section 1206e of 
this title) on or after the end of the one-year period beginning on the 
date of the enactment of the Armed Forces Disability Retirement 
Enhancement Act.
    ``(b) Exclusive Application.--Members eligible for retirement under 
this subchapter by reason of this section are not eligible for 
retirement or separation under subchapter I.
``Sec. 1206b. Applicability of subchapter: certain members retired on 
              or after October 7, 2001, but before effective date of 
              Armed Forces Disability Retirement Enhancement Act
    ``(a) Election of Applicability.--(1) During such period as the 
Secretary of Defense shall prescribe for purposes of this section, a 
former member described in subsection (b) may elect to retire under 
this subchapter in lieu of retirement or separation under subchapter I.
    ``(2) Each election under this subsection shall be executed in such 
form and manner as the Secretary of Defense shall prescribe for 
purposes of this section.
    ``(3) Any election made under this subsection is irrevocable.
    ``(b) Covered Former Members.--A former member described in this 
subsection is any former member who, during the period beginning on 
October 7, 2001, and ending on the day before the end of the one-year 
period beginning on the date of the enactment of the Armed Forces 
Disability Retirement Enhancement Act, is retired under the provisions 
of this chapter as in effect before the end of such period.
    ``(c) Treatment of Former Members Making Elections.--(1) Effective 
as of the date of the correction of the military records of such former 
member under subsection (d), each former member who makes an election 
under subsection (a) shall be deemed to have been retired under this 
subchapter, with retirement pay computed under section 1401 of this 
title (as amended by the Armed Forces Disability Retirement Enhancement 
Act), rather than to have been retired under the provisions of 
subchapter I.
    ``(2) No benefits are available to a former member under this 
subchapter for any period before the correction of the military records 
of the former member under subsection (d).
    ``(3) The Secretary of Defense may not recoup or collect from any 
former member who is retired under this subchapter pursuant to an 
election under subsection (a) any amount of retirement pay paid to the 
former member under this chapter before the date of the effective date 
of the correction of the military records of the former member under 
subsection (d).
    ``(d) Correction of Military Records.--The Secretary concerned 
shall correct the military records of each former member making an 
election under subsection (a) to reflect that the former member is 
retired under the provisions of this subchapter rather than retired 
under the provisions of this chapter as in effect before the end of the 
one-year period beginning on the date of the enactment of the Armed 
Forces Disability Retirement Enhancement Act.
``Sec. 1206c. Applicability of subchapter: members on temporary 
              disability retired list as of effective date of Armed 
              Forces Disability Retirement Enhancement Act
    ``(a) Election of Applicability.--(1) A member described in 
subsection (b) may elect to retire under this subchapter in lieu of 
retirement under the provisions of subchapter I.
    ``(2) Each election under this subsection shall be executed in such 
form and manner as the Secretary of Defense shall prescribe for 
purposes of this section.
    ``(3) Any election made under this subsection is irrevocable.
    ``(b) Covered Members.--A member described in this subsection is 
any member--
            ``(1) whose name is on the temporary disability retired 
        list as of the end of the one-year period beginning on the date 
        of the enactment of the Armed Forces Disability Retirement 
        Enhancement Act; and
            ``(2)(A) whose disability qualifying the member for 
        placement on the temporary disability retired list is 
        determined after such period by the Secretary concerned, based 
        on accepted medical principles, to be of a permanent nature and 
        stable; or
            ``(B) whose disability is considered after such period by 
        the Secretary concerned to be of a permanent nature and stable 
        after five years of the placement of the member's name on the 
        temporary disability retired list in accordance with section 
        1210(b) of this title.
    ``(c) Timing of Election.--A member eligible to make an election 
under subsection (a) by reason of a determination under subparagraph 
(A) or (B) of subsection (b)(2) shall make such election, if at all, 
during such period after the date of the determination as the Secretary 
of Defense shall prescribe for purposes of this section.
    ``(d) Treatment of Members Making Elections.--(1) Effective as of 
the date of such election, each member who makes an election under 
subsection (a) shall be retired under this subchapter, with retirement 
pay computed under section 1401 of this title (as amended by the Armed 
Forces Disability Retirement Enhancement Act).
    ``(2) No benefits are available to a member under this subchapter 
for any period before the election of the member under subsection (a).
    ``(3) The Secretary of Defense may not recoup or collect from any 
member who is retired under this subchapter pursuant to an election 
under subsection (a) any amount of retirement pay paid to the member 
under this chapter before the date of the election of the member under 
subsection (a).
``Sec. 1206d. Retirement
    ``(a) In General.--Upon a determination by the Secretary concerned 
that a member covered by this subchapter under section 1206a of this 
title is unfit to perform the duties of the member's office, grade, 
rank, or rating because of disability, the Secretary may, consistent 
with regulations prescribed by the Secretary of Defense for purposes of 
this subchapter, retire the member, with retirement pay computed under 
section 1401 of this title (as amended by the Armed Forces Disability 
Retirement Enhancement Act) if the Secretary concerned also makes the 
determinations specified in subsection (b) with respect to the member.
    ``(b) Determinations.--The determinations specified in this 
subsection with respect to a member are determinations by the Secretary 
concerned as follows:
            ``(1) That the disability of the member, based upon 
        accepted medical principles--
                    ``(A) is of a permanent nature; or
                    ``(B) is of uncertain permanency, such that a 
                temporary disability retirement under section 1206e of 
                this title is appropriate.
            ``(2) That the injury, illness, or disease rendering the 
        member unfit was incurred or aggravated in the line of duty--
                    ``(A) while the member was entitled to basic pay 
                under section 204 of title 37 or compensation under 
                section 206 of that title;
                    ``(B) while performing active duty but not entitled 
                to basic pay under section 204 of title 37 or inactive-
                duty training; or
                    ``(C) while engaged in an activity covered by 
                section 1201(c)(3), 1204(2)(B), or 1204(2)(C) of this 
                title.
            ``(3) That the injury, illness, or disease was not--
                    ``(A) the result of the member's intentional 
                misconduct or willful neglect; or
                    ``(B) incurred during a period of unauthorized 
                absence.
``Sec. 1206e. Temporary disability retired list
    ``(a) In General.--Subject to the provisions of this section, a 
member covered by section 1206d(b) of this title who is described by 
paragraph (1)(B) of such section shall have such member's name placed 
on the temporary disability retired list, with retirement pay computed 
under section 1401 of this title (as amended by the Armed Forces 
Disability Retirement Enhancement Act).
    ``(b) Administration.--(1) Subsection (a) shall be administered in 
accordance with such regulations as the Secretary of Defense shall 
prescribe for purposes of this section.
    ``(2)(A) Except as provided in subparagraph (B), the regulations 
prescribed under this subsection shall provide for the applicability of 
the provisions of sections 1210 and 1211 of this title to a member 
whose name is placed on the temporary disability retired list under 
this section.
    ``(B) The provisions of subsections (c), (d), and (e) of section 
1210 of this title shall not apply to a member whose name is placed on 
the temporary disability retired list under this section.
    ``(3)(A) The regulations shall provide for appropriate mechanisms, 
applicable uniformly across the military departments, for an annual 
review by the military departments of determinations to place members' 
names on the temporary disability retired list under this section in 
order to ensure the accuracy and consistency of such determinations by 
the military departments.
    ``(B) The Secretary of Defense shall submit to the Committees on 
Armed Services of the Senate and the House of Representatives each year 
a report on the results of the reviews conducted by the military 
departments under subparagraph (A) during the preceding year.
    ``(c) Retirement.--If, as a result of a periodic examination under 
section 1210(a) of this title or upon a final determination under 
section 1210(b) of this title, it is determined that a member's 
disability is of a permanent nature, the member's name shall be removed 
from the temporary disability retired list, and the member shall be 
retired under section 1206d of this title.
``Sec. 1206f. Treatment of retirement pay
    ``(a) In General.--Retirement pay authorized by this subchapter 
shall be treated as retirement pay for all purposes under this title, 
including for purposes of eligibility for medical and dental care under 
chapter 55 of this title.
    ``(b) No Offset Under Duplication of Benefits.--Retirement pay 
authorized by this subchapter is not subject to the prohibitions 
against duplication of benefits under sections 5304 and 5305 of title 
38.
    ``(c) Ineligibility for Combat-Related Special Compensation.--A 
member retired under this subchapter is not eligible for combat-related 
special compensation under section 1413a of this title.
    ``(d) Ineligibility for Certain Space-Available Travel.--A member 
retired under this subchapter residing in a Commonwealth or possession 
of the United States is not eligible for space-available travel on 
Department of Defense aircraft under section 2461b of this title.
``Sec. 1206g. Determinations of unfitness
    ``(a) In General.--In this subchapter, a finding of unfitness for 
duty with respect to a member shall be based on determinations by the 
Secretary concerned that--
            ``(1) the member is unfit to perform the duties of the 
        member's office, grade, rank, or rating because of a 
        disability; and
            ``(2) it is unlikely that through retraining in another 
        occupational specialty or other preparations the member can be 
        reassigned to other duties the member would be fit to perform 
        and which are consistent with the needs of the armed force 
        concerned.
    ``(b) Interservice Transfer.--With the consent of a member 
determined unfit for duty under subsection (a), the member may, instead 
of being retired under this subchapter, be transferred under section 
716 of this title to another uniformed service if the Secretary 
responsible for that uniformed service determines that the member, 
currently or through retraining in another occupational specialty or 
other preparations, can be reassigned to other duties the member would 
be fit to perform and which are consistent with the needs of that 
uniformed service.
    ``(c) Continuation of Service of Member Determined Unfit.--Upon the 
agreement of a member determined unfit for duty under subsection (a) 
and the Secretary concerned, the member's service may be continued 
under terms and conditions specified by the Secretary concerned, 
including through transfer to another uniformed service under section 
716 of this title.

              ``SUBCHAPTER III--ADMINISTRATIVE MATTERS''.

    (b) Definition of Disability.--
            (1) Definition.--Chapter 61 of such title is further 
        amended by inserting after section 1219, the following new 
        section:
``Sec. 1220. Definition of disability
    ``In this chapter, the term `disability' includes physical 
disabilities and disabilities based on mental disorders.''.
            (2) Conforming amendments.--Such chapter is further 
        amended--
                    (A) in section 1201(a), by striking ``physical 
                disability'' and inserting ``disability'';
                    (B) in section 1203(a), by striking ``physical 
                disability'' and inserting ``disability'';
                    (C) in section 1204, by striking ``physical 
                disability'' and inserting ``disability'';
                    (D) in section 1206, by striking ``physical 
                disability'' and inserting ``disability'';
                    (E) in section 1207, by striking ``physical 
                disability'' and inserting ``disability'';
                    (F) in section 1210, by striking ``physical 
                disability'' each place it appears and inserting 
                ``disability'';
                    (G) in subparagraphs (C) and (D) of section 
                1212(a)(2), by striking ``physical disability'' and 
                inserting ``disability'';
                    (H) in section 1214, by striking ``physical 
                disability'' and inserting ``disability'';
                    (I) in section 1215, by striking ``physical 
                disability'' and inserting ``disability'';
                    (J) in section 1217(a), by striking ``physical 
                disabilities'' and inserting ``disabilities''; and
                    (K) in section 1218(a), by striking ``physical 
                disability'' and inserting ``disability''.
    (c) Clerical Amendments.--Chapter 61 of such title is further 
amended--
            (1) by striking the table of sections;
            (2) by inserting after the chapter heading the following:

``Subchapter                                                      Sec. 
``I. Former Process for Retirement or Separation of Members       1200 
                            for Disability.
``II. Revised Process for Retirement of Members for              1206a 
                            Disability.
``III. Administrative Matters...............................    1207'';
            (3) by inserting after the subchapter heading for 
        subchapter I, as added by subsection (a)(1) of this section, 
        the following:

``Sec.
``1200. Applicability of subchapter: members retired or separated 
                            before effective date of Armed Forces 
                            Disability Retirement Enhancement Act; 
                            certain members on temporary disability 
                            retired list as of effective date.
``1201. Regulars and members on active duty for more than 30 days: 
                            retirement.
``1202. Regulars and members on active duty for more than 30 days: 
                            temporary disability retired list.
``1203. Regulars and members on active duty for more than 30 days: 
                            separation.
``1204. Members on active duty for 30 days or less or on inactive-duty 
                            training: retirement.
``1205. Members on active duty for 30 days or less or on inactive-duty 
                            training: temporary disability retired 
                            list.
``1206. Members on active duty for 30 days or less or on inactive-duty 
                            training: separation.'';
            (4) by inserting after the subchapter heading for 
        subchapter II, as added by subsection (a)(3) of this section, 
        the following:

``Sec.
``1206a. Applicability of subchapter: members retired on or after 
                            effective date of Armed Forces Disability 
                            Retirement Enhancement Act.
``1206b. Applicability of subchapter: certain members retired on or 
                            after October 7, 2001, but before effective 
                            date of Armed Forces Disability Retirement 
                            Enhancement Act.
``1206c. Applicability of subchapter: members on temporary disability 
                            retired list as of effective date of Armed 
                            Forces Disability Retirement Enhancement 
                            Act.
``1206d. Retirement.
``1206e. Temporary disability retired list.
``1206f. Treatment of retirement pay.
``1206g. Determinations of unfitness.'';
        and
            (5) by inserting after the subchapter heading for 
        subchapter III, as added by subsection (a)(3) of this section, 
        the following:

``Sec.
``1207. Disability from intentional misconduct or willful neglect: 
                            separation.
``1207a. Members with over eight years of active service: eligibility 
                            for disability retirement for pre-existing 
                            conditions.
``1207b. Reserve component members unable to perform duties when 
                            ordered to active duty: disability system 
                            processing.
``1208. Computation of service.
``1209. Transfer to inactive status list instead of separation.
``1210. Members on temporary disability retired list: periodic physical 
                            examination; final determination of status.
``1211. Members on temporary disability retired list: return to active 
                            duty; promotion.
``1212. Disability severance pay.
``1213. Effect of separation on benefits and claims.
``1214. Right to full and fair hearing.
``1215. Members other than Regulars: applicability of laws.
``1216. Secretaries: powers, functions, and duties.
``1217. Academy cadets and midshipmen: applicability of chapter.
``1218. Discharge or release from active duty: claims for compensation, 
                            pension, or hospitalization.
``1219. Statement of origin of disease or injury: limitations.
``1220. Definition of disability.
``1221. Effective date of retirement or placement of name on temporary 
                            disability retired list.''.
    (d) Eligibility for Disability Retirement for Pre-Existing 
Condition After Eight Years of Service.--Section 1207a(a) of title 10, 
United States Code, is amended by striking ``or 1203'' and inserting 
``1203, 1206b, 1206c, 1206d, or 1206e''.
    (e) Computation of Retirement Pay.--The table in section 1401(a) of 
title 10, United States Code, is amended by inserting after the matter 
relating to Formula 2 the following matter:


 
 
------------------------------------------------------------------------
`  1  Retired pay base       2\1/2\% of years of service
   2
 ` 0
   6
   b
   1    as computed            credited to the person
   2
   0
   6
   c
   1    under section          under section 1208.1''.
   2
   0
   6
   d
   1    1406(b) or           ............................
   2
   0
   6
   e
        1407.                ............................
------------------------------------------------------------------------

    (f) Conforming Amendments Relating to Retirement Pay.--
            (1) Recomputation of retirement pay to reflect later active 
        duty.--Sections 1402(b) and 1402a(b) of title 10, United States 
        Code, are each amended by striking ``chapter 61 of this title'' 
        and inserting ``subchapter I of chapter 61 of this title''.
            (2) Retirement pay base for members retired before 
        september 8, 1980.--The items in the column in the table in 
        section 1406(b)(1) of such title designated ``For a member 
        entitled to retirement pay under section:'' are amended to read 
        as follows:


``1201
1202
1204
1205
1206b
1206c
1206d
1206e''.
 

            (3) Retirement pay base for members retired after september 
        7, 1980.--Section 1407 of such title is amended--
                    (A) in subsection (c)--
                            (i) in paragraph (1), by striking ``other 
                        than section 1204 or 1205 or section 12731 of 
                        this title'' and inserting ``(other than 
                        section 1204, 1205, or 12731 of this title, or 
                        section 1206b, 1206c, 1206d, or 1206e of this 
                        title for nonregular service)'';
                            (ii) in paragraph (2), by inserting ``, or 
                        under section 1206b, 1206c, 1206d, or 1206e of 
                        this title for regular service,'' after 
                        ``section 1201 or 1202 of this title''; and
                            (iii) in paragraph (3)--
                                    (I) by striking ``section 1201 or 
                                1202'' and inserting ``section 1201, 
                                1202, 1206b, 1206c, 1206d, or 1206e''; 
                                and
                                    (II) by inserting ``or under 
                                section 1206b, 1206c, 1206d, or 1206e 
                                of this title for nonregular service'' 
                                before the period; and
                    (B) in subsection (d)--
                            (i) in paragraph (2), by inserting ``, or 
                        under section 1206b, 1206c, 1206d, or 1206e of 
                        this title for nonregular service,'' after 
                        ``section 1204 or 1205 of this title''; and
                            (ii) in paragraph (3), inserting ``, or 
                        under section 1206, 1206c, 1206d, or 1206e of 
                        this title for nonregular service,'' after 
                        ``section 1204 or 1205 of this title''.
            (4) Grade on retirement for disability.--Section 1372 of 
        such title is amended--
                    (A) by striking ``section 1201 or 1204'' and 
                inserting ``section 1201, 1204, 1206b, 1206c, or 
                1206d''; and
                    (B) by striking ``section 1202 or 1205'' and 
                inserting ``section 1202, 1205, or 1206e''.

SEC. 3. CONTINUATION OF RESPITE CARE AND AID AND OTHER EXTENDED CARE 
              BENEFITS FOR MEMBERS OF THE UNIFORMED SERVICES WHO INCUR 
              A SERIOUS INJURY OR ILLNESS ON ACTIVE DUTY.

    Section 1074(c)(4) of title 10, United States Code, is amended--
            (1) by redesignating subparagraph (B) as subparagraph (C); 
        and
            (2) by inserting after subparagraph (A) the following new 
        subparagraph (B):
    ``(B) Coverage for a member under this paragraph may continue for 
such period after the discharge or separation of the member from active 
duty as the Secretary considers appropriate.''.

SEC. 4. EXPANDED AVAILABILITY AND USE OF DEPARTMENT OF LABOR TRANSITION 
              ASSISTANCE PROGRAM FOR SEPARATING MEMBERS OF THE ARMED 
              FORCES.

    (a) Participation of Members.--Section 1144 of title 10, United 
States Code, is amended--
            (1) in subsection (a)(1), by striking the second sentence 
        and inserting the following new sentences: ``When services 
        under the program are provided as part of preseparation 
        counseling under section 1142(a) of this title, the services 
        shall be provided to the member within the time periods 
        provided under paragraph (3) of such section. Paragraph (4) of 
        such section shall apply with respect to determining the 
        eligibility of members and their spouses for services under the 
        program.''; and
            (2) in subsection (c), by striking ``encourage and 
        otherwise promote maximum participation by members of the armed 
        forces eligible for assistance under'' and inserting ``require 
        members of the armed forces described in subsection (a)(1) to 
        participate in''.
    (b) Cross Reference in Preseparation Counseling Provision.--Section 
1142(a) of such title is amended by striking paragraph (2) and 
inserting the following new paragraph:
    ``(2) In carrying out this section, the Secretary concerned shall--
            ``(A) utilize the services available under the transition 
        assistance program required by section 1144 of this title; and
            ``(B) require members under the jurisdiction of the 
        Secretary who are undergoing preseparation counseling to 
        participate in the program.''.
                                 <all>