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:

Former Process for Retirement or Separation of Members for Disability

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:

Revised Process for Retirement of Members for Disability

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.

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.

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).

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.

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.

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.

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.

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:

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.

Former Process for Retirement or Separation of Members for Disability

1200

II.

Revised Process for Retirement of Members for Disability

1206a

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: “31206bRetired pay base 2½% of years of service 1206cas computedcredited to the person1206dunder sectionunder section 1208.1”.1206e1406(b) or1407.

(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:

12011202120412051206b1206c1206d1206e

(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.