Except as provided in section 1414 of title 10, any person who is receiving pay pursuant to any provision of law providing retired or retirement pay to persons in the Armed Forces, or as a commissioned officer of the National Oceanic and Atmospheric Administration or of the Public Health Service, and who would be eligible to receive pension or compensation under the laws administered by the Secretary if such person were not receiving such retired or retirement pay, shall be entitled to receive such pension or compensation upon the filing by such person with the department by which such retired or retirement pay is paid of a waiver of so much of such person’s retired or retirement pay as is equal in amount to such pension or compensation. To prevent duplication of payments, the department with which any such waiver is filed shall notify the Secretary of the receipt of such waiver, the amount waived, and the effective date of the reduction in retired or retirement pay.
Notes of Decisions
Cited in
62
cases (
9 in the last 5 years), 1993–2025 · leading case:
Hagen v. Hagen, 282 S.W.3d 899 (Tex. 2009).
Hagen v. Hagen, 282 S.W.3d 899 (Tex. 2009).
· cites it 4× “See 38 U.S.C. § 5305 . The VA disability pay is not subject to federal income taxes.”
Howell v. Howell, 137 S. Ct. 1400 (2017).
· cites it 2× “38 U. S. C. §5305 . By his election, John waived about $250 of his retirement pay, which also reduced the value of Sandra’s 50% share.”
Shelton v. Shelton, 78 P.3d 507 (Nev. 2003).
· cites it 2× “The district court’s order is reversed and this matter is remanded to the district court for further proceedings consistent with this opinion.”
McCord v. United States, 943 F.3d 1354 (Fed. Cir. 2019).
· cites it 2× “” 2 38 U.S.C. § 5305 . Specifically, § 5305 pro- vides: [A]ny person who is receiving [military retirement] pay pursuant to any provision of law providing re- tired or retirement pay .”
Hayward v. Hayward, 868 A.2d 554 (Pa. Super. Ct. 2005).
“38 U.S.C.A. § 5305 . 4 Thus, Husband’s military pension was reduced by the amount of the disability benefits he received.”
Young v. Lowery, 221 P.3d 1006 (Alaska 2009).
· cites it 2× “38 U.S.C. § 5305 . Young was awarded disability pay retroactive to June 1, 2007, but his disability pay was being withheld to prevent a double payment.”
Krapf v. Krapf, 786 N.E.2d 318 (Mass. 2003).
“See 38 U.S.C. § 5305 (2000). 5 6 Because the waiver applied to the defendant’s total military retirement pay, his election to forgo his army pension reduced not only his own military retirement income but also that of the plaintiff, as follows: April, 1997, reduced from $1,009.”
White v. White, 568 S.E.2d 283 (N.C. Ct. App. 2002).
· cites it 2× “See 38 U.S.C. § 5305 (1998). In other words, plaintiff continued to receive the same overall amount of benefits, but one portion was classified as non-taxable disability benefits while the remainder was classified as taxable retired pay.”
Oakes v. Oakes, 235 S.W.3d 152 (Tenn. Ct. App. 2007).
“title 38 [disability] pay.” 10 U.S.C. § 1408 (a)(4)(B).”
Danielson v. Evans, 36 P.3d 749 (Ariz. Ct. App. 2001).
· cites it 2× “Federal law, however, required Evans to waive, dollar for dollar, his net disposable retired pay to the extent of any disability payments he received, thus reducing his retired pay but not his overall monthly benefits.”
Black v. Black, 2004 ME 21 (Me. 2004).
“38 U.S.C. § 5305 (2000). Indeed, there is a financial incentive for veterans who qualify for disability benefits to elect disability rather than retirement benefits; the former are exempt from both federal and state income taxes while the latter are not.”
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