Plaintiffs, landlords, lenders, attorneys and others seeking to comply with the Servicemembers Civil Relief Act (“SCRA”) sometimes encounter a situation where an elderly individual’s military status is unknown. Most courts are requiring an active duty military search, military verification, and a conforming military affidavit (or non-military affidavit) even if evidence is presented that the individual is of advanced age.
Beyond Age 68: No one.
Beyond Age 64: only if the Secretary of Defense orders it, only up to age 66.
Beyond Age 66: only if the President orders it, but not past 68.
Mandatory retirement of a servicemember from active duty can occur no later than the first day of the month following the month in which the officer becomes 68 years of age; but there are two situations where the mandatory date would be earlier.
10 U.S.C.A. § 101 defines the Military and other organizations, i.e. the Public Health Service of which members are included:
- Subsection 4: The term “armed forces” means the Army, Navy, Air Force, Marine Corps, and Coast Guard.
- Subsection 5: The term “uniformed services” means (A) the armed forces (see above) as well as (B) the commissioned corps of the National Oceanic and Atmospheric Administration; and (C) the commissioned corps of the Public Health Service.
10 U.S.C.A. § 1253 sets forth the mandatory retirement age at 64 for all commissioned officers in general and flag officer grades as well as 2 exceptions:
- General rule.–Unless retired or separated earlier, each regular commissioned officer of the Army, Navy, Air Force, or Marine Corps serving in a general or flag officer grade shall be retired on the first day of the month following the month in which the officer becomes 64 years of age.
- Exception for officers serving in O-9 and O-10 positions.–The Secretary of Defense may defer the mandatory retirement of a high-grade officer, but not beyond 66 years of age and the President may defer to age 68. Specifically, in the case of an officer serving in a position that carries a grade above major general or rear admiral, the retirement under subsection (a) of that officer may be deferred–
(1) by the President, but such a deferment may not extend beyond the first day of the month following the month in which the officer becomes 68 years of age; or
(2) by the Secretary of Defense, but such a deferment may not extend beyond the first day of the month following the month in which the officer becomes 66 years of age.