Elderly Individuals: Rely upon age alone to conclude no longer active duty?

elderly individualsPlaintiffs, 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.

Executive Summary:

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.

Detailed analysis:

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.

Attorney Roy Kaufmann serves as the Director of the Servicemembers Civil Relief Act Centralized Verification Service, located in Washington, D.C. As a recognized authority on the Servicemembers Civil Relief Act, Mr. Kaufmann has published hundreds of articles and hosted many webinars. His teachings help law firms and businesses to remain compliant with the SCRA rules and regulations so as to avoid costly fines.

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