IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150009216 BOARD VOTE: ____X____ ____X__ ____X___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150009216 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. showing the applicant elected SBP for children only on 4 March 2003; and b. following a review of the applicant's entitlements, paying to the beneficiaries the backdated annuity minus monies owed. ____________X____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150009216 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant, the remarried widow of a deceased former service member (FSM), requests correction of the FSM's Survivor Benefit Plan (SBP) to show she elected "children only" coverage vice "spouse only." She also requests benefits under the SBP be backdated to the earliest date possible. 2. She states the FSM was killed while serving in the Army on 4 March 2003. She received assistance completing documents that allowed her to receive annuity payments from the FSM's SBP. She states when she completed the paperwork, she was not given the option to designate the SBP to her daughter, who was on the record as the FSM's stepdaughter or their unborn child. The child was born four months later on 18 July 2003. On 23 December 2013, she was remarried and during the process of notifying several agencies, she discovered that she could have made an election to designate the SBP benefits to her children. She understands she will have to repay all the Special Survivor Indemnity Allowances (SSIA) that she received from 2008 up to the date she remarried. 3. She provides: * Self-authored statement * DD Forms 1300 (Report of Casualty) dated 7 March 2003 and 16 January 2015 * Marriage Licenses * Children Certificates of Birth * FSM's Certificate of Death * DA Form 2173 (Statement of Medical Examination and Duty Status) with Line of Duty Documents, dated 26 March 2003, 2 September 2004, and 8 September 2004 CONSIDERATION OF EVIDENCE: 1. The FSM enlisted in the Regular Army on 29 August 2000 for 4 years. 2. On 1 January 2003, the FSM and the applicant were married. The FSM was 23 and the applicant was 26 years of age at the time of their marriage. 3. The FSM died on 4 March 2003. 4. A DD Form 1300, Final Report, prepared on 7 March 2003, shows the FSM was deceased on 4 March 2003. The FSM was injured in an accident in Nolanville, TX while he was driving a privately owned vehicle. The applicant, the FSM's parents, and a stepdaughter with a date of birth of November 1994 were listed as the interested persons. 5. On 18 July 2003, the applicant's and the FSM's daughter was born. 6. A DA Form 2173, dated 30 August 2004, stated that the FSM was enroute to his home after completing staff duty when he hit a pillar. He underwent surgery for approximately 6 hours, his body went into shock and he later died. The form further stated as per the Nolanville Police Department Report, the FSM was not wearing a seat belt. His death was determined to be in the line of duty. 7. On 23 December 2013, the applicant remarried. 8. A DD Form 1300, Corrected Final Report, prepared on 16 January 2015, added the FSM's daughter, date of birth 18 July 2003, to the form as an interested person. 9. Information obtained from the Defense Finance and Accounting Service (DFAS) verified that there were no records on the FSM or the applicant. REFERENCES: 1. SBP is a monthly annuity paid by the military to the surviving spouse or, in some cases, eligible children, of a member who dies on active duty. The initial annuity paid to a surviving spouse is equal to 55 percent of the retired pay to which the member would have been entitled based upon years of active service. a. When a service member dies while on active duty, the death is considered service-connected unless it was due to willful misconduct. The Department of Veterans Affairs (VA) pays $1,154 a month in Dependency and Indemnity Compensation (DIC) to surviving spouses. When the surviving spouse reaches age 62, the annuity is reduced to 35 percent. The annuity is paid until the spouse dies, but is suspended upon remarriage before age 55. b. In some cases VA can pay more than $1,154 a month, such as a $286 benefit for each dependent child who is unmarried and under age 18, or up to age 23 if studying at a VA-approved school. Also, for a surviving spouse who has one or more dependent children below age 18, an additional $250 is added to the monthly DIC from the date DIC entitlement begins. This additional amount is removed at the end of 2 years following the date DIC entitlement began or earlier if all the dependent children attain age 18. c. A provision of the Fiscal Year 2008 National Defense Authorization Act established SSIA for surviving spouses who are the beneficiary of the SBP annuity and whose SBP annuity is partially or fully offset by DIC. SSIA also applies to the surviving spouses of members who died on active duty whose SBP annuity is partially or fully offset by their DIC. 2. Title 10, U.S. Code, section 1448(d) (Coverage for Survivors of Members Who Die on Active Duty) states that, except as provided in paragraph (2)(B), the Secretary concerned shall pay an annuity under this subchapter to the surviving spouse of: a. A member who dies while on active duty after: * becoming eligible to receive retired pay * qualifying for retired pay except that the member has not applied for or been granted that pay * completing 20 years of active service but before the member is eligible to retire as a commissioned officer because the member has not completed 10 years of active commissioned service b. A member not described in subparagraph (A) who dies in line of duty while on active duty. c. Dependent children - Annuity when no eligible surviving spouse. In the case of surviving spouse annuity, the Secretary concerned shall pay an annuity under this subchapter to the member's dependent children under subsection (a)(2) or (a)(4) of section 1450 of this title as applicable. d. Optional annuity when there is an eligible surviving spouse. In the case of an active duty member who dies after 7 October 2001, and for whom there is a surviving spouse eligible for an annuity, the Secretary may pay an annuity under this subchapter to the member's dependent children under subsection (a)(3) or (a)(4) of section 1450 of this title, if applicable, instead of paying an annuity to the surviving spouse, if the Secretary concerned, in consultation with the surviving spouse, determines it appropriate to provide an annuity for the dependent children under this paragraph instead of an annuity for the surviving spouse. DISCUSSION: 1. The applicant contends she was unaware that she could have designated her unborn child and the FSM's stepdaughter as beneficiary of the FSM's SBP benefits. 2. The evidence of record shows the FSM's stepdaughter was 9 years old at the time of his death and turned 18 in November 2012. Additionally, his child was born in July 2003, 4 months after the FSM's death. Since the applicant was a widow at a young age, it would have been more beneficial to elect the children as beneficiaries since it was likely that she would remarry before reaching age 55. Therefore, it appears that had she known she was able to choose the children as beneficiaries of the FSM's SBP she would have done so. 3. Based on the foregoing, it would be equitable and just to correct the FSM's records to show the applicant elected SBP for children only. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009216 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009216 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2