BOARD DATE: 6 June 2017 DOCKET NUMBER: AR20160001486 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 BOARD DATE: 6 June 2017 DOCKET NUMBER: AR20160001486 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 coverage for child only effective 24 October 2007 and b. showing the applicant filed for her child's SBP annuity on 25 October 2007. _____________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. BOARD DATE: 6 June 2017 DOCKET NUMBER: AR20160001486 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 widow of a deceased former service member (FSM), requests, in effect, correction of the FSM's Survivor Benefit Plan (SBP) to show she elected child-only coverage effective 24 October 2007 (date of child's birth). She also requests retroactive payment of SBP. 2. She states the FSM was killed in action on 8 May 2007. She was never informed that she could apply for SBP for herself and daughter. 3. She provides: * self-authored statement * DD Form 2064 (Certificate of Death), dated 5 June 2007 * DD Form 1300 (Report of Casualty), dated 22 June 2007 * Certificate of Birth * letter from the Commander, U.S. Army Space and Missile Defense Command, dated 20 November 2015 * SBP Election Statement, dated 23 November 2015 * Financial Management Service Form 2231 (Direct Deposit), dated 26 February 2016 * DD Form 2790 (Custodianship Certificate to Support Claim on Behalf of Minor Children of Deceased Members of the Armed Forces), dated 26 February 2016 * DD Form 2656-7 (Verification for Survivor Annuity), dated 26 February 2016 CONSIDERATION OF EVIDENCE: 1. The FSM enlisted in the Regular Army on 10 March 2004 for 3 years and 16 weeks. 2. On 5 February 2007, the FSM and the applicant were married. 3. A DD Form 1300 (Report of Casualty), prepared on 22 June 2007, shows the FSM was killed in action on 8 May 2007 in support of Operation Iraqi Freedom in Baghdad, Iraq. 4. On 24 October 2007, the applicant's and the FSM's daughter was born. 5. A letter from the Commander, U.S. Army Space and Missile Defense Command, dated 20 November 2015, written to this Board, explained the FSM died on 8 May 2007 from injuries sustained by enemy forces during Operation Iraqi Freedom. At the time of the FSM's death, the applicant was 4 months pregnant with their daughter and living in Columbus, GA. She was assigned a Casualty Assistance Officer (CAO), but within 30 days she moved to Alabama prior to the birth of their child. She was not assigned a new CAO and was not informed of the requirement to apply for SBP for their daughter. 6. The commander also states the applicant enrolled herself and the FSM's daughter in the Defense Enrollment Eligibility Reporting System (DEERS) at Redstone Arsenal, AL, in October 2007 and no additional assistance was offered. Eight years later, the applicant received a letter notifying her of the requirement to update their daughter's information in DEERS. During this appointment, it was discovered that the applicant had never applied for SBP. 7. Information obtained from the Defense Finance and Accounting Service verified there were no records pertaining to SBP for 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 while serving 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 $1,154.00 per 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, the VA can pay more than $1,154.00 a month, such as a $286.00 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 $250.00 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 Special Survivor Indemnity Allowance (SSIA) for surviving spouses who are the beneficiaries 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, except as provided in paragraph (2)(B), the Secretary concerned shall pay an annuity under this subchapter to: a. the surviving spouse of 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. the surviving spouse of a member not described in subparagraph (A) who dies in the line of duty while on active duty; or c. the dependent children when there is 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 maintains that she was unaware she could apply for SBP for herself or their unborn child at the time of the FSM's death and her CAO did not advise her of such. 2. The evidence of record shows the applicant was 4 months pregnant with their child at the time of the FSM's death. The child was born on 24 October 2007. Had the applicant been properly advised of the SBP entitlement, she certainly would have applied. Further, because payment of the SBP child annuity is not subjected to offset with respect to DIC, a child-only election is most advantageous. 3. Based on the foregoing, it would be equitable and just to correct the FSM's records to show the applicant elected SBP for "child only" upon the birth of the child and she filled for payment of the annuity immediately thereafter. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001486 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001486 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2