ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 March 2023 DOCKET NUMBER: AR20170010128 APPLICANT REQUESTS: correction of her late husband's, a former service member's (FSM's), records to show she is entitled to receipt of the: * Survivor Benefit Plan (SBP) annuity * Special Survivor Indemnity Allowance (SSIA) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * FSM's Certificate of Death, Registry of Vital Records and Statistics, dated 21 October 2016 * FSM's Certificate of Divorce Absolute, dated 15 January 1993 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 29 September 2006 * FSM's and Applicant's Certificate of Marriage, dated 22 March 2008 * FSM's DD Form 215 (Correction to DD Form 214), dated 25 April 2012 * Letter, U.S. Army Physical Disability Agency, dated 27 April 2012 * Order 118-36, U.S. Army Physical Disability Agency, dated 27 April 2012 * Rating Decision, Department of Veterans Affairs (VA), dated 9 December 2016 * Letter, Defense Finance and Accounting Service (DFAS), dated 22 December 2016 * Letter, DFAS, dated 23 May 2017 FACTS: 1. The applicant states she is the surviving spouse of the FSM. However, she has been denied SBP annuity benefits, even though he paid the monthly SBP premiums until his death on 21 August 2016. She further states: a. On 30 September 2006, the FSM was placed on the Temporary Disability Retired List (TDRL) due to combat-related injuries. b. On 22 March 2008, she and the FSM were married. c. On 27 April 2012, the FSM was placed on the Permanent Retired List. d. Upon his retirement, he was automatically enrolled in the SBP and made additional payments to catch up for his time on the TDRL. e. The FSM was enrolled in the SBP and she should be eligible to receive SSIA. f. On 23 April 2017, all SBP payments were returned to her, proving that payments had been received and retained by DFAS until that time. 2. On 29 September 2006, the FSM was honorably discharged with severance pay while serving on active duty in the rank/grade of specialist/E-4 in the Army National Guard of the United States. His DD Form 214 shows: * he completed 2 years, 3 months, and 16 days of net active service during this period * he completed 11 months and 24 days of foreign service * his narrative reason for separation as "Disability, Severance Pay" 3. The applicant provided her marriage certificate, showing she and the FSM were married on 22 March 2008. 4. The applicant provided the letter from the U.S. Army Physical Disability Agency, dated 27 April 2012, which states that as a result of the settlement agreement in a named class action lawsuit, the FSM has been permanently retired at 60 percent disability. To establish and activate his retired pay account, the FSM must complete a DD Form 2656 (Data for Payment of Retired Personnel). The FSM should contact the nearest Retirement Services Officer to receive his retirement and SBP counseling. 5. U.S. Army Physical Disability Agency Order 118-36, dated 27 April 2012, removed the FSM from the TDRL effective 29 March 2007 and permanently retired him in the rank/grade of specialist/E-4 effective 30 March 2007. The order shows: * percentage of disability – 60 percent * component – Army National Guard of the United States * retirement type – permanent * disability resulted from a combat-related injury 6. A letter from the U.S. Army Human Resources Command, dated 19 July 2013, approved his claim for Combat-Related Special Compensation. He received a 50-percent disability rating for post-traumatic stress disorder effective February 2008. 7. The FSM died on 21 October 2016. His death certificate shows he was married to the applicant at the time of his death. 8. The applicant provided the FSM's rating decision from the VA, dated 9 December 2016, granting service-connection for the cause of his death. 9. The applicant provided a letter from DFAS, dated 23 May 2017, denying her SBP claim in full and stating that upon retirement, the FSM was not married and did not did have dependent children. If a member has no spouse and later marries, the member must elect coverage within 1 year from the date of marriage. The FSM did not make an election within 1 year of the date of marriage. 10. An email from a financial management analyst, U.S. Military Retired and Annuity Pay, DFAS, dated 19 February 2020, subject: SBP – (FSM), states they do not have any SBP documentation for the FSM. However, he had been placed in automatic coverage and was paying at the spouse full coverage rate since his retirement. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board determined the denial of payment of the SBP annuity to the applicant by DFAS represents a legal error. The FSM was originally separated from service with disability severance pay – i.e., not retired – in 2006. The applicant and the FSM married in 2008. While the FSM was ultimately granted a disability retirement back to the original date of separation, this did not occur until 2012. The FSM could not have added his spouse (the applicant) within one year of the marriage because, at that time (2008/2009), he was not eligible for SBP. The applicant and FSM were married when the retirement was retroactively implemented, and the FSM paid SBP premiums until his death in 2016. As such, the denial of payment of the SBP annuity represents both legal error and an injustice that is within the Board’s authority to correct. The Special Survivor Indemnity Allowance (SSIA) is a benefit for surviving spouses who receive a SBP annuity that is offset by a Dependency and Indemnity Compensation (DIC) payment from the VA. SSIA is now a permanent benefit. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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: * showing the applicant timely submitted a claim for the SBP annuity based on the death of her his husband, the former service member, shortly after his death on 21 August 2016 * showing DFAS timely received and accepted her claim and established an SBP annuity for her based on the death of the FSM 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. REFERENCES: 1. Title 10, U.S. Code, section 1448(a)(5), provides that a person who is not married and has no dependent child upon becoming eligible to participate in the SBP but who later marries or acquires a dependent child may elect to participate in the SBP. Such an election must be written, signed by the person making the election, and received by the Secretary concerned within 1 year after the date on which that person marries or acquires that dependent child. 2. Title 10, U.S. Code, section 1448(a)(2), provides that a person who is eligible to participate in SBP, and who is married or has a dependent child when he becomes entitled to retired pay, shall be a participant unless he elects to not participate with his spouse's concurrence. 3. Title 38, U.S. Code, section 1311, provides Dependency and Indemnity Compensation (DIC) to the qualifying surviving spouse, child, or parent of a service member who died in the line of duty or died from a service-related injury or illness. 4. Title 10, U.S. Code, section 1450, provides that if the surviving spouse is entitled to receive both SBP and DIC, he or she may not receive both annuities, but must elect which to receive. a. Required offset. If, upon the death of a person to whom SBP applies, the surviving spouse or former spouse of that person is also entitled to DIC under Title 38, U.S. Code, section 1311, he or she may be paid SBP, but only in the amount that the annuity otherwise payable would exceed that compensation. b. Effective date of offset. A required reduction in an annuity shall be effective on the date of the commencement of the period of payment of such dependency and indemnity compensation under Title 38. c. Full refund with DIC greater than SBP annuity. If an annuity is not payable due to eligibility to receive both, any amount deducted from the retired pay of the deceased shall be refunded to the surviving spouse or former spouse. d. The SSIA is a benefit, payable by DFAS, for surviving spouses who receive an SBP annuity that is offset by a DIC payment from the VA. Additionally: * when a spouse receiving an SBP annuity is receiving DIC, the law requires that DFAS deduct the amount of DIC received from the amount of SBP payable and pay the remaining amount of the SBP to the annuitant * if the SBP payment is greater than the DIC payment, a partial refund of premiums paid into the program during the service member's retirement will be made to the spouse * if the DIC payment is greater than the SBP payment, SBP will be stopped completely and all eligible basic spouse premiums paid into the program during the service member's retirement will be refunded * when a spouse is eligible to receive SBP and DIC, and those payments are subject to the SBP/DIC offset, the spouse will also receive the SSIA //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170010128 1 1