IN THE CASE OF: BOARD DATE: 27 February 2023 DOCKET NUMBER: AR20220007437 APPLICANT REQUESTS: . correction of her late father's records to show she is entitled to Survivor Benefit Plan (SBP) "Child(ren) Only" coverage . retroactive payments of SBP annuities beginning 29 March 2003 APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: . two DD Forms 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) . two DD Forms 1300 (Report of Casualty), 17 April 2003 and 22 September 2020 . Headquarters, 18th Personnel Services Battalion, Orders 070-36, 11 March 2003 . Defense Finance and Accounting Service (DFAS) Retired and Annuitant Pay Office Letter, 28 June 2021 FACTS: 1. The applicant, the daughter of the deceased service member (SM), and the SM's widow both state, in effect, the SM's SBP should be changed to reflect "Child(ren) Only" coverage. a. The daughter of the deceased SM states her late father's records should be changed to show an application for the SBP was made on her behalf by her mother since she was a minor at the time of her father's death, thus making her eligible for the SBP annuity going forward and retroactively to 29 March 2003. As the surviving minor child, her mother was acting on her behalf. Her mother never received an explanation of the SBP process or afforded the opportunity to apply for SBP benefits on her behalf. Her mother would have made the "Child(ren) Only" election due to the Dependency and Indemnity Compensation (DIC) offset. If an account with DFAS had been established when her father died, SBP would have been automatically established in her name once the line-of-duty investigation was completed. Due to this oversight, a DD Form 2656-7 (Verification for Survivor Annuity) was not processed. DFAS denied her claim due to the Barring Act; however, as a minor, the Barring Act should not apply. b. She was unaware that the SBP existed until she was contacted by an Army Survivor Outreach Coordinator to confirm that the information was current and updated in DFAS due to recent changes in the law for the SBP/DIC offset. c. The widow of the deceased SM states her late husband's records should be changed to show an application for SBP was made on behalf of her daughter at the time of her spouse's death, thus making her daughter eligible for the SBP annuity going forward and retroactively from 29 March 2003. As the surviving spouse, the SBP process was not explained to her nor was she afforded the opportunity to apply for SBP benefits for her minor child. She would have made the "Child(ren) Only" election due to the DIC offset. If an account with DFAS had been established when her spouse died, SBP would have been automatically established for her daughter once the line-of-duty investigation was completed. Due to this oversight, a DD Form 2656-7 was not processed. 2. The SM's DD Form 2064 (Certificate of Death (Overseas)) shows his date of death as 20 March 2003. 3. The DD Form 1300 (Final Report), 17 April 2003, and DD Form 1300 (Corrected Final), 22 September 2020, show the SM was killed in action during a combat mission on 29 March 2003. The forms also show was listed as his spouse and was listed as his daughter. 4. The Defense Retiree and Annuitant Pay System shows the daughter of the deceased SM completed a DD Form 2656-7 on 20 July 2012. The form shows she is requesting SBP as a child dependent of the deceased SM. The form also shows she is 18 years of age or older and a full-time student. 5. The DFAS Retired and Annuitant Pay Office letter, 28 June 2021, denied the applicant's claim to entitlement to the SBP annuity from the military retired pay account of her deceased father and stated: a. The Barring Act bars payment of any claim not received within 6 years from the date it accrues. SBP annuity claims accrue upon the death of the retired member. b. Her first application for annuity was received on 19 February 2021. She presented a claim for an annuity more than 6 years after the claim accrued. Therefore, her claim was untimely. The entirety of her claim is barred from consideration and must be denied. 6. The email from DFAS, 13 January 2023, reflects that DFAS reached out to the branch of service in April 2021 for school certificate information for the deceased SM's daughter, along with the SM's service, rank history, and line-of-duty determination. No response was received. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the FSM’s military record, and regulatory guidance were carefully considered. The Board noted the DD Form 2064 shows the date of death as 20 March 2003. The Barring Act bars payment of any claim not received within 6 years from the date it accrues. The Board agreed the entirety of the claim is barred from consideration and must be denied. The Board determined evidence presented does not demonstrate the existence of a probable error or injustice. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. Public Law 107-107, section 642, enacted 28 December 2001, provided expanded benefits under the SBP for the qualified survivors of eligible members who die in the line of duty. These benefits are effective for a death on or after 10 September 2001. A qualified death under the provisions of Title 10, U.S. Code, section 1448(d), as amended by Public Law 107-107, is a death of a member on active duty who died in the line of duty or died not in the line of duty but was retirement eligible. 2. Title 10, U.S. Code, section 1448(d)(20(B), states that in the case of a member who dies on or after the date of enactment of the National Defense Authorization Act for Fiscal Year 2004, 24 November 2003, and for whom there is a surviving spouse eligible for an annuity under paragraph (1), the Secretary may pay an annuity to the member's dependent children, 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 instead of an annuity for the surviving spouse. 3. Public Law 116-92, section 622 (Phase-out of Reduction of SBP Survivor Annuities by Amount of DIC), 20 December 2019, states the Secretary of the Military Department concerned shall restore annuity eligibility to any eligible surviving spouse who, in consultation with the Secretary, previously elected to transfer payment of such annuity to a surviving child or children under the provisions of Title 10, U.S. Code, section 1448(d)(20(B), as in effect on the day before the effective date of 1 January 2023. Such eligibility shall be restored whether or not payment to such child or children subsequently was terminated due to loss of dependent status or death. For the purposes of this subsection, an eligible spouse includes a spouse who was previously eligible for payment of such annuity and is not remarried, or remarried after having attained age 55, or whose second or subsequent marriage has been terminated by death, divorce, or annulment. 4. The DFAS website: www.dfas.mil/retiredmilitary/Fdesurvivors/Understanding-SBP­DIC-SSIA/ provides guidance relating to SBP for Spouses and DIC Benefits from the Department of Veterans Affairs (VA). a. The DIC is a monetary benefit offered by the VA to survivors of SMs and retirees whose death results from a service-related injury or disease. (1) Spouse SBP annuitants, except for those who remarry after age 55 (or in other specific circumstances), cannot receive full SBP and DIC at the same time before 2023. Beginning in 2021, there are significant changes to the offset of SBP and DIC. (2) Please note: DIC payments made directly to children, or to a guardian on behalf of children, do not affect SBP child annuity payments. (3) In 2022 when DFAS is informed by the VA that a spouse annuitant is receiving DIC, the law requires that DFAS deduct one-third of the amount of DIC received from the amount of SBP payable and pay the remaining amount of the SBP to the annuitant. This is called the SBP/DIC offset. The reduction of the SBP/DIC offset from the full amount of DIC to one-third of DIC is effective 1 January 2022. (4) For example, in 2022, if an annuitant receives a monthly SBP annuity of $1,200 from DFAS and receives a monthly DIC award of $1,500 from the VA, DFAS will deduct one-third of the amount of DIC ($500) from the $1,200 SBP and pay the remaining $700 to the annuitant. The annuitant will continue receive the full amount of DIC from the VA (in this example $1,500). (5) On 1 January 2023, the offset will be completely eliminated. Eligible surviving spouses will receive their full SBP payments and their full DIC payments. (6) Please note the change in the law does not affect DIC payments, it only affects SBP payments when the surviving spouse is also receiving DIC. Please see the DFAS SBP/DIC news webpage for details and Frequently Asked Questions. (7) 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 Special Survivors Indemnity Allowance (SSIA). b. The SSIA is a benefit for surviving spouses who receive an SBP annuity that is offset by a DIC payment from the VA. (1) In 2022, SSIA will be paid at up to $346 per month. Eligible survivors will continue to receive the SSIA, up to the maximum amount per month, or up to the gross amount of SBP (if the gross amount of SBP is less than the maximum amount) until 31 December 2022. SSIA will not be paid in 2023. (2) SSIA is not used to repay past-due SBP premiums. If the spouse annuitant is entitled to SSIA, DFAS will pay the SSIA, even when there are past-due premiums. (3) DIC payments to children do not affect SBP child annuitant payments, so child annuitants are not eligible to receive the SSIA. 5. Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the U.S. Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the U.S. Government of the need to retain, access, and review old records for the purpose of settling stale claims which are often difficult to prove or disprove. //NOTHING FOLLOWS//