IN THE CASE OF: BOARD DATE: 21 November 2022 DOCKET NUMBER: AR20220009456 APPLICANT REQUESTS: correction of her deceased spouse's Survivor Benefit Plan (SBP) coverage to show child only. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) . Defense Civilian Intelligence Personnel System Case Management Screenshot, 31 January 2020 . DD Form 1300 (Report of Casualty), 20 March 2020 (unsigned) . Spouse Statement of Desired SBP Election, 13 May 2021 . Surviving Spouse Verification of SBP Counseling, 13 May 2021 . DD Form 2790 (Custodianship Certificate to Support Claim on Behalf of Minor Children of Deceased Members of the Armed Forces), 13 May 2021 . DD Forms 2656-7 (Verification for Survivor Annuity) (4), 16 January 2020 and 13 May 2021, with – . Financial Management Service Form 2231 (Direct Deposit), 16 January 2020 . Internal Revenue Service Forms W-4P (Withholding Certificate for Pension or Annuity Payments) (4), 16 January 2020 and 13 May 2021 . three Defense Finance and Accounting Service (DFAS) Cleveland Forms 1059 (Direct Deposit Authorization), 13 May 2021 . Headquarters, Fort Stewart and Hunter Army Airfield Memorandum (Active Duty SBP Election), 15 January 2020 . Spouse Statement of Desired SPB Election Active Duty Death, 16 January 2020 FACTS: 1. The applicant, the surviving spouse of the deceased service member (SM) who died on active duty, states she was required to make a decision about whether to request the "Child Only" option of the deceased SM's SBP or to remain with the "Spouse" option. After she received the SBP counseling from a certified SBP counselor, she based her decision on information that did not include the new SBP law. She has since been counseled regarding the new law and now knows she would have made a different decision had she been counseled with the new SBP law information. Her SBP account was established on 8 April 2020, which is after the law changed. 2. The applicant's Spouse Statement of Desired SBP Election Active Duty Death, 16 January 2020, shows: a. She acknowledged she previously received an initial comprehensive briefing from an Army SBP counselor on the SBP options available to her and reviewed the Survivor Benefit Report. She understands this decision is irrevocable and should be only be made when she has had adequate time to review all SBP data she needs to make an informed decision. b. She elected "Spouse" coverage. She understands spouse SBP is offset dollar for dollar by spouse Dependency and Indemnity Compensation (DIC) received and she will be eligible to receive Special Survivor Indemnity Allowance (SSIA). She understands if she became ineligible to receive the SBP for any reason, SBP by law reverts to all eligible children. She understands the offset of SBP by spouse DIC does not constitute ineligibility to receive the SBP. She understands that any SBP she receives is taxable income. 3. The applicant's DD Form 2656-7, 16 January 2020, verified her eligibility for an annuity under the SBP as the surviving spouse. 4. The U.S. Army Human Resources Command memorandum from the Chief, Casualty and Mortuary Affairs Division (Line of Duty Determination), 28 January 2020, determined the SM's death occurred in the line of duty. 5. The DD Form 1300 (Report of Casualty), 20 March 2020, reported the SM's death on 15 December 2019. 6. The applicant's DD Form 2790, 13 May 2021, certified that her children are the unmarried children of a deceased military member. 7. The applicant's DD Form 2656-7 (Verification for Survivor Annuity), 13 May 2021, verified her children's eligibility for an annuity under the SBP as the surviving children. 8. On 13 May 2021, the applicant completed the Spouse Statement of Desired SBP Election. This form shows: a. She acknowledged she previously received an initial comprehensive briefing from an Army SBP counselor on the SBP options available to her and reviewed the Survivor Benefit Report. She understands that this decision is irrevocable and should be only be made when she has had adequate time to review all SBP data she needs to make an informed decision. b. She elected "Child Only, Spouse Excluded" SBP coverage. She desires the Army to make the following SBP election on her behalf. She understands that all of the deceased Soldier's SBP-eligible children will receive an equal share of the SBP annuity. The children will receive the annuity until age 18 or age 22 if full-time unmarried students, or forever if incapable of self-support duty to a condition incurred while eligible for the SBP. She understands she can request the annuity for an SBP-eligible child who is incapacitated to be paid to a special needs trust for the care of that child. She also understands the SBP will end when the last child is no longer eligible. If, on 1 January 2023, she is eligible to receive the SBP annuity, she will begin receiving it by law. The children will no longer receive the annuity. She understands that child SBP is taxable for the child. 9. The Department of the Army Office of the Deputy of Chief of Staff, G-1, memorandum from the Director, Army Retirement Services (Advisory Opinion – SM (Deceased); , (Deceased); , . (Deceased)) 7 October 2022, states: a. Title 10, U.S. Code, section 1448(d)(20(B), allows an eligible surviving spouse to transfer the SBP annuity to eligible children. b. Public Law 116-92, section 622, repealed the authority for an optional annuity for dependent children effective 1 January 2023. Effective the same date, the law restored the annuity to any eligible spouses who previously elected to transfer the annuity to surviving children. c. The applicant's SBP annuity was established after the law changed. The updated Survivor Benefit Report and spousal request form that includes the law change information was not established until October 2020. The updated spouse counseling form was not established until December 2020. The applicant did not receive the most up-to-date information when counseled on her options following the death of her spouse and, therefore, did not make her decision based on all the information now presented to surviving spouses. d. An Army SBP counselor has since briefed each applicant about the law change prior to completing the application requesting transfer of the SBP annuity to her surviving children. e. After careful review and in the interest of fairness, the Director, Army Retirement Services, supports the applicant's request to transfer the SBP annuity to her child effective the date of the SM's death. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was warranted. The applicant’s contentions, the spouse’s military record, an advisory opinion, and regulatory guidance were carefully considered. Based upon the preponderance of the evidence, the Board agreed that it was through no fault of the applicant that she was not knowledgeable of the new SBP laws. The Board concurred with the advisory official finding the applicant did not receive the most up-to-date information when counseled on her options following the death of her spouse and, therefore, did not make her decision based on all the information now presented to surviving spouses. The Board agreed the record should be corrected to show she submitted a written and timely request to DFAS for correction of her deceased spouse's Survivor Benefit Plan (SBP) coverage to show “Child Only.” 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 that the evidence presented was 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 amending the election to the "Child Only" option on the DD Form 2656-7, 16 January 2020, the deceased FSM’s spouse submitted the request the in a timely manner, and it was processed by the appropriate DFAS office. Such relief should result in the benefits of the SBP annuity being provided to the child effective the date of the FSM's death. 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(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. 2. 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. 3. 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 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 SSIA. //NOTHING FOLLOWS//