IN THE CASE OF:  
 
  BOARD DATE: 8 August 2023 
 
  DOCKET NUMBER: AR20230007544 
 
 
APPLICANT REQUESTS: 
 
• correction of her deceased husband's line-of-duty (LOD) investigation to reflect the determination was completed prior to 1 January 2023 

• correction of her deceased husband's Survivor Benefit Plan (SBP) to show "child(ren) only" coverage effective 9 June 2022 and reversion to "spouse and child(ren)" coverage effective 1 January 2023 


 
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) 

• Marriage Record, 11 November 2005 

• DD Form 1300 (Report of Casualty) (Corrected Interim), 24 June 2022 

• DD Form 2064 (Certificate of Death (Overseas)), 14 July 2022 

• Spouse Statement of Desired SBP Election, 1 August 2022 

• Part 5 – Surviving Spouse Verification of SBP Counseling, 1 August 2022 

• U.S. Army Human Resources Command Memorandum (LOD Determination), 2 March 2023 

• DD Forms 2656-7 (Verification for Survivor Annuity), 21 March 2023, for A____ V. W____ and E____ R. N. W____ 

• Financial Management Service Forms 2231 (FastStart Direct Deposit) for A____ V. W____, 21 March 2023, and E____ R. N. W____, 23 March 2023 

• Internal Revenue Service Forms W-4P (Withholding Certificate for Periodic Pension or Annuity Payments) for A____ V. W____, 23 March 2023, and E____ R. N. W____, 21 March 2023 

• DD Form 2790 (Custodianship Certificate to Support Claim on Behalf of Minor Children of Deceased Member of the Armed Forces), 23 March 2023 


 
FACTS: 
 
1.  The applicant, the surviving spouse of the deceased service member (SM) who died on active duty, states she believes it is an injustice that her request to transfer the SBP to "child(ren) only" could not be elected by the Secretary of the Army or her designee 
because the LOD determination was not completed in a timely manner and prior to 1 January 2023, the effective date of the optional "child(ren) only" election repeal. 
 
2.  On 11 November 2005, the applicant and SM married. 
 
3.  The corrected interim DD Form 1300, 24 June 2022, reported the SM's death on 8 June 2022. 
 
4.  The DD Form 2064, 14 July 2022, shows the SM's death on 9 June 2022. He was married at the time of his death and the applicant is listed as his spouse. 
 
5.  On 1 August 2022, 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 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. 
 
6.  The U.S. Army Human Resources Command memorandum (LOD Determination), 2 March 2023, shows the Chief of Casualty and Mortuary Affairs Operations Division determined the deceased SM died as a result of suicide and his death was incurred in the LOD. 
 
7.  On 21 March 2023, the applicant completed separate DD Forms 2656-7 for herself and her minor child. They are listed as the SBP claimants. 
 
8.  On 23 March 2023, the applicant completed a DD Form 2790 showing the applicant's and the deceased SM's child was in her custody. The form further shows the applicant certified the dependent child is an unmarried minor child of the deceased SM.  
9.  The Department of the Army Office of the Deputy of Chief of Staff, G-1, memorandum (Advisory Opinion – M____ (Deceased), M____ R.; S____ (Deceased), J____ P.; (SM) (Deceased), 21 June 2023, states: 
 
 a.  Title 10, U.S. Code, section 1448(d)(1)(B), requires that the member who died on active duty and was not qualified for retirement must die in the LOD to be eligible for coverage under the SBP. 
 
 b.  Title 10, U.S. Code, section 1448(d)(2)(B), allows an eligible surviving spouse to transfer the SBP annuity to eligible children. 
 
 c.  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. 
 
 d.  The applicant's spouse died on active duty prior to 1 January 2023 and after receiving her SBP counseling. She requested transfer of the SBP annuity to her children. 
 
 e.  The LOD investigation was not completed and sent to the Army SBP Board until after 1 January 2023. 
 
 f.  If the LOD investigation was completed and sent to the Army SBP Board prior to 1 January 2023, she would still have had the ability to elect the optional "child(ren) only" coverage by law on behalf of the Secretary of the Army from the date of the SM's death until 31 December 2022. 
 
 g.  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 children effective the date of SM's death until 31 December 2022 and to revert to the eligible surviving spouse on 1 January 2023. 
 
BOARD DISCUSSION: 
 
After reviewing the application, all supporting documents, and the evidence found within the SM's military records, the Board found that relief was warranted. The applicant's contentions, the SM's military records, and regulatory guidance were carefully considered. The applicant’s spouse died on active duty on 8 June 2022, prior to 1 January 2023. After receiving their SBP counseling, the applicant requested that the SBP annuity be transferred to their child. The line of duty investigation was not completed and sent to the Army SBP Board until after 1 January 2023. If the line of duty investigation was completed and sent to the Army SBP Board prior to 1 January 2023, 
she would still have had the ability to elect the Optional Child Only SBP by law on behalf of the Secretary of the Army from the date of death until 31 December 2022. After careful review and in the interest of justice and fairness, the Board determined relief is warranted and support the applicants’ request to transfer the SBP annuity to child only effective the date of death of the member until 31 December 2022 and to revert to the eligible surviving spouse on 1 January 2023. 
 
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
xx: xx: xx: 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: 
 
• showing the Line of Duty Investigation was completed before 1 January 2023 

• showing the applicant submitted a request to transfer the SBP annuity to her child(ren) effective the date of the SM's death (8 June 2022) until 31 December 2022 and to revert to the eligible surviving spouse on 1 January 2023 


 
  8/8/2023

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 Dependency and Indemnity Compensation (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 Defense Finance and Accounting Service website: www.dfas.mil/retiredmilitary/ survivors/Understanding-SBP-DIC-Special Survivor Indemnity Allowance (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)  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 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//