IN THE CASE OF: BOARD DATE: 18 October 2023 DOCKET NUMBER: AR20230012093 APPLICANT REQUESTS: * correction of her deceased husband's line of duty investigation to show 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 18 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) * DD Form 1300 (Final), 13 July 2022 * U.S. Army Human Resources Command Memorandum (Line of Duty Determination), 22 July 2022 * Active Duty Death Survivor Counseling Checklist (not dated) * Spouse Counseling Options Fact Sheet (not dated) * SBP Beneficiary Worksheet (not dated) * Initial SBP Counseling Statement for a Surviving Spouse with Children, 6 January 2023 * Spouse Statement of Desired SBP Election, 6 January 2023 * DD Form 2790 (Custodianship Certificate to Support Claim on Behalf of Minor Children of Deceased Members of the Armed Forces), 6 January 2023 * DD Form 2656-7 (Verification of Survivor Annuity), for – * , 6 January 2023 * , 6 January 2023 * , 6 January 2023 * , 23 August 2023 * SF 1199A (Direct Deposit Sign-Up Form), 6 January 2023 * W-4 (Employee’s Withholding Certificate), 6 January 2023 * Part 5-Surviving Spouse Verification of SBP Counseling, 23 August 2023 * W-4P (Withholding Certificate for Periodic Pension or Annuity Payments), 23 August 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 change the SBP election to "Child(ren) Only" could not be approved by the Secretary of the Army or designee because the line-of-duty determination was not completed in a timely manner prior to 1 January 2023, the effective date of the optional "Child(ren) Only" election appeal. 2. The applicant and SM were married on 25 April 2014. 3. The DD Form 1300 (Final), prepared on 13 July 2022, shows the SM died on 27 July 2021. 4. U.S. Army Human Resources Command Memorandum (Line of Duty Determination), 22 July 2022, shows the SM died in, on as a result of a training accident was found “In Line of Duty” at the time of death. 5. On 6 January 2023, the applicant completed the Spouse Statement of Desired SBP Election, indicating she elected "Child(ren) Only, Spouse Excluded" SBP coverage. She desired the Army to make the SBP election on her behalf. She understood this election authorized the deceased Soldier's eligible children to receive an equal share of the SBP annuity. All eligible children would receive the annuity until age 18 or age 22 if full-time unmarried students, or forever if incapable of self-support due to a condition incurred while eligible for SBP. She understood that the SBP would end when the last child is no longer eligible. If on 1 January 2023, if she was eligible to receive the SBP annuity, she would begin receiving it by law. The children would no longer receive the SBP annuity. 6. On 6 January 2023, the applicant completed a DD Form 2790. She indicated she was the mother to three minor, dependent children born to her and the SM. 7. On 6 January 2023, the applicant completed DD Form 2656-7, identifying the three minor, dependent children as the SBP claimant. 8. On 6 January 2023, the applicant completed SF 1199A and W-4, identifying herself for the direct deposit and W-4 withholding. 9. On 23 August 2023, the applicant completed Part V (Surviving Spouse Verification of SBP Counseling) indicated she was counseling on Parts I-IV of the Surviving Spouse SBP Counseling. 10. On 23 August 2023, the applicant completed DD Form 2656-7, identifying herself as the SBP claimant. 11. On 23 August 2023, the applicant completed W-4P, identifying herself for the periodic pension or annuity payments withholdings 12. The Department of the Army Office of the Deputy of Chief of Staff, G-1, memorandum (Advisory Opinion – (SM) (Deceased)), 29 September 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 line of duty 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 surviving spouse was not given the opportunity to receive their SBP Counseling in a timely manner prior to 1 January 2023. f. If the surviving spouse was counseled in a timely manner and completed the required documents prior to 1 January 2023, she would still have 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. 13. The Defense Retiree and Annuitant Pay System has no SBP documents on file for the deceased SM. ? 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 Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records, and office of the Deputy Chief of Staff – G-1 -Army Retirement Services advisory opinion, the Board concurred with the advising official finding the applicant’s spouse died on active- duty prior to 1 January 2023 and after receiving their SBP Counseling, requested that the SBP annuity be transferred to their child. The Board noted the surviving spouse was not provided the opportunity to receive their SBP counseling in a timely manner prior to the 1 January 2023 date. Based on the advising official recommendation, the Board granted relief to transfer the SBP annuity to child only effective the date of death of the member until December 31, 2022, and to revert to the eligible surviving spouse on January 1, 2023. 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 approval for the FSM surviving spouse to transfer the SBP annuity to child only effective 27 July 2021 until December 31, 2022, and to revert to the eligible surviving spouse on January 1, 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-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 eliminated. Eligible surviving spouses will receive their full SBP payments and their full DIC payments. (6) Note the change in law does not affect DIC payments, it only affects SBP payments when the surviving spouse is also receiving DIC. 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 SSIA. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230012093 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1