IN THE CASE OF: BOARD DATE: 18 April 2023 DOCKET NUMBER: AR20230001741 APPLICANT REQUESTS: * correction of her deceased husband's line-of-duty 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 24 March 2018 and revert 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) * Certificate of Death, 7 June 2018 * DD Form 1300 (Report of Casualty), 17 July 2018 * Affidavit, License and Certificate of Marriage, 3 January 2013 * U.S. Army Human Resources Command (HRC) Memorandum (Line of Duty Investigation, (Service Member (SM)), 10 January 2023 * Spouse Statement of Desired SBP Election, 29 January 2023 * Part 5 – Surviving Spouse Verification of SBP Counseling, 29 January 2023 * Active Duty Death Survivor Counseling Checklist * Spouse Counseling Options Fact Sheet * SBP Beneficiary Worksheet, 14 May 2018 * Spouse Statement of Desired SBP Election Active Duty Death, 14 May 2018 * DD Form 2790 (Custodianship Certificate to Support Claim on Behalf of Minor Children of Deceased Members of the Armed Forces), 14 May 2018 * two DD Forms 2656-7 (Verification for Survivor Annuity), 14 May 2018 and 25 January 2023 * two Internal Revenue Service Forms W-4P (Withholding Certificate for Pension or Annuity Payments), 18 May 2018 and 25 January 2023 * Standard Form 1199A (Direct Deposit Sign-Up Form), 14 May 2018 * Fax Cover Sheet (Line of Duty/Active Duty Death Required Documents), 30 January 2023 * HRC Memorandum (SBP Eligibility Information on Member Dying on Active Duty), 12 April 2018 * DA Form 1506 (Statement of Service – For Computation of Length of Service for Pay Purposes), 12 April 2018 * Officer Record Brief, 24 March 2018 * Defense Finance and Accounting Service Certificate of Eligibility, 25 January 2023 * Financial Management Service Form 2231 (Direct Deposit), 25 January 2023 FACTS: 1. The applicant, the surviving spouse of the deceased 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 her designee because the line-of-duty determination was not completed in a timely manner prior to 1 January 2023, the effect date of the optional "child(ren) only" election appeal. 2. The DD Form 1300, 17 July 2018, and death certificate, 7 June 2018, reported the SM's death on 24 March 2018. 3. On 14 May 2018, the applicant completed the Spouse Statement of Desired SBP Election Active Duty Death, indicating she elected "Child Only, Spouse Excluded" SBP coverage. She desired the Army to make the following 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 before age 18, or age 2, until all children are ineligible. She understood the SBP would not revert to "spouse" SBP coverage when the last child became ineligible and she would not receive a Special Survivor Indemnity Allowance (SSIA). 4. On 14 May 2018, the applicant completed a DD Form 2656-7, identifying the applicant's minor daughter as the SBP claimant. 5. The Headquarters, 3d Armored Brigade Combat Team, memorandum from the investigating officer (Findings and Recommendation – Line of Duty Investigation; SM; Death), 20 July 2018, stated that since there was no conclusive evidence that the SM's death was the proximate result of drinking alcohol, the SM's status at the time of death was "in the line of duty." Further action by the appointing authority is not available in the deceased SM's service records. 6. The HRC letter from the Chief of Casualty and Mortuary Affairs Operations Division, 8 July 2019, informed the applicant that after careful review of the line-of-duty investigation, a final determination was made that the deceased SM was "not in the line of duty" at the time of his death. 7. On 17 June 2022, counsel for the applicant requested reconsideration of new evidence and offered an explanation of events to find that the deceased SM's death was "in the line of duty," as originally determined by both the investigating officer and the appointing authority. 8. The HRC memorandum (Line of Duty Investigation (SM)), 10 January 2023, stated that after a thorough administrative review of the deceased SM's line-of-duty investigation, the original findings of "not in the line of duty due to own misconduct" was changed to read "in the line of duty." 9. On 25 January 2023, that applicant completed a DD Form 2656-7 as the spouse of the deceased SM. The applicant and deceased SM's minor daughter is listed as a child under age 23. 10. The Department of the Army Office of the Deputy of Chief of Staff, G-1 memorandum (Advisory Opinion – (SM) (Deceased)), 10 February 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 line-of-duty investigation was not completed and sent to the Army SBP Board until after 1 January 2023. f. 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(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. 11. On 29 January 2023, 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 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 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 due 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-only SBP is taxable for the child. 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 considered. a. The evidence of record shows the SM died on 24 March 2018. The Army made a final determination on 10 January 2023 that his death was in line of duty. Meanwhile, following his death, the applicant made an SBP election on 14 May 2018, based on the SM’s death, electing child only coverage. At the time she made the election for child coverage, the law allowed an eligible surviving spouse to transfer the SBP annuity to eligible children. However, Public Law 116-92 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. The Board determined that the LOD investigation was not completed and sent to the Army SBP Board until after 1 January 2023. If the LOD investigation was completed and sent to the Army SBP 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 the SM's death until 31 December 2022. b. The law regarding the offset between the SBP and the VA program called Dependency and Indemnity Compensation (DIC) is being phased out. As part of the phase out process, the Secretary of the Army (or designee) was authorized to make certain elections until 1 January 2023 on behalf of the surviving spouse in a LOD death to maximize benefits for the family. Since the LOD was not received until after 1 January 2023, the Secretary of the Army (or designee) could not make the election on behalf of the applicant. 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: * 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 (24 March 2018) until 31 December 2022 and to revert to the eligible surviving spouse on 1 January 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 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. 4. Army Regulation 600-8-4 (Line of Duty, Procedures, and Investigations), 15 March 2019, prescribed policies and procedures for investigating the circumstances of injury, illness, disease, or death of a Soldier. It provided standards and considerations used in making line-of-duty determinations. a. Paragraph 4-17 (Appeals) stated qualified survivors of a deceased Soldier who passes away while serving on active duty before becoming eligible to receive retired pay, may on behalf of the Soldier and for the same basis for which a Soldier could, appeal a not-in-the-line-of-duty determination in a death case. The appeal must be submitted within 3 years from the date final action was taken by HRC. b. Paragraph 4-18 (Revision or Correction of Line of Duty Determinations) stated the Adjutant General of the Army, acting on behalf of the Commanding General, HRC, and acting for the Secretary of the Army as delegated, may change a determination made under this regulation. The correct conclusion based on the facts must be shown. However, if the change is from in the line of duty to not in the line of duty or, if other evidence is considered which supports a not-in-the-line-of-duty determination, the Soldier must be informed of the proposed change, its basis, his or her rights, and be given a chance to respond in writing. Any statement or evidence that the Soldier submits must be considered before taking corrective action. When a determination is changed after final action has been taken to award statutory benefits (such as entitlement to physical disability pay), it does not necessarily change the determination on the statutory award. Final statutory determinations, which are otherwise regular and approved by competent authority, may not normally be reopened or revoked. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230001741 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1