IN THE CASE OF: 

		BOARD DATE: 18 April 2023

		DOCKET NUMBER: AR20230001745


APPLICANT REQUESTS: correction of her deceased husband's Survivor Benefit Plan 
(SBP) to show "Child(ren)-Only" coverage.

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)
*	Standard Form 1199A (Direct Deposit Sign-up Form), 29 November 2022
*	Internal Revenue Service Form W-4P (Withholding Certificate for Periodic 
Pension or Annuity Payments), 29 November 2022
*	DD Form 2790 (Custodianship Certificate to Support Claim on Behalf of Minor 
Children of Deceased Members of the Armed Forces), 2 December 2022
*	Part 5 – Surviving Spouse Verification of SBP Counseling, 2 December 2022
*	Spouse Statement of Desired SBP Election, 2 December 2022
*	two DD Forms 2656-7 (Verification for Survivor Annuity), 2 December 2022
*	Defense Finance and Accounting Service Certificate of Eligibility for Surviving 
Spouse, 2 December 2022
*	Death Certificate, 2 February 2023
*	DD Form 1300 (Report of Casualty), 6 February 2023
*	U.S. Army Human Resources Command (HRC) Memorandum (Line of Duty 
Determination), 13 February 2023

FACTS:

1.  The applicant, the surviving spouse of the deceased service member (SM) who died 
on active duty, states recent changes to federal law make it more advantageous to the 
family to change the SBP coverage to child(ren)-only.

2.  The applicant's Marriage Certificate, 7 September 2007, shows her marriage to the 
SM on 31 August 2007.

3.  The applicant's DD Forms 2656-7 (Verification for Survivor Annuity), 2 December 
2022, verified her children's eligibility for the SBP annuity as the deceased SM's 
surviving children.?
4.  The applicant's DD Form 2790 (Custodianship Certificate to Support Claim on Behalf 
of Minor Children of Deceased Members of the Armed Forces), 2 December 2022, 
certified her children are the unmarried children of a deceased SM.

5.  On 2 December 2022, the applicant completed the Spouse Statement of Desired 
SBP Election wherein:

	a.  She acknowledged she previously received an initial comprehensive briefing from 
an Army SBP counselor about the SBP options available to her and reviewed the 
Survivor Benefit Report. She understood this decision was irrevocable and should only 
be made when she had adequate time to review all the SBP data needed to make an 
informed decision.

	b.  She elected "Child Only, Spouse Excluded" SBP coverage. She desired that the 
Army make the following SBP election on her behalf. She understood that all of the 
deceased Soldier's SBP-eligible children would receive an equal share of the SBP 
annuity. The children would 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 understood she could request the annuity for an SBP-
eligible child who was incapacitated to be paid to a special needs trust for the care of 
that child. She also understood the SBP would end when the last child was 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 understood that 
child SBP is taxable for the child.

6.  The DD Form 1300 (Report of Casualty), 6 February 2023, reported the SM's death 
on 19 November 2022.

7.  The HRC memorandum from the Chief, Casualty and Mortuary Affairs Division (Line 
of Duty (LOD) Determination), 13 February 2023, determined the SM's death occurred 
in the LOD.

8.  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)), 27 March 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. 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.

	e.  After careful review and in the interest of fairness, the Army Retirement Services 
Director supports the applicant's request to transfer the SBP annuity to her children 
effective the date of the 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 considered. 

	a.  The evidence of record shows the SM died on 19 November 2022. The Army 
made a determination on 13 February 2023 that his death was in line of duty. 
Meanwhile, following his death, the applicant made an SBP election on 2 December 
2022, 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 death 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 (19 November 2022) 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-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)  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 was informed by the VA that a spouse annuitant is 
receiving the DIC, the law required that DFAS deduct one-third of the amount of the 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 was 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 was completely eliminated. Eligible surviving 
spouses will receive their full SBP payments and their full DIC payments.

		(6)  The change in the law does not affect DIC payments, it only affects SBP 
payments when the surviving spouse is also receiving the DIC. Refer to the DFAS 
SBP/DIC news webpage for details and Frequently Asked Questions.

		(7)  When a spouse is eligible to receive the SBP and DIC, and those payments 
are subject to the SBP/DIC offset, the spouse will also receive the SSIA.

	b.  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, the 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 the SBP (if the gross amount of SBP is less than the maximum amount) until 
31 December 2022. The 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 the 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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20230003884


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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