DEPARTMENT OF THE NAVY 

BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 


Docket No. 3189-18 
MAY 03 2018 
From: Chairman, Board for Correction ofNaval Records 
To: Secretary ofthe Navy 

Subj: REVIEW OF NAVAL RECORD ICO 
Ref: (a) Title 10 U.S.C. 1552 

Encl: · (1) DP Form 149 w/attachments 
        (2) Subject's naval record 

I. Pursuant to the provisions ofreference (a) Subject's widow, hereinafter referred to as 
Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval 
record be corrected to show timely written request to elect "child only"· coverage under the 
Survivor Benefit Plan (SBP). 

2. The Board, consisting of , reviewed Petitioner's 
, and allegations of error and injustice on 27 April 2018 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence ofrecord. Documentary material considered by the Board consisted ofyour application, together with all material submitted in support thereof, relevant portions of your naval reco~d and applicable 
statutes, regulations and policies. 

3. The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of 
error and injustice, finds as follows: 

a. Before applying to this Board, Petitioner exhausted all administrative remedies available 
under existing law and regulations within the Department ofthe Navy. 

b. The member entered active service on 8 February 1993 and died on active duty on 
with over 10 years ofservice. He was married and he had one child under the age of 18 (DOB ). 

c. Public Law 107-107 (Sec. 642) was .enacted on 28 December 2001, extended SBP eligibility to qualified survivors ofall active duty service members, regardless of years of service, whose death occurred in the line ofduty after 10 September 2001. 

d. On  Subject died. Subject's death was determined to be in the line of 
duty. Per Public Law 107-107 (Sec. 642), Petitioner became entitled to receive an annuity under 
the SBP as surviving spouse. 

e. On 23 April 2003, Petitioner signed DD Form 1884, application for SBP annuity. 

f. Public Law 108-136 (Sec. 645) was enacted on 24 November 2003, extended this benefit 
to dependent children in cases where the member, who died in the line of duty on or after the 
date ofenactment (24 November 2003), had an eligible surviving spouse but the Secretary, in 
consultation with the surviving spouse, determined it appropriate to provide the annuity to the 
dependent children instead of the surviving spouse. As the Subject died prior to the enactment of 
Public Law 108-136, therefore his dependent child was not authorized to receive the SBP 
annuity at that time. 

g. Public Law 109-364 (Sec. 644(a)) was enacted on 17 October 2006, which amended 
10 U.S.C 1448(d)(2)(B) by striking "who dies after November 23, 2003" and inserted "who dies 
after October 7, 2001." This change allowed Subject's dependent child to receive the SBP 
annuity. However, "[a]ny annuity payable to a dependent child ... by reason of the 
amendment...shall be payable only for months beginning on or after the date of the enactment of 
this Act. 

CONCLUSION 

Upon review and consideration ofall the evidence ofrecord, the Board finds the existence of an 
injustice warranting corrective action due to the following: Subject died in the line of duty and 
his sUrviving spouse became an eligible annuitant under the SBP. However, as Subject was rated 
100% disabled due to his line of duty death, Petitioner also became entitled to receive 
Dependency Indemnity Compensation (DIC) through the Department of Veterans Affairs. The 
DIC payment offset the SBP annuity. After the Subject's death, the law changed to establish 
SBP eligibility for dependent children and was applied retroactively. With the child as the 
designated SBP annuitant vice the Petitioner, the SBP annuity would not be offset by the DIC 
payment received by the Petitioner. The Board concluded that had the Petitioner received 
correct information about the applicable law, she would have elected "child only" SBP coverage 
effective 1 November 2006. Therefore, the Board concluded that relief is warranted in this case. 

RECOMMENDATION 

That Subject's naval record be corrected, where appropriate, to show that: 

On the date of the Subject's death, which occurred , surviving spouse Petitioner 
became entitled to receive an annuity under the SBP. Effective 1 November 2006, per Public 
Law 109-364 (Sec. 644(a)), the SBP was changed to "child only" coverage, naming 
election or declination executed by Petitioner is null and void as the annuitant, after consultation and consent of the Petitioner. 

A copy of this Report ofProceedings will be filed in Subject's naval record. 

4. It is certified that quorum was present at the Board's review and deliberations, and that the 

5. Pursuant to the delegation ofauthority set out in Sect e revised Procedures of the 
Board for Correction ofNaval Records (32 Code ofFederal Regulations, Section 723.6(e)) and 
having assured compliance with its provisions, it is hereby announced that the foregoing 
corrective action, taken under the authority ofreference (a), has been approved by the Board on 
behalf ofthe Secretary of the Navy. 

Executive Director