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

Docket No. 8808-19  
Ref:  Signature Date 
 
From: Chairman, Board for Correction of Naval Records  
To:  Secretary of the Navy  

Ref: (a) Title 10 U.S.C. § 1552 
(b) NDAA FY 2004 
Encl: (1) DD Form 149 w/attachments 
      (2) DFAS ltr of Feb 21 
(3) Subject’s naval record 


1.  Pursuant to the provisions of reference (a), Subject widow, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that her spouse’s naval record be corrected to establish Survivor Benefit Plan (SBP) Child vice Spouse coverage. 

2.  The Board, consisting of         , reviewed Petitioner’s allegations of error and injustice on 18 February 2021 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record.  Documentary material considered by the Board consisted of the enclosures, relevant portions of Subject’s naval record, 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 of the Navy.

     b.  On 9 January 2001, Subject entered active duty.

     c.  On 30 April 2001, Subject married (Petitioner). 

     d.  In accordance with reference (b) [24 November 2003], (Sec. 645) expands coverage under the SBP for dependent children and surviving spouses of military personnel who die while on active duty.  Requires vitiation of elections by disability-retired military personnel who die within one year after retirement from causes related to such disability with respect to elections of SBP or Supplemental SBP benefits and payments for individuals who are not dependents of the retiree.  

     e.  On 13 September 2001, Subject’s child, was born.

     f.  On 13 September 2004, Subject died while conducting combat operations during Operation Iraqi Freedom.

     g.  On 20 September 2004, HQMC issued a Statement of SBP Base Amount Computation (Active Duty Death).  This also certified    was not entitled to retired/retainer pay at the time of his/her death. 
  
     h.  On 21 September 2004, HQMC notified DFAS-CL that        died on 13 September 2004 while on active duty.  Enclosure (2) provides computations for determining an SBP base amount equal to the amount of retired pay that would have been paid to the member had that member been retired on the date of death as if retired with total (100%) disability per reference (b). The member died as a result of hostile action against the enemy, therefore it is concluded that the incident occurred in the line of duty. 

Under the authority delegated by reference (d), establish a pay account for        showing an SBP election for "Spouse Only" coverage.

     i.  On 1 October 2004, Petitioner began to receive DIC which offset her SBP.  An annuity account was established for Petitioner and she received annuity pay in the amount of $334.33 for the partial mount of September 2004.  Furthermore, because Petitioner’s SBP annuity was offset by DIC, she received Special Survivor Indemnity Allowance (SSIA) starting in 2004.  The SSIA was stopped in May 2011 due to non-receipt of a certificate of eligibility.

     j.  On 12 October 2004, DFAS notified Petitioner that the Department of Veterans Affairs that her Dependency and Indemnity Compensation (DIC) from them now exceeds the Survivor Benefit Plan (SBP) annuity.  Since her SBP has to be reduced by her amount of DIC award, she will no longer be eligible for or be receiving an SBP annuity. Her last payment of SBP annuity will be from the date of her spouse's death through the end of that month. The amount of her final SBP annuity payment will be $334.33.           

    k.  In correspondence attached as enclosure (2), the office having cognizance over the subject matter addressed in Petitioner’s application has commented to the effect that the request has merit and warrants favorable action. 


CONCLUSION 
Upon review and consideration of all the evidence of record, and especially in light of the contents of enclosure (2), the Board finds the existence of an injustice warranting the following corrective action.  The Board concluded that Petitioner was not afforded the opportunity to make an SBP election for “child only” at the time of spouse’s death as authorized by reference (b). 

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


On 21 September 2004, the Secretary (in consultation with the surviving spouse) stipulated that   ) should receive an SBP annuity instead of his ) under 10 U.S.C 1448(d). 

On 22 September 2004, submitted claim for SBP annuity benefits as the natural mother and representative payee of  (who was then a minor). 

A copy of this Report of Proceedings will be filed in Petitioner’s naval record. 

4.  It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above-entitled matter. 

5.  Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal 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 of the reference, has been approved by the Board on behalf of the Secretary of the Navy. 


2/22/2021