IN THE CASE OF:	  

		BOARD DATE:	  10 November 2009

		DOCKET NUMBER:  AR20090000265 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, the spouse of a deceased former service member (FSM), requests that the FSM's Survivor Benefit Plan (SBP) election be changed from spouse and children coverage to children-only coverage.

2.  The applicant essentially states that her late husband was dying of cancer at the time he completed his SBP election, but he was never given any information about the SBP and no one explained this to him.  She also states that her late husband was unaware that her and her eligible children's SBP annuity would be offset by the Dependency and Indemnity Compensation (DIC) she is receiving.

3.  The applicant provides three undated and unsigned self-authored letters; the FSM's Certificate of Death; letters from the Department of Veterans Affairs, dated 3 October 2003 and 16 March 2007; the FSM's DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 27 December 2001; the FSM's Notification of Eligibility for Retired Pay at Age 60 with 15 Years of Service (15-year letter); the FSM's Army National Guard Retirement Points History Statement; a record inquiry, dated 25 November 2008; and a certificate honoring the memory of the FSM from the President of the United States in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The FSM's military records show that he received his 15-year letter on 27 December 2001.  The FSM also completed a DD Form 1883 on that date and elected full SBP spouse and children coverage.  He also elected Option C (Immediate Coverage).  This document was properly witnessed and contained the following statement:  "IMPORTANT:  The decision you make with respect to participate in this Survivor Benefit Plan is a permanent irrevocable decision.  Please consider your decision and its effect very carefully."  This document was properly signed by a witness on 27 December 2001 and was also signed by the applicant on that date.

2.  The applicant died on 24 April 2003.

3.  The applicant provided a letter from the Department of Veterans Affairs which shows that the FSM's death was service-connected.

4.  An inquiry to the Defense Finance and Accounting Service revealed that the FSM's SBP annuity was being paid to the applicant, but that because she is also receiving DIC, she is only entitled to $50.00 of her SBP annuity because she cannot receive both coverages.  It appears that the $50.00 the applicant currently receives for SBP is a monthly special survivor indemnity allowance which is paid to a surviving spouse who is entitled to DIC and eligible to receive an annuity by reason of an election of SBP who, except for the DIC offset, would be eligible to receive the full SBP annuity.

5.  The 2007 edition of the Department of Veterans Affairs booklet, Federal Benefits for Veterans and Dependents, essentially states that DIC payments may be available for surviving spouses of deceased service members or veterans who have not remarried.  To be eligible, the deceased must have died from (1) a disease or injury incurred or aggravated while on active duty or active duty for training, (2) an injury incurred or aggravated in line of duty while on inactive duty training, or (3) a service-connected disability or a condition directly related to a service-connected disability.

6.  Title 10, U.S. Code, section 1450(c), requires an SBP offset for the amount of DIC paid.  Section 1450(c)(1) states that if, upon the death of a member participating in the SBP, the surviving spouse or former spouse is also entitled to DIC, the surviving spouse or former spouse may be paid an SBP annuity, but only in the amount that the annuity otherwise payable would exceed that compensation.

7.  Title 10, U.S. Code, section 1450(k)(1), states that, if a surviving spouse or former spouse whose annuity has been adjusted under subsection (c) subsequently loses entitlement to DIC because of remarriage of the spouse or former spouse, and if at the time of such remarriage the surviving spouse or former spouse is 57 years of age or more, the amount of the annuity of the surviving spouse or former spouse shall be readjusted, effective on the effective date of such loss of DIC, to the amount of the annuity which would be in effect with respect to the surviving spouse or former spouse if the adjustment under subsection (c) had never been made.  Subsection 1450(k)(2) states a surviving spouse or former spouse whose annuity is readjusted shall repay any amount refunded by reason of the adjustment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, the spouse of a deceased FSM, requests that the FSM's SBP election be changed from spouse and children coverage to children-only coverage.

2.  It is clear that the applicant wishes to have the FSM's SBP election changed so that she may receive DIC and her eligible children the FSM's SBP annuity, as her SBP annuity is being offset by the DIC she is receiving.  While this is understandable, there is no provision of law or regulation that permits a spouse of a deceased FSM to change a FSM's SBP election after it has been vested as in this case.  Regrettably, in view of the foregoing, there is no basis for granting relief to the applicant in this case.

BOARD VOTE:

____x____  ___x_____  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by her late husband in service to the United States during his military career.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___________x____________
                 CHAIRPERSON
      
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.
ABCMR Record of Proceedings (cont)                                         AR20090000265



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ABCMR Record of Proceedings (cont)                                         AR20090000265



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