IN THE CASE OF:	  

		BOARD DATE:  8 January 2013

		DOCKET NUMBER:  AR20120007333 


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 widow of a deceased former service member (FSM), requests the Survivor Benefit Plan (SBP) election be reverted from children to spouse.

2.  The applicant states that on 14 January 2010 the FSM was killed during a home invasion.  He was serving on active duty at the time.  She was also wounded in her left hand and shoulder during the home invasion.  At the time she was 20 weeks pregnant.  The extensive loss of blood, blood transfusions, and several surgeries resulted in her daughter being born with a severe medical condition, Congenital Hydrocephalus (water/fluid on the brain).  She had waived the SBP annuity in favor of her daughter.  The SBP annuity was being received by her daughter until 7 January 2012, when she died of an acute respiratory failure.  She is now pleading to have the SBP benefit revert back to her.  She never expected that her daughter would pass away within such a short time.  There has been a significant change in her life with the loss of her husband, being shot and undergoing medical treatment, and then losing her daughter.  At this time she is unable to receive any type of disability payments and is in need of financial assistance.

3.  The applicant provides copies of:

* DD Form 1300 (Report of Casualty) dated 15 January 2010
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 1 February 2010
* FSM's Death Certificate, State of Texas, issued 8 February 2010
* Daughter's Certificate of Death, issued 11 January 2012

CONSIDERATION OF EVIDENCE:

1.  A DA Form 2173, dated 1 February 2010, states that the FSM was shot in his residence by another service member resulting in his death at 2318 hours, 
14 January 2010.  The FSM was considered present for duty and the incident occurred in the line of duty.

2.  The FSM's Texas Certificate of Death shows that he died on 14 January 2010 as a result of a gunshot wound during a robbery.

3.  In a letter dated 20 January 2010, the Chief, Personnel Actions Branch, U.S. Army Human Resources Command, provided the Director, Defense Finance and Accounting Service Cleveland Center with information for use in determining eligibility of SBP benefits for the FSM, who had died while on active duty.

4.  A DD Form 1300, prepared on 26 February 2010, shows the FSM's wife and parents as interested persons.  A corrected final report, prepared on 8 July 2010, adds the FSM's daughter.

5.  An AHRC Form 1569 (Transcript of Military Duty) shows the FSM's primary next of kin as his wife.

6.  The applicant's daughter was born on 20 May 2010 about 4 months after her father's murder.  On 7 January 2012, she died.  Her death certificate states her death was as a result of acute respiratory failure syndrome and respiratory syncytial virus.  Congenital hydrocephalus and severe developmental delay were listed as significant contributing causes.

7.  Title 10, U. S. Code, section 1448(d)(2)(B) states that, in the case of a member who dies while on active duty on or after the date of the enactment of the National Defense Authorization Act for Fiscal Year 2004 (i.e., 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.



DISCUSSION AND CONCLUSIONS:

1.  The available evidence clearly shows that the FSM died in the line of duty while serving on active duty.  The applicant clearly states that she waived her right to the SBP annuity in favor of their child, who was born with serious medical conditions.

2.  Title 10, U.S. code clearly provides authority for the Secretary to 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.

3.  There is no provision of law providing for the reverting of SBP benefits once an election is made.  While there is no error in what happened in the applicant's case, there appears to be an injustice.

4.  The available evidence is unclear exactly who provided "consultation" to the applicant.  What is clear is that the applicant's choice was purely emotional and must have received poor guidance and advice, and that her choice was not appropriate.  First, given the daughter's medical issues, her prognosis for long-term survival was at best unsettled when the applicant made her choice.  Second, given the severity of the child's condition and developmental delays, it is likely that she would have had to relinquish her SBP entitlement in order to qualify for more generous disability benefits.  In essence, the applicant waived her spouse annuity to lock in a benefit of little, if any, real value to her disabled child.  And, she did it at a point where her time horizon was such that she easily could have made other arrangements to provide for her child in the long-term with recourse to but a small portion of her spousal annuity.

5.  In view of the above, the applicant's request should be granted as a matter of equity.

BOARD VOTE:

____X___  ____X___  ___X__ _  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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:

	a.  showing the applicant accepted spouse SBP coverage upon the death of the FSM; and

	b.  paying the applicant the SBP annuity effective the day after the death of the FSM.




      _______ _  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)                                         AR20120007333





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ABCMR Record of Proceedings (cont)                                         AR20120007333



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