Compensation restored to widows

By Tom Philpott: CNJ columnist

Jacqueline Peters, widow of a retired Army officer, only recently grasped how “ludicrous” the law has become that limits Survivor Benefit Plan (SBP) payments to surviving spouses of military members who either die in retirement from service-related ailments or die while on active duty.

These survivors qualify for Dependency and Indemnity Compensation (DIC) from the Department of Veterans Affairs, which pays a basic benefit of $1,154 a month. But if they also are covered by military SBP, then the SBP must be reduced by an amount equal to DIC. Widows then are refunded the premiums their husbands had paid for the portion of SBP being offset.

But now there is an exception, the result of a subtle change in law six years ago. Defense pay officials ignored until three military widows won a lawsuit last year and forced the department to acknowledge what Congress had done. The quirky bottom line is that military widows who remarry after age 57 are exempt from the SBP-DIC offset.

The offset exemption so far applies to just 704 widows, say Defense officials. All of them began to draw their full SBP again either this month or back as early as February. Their SBP is paid in full in addition to their DIC.

Many of these 704 widows also will get SBP retro payments back to Dec. 16, 2003, the date Congress, whether lawmakers knew it or not, lifted the ban on concurrent receipt of both DIC and SBP for this select group.

No one disputes that the original intent of a key provision of the Veterans Benefits Act of 2003 (Public Law 108-183) was to restore eligibility for DIC to any military surviving spouse who remarries after age 57. Until then, widows were losing DIC for remarriage at any age.

But slipped into the 2003 legislation was also language that barred the restored DIC for these widows from impacting other any government payments, including SBP.

Defense pay officials had argued that the language wasn’t clear and so continued the SBP-DIC offset for all DIC-eligible widows until this spring.

But lawyers for Patricia A. Sharp, Margaret M. Haverkamp and Iva Dean Rogers took the issue to federal court, arguing that the plain meaning of the statute exempted them and any other widow who remarries after age 57 from the offset. The U.S. Court of Appeals for the Federal Circuit agreed and rejected as “unconvincing” the argument that Congress would not have targeted so small a group of widows for SBP offset relief.

Congress took a small step to relieve the SBP-DIC offset in 2007. It approved a Special Survivor Indemnity Allowance which paid the 54,000 widows $50 a month starting in October 2008. That was increased last fall to $60. It will climb annually to reach $100 by 2013.

Legislation to wholly repeal the offset has been introduced in every recent Congress. The current Senate bill, S 535, from Bill Nelson (D-Fla.) has 55 co-sponsors; the House bill, H.R. 775 from Rep. Ortiz (D-Texas), has 320.

Last month, Rep. Walter Jones (R-N.C.) introduced a discharge petition to try to pull the SBP-DIC offset repeal bill out of the armed services committee for a floor vote. The idea is to match support from the Senate.

A total of 216 signatures are needed for the petition to succeed. It’s still unclear whether Jones will get that many members to defy the committee leadership even with the bill having 330 co-sponsors.