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NAVY | BCNR | CY2002 | 00057-02
Original file (00057-02.pdf) Auto-classification: Denied
mh

h4EH: 
Docket No:  
9 July 2002

57-02

DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS

2 

NAVY 

ANNEX

WASHINGTON DC 20370-5100

Dear

This is in reference to your application for correction of
pursuant to the provisions of title  

ot‘ the 

10 

 

your deceased spouse’s naval record

IJnitetl States Code, section

1552.

A three-member panel of the Board for Correction of ‘ Naval Records, sitting in executive
9 July 2002. Your allegations of error and injustice
session, considered your application  
~~tllllinistl-~ltive regulations  and procedures applicable to the
were reviewed in accordance with  
proceedings of this Board. Documentary material considered by the Board consisted of your
application, together with all material submitted in support thereof, your spouse
and applicable statutes, regulations   and policies.
opinion furnished by  

’s naval record
In addition, the Board considered the advisory

25 March 2002, a copy of which is attached.

menlorandt~n~  

NPC 

011 

01

After careful and conscientious consideration of the entire record, the Board found that the
evidence 
submittecl was insufficient to establish the existence of probable material error or
injustice. In this connection, the Board  
the advisory opinion. Although the letter was addressed to  
Terrace” there is  
has been denied. The names and votes of the
request.

no indication it was returned as undeliverable. Accordingly, your application

stlbstantially concurred with the comments contained in

183rd Terrace, vice 183 RD
” 

  furnished upon

me~nber-s  of the panel will be

 

It is regretted that the circumstances of your case are such that favorable action cannot be taken.
You are entitled to have the Board reconsider its decision
evidence or other matter not previously considered by the Board.
to keep in mind that a presumption of regularity attaches to all official records. Consequently,
when applying for a correction of an official naval record, the burden is on the applicant to
demonstrate the existence of probable material error

upon submission of new and material
In this regard, it is important

iIl.justice.

or 

 

 

Enclosure

Sincerely,

W. DEAN PFEIFFER
Executive Director

DEPARTMENT OF THE NAV

N A VY 

PERSONNEL  

COMMAND

5720 INTEGRITY DRIVE
MILLINGTON TN 380550000

Y

25  Mar  0 2

MEMolxAmxPl 

FOR EX ECUTIVE 

DIRECTOR, 

BOARD 

FOR 

CORRECTION OF

NAVAL RECORDS

Via :

Assistant  for BCNR Matters

 

(PERS-OOZCB)

Subj:

Ret:

Encl:

(a) BCNR memo of 11 Feb  02

,

(1) Survivor Benefit Plan  

- Election Certificate ICO PO1

dated 25 Sep 1973

Key West FL  

ltr of 26 Sep 73

sponse to reference (a), recommend BCNR not correct
record to reflect that he enrolled in the Survivor

Benefit Plan (SBP) prior to transferring to the Fleet Reserve on
27 September 1973.

2 .

The recommendation is based on the following:

a.

27 Septe
per enclosure (1).

transferred to the Fleet Reserve on
He declined participation in SBP at that time
He died on 23 September 2001.

b.

Public Law 92-425, which enacted SBP on 21 September

1972, provided that  
(a retiree's participation in SBP at the
maximum level was automatic unless the retiree specifically
declined to participate prior to his date of retirement.
Public Law 92-425 further stated:

"If a person who is married elects not to participate in
the Plan at the maximum level, that person's spouse shall
be notified of the decision...."

C .

In the precedent-setting court decision Barber v. United

If evidence of notification does not exist,

States, the court ruled that the burden of proof that a spouse
was notified of a member's declination rests with the military
service concerned.
then the member's declination is to be considered invalid, and
the member's spouse becomes entitled to benefits under the
automatic provisions of the plan.
throughout the Navy between 1972 and 1979 called for a member's
spouse to be notified of a member's declination by a letter.
1 officer provided the
enclosure 
required 

The administrative procedures

(21,
notif

Per

Subj 

:

t of the evidence presented, the record indicates tl

was notified of her husband's decision to decline
BP as required.

at

Head, Retired Admin Section
Casualty Assistance and
Retired Activities
Division (PERS-665)

2



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