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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