DEPARTMENTOFTHE NAV
BOARD FOR CORRECTION OF NAVAL RECORD
NAVY
ANNEX
2
WASHINGTON DC 20370-510
0
From: Chairman, Board for Correction of Naval Records
To:
Secretary of the Navy
Y
S
MEH: ddj
Docket No: 2303-02
20 August 2002
Ref: (a)
Title 10 U.S.C. 1552
Encl:
(1)
(2)
(3)
DD Form 149 w/attachments
NPC memorandum of 25 April 2002
Subject’s naval record
1.
Pursuant to the provisions of reference (a), Subject ’s widow, hereinafter referred to as
Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval
record be corrected to show enrollment in the Survivor Benefit Plan (SBP) for spouse
coverage, vice child only coverage.
2. The Board, consisting of Mr.
Petitioner’s allegations of error and injustice on 20 August 2002 and, pursuant to its
regulations, determined that the corrective action indicated below should be taken on the
available evidence of record. Documentary material considered by the Board consisted of the
enclosures, naval records, and applicable statutes, regulations and policies.
McPartlin, Ms. Gilbert, and Ms. McCormick, reviewed
3. The Board, having reviewed all the facts of record pertaining to Petitioner
of error and injustice, finds as follows:
’s allegations
a. Before applying to this Board, Petitioner exhausted all administrative remedies
available under existing law and regulations within the Department of the Navy.
b.
Subject transferred to the Fleet Reserve on 7 January 1990, at which time he
enrolled in SBP for child only coverage.
C.
Subject died on 19 September 1995 and the child began receiving the SBP annuity.
d.
Petitioner alleges that she was never afforded the opportunity to concur with her
husband’s decision to elect child only coverage, vice spouse coverage.
e.
Public Law 99-145, which was effective 1 March 1986, requires spousal
concurrence for any election to decline participation or for less than maximum coverage of a
spouse. The spouse ’s signature must be corroborated by one or more witnesses.
If a
Full spouse coverage will be implemented if all requirements have not been met.
member has elected child coverage, full spouse and child coverage will be implemented.
f.
The Defense Finance and Accounting Service ’s (DFAS) data base indicates Subject
’s case jacket with
elected child only coverage, however, they are unable to produce Subject
the original election form to verify the information.
g.
In correspondence attached as enclosure
(2), the office having cognizance over the
subject matter addressed in Petitioner ’s application has recommended the Board not correct
Subject’s record. This recommendation is based on lack of sufficient evidence that Petitioner
did not concur with Subject ’s election of child only coverage.
CONCLUSION
Upon review and consideration of all the evidence of record, and notwithstanding the
(2), the Board finds the existence of an injustice warranting the
contents of enclosure
requested corrective action. Under the provisions established by Public Law 99-145,
Subject’s election of child only coverage is invalid unless his spouse provided the required
written concurrence. Petitioner states that she did not provide the necessary concurrence and
DFAS claims Subject
that she should therefore be the proper recipient of the annuity.
executed a valid child only election and upon his death the child became the beneficiary of
the SBP annuity. Neither side can produce an original copy of the election form to verify
their respective claim.
government, not Petitioner.
It is the Board ’s opinion that the burden of proof rests with the
RECOMMENDATION:
That Subject’s naval record be corrected, where appropriate, to show that:
a.
Prior to his 7 January 1990 transfer to the Fleet Reserve he elected SBP spouse
coverage, at the full base amount, namin
s the beneficiary.
b. SBP prem
deducted from Mrs
uld have
future benefits.
beer-r deducted for spouse coverage should be
C. That a copy of this Report of Proceedings be filed in Petitioner
’s naval record.
4.
Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval
Records (32 Code of Federal Regulations, Section 723.6(c)) it is certified that quorum was
present at the Board ’s review and deliberations, and that the foregoing is a true and complete
record of the Board ’s proceedings in the above entitled matter.
ROBERT D. ZSALMAN
Recorder
QlltQ-
G. L. ADAMS
Acting Recorder
5. The foregoing action of the Board is submitted for your review and action.
Docket No: 2303-02
Reviewed and approved:
OCT
w4
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