DEPARTMENTOFTHE NAV
Y
BOARD FOR CORRECTION OF NAVAL RECORDS
2
NAVY
ANNEX
WASHINGTON DC 20370-5100
MEH:ddj
Docket No: 7590-01
19 March 2002
-
_a-.-t-
.
This is in reference to your application for correction of your deceased spouse
pursuant to the provisions of title 10 of the United States Code, section 1552.
’s naval record
A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, considered your application on 19 March 2002. Your allegations of error and injustice
were reviewed in accordance with administrative regulations and procedures applicable to the
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 NPC memorandum of 14 January 2002, a copy of which is attached.
’s naval record
In addition, the Board considered the advisory
After careful and conscientious consideration of the entire record, the Board found that the
evidence submitted was insufficient to establish the existence of probable material error or
injustice. In this connection, the Board substantially concurred with the comments contained in
the advisory opinion. Accordingly, your application has been denied. The names and votes of
the members of the panel will be furnished upon request.
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 upon submission of new and material
evidence or other matter not previously considered by the Board. In this regard, it is important
to keep in mind that a presumption of regularity attaches to all official records.
when applying for a correction of an official naval record, the burden is on the applicant to
demonstrate the existence of probable material error or injustice.
Consequently,
Sincerely,
W. DEAN PFEIFFER
Executive Director
Enclosure
DEPARTMENT OF THE NAV
PERSONNEL COMMAN
NAVY
5720 INTEGRITY DRIVE
MILLINGTON TN 380550000
Y
D
14 Jan 02
MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS
Via:
Subj:
Ref:
Encl:
Assistant for BCNR Matters (PERS-OOZCB)
(a) BCNR memo of 17
Dee 01
(1) Survivor Benefit Plan
- Election Certificate ICO PO1
undated
(2) Naval Air Station Kingsville TX
ltr 11220 of 2
Ott 74
1.
In response to reference (a),
record to reflect that he enrolled in the Survivor
lan
(SBP) prior to transferring to the Fleet Reserve on
recommend BCNR not correct PO1
5 November 1974.
2.
The recommendation is based on the following:
per enclosure (1).
ansferred to the Fleet Reserve on
eclined participation in SBP at that time
He died on 30 August 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,
be notified of the decision...."
that person's spouse shall
C .
In the precedent-setting court decision Barber v. United
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
If evidence of notification does not exist,
The administrative procedures
Sub;:
spouse to be notified of a member's declination
enclosure
(2), PO1
required notificat
bv a letter.
ng officer provided the
Per
3.
Mrs.
coverage
_ . .
..k_
In light of the evidence presented, the record indicates that
was notified of her husband's decision to decline
.
In SBP as required.
"Head, Retired Admin Section
Casualty Assistance and
Retired Activities
Division (PERS-62)
/
2
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