DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                                    2 NAVY ANNEX
WASHINGTON DC 20370-5100       


        MEH:ddj
Docket No: 1882-04
11 May 2004
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy

Subj:    EMC USN, RETIRED (DECEASED), REVIEW OF NAVAL RECORD

Ref:     (a) Title 10 U.S.C. 1552

End:     (1) DD Form 149 w/attachments
(2)      NPC memorandum of 28 January 2004
(3)      Subject’s naval record

1.       Pursuant to the provisions of reference (a), Subject’s former spouse, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected to show timely written request for conversion from spouse to former spouse coverage under the Survivor Benefit Plan (SBP)

2.       The Board, consisting of Mr. Koman, Mr. Milner, and Ms. McCormick reviewed Petitioner’s allegations of error and injustice on 11 May 2004 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.

3.       The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows:

a.       Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy.

b.       When Subject transferred to the Fleet Reserve on 30 August 1966, he chose not to enroll in the Retired Serviceman’s Family Protection Plan (RSFPP). The RSFPP was later replaced by SBP and Subject enrolled for spouse coverage, with a reduced base amount, on 8 August 1973.

c.       Subject and Petitioner divorced on 13 December 1989. The court order stipulated that Subject “continue making the necessary provisions and payments to insure the survivor benefit plan is continued and will be operative upon his death.” SBP coverage is based on an existing category and not to a specific individual. Accordingly, coverage does not continue for a former spouse unless the election is specifically changed to former spouse. Based on the court order Subject was required to change his SBP election to former spouse coverage within one year of the date of the divorce.
d.       Subject received a letter from the Defense Finance and Accounting Service, Cleveland (DFAS-CL) dated 18 January 1991 informing him that, based on his letter, his SBP coverage had been discontinued as he no longer had an eligible beneficiary. By notifying DFAS-CL of his divorce but not taking the appropriate action to change his coverage from spouse to former spouse Subject was in violation of the court’s divorce decree.

e.       Petitioner could have submitted a deemed election for former spouse coverage within a year of the divorce but she was unaware of Title 10, U.S. Code, Section 1450(0(3), which permits former spouses to have court ordered SBP elections recognized if the member does not voluntarily change the election within a one-year time frame. A deemed election must be submitted within one year of the court order or filing involved, whichever is later. If a deemed election request is received by a former spouse and the member still has time remaining during the one year period in which to make an election the member is not yet considered to have failed to make an election. A qualifying election will be deemed no later than the last day a member could have voluntarily made the election. Unfortunately many divorce lawyers do not understand the complexities of the SBP program and therefore cannot properly counsel their clients regarding this important provision. Also, many former spouses are unaware that they can file the deemed election before the one year time frame expires. They are often under the impression they cannot file the request until and unless the member fails to file within one year. Former spouses lose their right to obtain financial information regarding members pay accounts and often have no way of knowing whether or not court orders have been complied with.

f.       In correspondence attached as enclosure (2), the office having cognizance over the subject matter addressed in Petitioner’s application recommends the Board not correct Subject’s record. This recommendation is based on the fact that Subject failed to notify DFAS-CL that he wanted to enroll his former spouse, even after receiving correspondence stating an adjustment was being made to his coverage. He also could have enrolled during the open seasons of 1 April 1992 through 31 March 1993 or 1 March 1999 through 29 February 2000. Also, Petitoner failed to make a deemed election in the required time frame and provided no evidence that Subject requested to enroll her.

CONCLUSION

Upon review and consideration of all the evidence of record, and notwithstanding the recommendation of enclosure (2), the Board finds the existence of an injustice warranting the requested corrective action. The Board believes that it is unfair to deny relief to Petitioner who possessed a valid court order which she rightfully expected would ensure her future annuity. It is a fundamentally wrong when a member is allowed to be in contempt of a court order and the intended recipient of the annuity is thereby penalized. The Board further concludes that to not correct the record would be to deny Petitioner a benefit that is rightfully hers as the court order directed Subject take appropriate action to insure she was properly designated as the SBP beneficiary.






Accordingly, the Board recommends the following corrective action:

RECOMMENDATION:

That appropriate records be corrected, where appropriate, to show that:

a.       Subject submitted a written request to change his SBP coverage from spouse to former spouse, at the same level as previously elected, naming Petitioner as the beneficiary.

b.       That the document was received and processed, and became effective 12 December 1990, one year from the date of divorce.

c.       Premiums that would have been deducted from Subject’s retired pay will be deducted from Petitioner’s future annuity.

4. 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. ZALMAN                                                      G. L. ADAMS
Recorder                                                                        Acting Recorder



5. The foregoing action of the Board is submitted for your review and action



                                                                                          W. DEAN PFEIFFER
                                                                                          Executive Director


Reviewed and approved:


6-4-04
Robert T. Call
Assistant General Counsel
Manpower and Reserve Affairs)


DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                                  2 NAVY ANNEX
WASHINGTON DC 20370-5100       

         MEH:ddj
Docket No: 1882-04
11 May 2004

From:    Chairman, Board for Correction of Naval Records

To:      Chief of Naval Personnel

Subj:    EMC USN, RETIRED (DECEASED),

Ref:     (a) 10 U.S.C. 1552

End:     (1) Approved findings, conclusions and recommendations of BCNR, less enclosures

1.       In accordance with reference (a), the Board for Correction of Naval Records has reviewed allegations of error and injustice in the naval record of the subject.

2.       The Regulations approved by the Secretary of the Navy, require that the naval record of subject to be corrected, where appropriate, in accordance with the approved recommendation of the Board as contained in enclosure (1).

3.       By copy of this letter, the Defense Finance & Accounting Service, DFAS-DE/FYCC, is authorized to pay all monies lawfully found to be due as a result of the above correction to subject’s naval record.

4.       The Board has advised the Petitioner of the approved recommendation.

5.        It is requested that this letter and enclosures be placed in the subject’s official record, and that this Board be furnished a copy of any correspondence relating to this approved recommendation.



G.L. ADAMS
         By direction    

Copy to:
DFAS-DE/POCC
BuPers (Pers 313)




DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                                             2 NAVY ANNEX
WASHINGTON DC 20370-5100


         MEH:ddj
Docket No: 1882-04
11 May 2004




Dear:

This is in reference to your application for correction of your deceased former spouse’s naval record submitted pursuant to the provisions of title 10 of the United States Code, section 1552.

The final decision in your case is set forth in the Board’s report of proceedings, a copy of which is enclosed. The approved changes to your former spouse’s naval record will be made by the Chief of Naval Personnel (CNP). After CNP makes these changes the Defense Finance & Accounting Service (DFAS) will review his record and make payment of any money that you may be entitled to. Questions concerning money paid and/or the manner of computation should be directed to DFAS-DE/POCC, 6760 E Irvington Place, Denver CO 80297-7000. Also, you should immediately notify DFAS of any change in your mailing address.



                                             G.L. ADAMS
                                            Head, Pay Section

Copy to:
DFAS w/o enclosures
CNP w/o enclosures