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NAVY | BCNR | CY2006 | 00018-06
Original file (00018-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
MEH
 Docket No. 18-06
9 May 2006








This is in reference to your application for correction of your deceased former spouse’s naval record pursuant to the provisions of 10 USC 1552.

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 9 May 2006. 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 former spouse’s naval record and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinion furnished by NPC memo 5420 POOJ1/053, of 12 Apr 06, a copy of which is attached.

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. 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 or injustice.




 W.       DEAN PFEIFFER
 Executive
Enclosure






DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
MILLINGTON TN 38055-0000

 5420
P00J1/7053
 12 Apr 2006
From:    Office of Legal Counsel (Pers-OOJ1)
To:      Executive Director, Board for Correction for Naval Records

Via:     Assistant for BCNR Matters, Pers-31C

Subj:    REQUEST FOR COMMENTS AND RECOMMENDATIONS IN CASE OF

End :    (1) BCNR File with cover memo dt d 11 Jan 2006
1.       This responds to your request (enclosure (1)) for comments and recommendation on subject Board for Correction of Naval Records (BCNR) petition. I here reviewed enclosure (1) and recommend denial.

2.       Facts :

 a. Applicant is the former spouse of USN (retired) (deceased) -
 Her petition asks BCNR to amend decedent’s Naval records to permit her SBP entitlement. Primary justification given in enclosure (1) is purported amendment to divorce decree.

 b.       Applicant indicates in enclosure (I) that decedent and she married 17 October 1955, decedent retired from Navy on 11 January 1974, and they divorced 1 October 1999. She further indicates that decedent elected SBP spouse coverage effective11 January 1974.
c.       Decedent remarried on 12 November 1999.
d.       Decedent died 27 May 2004 leaving spouse.
3.       Issue : Whether applicant has furnished sufficient evidence to change decedent’s Naval record to reflect SEP entitlement for her.

4.       Short Answer : No.





 1 Divorce decree and/or marriage certificate are absent from enclosure (1). Purported amendment to decree was not signed by applicant.




Subj: REQUEST FOR COMMENTS RECOMMENDATIONS IN CASE OF


5. Discussion :

 a.       Enclosure (1) does not contain sufficient evidence to demonstrate that court order required decedent to provide applicant SEP coverage.
b.       Title 10 U.S.C. 1448(b) (3) is the law that addresses former spouse coverage by persons already participating in the plan. It provides that a person who is a plan participant providing spouse or spouse and a child cove ge and has a former spouse may elect to provide n nnuity to that fo men spouse. The election must be received within one year after the date of the divorce. Enclosure (1) and decedent’s record is devoid of evidence of such a timely election.
c.       Title 10 U.S.C. 1450(f) (3) is law that governs process by which former spouse can have the election “deemed” if the member fails to elect former spouse as required by court order. Applicant has not presented evidence that demonstrates she deemed her election within one year of her divorce from decedent.
6.       Conclusion : Evidence does not support record correction.

7.       Please call me at DSN 882-3163 or (901) 874-3163 if you have any questions.



                                                                        Assistant Legal Counsel
2

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