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NAVY | BCNR | CY2006 | 05623-06
Original file (05623-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                                             2 NAVY ANNEX
WASHINGTON DC 20370-5100



 DJC
 Docket No. 5623-06
18 January 2007

This is in reference to your application for correction of your deceased former husband’s naval record pursuant to the provisions of 10 U SC 1552.
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 17 January 2007. 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 naval record and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinion furnished by NPC memo 5420 POOJ1/097 dtd 24 Aug 2006, 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. Also, the Board found that there was no provision in your divorce decree requiring that SBP coverage be changed from “spouse” to “former spouse.” There is no evidence that your former husband (now deceased) ever changed the coverage category from “spouse” to “former spouse.” There is evidence that he was enrolled in the “spouse” category coverage and paid SBP premiums while married to Melody Weekly. There is no evidence to substantiate your claim of an oral agreement to elect “former spouse” coverage in lieu of paying separate life insurance premiums. And your divorce decree states that “any addendum hereto shall only be made in writing signed by both parties and not by oral agreement.” 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.
Sincerely,

ROBERT D. ZALMAN
 Acting Executive Director
Enclosure

























2
                  DEPARTMENTOFTHE NAVY
         \‘~\ !I///~~       NAVY PERSONNEL COMMAND
 •        MILLINGTONTN38O55-0000   POOJ1/097
                   24 Aug 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 COI~NENTS AND RECOMMENDATIONS IN CASE OF
          qjr~Jriftr~      ~irrint
         DOCKET NO. 05623-06

End:     (1) BCNR File with memo dtd 12 Jun 06
1.       This responds to your request (enclosure (1)) for comments and recommendation on subject Board for Correction of Naval Records (BCNR) petition. I have reviewed enclosure (1) and recommend denial. The evidence of record fails to establish the existence of probable material error or injustice.
2.       Applicant has failed to furnish the Board with evidence which supports her petition. Petition contains partial copy of an agreement between her and the now deceased member with no evidence of the date of divorce.’ Applicant’s 13 Jun 06 letter to the Board asserts she and decedent entered sub rosa agreement in which he was to provide former spouse SBP benefits in lieu of the life insurance policy provided for in paragraph 12 of the partial separation agreement enclosed with applicant’s petition. There is no legal basis to support such an agreement;
3.       Please call me at DSN 882-3163 or (901) 874-3163 if you have any questions.


Steven P. Hester
Assistant Legal Counsel








‘ Whether petition was timely filedis dependent on the date of divorce.

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