Search Decisions

Decision Text

NAVY | BCNR | CY2006 | 07547-06
Original file (07547-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-51 00

 DJC
Docket No. 7547-06
 31 January 2007

This is in reference to your application for correction of your 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 30 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 POOJ1/15l dtd 28 Dec 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.

 Sincerely,

ROBERT D ZSALMAN
Acting Executive Director
Enclosure










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

 5420
 POOJ1/151
 28 Dec 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 COMIYLENTS AND QNMENDATIONS IN CASE OF
End:     (1) BCNR File #07547-06
1. I have reviewed enclosure (1) and recommend denial of applicant’s request. I offer the following comments in support of this recommendation.

2. Facts :
          a.       Applicant is the former spouse office (deceased). Her punition asics t~t’~R to change descent’s Naval records to reflect a former spouse SBP election.
b.       Decedent’s Naval records reflect that he transferred to the Fleet Reserve on 1 Jul 65, elected spouse SBP coverage on 9 Sep 73,1 and transferred to the retired list on 1 Apr 1975. . Decedent’s Naval records presently reflect no survivor benefit plan (SBP) beneficiary.
c.       Applicant and decedent were married on 30 Dec 1970 and divorced 11 Oct 2000. Divorce decree found in enclosure (1) states, “Defendant [decedent] shall perform any and all actions to allow Plaintiff [applicant] to retain her marital share of Defendant’s Navy retirement benefits, by direct assignment to Plaintiff from the retired pay administrator”. It does not provide particulars as to applicant’s marital share and it does not address whether survivor benefits are part of the “marital share”.
d.       Decedent’s service record reveals current SBP election is no beneficiary as of date of divorce, 11 Oct 2000. 1 A member who retired before September 21, 1972 had until March 20, 1974 to elect to participate in the Survivor Benefit Plan (SBP). VOL 7B DODFMR 430101.













Subj:    REQUEST FOR COMMENTS AND RECOMt4ENDATIONS IN CASE OF


3.       Issue: Whether law or equity dictates correction of decedent’s records to reflect election of former spouse SBP coverage?

4.       Short Answer: No, law does not dictate correction. Any correction made in the case should be based on equity.

5.       Discussion:

a.       Law and policy provide that upon retirement a member with spouse or spouse and child coverage may, before September 24, 1984, or within 1 year of date of the decree of divorce, dissolution, or annulment, whichever is later, change that election to provide an annuity to a former spouse or to a former spouse and child.2 Title 10 U.S.C. 1450(f) (3) (A), provides that if member or retired member who is required by court order to make a former spouse SBP election fails or refuses to do so, such election shall have been “deemed” to have been made if the Secretary receives a request from the former spouse within one year of the date of the court order or filing involved.

b.       There is no record of a court order directing decedent to provide former spouse SBP coverage on behalf of applicant. Moreover, there is no evidence that decedent voluntarily requested former spouse SBP coverage within one year of the date of divorce.

6.       Conclusion: Law does not require or support correction.

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

Assistant Legal Counsel



Similar Decisions

  • NAVY | BCNR | CY2006 | 00018-06

    Original file (00018-06.rtf) Auto-classification: Denied

    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. This responds to your request (enclosure (1)) for comments and recommendation on subject Board for Correction of Naval Records (BCNR) petition. Applicant indicates in enclosure (I) that decedent and she married 17 October 1955, decedent retired from Navy on 11 January 1974,...

  • NAVY | BCNR | CY2006 | 05994-06

    Original file (05994-06.rtf) Auto-classification: Approved

    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 that after his divorce fromin June 2005, Subject submitted a written request changing his Survivor Benefit Plan (SBP) beneficiary election from “spouse” to “former spouse.”2. The Board also considered an advisory opinion prepared by the Bureau of Naval Personnel Office of...

  • NAVY | BCNR | CY2006 | 05623-06

    Original file (05623-06.rtf) Auto-classification: Denied

    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. This responds to your request (enclosure (1)) for comments and recommendation on subject Board for Correction of Naval Records (BCNR) petition. Applicant has failed to furnish the Board with evidence which supports her petition.

  • ARMY | DRB | CY2005 | 20050011151

    Original file (20050011151.doc) Auto-classification: Approved

    The applicant requests, in effect, that the records of her former spouse, a former service member (FSM), be corrected to show she made a request for a deemed election of the Survivor Benefit Plan (SBP). It was brought to her attention in March 2005 that the FSM's Guardian ad Litem (the FSM's sister) changed the SBP entitlement to child only coverage. The FSM and the applicant divorced on 25 September 2001.

  • ARMY | BCMR | CY2013 | 20130022154

    Original file (20130022154.txt) Auto-classification: Denied

    The applicant, the former spouse of a retired, former service member (FSM), requests she be designated as the beneficiary of his Survivor Benefit Plan (SBP). Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election. It is unclear why his SBP coverage changed in May 1993 when his child...

  • ARMY | BCMR | CY2004 | 20040007193C070208

    Original file (20040007193C070208.doc) Auto-classification: Denied

    On 16 September 2003, the applicant's former spouse made a request for a deemed SBP election. Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the member was participating in the SBP or was still on active duty and had not yet made an SBP election. The 20 September 2002 letter from the applicant's attorney requested that paragraph 10b be worded, "Survivor Benefit Plan (SBP) coverage – Defendant...

  • ARMY | BCMR | CY2006 | 20060015384

    Original file (20060015384.txt) Auto-classification: Denied

    The applicant requests, in effect, that the records of her former spouse, a service member (SM), be corrected to show he changed his Survivor Benefit Plan (SBP) coverage to former spouse coverage. This letter stated that the SM’s case was referred to that office by USAFAC and that the Department of the Army SBP Board met on 2 May 1975 and granted authority for the SM to make [or decline] an election under the plan. Public Law 99-661, dated 14 November 1986, permitted divorce courts to...

  • ARMY | BCMR | CY2011 | 20110001099

    Original file (20110001099.txt) Auto-classification: Denied

    The applicant requests, in effect, correction of the Survivor Benefit Plan (SBP) election of her ex-spouse, a former service member (FSM), to show he changed his election to former spouse coverage. On 21 August 2007, the applicant divorced the FSM. Regrettably, there is insufficient evidence that would warrant granting the applicant’s request at this time.

  • AF | BCMR | CY2013 | BC 2013 03731

    Original file (BC 2013 03731.txt) Auto-classification: Approved

    The decedent elected spouse and child SBP coverage based on a reduced level of retired pay prior to his 1 Jul 95 retirement. There is no evidence either party submitted a valid election to change spouse to former spouse coverage within the first year following their divorce as the law requires. The complete DPFFF evaluation is at Exhibit F. APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The applicant acknowledges the change to the advisory opinion to recommend the decedent’s record...

  • AF | BCMR | CY2008 | BC-2003-03852A

    Original file (BC-2003-03852A.doc) Auto-classification: Denied

    There was no evidence in the servicemember’s records to indicate that either the servicemember or the applicant submitted an election to change the SBP coverage from spouse to former spouse. Counsel's complete response is at Exhibit L. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: DFAS-CL/DGM states the applicant relies on the Holt and King cases to support her request for award of an SBP annuity. The King case is also of little impact...