Search Decisions

Decision Text

NAVY | BCNR | CY2007 | 04321-07
Original file (04321-07.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

                                                       WJH:djc
                                                                                  Docket No. 4321-07
                                                                                 23 October 2007

From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
Subj:    REVIEW OF NAVAL RECORD ICO
                  
         Ref:     (a) Title 10 U.S.C. 1552
En cl :    (1) DD Form 149 w/attachments
 (2)      NPC memorandum dtd 25 Jul 07
(3)      DD Form 2656-8 SBP - Automatic Coverage Fact Sheet
1.       Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected to show that he declined participation in the Survivor Benefit Plan (SBP) when he transferred to the Fleet Reserve on 31 August 2006.
2.       The Board, consisting of Ms. Ballinger, Mr. Pfeiffer, and Mr. Leeman, reviewed Petitioner’s allegations of error and injustice on 11 September 2007. A majority of the Board, by a 2 to 1 vote, determined that the corrective action indicated below should be taken. One member, voting in dissent, determined that no corrective action is warranted. Documentary material considered by the Board consisted of the enclosures, naval records, and applicable statutes, regulations and policies. The Board also considered an advisory opinion prepared by the Bureau of Naval Personnel Casualty Assistance Office that recommended no corrective action be taken. A copy of that recommendation is attached as enclosure (2)
3.       The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows:
a.       USN (Ret) and were married on 5 August 1999.

         b.       In July 2006, in anticipation of his upcoming transfer to the Fleet Reserve, and completed a DD Form 2656 (SBP Election certificate) with the apparent intent of declining participation in SBP. Review of that form, however, shows that item 26(g) was not completed correctly because it did not address whether had eligible dependents at the time of retirement.
c. ___ transferred to the Fleet Reserve on 31 August 2006.
c.       Because of the defect in the SBP election certificate, the Defense Finance and Accounting Service-Cleveland Center (DFAS-CL) pursuant to federal law and regulations, automatically enrolled
 in the Survivor Benefit Plan (SBP) effective at his retirement. Premiums for SBP coverage were deducted from his retired pay.
d After being automatically enrolled was sent a SBP “Automatic Coverage Fact Sheet” intended to allow him an immediate opportunity to adjust the enrollment directly with the DFAS.
e.       states in his application that he contacted DFAS and was advised to submit an application to the Board for Correction of Naval Records.
f.       On 8 May 2007, 8 months after his automatic enrollment,
 submitted DD Form 149 (Application for
Correction of Military Record) under the Provisions of Title 10,
U.S. Code, Section 1552.
g.       On 25 July 2007, the Bureau of Naval Personnel Casualty Assistance Office recommended no corrective action be taken for the following reasons. First, they dispute claim that he contacted DFAS after being automatically enrolled stating “DFAS-CL indicated that they had not received a valid SBP election, written correspondence or any telephonic request to update or correct his original SBP election.” Next, under Public Law 105-85, still has an opportunity to disenroll from the SBP (with his spouse’s concurrence) during the one-year period beginning on the second anniversary of the date of commencement of retired pay. Finally, due to his automatic enrollment and subsequent inaction, he has received the benefits of SBP protection from August 2006 to present.


MAJORITY CONCLUSION:
Upon review and consideration of all the evidence of record, a majority of the Board, consisting of Ms. Ballinger and Mr. Leeman, concludes that Petitioner’s request warrants favorable action. The majority finds that and his spouse did show a desire to decline SBP prior to retirement as evidenced by the DD Form 2656 filed in July 2006.
MAJORITY RECOMMENDATION:
That Petitioner’s naval record be corrected, where appropriate, to show that:
a.       Prior to his transfer to the Fleet Reserve he elected, with spouse concurrence, not to participate in the SBP.
b.       A copy of this Report of Proceedings will be filed in the Petitioner’s naval record.
MINORITY CONCLUSION:
A minority of the Board (Mr. Pfeiffer) concludes that no relief should be granted. He essentially finds that after the Petitioner was automatically enrolled and covered by SBP, he was dilatory in seeking any change to his SBP coverage status. Moreover, Petitioner benefited from that dilatoriness because he has been afforded the protections of SBP coverage from the time of his retirement to the present. In light of the fact that under Public Law 105-85, Petitioner still has a future opportunity to disenroll from the SBP (with his spouse’s concurrence), Mr. Pfeiffer finds no error or injustice in the records which show that Petitioner is enrolled in SBP. He further finds that because of Petitioner’s dilatoriness and missed opportunities, Petitioner should be estopped from making any changes to his coverage (and returning previously paid premiums) until the statutorily authorized period.
In view of the foregoing, the minority finds no injustice warranting corrective action.
MINORITY RECOMMENDATION:
That Petitioner’s request be denied.

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. ZSALMAN        WILLIAM J. HESS, III
Recorder        Acting Recorder





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


W.       DEAN PFEIFFER
Executive Di







I specifically concur with the findings and conclusions of the Majority of the Board and the Majority Recommendation for relief
 is       roved.
          Robert T. Call
          Assistant General Counsel
          Manpower and Reserve Affairs)    OR






I specifically concur with the f’ dings, conclusions, and recommendation of the Minority the Board that no relief is warranted and hereby a pprove o f the application.

Similar Decisions

  • NAVY | BCNR | CY2013 | NR3406 13

    Original file (NR3406 13.pdf) Auto-classification: Approved

    Pursuant to the provisions of reference (a} Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected to show the Petitioner declined enrollment in the Survivor Benefit Plan (SBP). NR3406-13 d. Petitioner submitted a DD Form 2656 (SBP election) to DFAS dated 9 November 2012 signed by the Petitioner and his spouse declining SBP Spouse coverage. e. On 21 March 2013, the Petitioner submitted a DD...

  • NAVY | BCNR | CY2012 | 08345 12

    Original file (08345 12.pdf) Auto-classification: Approved

    DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 §, COURTHOUSE ROAD, SUITE 7 004 ARLINGTON, VA 22204-2490 pyc Docket No. 8345-12 27 Aug 13 From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy x Ref: {a) Title 10 U.9.c. The Board, consisting of Mr. Pfeiffer, Mr. Zsaiman, and Mr. George, reviewed Petitioner’s allegations of error and injustice on 26 Bugust 2013 and, pursuant to its regulations, determined that the corrective action indicated below...

  • NAVY | BCNR | CY2006 | 06211-06

    Original file (06211-06.rtf) Auto-classification: Denied

    6211-06 31 October 2006This 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 31 October 2006. 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,W. spouse has been...

  • NAVY | BCNR | CY2014 | NR7204 14

    Original file (NR7204 14.pdf) Auto-classification: Approved

    Furthermore, the Petitioner's. CONCLUSION: Upon review and consideration of all the evidence of record, and notwithstanding the opinion expressed in enclosure (2), the Board finds the existence of an injustice warranting corrective action. Furthermore, the DD Form 2656 was completed prior to Petitioner's retirement.

  • NAVY | BCNR | CY2010 | 11855-10

    Original file (11855-10.pdf) Auto-classification: Approved

    Pursuant to the provisions of reference (a) Petitioner filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected to show Petitioner submitted a timely written request to terminate Survivor Benefit Plan (SBP) coverage for spouse and child during the one-year period beginning on the second anniversary of the date of commencement of receiving retired pay. The Board, consisting of Messrs. Pfeiffer, Zsalman, and Exnicios, reviewed Petitioner’s...

  • NAVY | BCNR | CY2009 | 11316-09

    Original file (11316-09.pdf) Auto-classification: Approved

    The Board, consisting of Messrs. Pfeiffer, Zsalman, and Exnicios, reviewed Petitioner’s allegations of error and injustice on 8 March 2010 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. In July 2009, after 11 months of paying SBP premiums, Petitioner submitted another DD Form 2656 to DFAS seeking to decline coverage for SBP, with spousal concurrence, (enclosure (4)). Under Title 10 U.S. Code...

  • NAVY | BCNR | CY2001 | 03954-01

    Original file (03954-01.pdf) 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. 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. (SBP) Termination Request.

  • NAVY | BCNR | CY2014 | NR7914 14

    Original file (NR7914 14.pdf) Auto-classification: Approved

    DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 DIC Docket No. The Board, consisting of mn Ey ad reviewed Petitioner's allegations of error and injustice on 23 March 2015 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...

  • ARMY | BCMR | CY2010 | 20100027069

    Original file (20100027069.txt) Auto-classification: Approved

    The applicant provides: * a notarized statement from his spouse indicating that she previously declined SBP and she was still declining SBP * a copy of his DFAS-CL 7220/148 (Retiree Account Statement), dated 11 August 2010 * a copy of a DD Form 2656 (Data for Payment of Retired Pay), dated 18 May 2005, showing that he declined SBP with spouse's concurrence CONSIDERATION OF EVIDENCE: 1. A review of the DFAS-CL 7220/148 provided by the applicant shows he waived his Retired Pay because his DVA...

  • NAVY | BCNR | CY2013 | NR3501-13

    Original file (NR3501-13.pdf) Auto-classification: Approved

    Pursuant to the provisions of reference (a) Petitioner filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected to show that prior to Petitioner’s retirement on 30 August 2012, he declined Survivor Benefit Plan (SBP) coverage with spousal concurrence. Docket No.NRO3501-13 b. Petitioner and his spouse married on on prior to the of his retirement, he submitted a DD Form 2656-2 (SBP Termination Request) seeking to decline SBP coverage. c,...