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Decision Text

NAVY | BCNR | CY2007 | 05199-07
Original file (05199-07.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
                                             WASHINGTON DC 2O37O~51OO
                                                      WJH:djc
                                                                                 Docket No. 5199-07
                                                                                 20 December 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
         
         End:     (1)      DD Form 149 w/attachments
                  (2)      NPC Memo dtd 2 Aug 07
                  (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 that after his divorce from in March 2001, Subject submitted a written request changing his Survivor Benefit Plan (SBP) beneficiary election from “spouse” to “former spouse.”

2.       The Board, consisting of Mr. Rothlein, Ms. Gilbert, and Ms. LeBlanc, reviewed Petitioner’s allegations of error and injustice on 10 October 2007 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. The Board also considered an advisory opinion prepared by the Bureau of Naval Personnel, Casualty Assistance Division, a copy of which 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        and      were
                            married on 10 September 1966.






         Docket No. 5199-07


         b.                transferred to the Temporary
 Disability Retired List, on 14 December 1972. At that time, he enrolled in the Survivor Benefit Plan (SBP) in the “spouse and child” category of coverage. Premiums were deducted from his retired pay in accordance with his election.
         c                 and      were divorced on 9 July 1974. Under the terms of the divorce decree, there was no requirement for to continue coverage for (now his former spouse) in the Survivor Benefit Plan. There is no evidence that the Defense Finance and Accounting Service (DFAS) was aware of the divorce. Premiums continued to be deducted from his retired pay in accordance with his initial election.

d were married to each other for a second time on 23 December 1975.
          e.                transferred to the Permanent
 Disability Retired List on 1 April 1976.
f        and were divorced on 29 March 2001. Under the terms of the divorce decree, was to “receive any and all of Defendant’s military and Veteran’s survivor’s benefits.”
g.       There is no record of ever having requested a change in SBP beneficiary category from “spouse” to “former spouse” within one year of the date of divorce (as required under the regulations governing SBP).
h.       There is no record of ever having requested to be “deemed” as the former spouse beneficiary category within one year of the date of divorce. Premiums continued to be deducted from retired pay in accordance with his initial election.
and were married on 14 February 2007.
j. died on 2 April 2007. At that time, he was still enrolled in the “spouse” category of coverage. He had paid premiums “spouse” coverage from the time of his initial enrollment in 1972 until his death.
k Because and were married for less than one year before his death,



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 Docket No. 5199-07

A. ineligible to receive SBP benefits notwithstanding that she was legal spouse at the time of his death and that he was enrolled in the “spouse” category of coverage.
1.       On 6 June 2007, filed enclosure (1) requesting that the naval record be corrected to show that after her divorce from in 2001, he submitted a written request changing his Survivor Benefit Plan (SBP) beneficiary election from “spouse” to “former spouse.”
m.       Per enclosure (2) , the Bureau of Naval Personnel, provided an advisory opinion concluding that the evidence is insufficient to support the requested record change. The advisory opinion points out that that there is no evidence that requested such a change nor is there evidence that made a “deemed election” within one year from the date of the court order. Deemed elections are applicable in cases, such as this, where a member is required by the terms of a court order to provide former spouse SBP coverage, but then fails or refuses to make such an election. In such circumstances, the member shall be deemed to have made such an election if the Secretary of the Military Department concerned receives a written request from the former spouse to be “deemed” as the beneficiary. The advisory opinion argues essentially that may have been obligated to change the election from “spouse” to “former spouse, but, because he apparently failed or refused to do so, then had an opportunity and obligation to request that she be “deemed” the beneficiary in order for her to be covered by the SBP.

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. The Board relied heavily on the terms of the divorce decree (requiring former spouse coverage) and the evidence that continued to pay SPB premiums for spouse coverage from the time of his retirement until the time of his death. The Board noted that he even paid premiums during the period between 30 March 2001 and 13 February 2007 when he was not married. The Board concluded that both and may have been under the mistaken impression that the terms of the divorce decree had been complied with because premiums were being deducted. The Board also noted that was not eligible to receive benefits anyway. Accordingly, they



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 Docket No. 5199-07


concluded that the record should be changed to show that made a timely request in accordance with the terms of the divorce decree to change the coverage from “spouse” to “former spouse.”
RECOMMENDATION:
That Subject’s naval record be corrected, where appropriate, to show that:
a.       On 30 March 2001, the day after his divorce, he submitted a written request to change the category of Survivor Benefit Plan coverage from “spouse” to “former spouse” naming as the former spouse beneficiary.
b.       Subject died on 2 April 2007.
c.       A copy of this Report of Proceedings will be filed in Petitioner’s naval record.
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, I II
Recorder         Acting Recorder

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





Reviewed and approved:


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