CORRECTED COPY
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DBC 20370-5100
WOH
Docket: 3075-10
23 June 2011
This is in reference to your application for correction of
the naval record of .
eum. United States Marine Corps (ret) (deceased) 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 23 May 2011. Your allegations of error and
injustice were reviewed in accordance with the
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, the naval record
and applicable statutes, regulations and policies. In
addition, the Board considered the advisory opinion
furnished by the United States Marine Corps letter 1760
MMSR-6K of 23 March 2011, and comments provided by the
Defense Finance and Accounting Service (DFAS), copies of
which are attached and were previously furnished to you.
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 and DFAS’s comments. The records show
that QE wercied
GMs in 1982. In 1983,
transferred to the United States Marine Corps Fleet Reserve
(vetired) from active duty. At that time, he elected to
Docket: 3075-16
participate in the Survivor Benefit Plan (SBP) in the
“spouse” category of coverage. Tn 1995, after 13 years of
Ed
QM separated. After mid-1995, they lived separate and
apart without interruption. In April 2009, the parties
divorced. As part of the divorce, it was certified that no
reconciliation had taken place and that no reconciliation
was probable. A final decree of divorce was issued on 22
April 2009 which (a) decreed that the parties do not have
legal or equitable interests in any assets or debts and {b)
incorporated, by reference, a confidential addendum. The
final decree of divorce has been reviewed by the Board,
however, the confidential addendum has not been reviewed as
it was not provided by applicant to the Board.
The divorce was final on 22 April 2009. The final decree
of divorce did not address the Survivor Benefit Plan (SBP)
at all. Evidence shows that on 12 June 2009, you qu
es
a request to DFAS seeking to continue SBP coverage for
Gana in the “former spouse” category of
coverage. As part of your request, you submitted a
“general power of attorney” and a copy of the final decree
of divorce. DFAS, however, did not make the requested
change, SAAD passed away on 19
June 2009.
Attcr QD ccc), QS
GHD (che former spouse) applied to DFAS seeking an SBP
annuity. On 24 August 2009, GEE 3.250 for
SBP was denied because she was divorced fron @E
GHEE 2c be had not made a valid former spouse
election.
You have asked that this Board change the naval record to
show that a timely and effective election was made to
change SBP coverage from “spouse” to “former spouse.”
The laws and regulations implementing SBP permit a retiree
to maintain a survivorship annuity benefit for a former
spouse after divorce even when the divorce decree does not
address SBP. The retiree may maintain the “former spouse”
by voluntarily making a “former spouse” election within one
year of the date of divorce. However, the election must be
made by the retiree himself. (See 10 U.S.C. § 1448
(pb) (3) (A) (i) - (iii) “Any such election must be written (and)
Docket: 3075-10
signed by the person making the election”). A narrow
exception exists for retirees who are “determined to be
mentally incompetent by medical officers of the armed force
concerned or of the Department of Veterans Affairs, or by a
court of competent jurisdiction.” See 10 usc 1449.
There is no evidence that
voluntarily made a “former spouse” election by submitting a
written request, signed by him, to DFAS. There is no
evidence that (EEG vas determined
to be mentally incompetent by medical officers of the armed
force concerned or of the Department of Veterans Affairs,
or by a court of competent jurisdiction.
Review of the general power of attorney you submitted to
DFAS reveals that it was executed by Qa
quay on 16 March 2009 and, by its terms, provided
you quay certain limited powers to act on
GED ~eb21£. Nothing in the
general power of attorney evidences that’ Qa
GEE was wentally incompetent. Nor does it show
that he was completely incapable of managing his own
affairs. By the terms of the document,
withheld some power for himself and
specifically limited the power he granted to you. In
particular, he prohibited you Gu from cancelling
or changing “the beneficiary of any policy of life
insurance.” The Board agreed with the advisory opinion and
the comments provided by DFAS that, under these
circumstances, DFAS’s decision to deny an SBP annuity to
the former spouse was proper and that no relief is
warranted. The divorce decree did not contemplate the
continuation of SBP. Quan did not
make a “former spouse” election after his divorce. He was
not determined to be mentally incompetent. He retained the
authority to manage some of his own affairs. The general
power of attorney could not be used to make a former spouse
election.
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
ee
Docket: 3075-10
submission of new and material evidence or other matter not
previously considered by the Board. In this regard, it is
also 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,
oe
Executive Lor
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