DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

BAN
Doc No. 03362-10
12 October 2010

From: Chairman, Board for Correction of Naval Records
TO! Secretary of the Navy

Ref: (a) Title 10 U.8.€. 1552

 

 

Encl: (1) DD Form 149 w/attachments
(2) Headquarters United States Marine Corps (HQMC) memo
1760 MMSR-6K of 21 Jun 10

GHB BNR dtd 9 Jul 10

(4) Affidavit of QM cca 27 var 10

1. 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 a timely written
request for conversion from spouse to former spouse coverage

under the Survivor Benefit Plan (SBP) electing eee

as the sole beneficiary.

2. The Board, consisting of Messrs. Pfeiffer, Zsalman, and
George, reviewed Petitioner's allegations of error and injustice
on 31 August 2010 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 provided by
Headquarters United States Marine Corps, attached as enclosure
(2) that recommended no relief be granted.

3. The Board, having reviewed all the facts of record
pertaining to Petitioner’s allegations of error and injustice,
finds as follows:

a. Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and
regulations within the Department of the Navy.
Doc No. 03362-10

b. Petitioner married F 24 May 1980.

On 2 September 2003, while serving on active duty, Petitioner
daverced a? Under the terms of the divorce, Petitioner
was to “maintain the maximum amount of Survivors Benefits for
the benefit of the [former spouse : . However,
Petitioner failed to notify the Defense Finance Accounting
Service (DFAS) within one year of his divorce of his election
for “former spouse” SBP coverage, and his former spouse,

GP «2:16 to make a timely deemed election.

ec. On 5 August 2006, while still on active duty,

d. In May 2008, Petitioner retired from naval service. In
conjunction with his retirement, he submitted a DD Form 2626
(Data for Payment of Retired Personnel) seeking to elect
“spouse” SBP coverage at the reduced amount of $500.00.

However, because of a defect in the form,” he was automatically-
enrolled at the full base amount. Because he was married, he
was enrolled in the “spouse” category of coverage. Petitioner
has paid costs or premiums under the spouse category since his
retirement. See enclosure (1).

e. In March 2010, Petitioner applied to the Board. to
correct his record to show that he elected “former spouse”
coverage within one year of his divorce. Petitioner states that
the failure to elect “former spouse” coverage was made because

 

1 The laws and regulations implementing the SBP specifically permit a

service member or retiree to maintain a survivorship annuity benefit
for a former spouse after divorce. The “former spouse” benefit may be
maintained in one of two ways: either (a) the retiree voluntarily
makes an appropriate “former spouse” election within one year of the
date of divorce (See 10 U.S.C. § 1448 (b) (3) (A) (i)-(iii)), or (b) in
cases where the retiree will not or does not make the appropriate
election, the former spouse makes an election through a process known
as a “deemed election.” The statute provides that the retiree shall
be deemed to have made a “former spouse” election if the Secretary
concerned receives the following: (1) A written request, from the
former spouse requesting that such an election be deemed to have been
made, and (ii) a copy of court order or other official statement,
regular on its face, which requires such election. See 10 U.S.C. §
1450 (f£) (3) (A). Additionally, the deemed election request must be
received within one year of the date of divorce. 10 U.S.C. § 1450

(2) (3) (G}s

2 Petitioner failed to check an election under block 26 of the DD Form
2656.
Doc No. 03362-10

he simply did not understand the correct method of electing
“former spouse” coverage. Petitioner’s current spouse,
GP oncurs with Petitioner’s request to change his SBP
election from spouse to former spouse. See enclosures (3) and
(4).

f. By enclosure (2), HQMC recommended that no relief be
granted. HQMC bases its recommendation on two grounds. First,

the former spouse GHP: 2iled bo notify the Defense
Finance and Accounting Service of her intent to “deem” an

election within one year of the divorce as required under 10
U.S.C. § 1450 (£)(3) (A). Second, at the time of his retirement,
Petitioner demonstrated his intent to provide coverage for his
spouse, mp -« the reduced amount of $500.00”.

CONCLUSION:

Upon review and consideration of all the evidence in the record,
the Board concludes that Petitioner’s request warrants favorable
action. The Board understood and carefully considered the
comments made in enclosure (2). However, the Board found that
the following factors militated in favor of relief.

Petitioner’s divorce order stipulated that he would provide
“former spouse” SBP protection; he has paid premiums each month
Since his retirement at the full base amount; now that he knows
the correct procedures to elect former spouse SBP coverage he
has reconfirmed his desire/intent to provide “former spouse” SBP
coverage; and although Petitioner has remarried, his current
spouse concurs with his decision to honor his state divorce
decree by maintain SBP coverage for his former spouse; and
finally, because the amount of time that elapsed between the
retirement and the application is relatively short, the burden
on the agency of granting the request is small compared to the
potential burden of resolving a future claim by the former
spouse after the retiree’s eventual death. For these reasons,
the Board finds that, as an exception to policy, Petitioner’s
request should be granted favorable action.

RECOMMENDATION :

 

That Petitioner’s naval record be corrected, where appropriate,
to show that:

a. Petitioner executed a written request to elect “former

spouse” SBP coverage, at the full base amount naming aa
up :: the sole beneficiary. The request was received by
Doc No. 03362-10

cognizant authority on 3 September 2003, the day following the
date of divorce.

b. The request was in compliance with a court order.

c. Upon his retirement on 1 May 2008, Petitioner was
enrolled in the Survivor Benefit Plan in the “former spouse”

category of coverage with QqPas the sole

beneficiary.

d. That a copy of the Report of Proceedings, be filed in
the Petitioner’s naval record.

4, Pursuant to Section 6(c) of the revised Procedures of the
Board for Correction of Naval Records (32 Code of Federal
Regulations, Section 723.6(c)) 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. 4SALMAN WILLIAM J. HES&Y III
Recorder Acting Recorder

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

i

EAN PF
Executive DYr ox