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NAVY | BCNR | CY2010 | 11855-10
Original file (11855-10.pdf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

BAN

Docket No. 11855-10
31 March 2011

From: Chairman, Board for Correction of Naval Records

To: Secretary of the Navy

Subj: REVIEW OF NAVAL RECORD

Ref: (a) Title 10 U.S.C. 1552
Enel: (1) DD Form 149 w/attachments

(2) Survivor Benefit Plan Program Manager Casualty Assistance
(N135C) memo of 14 Jan 11

(3) Statement ee the Defense
Finance Accounting Center on 16 Sept 2009

(4) Notarized DD Form 2656-2 Survivor Benefit Plan Termination
Request of 15 Sept 10

(5) Defense Finance and Accounting Service Retired and Annuity
Pay ltr of 31 Dec 09

(6) Defense Finance and Accounting Service Retired and Annuity
Pay ltr of 6 Oct 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 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.

2. The Board, consisting of Messrs. Pfeiffer, Zsalman, and Exnicios,
reviewed Petitioner’s allegations of error and injustice on 14
February 2011 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.

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.
Docket No. 11855-10

b. Petitioner transferred to the Fleet Reserve on 31 August
2007. At the time of his retirement, he was married and elected
“spouse and child” Survivor Benefit Plan (SBP) coverage at the maximum

amount .

e. Under the regulations governing the SBP program, an election
to enroll is permanent and irrevocable with one exception. A
participant may voluntarily elect to discontinue participation in the
SBP during the 25th through the 36th month after commencement of
payment of retired pay. Spouse concurrence is required, no costs are
refunded, and no future enrollment is allowed. To discontinue
participation in the plan, a participant must complete a DD Form 2656-
2. The form must be received by the Defense Finance and Accounting
Service during the 25th through the 36th month after commencement of

payment of retired pay.

d. Petitioner alleges that he requested to have his SBP
terminated with spousal concurrence within the 25°" and 36‘? month
period as required by law. He stated that he sent the request to the
Defense Finance Accounting Service (DFAS) via a hand written note on

16 September 2009, enclosure (3).

e. DFAS replied to Petitioner’s request on 31 December 2009,
stating that his application to terminate from SBP must be made on the

DD Form 2656-2, SBP termination form, in order for his request to
terminate to be accepted, enclosure (4).

f. Petitioner sent in the DD Form 2656-2, termination form on 15
September 2010, with spousal concurrence, enclosure (5).

g. DFAS responded on 6 October 2010, stating that Petitioner
passed the deadline and was no longer eligible to terminate him from

SBP coverage, enclosure (6).

h. By enclosure (2), the SBP Program Manager recommended that no

relief be granted, stating "QM cid not request
termination within the time period established by law.” Therefore, he

is not entitled to terminate from the program.

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 requested to terminate from
the SBP program within the 25" and 36" month time frame. Although the
request was not submitted properly, the Board believed that he and his
spouse’s intent was to terminate from the program during the required
time frame. The Board also noted that Petitioner was only 15 days
late in submitting the proper DD Form 2656-2 to terminate SBP coverage
Docket No. 11855-10

with spousal concurrence and that the amount of time that passed was
relatively short, and the burden on the agency of granting the request
is small compared to the financial burden of Petitioner. 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 terminate SBP
coverage for “spouse and child”, on 1 August 2010, within the 25™ and
36™" month, with spousal concurrence.

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

a 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.
ptlnd eC
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 PPEIRRE

Executive Di t

Reviewed and approved: 4/9/
(f

 

ROBERT L. WOODS

Assistant Genera! Counsel
(Manpower anc Reserve Affairs)
4000 Navy Pentagon, Rr 40548
Washington, DC 20350-1000

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