DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

WJH
Docket: 12037-09
19 Oct 2010

 
    

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. L552
Encl: (1) DD Form 149 w/attachments

(2) NPC letter 5420 PERS 00J1/142 of 9 Sep 2010

(3) BCNR Administrative Record
1. Pursuant to the provisions of reference (a) Subject’s widow,

| hereinafter referred to as Petitioner,
filed enclosure (1) with this Board requesting, in effect, that
the applicable naval record be corrected to show that she
submitted a timely application for annuity benefits under the
Survivor Benefit Plan (SBP) after her husband’s death in 2001.

2. The Board, consisting of Messrs. Pfeiffer, Zsalman, and
George reviewed Petitioner’s allegations of error and injustice
on 4 October 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.

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.

were married in 1975.
Docket: 12037-09

ec. Subject iienteeet retired from active duty in

1994, Prior to his retirement, he completed a NAVCOMPT Form
2272 (Navy Retired/Retainer Pay Data Form) memorializing his SBP
election.* He elected to decline participation in the SBP.
Petitioner’s name was also entered on the NAVCOMPT Form 2272.
Based on the NAVCOMPT Form 2272 as completed and submitted’,
Subject was not enrolled in the SBP and no costs (or “premiums” )
were deducted from his retired pay.

   

2001. He
at the

died on 15 Februar

 
  

d. Subject
was still married to Petitioner
time of his death.

e. In December 2007, Petitioner QT nace

application to this Board seeking a change to her deceased
husband's naval record that would entitle her to SBP. She
averred in her application that she never signed a form
declining participation in the SBP.

f. The assertion made by Petitioner ee ear ee

in her application was reviewed by the Naval Personnel Command
(NPC) and the Defense Finance and Accounting Service (DFAS).
After inspecting the NAVCOMPT Form 2272, they noticed that
Petitioner’s signature was dated before Subject’s signature and
Petitioner’s signature was entered on 2 Nov 1993 but witnessed
on 3 November 1993. In order for an SBP declination to be
valid, the member’s spouse must concur in the declination of SBP
after the member declines the SBP. Since it was apparent from
the form that Petitioner signed the form
before the Subject Signed the form declining
SBP, DFAS determined that the SBP determination was invalid.
DFAS then automatically enrolled Subject ae-—
the SBP in the spouse category of coverage retroactively to the
date of his retirement. That action, in turn, triggered the

   
 
  
 

 

' The Uniformed Services Survivor Benefit Plan (SBP) was created by Congress

in 1972 to allow a means by which survivors can continue to receive a portion
of military retired pay after the death of the retiree. Without it, retired
pay stops completely on the date of death of the retiree and the survivors
can be left with no means of support.

If, in conjunction with retirement from active service, military members
elect to participate, they will receive a reduction in their retired pay for
their lifetime, so as to continue (up to) 55 percent of their retired pay to
their survivors following their death. The dollar amount of retired pay that
may be selected to base participation on may be any amount between $300 per
month and full retired pay. Premiums continue as long as there is an eligible

beneficiary that survives the retiree.

2 Petitioner would later claim that she did not sign the NAVCOMPT Form 2272
and the form would later be found to be invalid by the Defense Finance and
Accounting Service because of the manner in which the form was executed.

2
Docket: 12037-09

ayment of SBP annuity benefits to Petitioner

retroactive to the date of Subject’s death (15 February
2001). The costs (premiums)? that would have been deducted from
Subject’s retired pay were deducted from the retroactive SBP

annuity award before being paid to Petitioner Qy

g. Thereafter, DFAS audited the account and discovered
that they had inadvertently overlooked that the first claim made
by Petitioner for the SBP annuity
benefits was not received by the United States until more than
six years after her husband's death.

h. Under the Barring Act (31 U.S.C. § 3702) a claim
against the United States is generally barred unless such claim
is received within six years after the date such claim first
accrued. *

i. After noting that the Barring Act should have applied to
bar payment of the SBP annuity to Petitioner ee
, DFAS suspended further annuity payments and referred the
matter back to this Board for a determination as to whether any
change should be mad o the record to show that Petitioner
submitted a timely application for
annuity benefits under the Survivor Benefit Plan (SBP) after her

husband’s death in 2001.

j. In correspondence attached as enclosure (2), the Staff
Judge Advocate for NPC has commented to the effect that the
request warrants favorable action.

CONCLUSION

Upon review and consideration of all the evidence of record, and
especially in light of the contents of enclosure (2), the Board
finds the existence of an injustice warranting the following
corrective action.

RECOMMENDATION :

 

> The SBP is a voluntary contributory program which requires
participants to pay a monthly premium in order to provide a monthly
annuity to an eligible beneficiary after the retiree dies.

* The primary purpose of the Barring Act is to limit the burden on the
government of adjudication and computing entitlements after a substantial
period of time has elapsed. The United States is not expected to be able to
adjudicate and compute entitlements in perpetuity.

3
Docket: 12037-09

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

a. Petitioner , Made a timely written
request for Survivor Benefit Plan annuity benefits. The request
was received by the Defense Finance and Accounting Service on 16

February 2001, the day after the death of her husband Gy

Note: Petitioner Resa has already received

some retroactive SBP annuity benefits. She is also receiving
Dependents Indemnity Compensation from the United States
Department of Veterans Affairs.

b. That a copy of this Report of Proceedings be filed in
Subject’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.

[Ubbiaw 4

 

ROBERT D. ZSALMAN WILLIAM J. HESS, III
Recorder Acting Recorder
5. Pursuant to the delegation of authority set out in Section

6(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulations, Section 723.6(e))
and having assured compliance with its provisions, it is hereby
announced that the foregoing corrective action, taken under the
authority of reference (a), has been approved by the Board on
behalf of the Secretary of the Navy.

Lo O8t 2Ol0

pd, AQ

Foz. DEAN PFEIFFER
Executive Director