DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5109

 

BAN
Docket No. 01116-11
24 August 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
Encl: 1) DD Form 149 w/attachments

2) Headquarters United States Marine Corps (HOMC) memo
4760 MMSR-6K of 25 Apr 1i
3) DEERS Family Roster Date of Marriage btwn qu
and QUEEEMEP of 3 Apr 82
4) District Court of Douglas County, Nebraska, Decree of
Dissolution of 25 Oct 06
5) DD Form 2293, Application for Former Spouse Payments
from Retired Pay
Defense Finance Accounting Service ltr of 6 Feb 07
DD Form 2656-10, Survivor Benefit Plan Request for a
Defense Finance Accounting Service ltr of 18 Aug 09
Marriage Certificate btwn a
And QQ of 21 Apr 07
(10) Death Certificate for quae of
17 Sep 10

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1. The Petitioner in this case is qi: former |
spouse of qua. USMC (Ret .) (Deceased) .

2. 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 Subject submitted a

timely written request for conversion from spouse to former

spouse coverage under the Survivor Benefit Plan (SBP) electing
as the sole beneficiary.

3. The Board, consisting of Messrs. Pfeiffer, Zsalman, and
George, reviewed Petitioner’s allegations of error and injustice
on 8 August 2011 and, pursuant to its regulations, determined
that the corrective action indicated below should be taken on
the available evidence of record. Documentary material
Docket No. 01116-11

considered by the Board consisted of the enclosures, naval
records, and applicable statutes, regulations and policies.

4. 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.

>, QUEENIE (subject) married SUD
qa. =. 3 April 1982. Enclosure (3).

c. On 31 May 2006, Subject retired from the Marine Corps.
Fnelosure (2). At the time of hig retirement, Subject was auto-
enrolled at the full base amount in spousal Survivor Benefit
Plan (SBP) coverage due to Headquarters Marine Corps not
receiving a valid election.

d. On 20 October 2006, Subject and Petitioner were
divorced. Under the terms of their divorce decree, Subject
“shall elect SBP coverage for the Wife, and shall cause the same
to remain in place”. Enclosure (4).

e. Subject failed to notify the Defense Finance Accounting
Service (DFAS) within one year of their divorce, to change SBP
coverage from spouse to former spouse. However, Petitioner
states that she contacted DFAS in December 2006, after their
divorce, concerning her portion of Subject’s retired pay (38%)
and SBP election request to be changed from spouse to former
spouse. Enclosure (5). In February 2007, DFAS responded to
both of Petitioner’s request in that 1) Her request for a
portion of his retirement pay cannot be approved due to “the
entire amount of member’s retired/retainer pay is based on
disability, thus there are no funds available for payment under
the USFSPA”, and 2) That “if your divorce decree specifies that
you are to be designated as a former spouse peneficiary for the
Survivor Benefit Plan (SBP), you must make a deemed election for
SBP coverage within one year of the date of your divorce
directly to the Retired Pay office”. Enclosure (6). Petitioner
failed to do so.

f£., Petitioner married Gua =: 21 April

2007. Enclosure (7).
Docket No. 01116-11

g. In July 2009, Petitioner submitted DD Form 2656-10,
requesting to deem her election for former spouse SBP coverage.
Enclosure (8). In August 2009, DFAS denied her request because
the “statutory filing deadline has expired, [therefore], an
election of former spouse coverage cannot be deemed to have been
made and former spouse coverage will not be implemented”.
Enclosure (9).

h. Subject continued pay SBP premiums under the spouse
category until his death on 17 September 2010. When Subject
died, he was not married. (Enclosure 10).

4. In February 2011, Petitioner applied to BCNR to correct
her deceased former spouse's record to show that he elected
“former spouse” coverage within one year of his divorce. In
addition, Petitioner stated that the error of not electing
“former spouse” coverage was simply due toa misunderstanding of
retirement system and a belief that Subject had made the
election but that Subject’s record was never updated,

+. By enclosure (2), HOMC recommended that no relief be
granted, stating “based on not submitting a

“deemed election” within the one year from the date of divorce,
as indicated in the letter from DFAS dated 6 February 2007 and

her remarriage”.

CONCLUSION:

‘Upon review and consideration of all the evidence in the record,
the Board concludes that Petitioner’s request warrants favorable
action. The Board found that the following factors militated in
Favor of relief: Subject’s divorce decree stipulated that he
would provide “former spouse” SBP protection; he had paid
premiums each month since his retirement, even after the divorce
wntil his death; and finally, the amount of time that elapsed
between the divorce and Petitioner’s application is relatively
short. Furthermore, the Board also understood and carefully
considered the comments made in enclosure (2). The Board
recognized that Qa did not submit a deemed election
within one year from the date of divorce as required by
applicable law; and that she has since remarried and would not
be entitled to an SBP annuity, unless she divorces her current
spouse or through his death. Therefore, balancing the factors
that militate in favor of relief against those that militate
against, the Board finds that, as an exception to policy,
Petitioner’s request should be granted favorable action.
Docket No. 01116-11

RECOMMENDATION :

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

a. Subject executed a written request for conversion from
“spouse” to “former spouse” SBP coverage at the same level of

coverage as previously elected, naming
as the sole beneficiary. The request was received by cognizant

authority and became effective 21 October 2006, the day
following the date of divorce.

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

Note: Petitioner is currently married.

c. 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 793.6(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. :

AZ

ROBERT D. ZSALMAN WILLTAM J. HESS, III
Recorder Acting Recorder
5. The foregoing action of the Board is.submitted for your

review and action.

_

W. DEAN PFEYF
Executive or

Revie

LL (le 9 [itl

ROBERT L. WOODS
Assistant General Counsel
(Manpewer and Reserve Affairs) 4

4000 Navy Pentagon, Am 4D548
Washington, DC 20350-1000