DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

701 S. COURTHOUSE ROAL, Sulre 100%
ARLINGTON, VA 22204-2480

 

DIC
Docket No. NR3100-13
14 Aug 13

 

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

Ref: (a) Title 10 U.S.C. 1552

Encl: (1) DD Form 149 w/attachments
(2) NPC Memo dtd 13 Jun 13
(3) Depn Appl/Rec of Emerg data dtd 27 dun 76
(4) Petitioner's E-mail dtd 14 Aug 13
(5) Depn Appl/Rec of Emerg Gata dtd 21 Sep 85
(6) NRPC Ltr Code 21 1821 XXX-¥X-7323/1315 dté 25 Aug 80
(7) NRPC Ltr 1820 25:ah:1da XX¥-XK-7323/1319 dtd 1 Apr 24
{g) DFAS HUNT system printout
(9) Consent Judgment of Divorce dtd 14 Jan 08
(10) DFAS Ltr dtd 8 Jan 13
(11) Subject’s naval record

1. Pursuant to the provisions of reference (a) Subject, hereinafter
referred to as 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).

2. The Board, consisting of Mr. Zsalman, Mr. Exnicios, and

Mr. George, reviewed Petitioner's allegations of error and injustice
on 13 August 2013 and, pursuant to its regulations, determined that
the corrective action indicated below should pe taken on the available
evidence of record. Documentary material considered by the Board
consisted of the enclosures, naval records, and applicabie 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:

Gee enclosure (3).

d, Petitioner and  332<-2: Pg See

enclosure {4}.

am”: enclosure (5).
Docket No. WR3100-13

ad. Petitioner received his Notification of Eligibility for
Retired Pay at age 60 and participation in the Reserve Component
survivor Benefit Plan letter dated 25 August 1980. Petitioner
declined Reserve Component Survivor Benefit Plan (SBP) coverage. See

enclosures (6) and (8).

e. Petitioner transferred to Retired Reserve status on 1 March
1994. See enclosure (7).
at
:
f. On 24 March 1996, Petitioner turned age 60 and begin to
receive retire pay. Furthermore, he enrolled in Spouse and Child
Survivor Benefit Plan (SBP) coverage. see enclosure (8).

g. Petitioner and ona esses Meee on ly
according to the final j ecree, petitioner was ordered by
the court to mal ‘n 100 percent survivor benefits payable to
plaintiff upon hy See enclosure (9).

h. Petitioner did not submit a request to change his SBP overage

from “spouse” to “former spouse". see enclosure (10). Furthermore,
SBP premiums (spouse and child coverage) continued to be paid.

4. Under 10 U.S.C. 1450(£f) (3), if a court order requires a
retired member to elect former spouse SBP coverage and the member
fails or refuses to make an election, a “deemed election” may be made
on behalf of the former spouse if the former spouse submits a proper
court order and written request to the Defense Finance and Accounting
Service (DFAS). .

j- ae“ not submit a “deemed election” request.
See enclosure (10).

k. On 1 July 2008, DFAS removed the child from SBP coverage due
to no longer being an age eligible beneficiary. See enclosure (190).

1. On 16 October 2012, DFAS received a copy of the divorce
decree, At this time Petitioner’s SBP coverage was adjusted to
reflect “no peneficiary” effective 14 January 2008 day of divorce.
Neither Petitioner nor de an election change or
deemed election within one year of their aivorce. See enclosure (10).

m. -Per enclosure (2), the Navy Personnel Command provided an
advisory opinion concluding that the evidence proffered by Petitioner |
is insufficient to support the requested record change. The advisory
opinion points out che following issues: « There is no evidence that
Petitioner ever elected former spouse coverage on pehalf _

even though he was required to do so by the terms of the

0G8 divorce court order.
Docket No. NR3100-13

The advisory opinion argues essentially that Petitioner was
obligated by the 2008 court order to change the election from “spouse”
to “former spouse,” but, because he apparently was unaware of the
requirement to notify the DFAS within one year after the date of the
divorce, he failed to do so. Additionally, the former spouse was
eligibie to make a deem election.

MAJORITY CONCLUSION:

Upon review and consideration of all the evidence of record, the
majority {consisting of Mr. Zsalman and Mr. George) finds that
Petitioner's request should be approved. The majority relied heavily
on the terms of the divorce decree (requiring Petitioner to not make
any changes to his military pension as former wife is hereby awarded +
100 percent of any survivor benefits payable under the pension plan in
its current status). In an effort to provide Petitioner with the most
favorable consideration possible, the Board accepted bis claim that he
was unaware of the requirement to notify the DFAS in writing within
one year after his divorce. Furthermore, Petitioner continued to pay
SBP Spouse premiums for 5 years, before DFAS received a copy of the
divorce decree, and adjusted (terminated) coverage to reflect “No
beneficiary”. Board concluded that the record should be changeg to
show that Petitioner made a proper and timely election to a
6 the former spouse SBP beneficiary within one year of

divorce,
MAGORITY RECOMMENDATION :

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

a. The Petitioner executed a written request for conversion from
spouse and child to former spouse and child SBP coverage, at the same

level of coverage as previously elected, naming Ss
the beneficiary. The request was received by cognla and
became effective 15 January 2008, the day following the date of

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

c, Note: Petitioner is responsible for any unpaid SBP costs that
would have been deducted at the time of the conversion. No waiver of
unpaid costs will be granted.

d. A copy of this Report of Proceedings will be filed in
Subject’s naval record.
Docket No. NR3100-13

MINORITY CONCLUSION:

Upon review and consideration of all the evidence of record, the
minority of the Board (Mr. Exnicios) concurs with the advisory opinion
that no relief is warranted. Petitioner stated in his application
that he was unaware of the requirement to notify the DFAS (his
responsibility to do so), in writing, of his specific desire to change
his SBP coverage from spouse to former spouse, and as a result of the
oversight his coverage was not changed. Nevertheless, a review of the
evidence, when considered in its totality, does not reveal the
existence of error or injustice.

MINORITY RECOMMENDATION:

That Petitioner's request be denied and no changes be made to his
record.

4. It igs 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.

| Boek Ly
‘ROBERT D. ZSALMAN BRONTE I. MONTGOMERY
Recorder Acting Recorder

 

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

14 Aug 13 Ki ‘ 4
W. DE ER
Executive’ Director

“ a 4 -
Reviewed and approved Att meas oathy DNeepernerhads tn

ROBERT L. WOODS

Assistant General Counsel
(Manpower and Reserve Affairs)
1000 Navy Pentagon, Rm 4D548
Washington, DC 20350-1000