DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

701 S, COURTHOUSE RD SUITE 1001
ARLINGTON VA 22204-2490

 

BAN
Docket No.NRO3501-13
16 September 2013

we

From: Chairman, Board for Correction of Naval Records

 

To: Secretary of the Navy
Subj:
Ref: (a) Title 10 U.S.C. 1552

Encl: (1) DD Form 149 w/attachments

(2) Survivor Benefit Plan Program Manager Casualty
assistance (PERS-13) memo of 30 Jul 2013

(3) Survivor Benefit Plan (SBP) Termination Request of 31
May 2013

(4) BCNR memo Docket No. NRO1317-13 of 4 Mar 2013

5) Personnel Support Activity Detachment memo 7000
Ser/165 of 23 Jul 2013

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 that prior to
Petitioner’s retirement on 30 August 2012, he declined Survivor
Benefit Plan (SBP) coverage with spousal concurrence.

2. The Board, consisting of Messrs. Pfeiffer, Zsalman, and
George reviewed Petitioner's allegations of error and injustice
on 3 September 2013 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.NRO3501-13

 
 
    
 
 

b. Petitioner and his spouse
married on on prior to the

of his retirement, he submitted a DD Form 2656-2 (SBP
Termination Request) seeking to decline SBP coverage. His
spouse also signed the form and it was notarized, enclosure (3).

c, Petitioner transferred to the Fleet Reserve on
He declined SBP category of coverage with spousal
concurrence using the DD Form 2656-2, a termination request vice
using the correct form, DD Form 2656.+ Therefore, he was
automatically enrolled in SBP for spouse and child category of
coverage and had premiums deducted from his retired pay.

d. In January 2013, Petitioner submitted an application
with BCNR requesting to cancel his SBP coverage with spousal
concurrence. However, our office directed him to the Naval
Personnel Command (NPC), SBP Manager who, in the past, had a
policy of authorizing administrative changes as long as the
change was within one year of retirement. On 4 March 2013, our
office sent Petitioner a letter directing him to exhaust all his
administrative remedies by going to the SBP Manager to correct
his error. Our office administratively closed his case,
enclosure (4).

 

1 whe 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 a 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.

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

Electing participation: 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. Premiums
continue as long as there is an eligible beneficiary that survives the
retiree. To elect participation, a member must submit a valid DD Form 2656.

Declining Participation: A retiring member may also elect to decline
participation, or participate at a reduced level of coverage. However, if
the member is married at the time of retirement, he/she must have the
concurrence of the spouse to decline participation, or participate at a
reduced level of coverage. To decline participation, a married member must
submit a valid DD Form 2656 which properly shows the concurrence of the
retiring member’s spouse.

Automatic enrollment: In the event that no DD Form 2656 is received
before retirement, or, if the DD Form 2656 is invalid (i.e. not properly
completed), a retiree is automatically enrolled at the full base amount and
monthly premiums begin.
Docket No.NRO3501-13

e. Petitioner then submitted his request to change his SBP
election to the SBP Manager, but by this time, they had changed
their internal policy of allowing administrative changes within
one year, (current OPNAV policy allows 120 days to make a
change). Therefore, the case was sent back to BCNR and
reopened.

£. On 23 July 2013, Petitioner provided additional
evidence supporting his case from the Personnel Support Activity
Detachment (PSD), the command where he retired. PSD stated that
they “concur that member intended to decline participation in
SBP at the time of his separation in August 2012, further
supported by his spouse and witnessed by a Notary Public.
[Additionally] Request immediate termination of SBP deduction
and refund of all previous monthly deductions in the case of

eee

g. By enclosure (2), the policy office recommends
disapproval, for the following reasons: a) after the one year
point, the retiree has had coverage for a substantial period of
cime and is closer to the one-year period (between the 25th and
36th month following start of retired pay) when he can disenroll
voluntarily, b) his spouse has been protected since his date of
retirement under the SBP and had he died during that period, his
spouse would have received an SBP annuity, and ¢) information
regarding SBP has been available to Petitioner from the Navy’s
Retiree newsletter “Shift Colors”.

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 finds that
the following factor militated in favor of relief. In the
Board’s view, the initial DD Form 2656-2, though not exactly
perfect, does provide some evidence of Petitioner’s intent to
decline SBP enrollment. Moreover, his subsequent efforts to get
a statement from his PSD supporting his request, also provides
some evidence of his intent to decline SBP. In the Board’s
view, Petitioner should not be penalized for the error of using
the incorrect form to decline coverage in light of his
subsequent efforts to have it corrected. Accordingly, the Board
finds that as an exception to policy, Petitioner's request
should be granted.
Docket No.NRO3501-13

RECOMMENDATION :

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

a, On mE executed a written request
to decline P coverage in the “spouse” category, with spousal
SonecupVence .

b. 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 9723.6{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.

uel

ROBERT D. ZSALMAN BRONTE I. MONTG
Recorder Acting Recorder
Bs The foregoing action of the Board is submitted for your

review and action.

  

Executive Di

Reviewed and approved:

Web 9726 (3

ACBERT L. WOODS
- Assistant General Counsel
(Manpower and Reserve Affairs)

1000 Navy Pentagon, Rm 4D548
Washington, DC 20350-1000