DEPARTMENT OF THE NAVY
ET, BOARD FOR CORRECTION OF NAVAL RECORDS

707 S COURTHOUSE RD SUITE 100+
ARLINGTON VA 22204-2480

 

BAN
Docket No.NR11046-14
21 November 2014

From: Chairman, Board for Correction of Naval Records

Tos Secretary of the Navy

Subj: ),
Ref: (a) Title 10 U.S.c. 1552

Encl: (1) DD Form 149 w/attachments

(2) Navy Personnel Command/Survivor Benefit Plan Program
Manager Casualty Assistance (PERS-13) memo of
20 Jun 2014

(3) The Commonwealth of_Massachusetts, Copy of Record of
Marriage between nnn
dated 22 Nov 1988

{4) Commonwealth of Massachusetts, The Trial Court, The
Probate and Family Court Department, Certificate of
Divorce Absolute (divorce date of 11 May 1976),
between dated 30 Nov 1986

'(5) Attorneys at Law letter dated 11
April 15988

(6) Petitioner's divorce decree fronQ@yl>

dated 16 July 1987

(7) State of Connecticut, License and Certificate of
Narriage, in cas¢ (iQ aa»
GHP: 3 Dec 1988.
(8) State of Maine Department of Health and Human
Services, Certificate of Death, in care -/-
ee -: 13 May 2013
(9) Defense Finance and Accounting Service, London, KY
letter, dated 2 Oct 2013
(10) Defense Finance and Account ing Service, London, KY
letter, dated 6 Nov 2013
(11) Board for Correction of Naval Record letter to
Petitioner dated 20 Aug 2014
(12) Petitioner request for reconsideration dated 2 Sept
2014

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 change his Survivor Benefit Plan (SBP)
category of coverage from “former spouse” to “spouse” coverage, before
his “former spouse’s" death.
Docket No.NR11046-14

2. The Board, consisting of Hee

reviewed Petitioner’s allegations of error and injustice.on 7 October
2014 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

naliniac
Ppo.tcice.

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.

b. , (Petitioner), and
were marriea on 17 July 1960, enclosure (3) and

divorced on 11 May 1976, enclosure (4).

c. On 7 October 1977, Petitioner remarried QM but on 16
July 1987, he divorced her again while still on active duty service in
the U.S. Navy. Petitioner's second divorce decree contained a “former
spouse” provision that established a requirement for the “former
spouse” to deem an election or for the service member to change his
election to “former spouse” Survivor Benefit Plan (SBP) coverage
within one year of their divorce, to the Defense Finance and
Accounting Service (DFAS), enclosures (5) and (6).

d.- On 30 September 1987, Petitioner was transferred to the Fleet

Reserve and elected “former spouse” SBP coverage for
GMB, pursuant to his divorce decree. Additionally, on 11 April 1988,

GENE. zxrough her divorce attorney, also deemed her “former
spouse” SBP election to DFAS.

e. On 3 December 1988, Petitioner marrie
enclosure (7). He continued to pay SBP premiums under “former spouse”

category of coverage.

f£. On 13 May 2013, Petitioner‘s “former spouse Qa

GMB diecd, enclosure (8).

g. On 2 October 2013, DFAS sent Petitioner a letter stating that

his SBP coverage has been changed from “former spouse” to “no
beneficiary” due to the recent death of his “former spouse”, In
addition, Petitioner received a credit of approximately $878.92 for
the SBP premiums he had already paid after his former spouse's death,

enclosure (9).

h. In late October 2013, Petitioner submitted a request to DFAS
requesting that his current — be listed on his
Docket No.NR11046-14

SBP, under “spouse” category of coverage. On 6 November 2013, DFAS
responded by denying his request, enclosure (10).

i. In late November 2013, Petitioner requested, through the
Board of Corrections to change his SBP election from “former spouse”
to “spouse” citing the considerable amount of premiums he has already

mata imta thea nensram anda hie helief that hie aurrent “enoude”* ahould

Be ee ee a a ee te ee an te per A ee fe

be entitled to the benefits.

j. On 18 August 2014, Petitioner case was presented before the
Board and was denied, enclosure (11). However, on 2 September 2014,
he requested a reconsideration of his case based on the fact that he
was unable to respond to the original advisory opinion because of
ongoing medical issues, including kidney surgery, enclosure (12).
Therefore, on 7 October 2014, his case was brought before the Board,
was approved for reconsideration, and the Board recommended favorable
relief for his request.

k. By enclosure (2), Naval Personnel Command/SBP Manager
recommended that no relief be granted, stating that the statutory
filing deadline had expired when Petitioner’s “former spouse” died on
13 May 2013, citing 10 U.S.C. Section 1450(£) (1) (Cc).

CONCLUSION: '

Upon review and consideration of all the evidence of record and
despite the SBP’s Manager's unfavorable advisory opinion, the Board,
disagrees with the advisory opinion on an equity basis and concludes
that Petitioner's request warrants favorable action.

The Board notes that Petitioner has been paying SBP premiums for over
26 years, until the death of his “former spouse”. Additionaily, the
Board understood the legal statute in the advisory opinion; however,
they believe that ‘Petitioner's request to change his SBP coverage to
his current “spouse” is equitable due to the amount of years he has
already paid into the SBP program. Furthermore, the Board believes
that it was reasonable to assume that Petitioner was unaware that he
had to make his change prior to his “former spouse’‘s” death, with his
“former spouse's” concurrence. Therefore, under these circumstances,
the Board does not concur with the unfavorable recommendation, and
believes that Petitioner should be allowed to change his SBP election
from “former spouse” to “spouse” coverage. In view of the foregoing,
the Board finds injustice warranting corrective action. That
Petitioner's naval record be corrected to show that:

RECOMMENDATION :

a. Petitioner executed a written and timely request for
conversion from “former spouse” to “spouse” SBP coverage, naming

Gal» as the sole beneficiary. The request was received by
cognizant authority and became effective 12 May 2013, the day before
Docket No.NR11046-14

Petitioner's “former spouse” died, with the former spouse’s
concurrence.

b. Petitioner is responsible for any back premiums owed for SBP
“spouse” eakedory of coverage. No waiver is authorized.

Cc. A cany of this Report. af Proceedings will he filed in
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 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.

  

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

 

ROBERT J. O'NEILL
Executive Director

Reviewed and approved:

    

Se cas ae

Gillin |

ROBERT L. WOODS

Assistant General Counsel °
(Manpower and Reserve Affairs)
1000 Navy Pentagon, Am 40548"
Washington, DC 20350-1000