DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

WJH
Docket No. 3267-06
26 Feb 07

This is in reference to your application for correction of your deceased husband’s naval record pursuant to the provisions of 10 USC 1552.

A three-member panel of the Board for correction of Naval Records, sitting in executive session, considered your application on 23 February 2007. Your allegations of error and injustice were reviewed in accordance with the administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, your deceased husband’s naval record and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinions provided by the Naval Personnel command on 23 August 2006 and 6 Dec 2006, a copies of which are attached.

After careful and conscientious consideration of the entire record, a majority of the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice. In this connection, the Board considered a totality of the circumstances, including the factors identified below.

Regarding your request for the arrearages of your deceased husband’s retired pay from 8 April 1991 to his death on 18 January 2005, the Board found insufficient evidence to warrant a change. They recognized the long and faithful service of your deceased husband to the United States Navy. They also noted that your deceased husband was eligible for retired pay in 1991, but that for a period of almost 14 years, while eligible, he did not request or receive such pay. The Board found that he had ample opportunity during those years to request the retired pay and concluded that his inaction in requesting the pay was substantial evidence of an election on his part to forego the retired pay to which he was otherwise entitled. Accordingly, based on the totality of the circumstances, they found no error or injustice in denying your request for arrearages of your deceased husband’s retired pay for the period 8 April 1991 to 18 January 2005.

The Board also considered your request for survivor benefits from 19 January 2005 and forward. The Board noted that, although he was eligible, your deceased husband had never enrolled in the Reserve component Survivor Benefit Plan after becoming eligible for retirement (without pay). They found that he had been afforded a clear opportunity to enroll in the Reserve component Survivor Benefit Plan, but that he did not do so. They also noted that he never paid any of the premiums associated with enrollment in the Reserve Component Survivor Benefit Plan. The Board also noted that upon reaching age 60 (in 1991) he did not enroll in the Survivor Benefit Plan. He was eligible to enroll at that time (provided he requested and received retired pay to which he was entitled at that point). They found that he had received ample opportunity to request retired pay and enroll in the Survivor Benefit Plan during the almost 14 years between 8 April 1991 to 18 January 2005. His inaction during that extended period was considered as substantial evidence of an election on his part to forego the retired pay and participation in the Survivor Benefit Plan (whose very existence is intended to provide a portion of the retired pay to survivors after the member’s death). The Board also noted that he never paid any of the premiums associated with the Survivor Benefit plan either. Accordingly, based on the totality of the circumstances, the Board found no error or injustice in denying your request for survivor benefits from 19 January 2005 forward.

Because the Board found that the evidence was insufficient to establish a probable material error or injustice, your application has been denied. The names and votes of the members of the panel will be furnished upon request.

It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon submission of new and material evidence or other matter not previously considered by the Board. In this regard, it is also important to keep in mind that a presumption of regularity attaches to all official records. consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.

Sincerely,

2

DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
MILLINGTON TN 38055-0000

			23 Aug 06

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR)

Via:	Assistant for BCNR Matters (PERS-31C)

Subj:	COMMENTS AND RECOMMENDATION ICQ

Ref:	(a) BCNR Pay memo of 1 May 06

The response to reference (a), recommend the BCNR not correct record to reflect that he enrolled in the SurvivorBenefit Plan (SBP) spouse category effective 8 April 1991.

2. The recommendation is based on the following:

a. XXXX  transferred to the Retired List, without pay, on 1 April 1989. The Naval Reserve Personnel Center (NRPC) indicated that they had no record of him making a Reserve Component Survivor Benefit Plan (RCSBP) election. He died on 18 January 2005.

	b. XXXXwas eligible for retired pay on 8 April 1991 and did not apply to the Defense Finance and Accounting Service-Cleveland Center (DFAS-CL) for that pay.

c. XXXX was eligible to participate in the Survivor Benefit Plan (SBP), “upon reaching 60 years of age and becoming entitled to retired pay.” A reservist who has 20 qualifying years of service and who has reached age 60 is entitled to retired pay but must request that pay. Payment of retired pay is not an automatic. An eligible reservist who does not request retired pay is not an SBP participant.

4. It should be noted that if had applied for retired pay and not provided a valid election to decline participation then the DFAS-CL would have automated in the SBP at the maximum

DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
MILLINGTON TN 38055-0000

5420
PERS 4912
06 Dec 06

MEMORANDUM FOR	EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS

Via: Assistant for BCNR Matters (PERS-31C)

Subj:	BCNR PETITION ICO 

Ref:	(a) BCNR File No. 03267-06

End:	(1) BCNR File

1.	Per reference (a), enclosure (1) is returned with the recommendation that	petition be denied.

2.	was eligible for retired pay on 8 April 1991. He did not apply for such pay when eligible, made a statement to the board that her husband realized he was eligible for retired pay, “but made a conscious decision not to file for the pay because they didn’t need the money.”

3. Regrettably, in the absence of other information, we find no error, or injustice on the part of the Navy which would support petition. We therefore must recommend that her petition be denied.

4.	If you have questions concerning this matter, please contact this office, PERS-4912, at (901) 874-5952.

Captain, Reserve Personnel
Management Division
PERS-491