DEPARTMENT OF THE NAVY
	BOARD FOR CORRECTION OF NAVAL RECORDS
	           2 NAVY ANNEX
	      WASHINGTON DC 20370-51 00

WJH:djc
Docket No. 5994-06
19 January 2007

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

Subj:	REVIEW OF  RECORD ICO

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

End:	(1) DD Form 149 w/attachments
(2)	PERS memorandum 5420 POOJ1/120 of 26 Oct 06

1.	Pursuant to the provisions of reference (a), Subject’s former spouse, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected to show that after his divorce from in June 2005, Subject submitted a written request changing his Survivor Benefit Plan (SBP) beneficiary election from “spouse” to “former spouse.”

2.	The Board, consisting of Messrs. Novello, Countryman, and Leblanc, reviewed Petitioner’s allegations of error and injustice on 12 December 2006 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. The Board also considered an advisory opinion prepared by the Bureau of Naval Personnel Office of Legal Counsel that recommended no corrective action be taken. A copy of that recommendation is attached as enclosure (2)

3.	The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows:

a.
were married on 10 December 1955.

Docket No. 5994-06

b.  transferred to the Retired Reserve, on 30 August 1967. On 30 October 1972, during the initial Survivor Benefit Plan (SBP) open period, he enrolled in SBP in the “spouse” category of coverage.

		c.	were divorced on 1 June 2005 after nearly 50 years of marriage. Under the terms of the divorce decree,  was not required to maintain Survivor Benefit Plan coverage on Part IV of the divorce decree states only that Chief Petty Officer“USN Pension” is his “sole and separate property.

	d.	There is no record or	ever
having requested a change in beneficiary category from “spouse” to “former spouse” within one year of the date of divorce (as required under the regulations governing SBP).

e.	never remarried.

f.	died on 28 February 2006, approximately eight months after his divorce. At that, time, he was still enrolled in the “spouse” category of coverage (however, due to his divorce, he no longer had a “spouse”). He had paid “spouse” category premiums from the time of his initial enrollment in 1972 until his death, even during the period after his divorce.

g.	Per enclosure (3), the Bureau of Naval Personnel, provided an opinion advising that the evidence is insufficient to support the requested record change. The advisory opinion relies on the facts stated above that (1) the decedent’s divorce decree “does not award applicant former spouse SBP,” (2) the decedent’s divorce decree states that i5fUUUUI~,E~jmuuI~s “USN Pension” is his “sole and separate property,” (3) Chief Petty Officer Waldo never requested a change in beneficiary category from “spouse” to “former spouse within one year of the date of divorce (as required under the regulations governing SBP, and (4) although still paying “spouse” premiums at his death, he was no longer married and did not have a “spouse.” The advisory opinion reasons essentially that  . was not obligated by the divorce decree to change the election from “s ouse” to “former spouse,” and he did not do so. Moreover, was not eligible to make a “deemed election” because there was no mention of SBP in the divorce decree.

Docket No. 5994-06

CONCLUS ION

Upon review and consideration of all the evidence of record, and notwithstanding the opinion expressed in enclosure (2), the Board finds the existence of an injustice warranting never remarried and continued to pay (spouse) premiums from the time of his retirement until the time of his death. The Board noted that he even paid premiums during the period between 2 June 2005 and 28 February 2006 when he was not married. It accepted explanation that she and NI were under the mistaken impression that because was paying premiums, the SBP coverage remained in effect to provide benefits to her in the event of his death. Accordingly, the Board concluded that the record should be changed to show that made a timely request to change the SBP coverage from “spouse” to “former spouse “ after his divorce and before his death.

RECOMMENDATION:

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

a.	On 2 June 2005, the day after his divorce,. submitted a written request to change the category of Survivor Benefit Plan coverage from “spouse” to “former spouse” naming  the “former spouse” beneficiary.

b.	A copy of this Report of Proceedings will be filed in the Petitioner’s naval record.

4. 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.

	ROBERT D. ZSALMAN	WILLIAM J
	Recorder	Acting Recorder

3
Docket No. 5994-06

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

ROBERT D. ZSALMAN
Acting Executive Director

Reviewed and approved:

Robert T. Call
Assistant General Counsel
Manpower and Reserve Affairs)