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

DJC
Docket No. 7547-06
31 January 2007

This is in reference to your application for correction of your 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 30 January 2007. Your allegations of error and injustice were reviewed in accordance with 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 naval record and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinion furnished by NPC memo 5420 POOJ1/15l dtd 28 Dec 06, a copy of which is attached.

After careful and conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice. In this connection, the Board substantially concurred with the comments contained in the advisory opinion. Accordingly, 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 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,

ROBERT D ZSALMAN
Acting Executive Director

Enclosure

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

5420
POOJ1/151
28 Dec 2006

From:	Office of Legal Counsel (Pers-OOJ1)
To:	Executive Director, Board for Correction for Naval Records

Via:	Assistant for BCNR Matters, Pers-31C

Subj:	REQUEST FOR COMIYLENTS AND QNMENDATIONS IN CASE OF

End:	(1) BCNR File #07547-06

1. I have reviewed enclosure (1) and recommend denial of applicant’s request. I offer the following comments in support of this recommendation.

2. Facts:
	a.	Applicant is the former spouse office (deceased). Her punition asics t~t’~R to change descent’s  Naval records to reflect a former spouse SBP election.

b.	Decedent’s Naval records reflect that he transferred to the Fleet Reserve on 1 Jul 65, elected spouse SBP coverage on 9 Sep 73,1 and transferred to the retired list on 1 Apr 1975. . Decedent’s Naval records presently reflect no survivor benefit plan (SBP) beneficiary.

c.	Applicant and decedent were married on 30 Dec 1970 and divorced 11 Oct 2000. Divorce decree found in enclosure (1) states, “Defendant [decedent] shall perform any and all actions to allow Plaintiff [applicant] to retain her marital share of Defendant’s Navy retirement benefits, by direct assignment to Plaintiff from the retired pay administrator”. It does not provide particulars as to applicant’s marital share and it does not address whether survivor benefits are part of the “marital share”.

d.	Decedent’s service record reveals current SBP election is no beneficiary as of date of divorce, 11 Oct 2000.  1 A member who retired before September 21, 1972 had until March 20, 1974 to elect to participate in the Survivor Benefit Plan (SBP). VOL 7B DODFMR 430101.

Subj:	REQUEST FOR COMMENTS AND RECOMt4ENDATIONS IN CASE OF

3.	Issue: Whether law or equity dictates correction of decedent’s records to reflect election of former spouse SBP coverage?

4.	Short Answer: No, law does not dictate correction. Any correction made in the case should be based on equity.

5.	Discussion:

a.	Law and policy provide that upon retirement a member with spouse or spouse and child coverage may, before September 24, 1984, or within 1 year of date of the decree of divorce, dissolution, or annulment, whichever is later, change that election to provide an annuity to a former spouse or to a former spouse and child.2 Title 10 U.S.C. 1450(f) (3) (A), provides that if member or retired member who is required by court order to make a former spouse SBP election fails or refuses to do so, such election shall have been “deemed” to have been made if the Secretary receives a request from the former spouse within one year of the date of the court order or filing involved.

b.	There is no record of a court order directing decedent to provide former spouse SBP coverage on behalf of applicant. Moreover, there is no evidence that decedent voluntarily requested former spouse SBP coverage within one year of the date of divorce.

6.	Conclusion: Law does not require or support correction.

7.	Please call me at DSN 882-3163 or (901) 874-3163 if you have any questions.

Assistant Legal Counsel