Last saved by: terry.bynum

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

						WJH:djc
									Docket No. 4321-07 
									23 October 2007

From:	Chairman, Board for Correction of Naval Records
To:	Secretary of the Navy
Subj:	REVIEW OF NAVAL RECORD ICO
		
	Ref:	(a) Title 10 U.S.C. 1552

Encl:	(1) DD Form 149 w/attachments
(2)	NPC memorandum dtd 25 Jul 07
(3)	DD Form 2656-8 SBP - Automatic Coverage Fact Sheet

1.	Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected to show that he declined participation in the Survivor Benefit Plan (SBP) when he transferred to the Fleet Reserve on 31 August 2006.

2.	The Board, consisting of Ms. Ballinger, Mr. Pfeiffer, and Mr. Leeman, reviewed Petitioner’s allegations of error and injustice on 11 September 2007. A majority of the Board, by a 2 to 1 vote, determined that the corrective action indicated below should be taken. One member, voting in dissent, determined that no corrective action is warranted. 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 Casualty Assistance Office 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.	USN (Ret) and were married on 5 August 1999.

	b.	In July 2006, in anticipation of his upcoming transfer to the Fleet Reserve, and completed a DD Form 2656 (SBP Election certificate) with the apparent intent of declining participation in SBP. Review of that form, however, shows that item 26(g) was not completed correctly because it did not address whether had eligible dependents at the time of retirement.

c. ___transferred to the Fleet Reserve on 31 August 2006.

c.	Because of the defect in the SBP election certificate, the Defense Finance and Accounting Service-Cleveland Center (DFAS-CL) pursuant to federal law and regulations, automatically enrolled
in the Survivor Benefit Plan (SBP) effective at his retirement. Premiums for SBP coverage were deducted from his retired pay.

d After being automatically enrolled was sent a SBP “Automatic Coverage Fact Sheet” intended to allow him an immediate opportunity to adjust the enrollment directly with the DFAS.

e.	states in his application that he contacted DFAS and was advised to submit an application to the Board for Correction of Naval Records.

f.	On 8 May 2007, 8 months after his automatic enrollment,
submitted DD Form 149 (Application for
Correction of Military Record) under the Provisions of Title 10,
U.S. Code, Section 1552.

g.	On 25 July 2007, the Bureau of Naval Personnel Casualty Assistance Office recommended no corrective action be taken for the following reasons. First, they dispute claim that he contacted DFAS after being automatically enrolled stating “DFAS-CL indicated that they had not received a valid SBP election, written correspondence or any telephonic request to update or correct his original SBP election.” Next, under Public Law 105-85, still has an opportunity to disenroll from the SBP (with his spouse’s concurrence) during the one-year period beginning on the second anniversary of the date of commencement of retired pay. Finally, due to his automatic enrollment and subsequent inaction, he has received the benefits of SBP protection from August 2006 to present.

MAJORITY CONCLUSION:

Upon review and consideration of all the evidence of record, a majority of the Board, consisting of Ms. Ballinger and Mr. Leeman, concludes that Petitioner’s request warrants favorable action. The majority finds that and his spouse did show a desire to decline SBP prior to retirement as evidenced by the DD Form 2656 filed in July 2006.

MAJORITY RECOMMENDATION:

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

a.	Prior to his transfer to the Fleet Reserve he elected, with spouse concurrence, not to participate in the SBP.

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

MINORITY CONCLUSION:

A minority of the Board (Mr. Pfeiffer) concludes that no relief should be granted. He essentially finds that after the Petitioner was automatically enrolled and covered by SBP, he was dilatory in seeking any change to his SBP coverage status. Moreover, Petitioner benefited from that dilatoriness because he has been afforded the protections of SBP coverage from the time of his retirement to the present. In light of the fact that under Public Law 105-85, Petitioner still has a future opportunity to disenroll from the SBP (with his spouse’s concurrence), Mr. Pfeiffer finds no error or injustice in the records which show that Petitioner is enrolled in SBP. He further finds that because of Petitioner’s dilatoriness and missed opportunities, Petitioner should be estopped from making any changes to his coverage (and returning previously paid premiums) until the statutorily authorized period.

In view of the foregoing, the minority finds no injustice warranting corrective action.

MINORITY RECOMMENDATION:

That Petitioner’s request be denied.

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. HESS, III
 Recorder	 Acting Recorder

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

W.	DEAN PFEIFFER
Executive Di

I specifically concur with the findings and conclusions of the Majority of the Board and the Majority Recommendation for relief
is	roved.
	Robert T. Call
	Assistant General Counsel
	Manpower and Reserve Affairs)	OR

I specifically concur with the f’ dings, conclusions, and recommendation of the Minority the Board that no relief is warranted and hereby approve of the application.