DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No. 7221-18 
Ref: Signature Date 

This is in reference to your application for correction of your deceased father’s naval record pursuant to Title 10, United States Code, section 1552.  After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.   
  
A three-member panel of the Board, sitting in executive session, considered your application on 18 Decemeber 2019.  The names and votes of the members of the panel will be furnished upon request.  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, relevant portions of your deceased father’s naval record, and applicable statutes, regulations, and policies. 

You request to have your deceased father’s record changed to reflect that he changed his Survivor Benefit Plan (SBP) election from “Spouse” to “Former Spouse” in a timely manner, thereby allowing your mother to collect the SBP annuity.  A former spouse’s entitlement to SBP benefits can be secured by parties to a divorce in one of two ways.  Either the Service member whose marriage ends can “elect to provide an annuity to that former spouse,” 10 U.S.C. § 1448(b)(3)(A)(i)(II), (A)(iii), or the former spouse can file a “written request . . . that such an election be deemed to have been made” along with a “copy of court order or other official statement” requiring the annuity to be paid to the Service member’s former spouse, id. § 1450(f)(3)(A). However, the Board noted that, upon your parents’ divorce becoming final, neither your mother nor father submitted the required paperwork to the Defense Finance and Accounting Service (DFAS) requesting that the SBP beneficiary be changed from “Spouse” to “Former Spouse,” in accordance with DoD Financial Management Regulation (FMR) Volume (Vol) 7B, Chapter (Chap) 43, in a timely manner. Additionally, the Board found that the submission of your parents’ Decree of Separate Maintenance to the DFAS prior to their divorce does not meet the clear and unambiguous requirement, established in DoD FMR Vol. 7B, Chap. 43, that the request to elect “Former Spouse” SBP coverage be submitted within one year from the date of divorce. 

Furthermore, the Board noted that DoD FMR Vol. 7B, Chap. 43 also provides that, “Unless a member elects not to cover the new spouse within one year after the marriage, spousal SBP coverage automatically resumes at the first anniversary of the marriage.” Therefore, SBP coverage for                  current spouse at the time of his death—             — resumed on 4 November 2015, their one-year anniversary. As a result, the Board determined that                 was the eligible surviving spouse of                             , and therefore entitled to coverage under the SBP. 

It is regretted that the circumstances of your case are such that favorable action cannot be taken at this time. You are entitled to have the Board reconsider its decision upon the submission of new matters.  New matters are those not previously presented to or 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. 


1/17/2020