Docket No. 11105-19  
Ref: Signature Date  
From:Chairman, Board for Correction of Naval Records  
To:  Secretary of the Navy  


Ref: (a) Title 10 U.S.C. §1552 
     (b) DODFMR, Vol 7B, Chp 54 
Encl:(1) DD Form 149 w/attachments 
     (2) Subject’s naval record (excerpts) 

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 reflect declination of Survivor Benefit Plan (SBP). 

2.  The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 2 April 2020 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, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies. 

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

a.  Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. 

b. In accordance with reference (b), any member who is notified of his or her completion of the years of service required for retired pay eligibility for non-regular retirement may elect to participate in RCSBP before the end of the 90-day period. A member who is married or has a dependent child, and who receives notice of eligibility for retired pay, after January 1, 2001, is automatically an immediate participant in RCSBP unless the member elects (with spousal concurrence, if required) not to participate or to defer the decision or delay coverage before the end of the 90-day period. 

c.  Petitioner married  on 5 January 1989. 

d.  Petitioner earned 20 total years of qualifying service on 29 March 2005. 

e.  Petitioner was erroneously retired on 1 May 2005 

f.  Petitioner Transferred to Retired Reserve without pay effective 1 June 2008. 

g. Petitioner issued Notification of Eligibility (NOE) 25 Jun 2008 per Advisory Opinion (AO) dtd 4 Mar 2020.  

h.  Petitioner auto enrolled in RCSBP Option C (immediate survivor annuity) 23 Sep 2008. 

i.  Petitioner transferred to Retired Reserve with pay effective 28 October 2018. 

j.  Petitioner auto enrolled in SBP effective 28 October 2018. 

k.  Petitioner and spouse signed and notarized DD Form 2656 Data for Payment of Retired Personnel declining SBP on 11 July 2018. 

l.  Petitioner and spouse signed and notarized SBP Affidavit declining SBP on 15 March 2019. 


CONCLUSION 

Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting corrective action.  The Board concluded Petitioner provided sufficient evidence to reflect his and his spouse’s desire to decline SBP coverage. Although the proper administrative requirements were not correctly completed by Petitioner, the Board felt that under these circumstances, a measure of relief is warranted. 

RECOMMENDATION 

That Petitioner’s naval record be corrected, where appropriate, to show that: Petitioner elected to decline enrollment in SBP with spouse concurrence within 90 days of his NOE. Any other election or declination executed by Petitioner is null and void. 

Note:  Defense Finance & Accounting Service (DFAS) will complete an audit of Petitioner’s records to determine if Petitioner is due any back pay. Note:  
Note:  No waiver of unpaid premiums will be granted. A copy of this Report of Proceedings will be filed in 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. 

5.  Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)) and