Dear   
 
This is in reference to your application for correction of your father’s naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of relevant portions of your father’s naval record and your application, 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. 
 
Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your case on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 17 September 2020.  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 father’s naval record and applicable statutes, regulations and policies.  In addition, the Board considered the advisory opinions contained in Navy Personnel Command memorandum 1750 PERS-00C of 4 March 2019 and Defense Finance and Accounting Service (DFAS) letter dated January 2020; copies of which were previously provided. 
 
On 3 November 1979, Subject married    .  On 16 October 2003, Subject got divorced. Divorce decree stated that Plaintiff shall maintain Survivor Benefits Plan (SBP) for the benefit of Defendant and the minor children, and that Plaintiff shall timely execute and deliver to the appropriate agency all documents necessary to effectuate said election and to designate Defendant as his former spouse for purposes of said SBP benefits.  On 27 August 2004, Subject signed and submitted to DFAS a DD Form 2656 (Data for payment of retired personnel) electing coverage for his former spouse and dependent children of that marriage, electing coverage with a reduced base amount of $300.00. DFAS rejected this form because it was received on 7 September 2004, after his retirement date.  On 31 August 2004, Subject retired.  On 27 September 2004, Subject’s former spouse was notified by DFAS via letter in regards to payments of a portion of the retired/retainer pay of the above-named member under the Uniformed Services Former Spouse’s Protection Act.  Furthermore, she was advised of the option to submit a deemed election for SBP coverage within one year of the date of her divorce directly to DFAS.  On 21 September 2004, Subject married .  On 14 December 2005, Subject, notified DFAS that his beneficiary’s name is now  (Spouse). 
 
You requested to change the record to reflect your father elected Former Spouse Survivor Benefit Plan (SBP) coverage for your mother.  The Board, in its review of your father’s entire record and application, carefully weighed all potentially mitigating factors, to include your assertions.  The Board concluded Department of Defense Financial Management Regulation 7000.14-R indicates if the former spouse is the member’s former spouse at the time the member becomes eligible to participate in SBP, an election for former spouse must take place at or before the member’s retirement.  However, if the retiree fails to elect coverage, the former spouse may request a deemed election for former spouse coverage within one year of divorce.  A review of your father’s record indicates he signed DD Form 2656 on 27 August 2004 electing former spouse and children coverage with a reduced base amount.  DFAS received the DD Form 2656 on 7 September 2004; subsequent to date of retirement, therefore DFAS was unable to honor the election.  On 27 September 2004, your mother was issued notification from DFAS regarding her application for payment of a portion of your father’s retired/retainer pay.  In that notification your mother was provided guidance on making a deemed election for former spouse coverage for SBP within one year of the date of divorce.  DFAS does not have any record of receiving a deemed election from your mother, thereby rendering her ineligible for former spouse SBP coverage. 
 
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 matters, which will require you to complete and submit a new DD Form 149.  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.   
 
Sincerely,