B-139428, JUNE 15, 1959, 38 COMP. GEN. 836

B-139428: Jun 15, 1959

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

MILITARY PERSONNEL - PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - VALIDITY AN OFFICER OF THE UNIFORMED SERVICES WHO WAS RETIRED PRIOR TO NOVEMBER 1. BOTH DESIGNATING THE WIFE TO WHOM HE WAS THEN MARRIED BUT INDICATING THAT HE HAD BEEN MARRIED TO ANOTHER BUT THAT THERE WAS A SEPARATION BY MUTUAL AGREEMENT. THE FIRST ELECTION OPTION IS VALID AND BY LAW THE FAILURE OF THE GOVERNMENT TO MAKE RETIRED PAY DEDUCTIONS REQUIRES COLLECTIONS OF SUCH UNDERDEDUCTIONS. INDICATED THAT HE HAD MARRIED BEFORE AND THAT THERE WAS A SEPARATION BY MUTUAL AGREEMENT. MAY NOT HAVE SUCH UNSUPPORTED STATEMENTS CONCERNING THE PRIOR MARRIAGE REGARDED AS SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE VALIDITY OF THE SECOND MARRIAGE WHICH IS SHOWN TO HAVE BEEN PROPERLY ESTABLISHED AND CONSUMMATED IN THE ABSENCE OF A JUDICIAL DETERMINATION OR EVIDENCE ESTABLISHING THE EXISTENCE AND VALIDITY OF THE FORMER MARRIAGE.

B-139428, JUNE 15, 1959, 38 COMP. GEN. 836

MILITARY PERSONNEL - PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - VALIDITY AN OFFICER OF THE UNIFORMED SERVICES WHO WAS RETIRED PRIOR TO NOVEMBER 1, 1953--- THE EFFECTIVE DATE OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 (NOW 10 U.S.C. 1431-1444/--- AND WHO SUBMITTED TWO SURVIVORSHIP ANNUITY ELECTION FORMS, WITH INCONSISTENT OPTIONS, BOTH DESIGNATING THE WIFE TO WHOM HE WAS THEN MARRIED BUT INDICATING THAT HE HAD BEEN MARRIED TO ANOTHER BUT THAT THERE WAS A SEPARATION BY MUTUAL AGREEMENT, MAY BE REGARDED AS A RETIRED MEMBER HAVING A SPOUSE ON THE EFFECTIVE DATE OF THE ACT WHO, IF LIVING WHEN HE DIES, COULD QUALIFY AS HIS WIDOW; THEREFORE, THE FIRST ELECTION OPTION IS VALID AND BY LAW THE FAILURE OF THE GOVERNMENT TO MAKE RETIRED PAY DEDUCTIONS REQUIRES COLLECTIONS OF SUCH UNDERDEDUCTIONS. A RETIRED ARMY OFFICER--- RESIDENT OF THE REPUBLIC OF THE PHILIPPINES--- WHO DESIGNATED HIS SECOND WIFE ON A SURVIVORSHIP ANNUITY OPTION ELECTION FORM, BUT INDICATED THAT HE HAD MARRIED BEFORE AND THAT THERE WAS A SEPARATION BY MUTUAL AGREEMENT, MAY NOT HAVE SUCH UNSUPPORTED STATEMENTS CONCERNING THE PRIOR MARRIAGE REGARDED AS SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE VALIDITY OF THE SECOND MARRIAGE WHICH IS SHOWN TO HAVE BEEN PROPERLY ESTABLISHED AND CONSUMMATED IN THE ABSENCE OF A JUDICIAL DETERMINATION OR EVIDENCE ESTABLISHING THE EXISTENCE AND VALIDITY OF THE FORMER MARRIAGE; THEREFORE, SHOULD THE MEMBER DIE, NO OBJECTION TO ANNUITY PAYMENTS TO THE DESIGNATED WIDOW WOULD BE MADE.

TO LIEUTENANT COLONEL J. L. WHIPPLE, DEPARTMENT OF THE ARMY, JUNE 15, 1959:

THE CHIEF OF FINANCE, DEPARTMENT OF THE ARMY, HAS FORWARDED BY ENDORSEMENT DATED APRIL 21, 1959, YOUR LETTER DATED APRIL 7, 1959, AND ENCLOSURES, REQUESTING AN ADVANCE DECISION CONCERNING THE PROPRIETY OF PAYMENT OF A VOUCHER IN FAVOR OF SECOND LIEUTENANT FELIPE G. ARENAS, O1 896 354, RETIRED, COVERING REFUND OF SURVIVORS' ANNUITY DEDUCTIONS MADE FOR THE PERIOD JUNE 1, 1958, THROUGH MARCH 31, 1959, UNDER THE PROVISIONS OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 501 (NOW CODIFIED IN 10 U.S.C. 1431-1444). THE SUBMISSION WAS ASSIGNED D.O. NUMBER 415 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT IS REPORTED THAT LIEUTENANT ARENAS WAS PLACED ON THE RETIRED LIST EFFECTIVE NOVEMBER 30, 1950. HIS RETIRED PAY WAS PAID AT CLARK AIR FORCE BASE THROUGH APRIL 1958. IN THE PROCESS OF AN AUDIT BY THE ARMY FINANCE CENTER FOLLOWING THE TRANSFER OF HIS ACCOUNT TO THE FINANCE CENTER, IT WAS FOUND THAT THE RETIRED MEMBER HAD SUBMITTED AN ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, ELECTING OPTION 3 FOR ONE-HALF OF HIS REDUCED RETIRED PAY, PAYABLE UPON HIS DEATH TO OR ON BEHALF OF HIS SURVIVING WIDOW UNTIL HER REMARRIAGE OR DEATH, AND THEREAFTER TO HIS SURVIVING CHILD OR CHILDREN UNDER 18 YEARS OF AGE AND UNMARRIED, UNLESS THERE IS A CHILD, UNMARRIED AND OVER 18 YEARS OF AGE, INCAPABLE OF SELF-SUPPORT BECAUSE OF BEING MENTALLY DEFECTIVE OR PHYSICALLY INCAPACITATED. THE ELECTION FORM, DA FORM 1041, POSTMARKED FEBRUARY 18, 1954, WAS NOT PROCESSED. THEREFORE, NO DEDUCTIONS WERE MADE FROM THE MEMBER'S RETIRED PAY UNTIL AFTER APRIL 1958. BEGINNING MAY 1958, DEDUCTIONS IN THE AMOUNT OF $84.24 PER MONTH HAVE BEEN MADE FOR THE PERIOD MAY 1, 1958, THROUGH MARCH 31, 1959. THIS SUM CONSISTS OF $28.08 TO COVER THE COST OF SURVIVORS' ANNUITIES, PLUS $56.16 TO LIQUIDATE THE MEMBER'S INDEBTEDNESS ON ACCOUNT OF THE NONDEDUCTIONS FOR THE PERIOD FEBRUARY 1, 1954, THROUGH APRIL 30, 1958. THE SUBMITTED VOUCHER PROPOSES TO REFUND THESE DEDUCTIONS.

A SECOND ELECTION FORM WAS SUBMITTED BY LIEUTENANT ARENAS DATED MARCH 5, 1954, ELECTING OPTIONS 1 AND 4 FOR ONE-HALF OF HIS REDUCED RETIRED PAY, PAYABLE UPON HIS DEATH TO OR ON BEHALF OF HIS WIDOW SO LONG AS SHE REMAINS UNMARRIED. THE SECOND ELECTION PROVIDES IN PERTINENT PART (OPTION 4) THAT: "NO FURTHER DEDUCTIONS SHALL BE MADE FROM MY RETIRED PAY COMMENCING WITH THE FIRST DAY OF THE MONTH FOLLOWING THAT IN WHICH THERE IS NO BENEFICIARY ELIGIBLE TO RECEIVE AN ANNUITY UPON MY DEATH.'

ON EACH OF HIS ELECTION FORMS, LIEUTENANT ARENAS NAMED CARIDAD MANLAPIG ARENAS AS HIS SPOUSE, ALSO DECLARING, HOWEVER, THAT HE HAD BEEN MARRIED BEFORE AND THAT HE AND HIS FIRST WIFE HAD SEPARATED BY MUTUAL AGREEMENT. YOU SAY THAT DOUBT EXISTS WHETHER THE MEMBER ORIGINALLY EFFECTED A VALID ELECTION IN VIEW OF THE INELIGIBILITY OF HIS DESIGNATED WIFE.

IF THE ORIGINAL ELECTION WAS VALID, THE STATUTE PROHIBITS ITS REVOCATION AND THE SECOND ELECTION IS WITHOUT EFFECT IN THAT RESPECT. ALSO, THE COMBINATION OF OPTIONS AND BENEFICIARIES DESIGNATED BY LIEUTENANT ARENAS IN HIS TWO ELECTIONS MAY BE GIVEN NO LITERAL EFFECT CONSISTENT WITH THE STATUTE BECAUSE THE TOTAL OF THE ANNUITIES DESIGNATED (TWO ANNUITIES TOTALING 100 PERCENT OF HIS REDUCED RETIRED PAY, EACH BEING FOR ONE-HALF) EXCEED THE MAXIMUM PERCENTAGE OF HIS REDUCED RETIRED PAY (50 PERCENT) PERMITTED BY THE STATUTE.

SECTION 4 (A) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 67 STAT. 502, 10 U.S.C. 1434 (A), AUTHORIZED THE ELECTION BY A SERVICE MEMBER OF AN ANNUITY PAYABLE TO HIS "WIDOW.' SECTION 2 (E) OF THE ACT, 67 STAT. 501, PROVIDED THAT THE TERM "WIDOW" REFERS "ONLY TO THE SPOUSE AT THE TIME OF RETIREMENT OF AN ACTIVE MEMBER OR TO THE SPOUSE AT THE EFFECTIVE DATE OF THIS ACT IN THE CASE OF A RETIRED MEMBER AT THE EFFECTIVE DATE OF THIS ACT.' UNDER THE PROVISIONS OF SECTION 13, 67 STAT. 505, THE ACT WAS EFFECTIVE ON THE FIRST DAY OF THE THIRD MONTH FOLLOWING THE MONTH IN WHICH IT WAS ENACTED, OR NOVEMBER 1, 1953. IT SEEMS APPARENT THAT ON SUCH EFFECTIVE DATE, THIS RETIRED OFFICER WAS LEGALLY MARRIED TO EITHER HIS FIRST OR SECOND WIFE AND, THEREFORE, HE HAD A ,SPOUSE" ON THE EFFECTIVE DATE OF THE ACT WHO, IF LIVING WHEN HE DIES, CAN QUALIFY AS HIS WIDOW. ALSO, UNDER PHILIPPINE LAW, THE CHILDREN NAMED WERE ELIGIBLE BENEFICIARIES. IN SUCH CIRCUMSTANCES WE MAY NOT CONCLUDE THAT HIS ORIGINAL ELECTION WAS INVALID BECAUSE HE MAY HAVE DESIGNATED THE WRONG WIFE AS HIS SPOUSE. ACCORDINGLY, DEDUCTIONS TO COVER THE COST OF THE ANNUITIES ELECTED UNDER OPTION 3 ARE REQUIRED BY THE LAW AND ANY UNDERDEDUCTIONS MUST BE COLLECTED. IT FOLLOWS THAT PAYMENT ON THE SUBMITTED VOUCHER IS NOT AUTHORIZED AND THE VOUCHER WILL BE RETAINED IN OUR OFFICE.

AS TO WHO IS TO BE REGARDED AS THE WIFE OF LIEUTENANT ARENAS SHOULD IT BECOME NECESSARY TO MAKE ANNUITY PAYMENTS TO HIS WIDOW, IT APPEARS FROM THE ENCLOSURES WITH YOUR LETTER THAT ON NOVEMBER 26, 1948, AT ARAYAT, PROVINCE OF PAMPANGA, REPUBLIC OF THE PHILIPPINES, LIEUTENANT ARENAS AND CARIDAD MANLAPIG WERE "LAWFULLY JOINED TOGETHER IN MATRIMONY" PURSUANT TO MARRIAGE LICENSE NO. 5214521, ISSUED AT ARAYAT ON NOVEMBER 26, 1948; THAT THEY HAVE LIVED TOGETHER AS HUSBAND AND WIFE SINCE THAT TIME; AND THAT TWO CHILDREN RESULTED FROM THIS UNION. LIEUTENANT ARENAS ACKNOWLEDGES THIS MARRIAGE BUT SAYS THAT HE WAS MARRIED TO HIS "FIRST WIFE," CARMEN CONCEPCION, AT THAT TIME. THE ONLY EVIDENCE, HOWEVER, OF HIS MARRIAGE TO CARMEN CONCEPCION IS THE OFFICER'S STATEMENT AND THE DECLARATION ON HIS ELECTION FORM.

IT IS A GENERAL RULE OF LAW IN THIS COUNTRY THAT A MARRIAGE PROPERLY ESTABLISHED AND CONSUMMATED WILL BE PRESUMED TO BE VALID UNTIL PROVED OTHERWISE. 35 AM JUR., MARRIAGE, 192. AND SEE THE PROVISIONS OF ARTICLE 220 OF THE CIVIL CODE OF THE PHILIPPINES APPARENTLY TO THE SAME GENERAL EFFECT. IN THIS CONNECTION, THE UNITED STATES COURT OF CLAIMS HAS HELD THAT, WHERE THE VALIDITY OF A SECOND MARRIAGE CONTRACTED IN LEGAL FORM AND CONSUMMATED BY COHABITATION IS ATTACHED ON THE GROUND THAT ONE OF THE PARTIES TO THE MARRIAGE WAS INCAPACITATED TO CONTRACT SUCH MARRIAGE BY REASON OF AN EXISTING PRIOR MARRIAGE, IT MUST BE SHOWN THAT THE FORMER MARRIAGE WAS VALID, THAT AT THE TIME OF THE SECOND MARRIAGE THE FORMER SPOUSE WAS LIVING, AND THAT THE FORMER MARRIAGE HAD NOT BEEN LEGALLY DISSOLVED BY DIVORCE OR ANNULMENT. BRIGGS V. UNITED STATES, 116 C.1CLS. 638. NO PHILIPPINE DECISION CONFLICTING WITH THAT DECISION HAS BEEN CITED TO US. HENCE, EVEN IF LIEUTENANT ARENAS IS NOT ESTOPPED TO DENY THE VALIDITY OF HIS MARRIAGE TO CARIDAD MANLAPIG ARENAS BY HIS ACTIONS OF HAVING ENTERED INTO A FORMAL CEREMONIAL MARRIAGE WITH HER AND ACCEPTING ITS BENEFITS, HIS UNSUPPORTED STATEMENTS REGARDING A PRIOR MARRIAGE TO CARMEN CONCEPCION WOULD NOT APPEAR SUFFICIENT TO OVERCOME THE PRESUMPTION OF ITS VALIDITY. ACCORDINGLY, IN THE ABSENCE OF A JUDICIAL DETERMINATION OR RECORD EVIDENCE PROVING THE EXISTENCE AND VALIDITY OF A MARRIAGE TO CARMEN CONCEPCION, WE WOULD NOT BE REQUIRED TO OBJECT TO ANNUITY PAYMENTS TO CARIDAD MANLAPIG ARENAS AS WIDOW. SEE 10 U.S.C. 1444 (C).