B-158906, JUN. 7, 1966

B-158906: Jun 7, 1966

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DEPARTMENT OF THE AIR FORCE: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 25. YOUR LETTER WAS FORWARDED TO THIS OFFICE BY AIR FORCE LETTER DATED APRIL 5. THE MEMBER AND HIS PRESENT WIFE WERE MARRIED ON OCTOBER 24. IT IS REPORTED THAT DUE TO AN ADMINISTRATIVE OVERSIGHT IN 1954 WHEN THE MEMBER'S RETIRED PAY ACCOUNT WAS ESTABLISHED. THE FACTS AND CIRCUMSTANCES SURROUNDING SUCH DIVORCE WERE OVERLOOKED. MEULENBERG AS THE LAWFUL SPOUSE OF THE MEMBER IS NOW BEING QUESTIONED AS A RESULT OF A RECENT ADMINISTRATIVE REVIEW OF THE MEMBER'S RETIRED PAY ACCOUNT. AS A RESULT YOU STATE THAT THE MEXICAN DIVORCE PROCEEDINGS HAVE CAST A "SHADOW OF UNCERTAINTY" ON THE VALIDITY OF THE MEMBER'S 1940 MARRIAGE TO MRS.

B-158906, JUN. 7, 1966

TO ACCOUNTING AND FINANCE OFFICER, DEPARTMENT OF THE AIR FORCE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 25, 1966, REQUESTING A DECISION AS TO THE PROPRIETY OF PAYMENT OF A VOUCHER STATED IN THE AMOUNT OF $5,479.20, IN FAVOR OF COLONEL ANDREW MEULENBERG, USAF, RETIRED, WHICH REPRESENTS THE COST OF COVERAGE FOR THE OPTIONS SELECTED BY HIM UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, AS AMENDED, 10 U.S.C. 1431, ET SEQ., FOR THE PERIOD JANUARY 1, 1956, THROUGH DECEMBER 31, 1965. YOUR LETTER WAS FORWARDED TO THIS OFFICE BY AIR FORCE LETTER DATED APRIL 5, 1966, HAVING BEEN ASSIGNED SUBMISSION NO. DO-AF-901 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

IT APPEARS THAT PRIOR TO THE MEMBER'S RETIREMENT ON AUGUST 31, 1954, HE FILED AN ELECTION UNDER THE UNIFORMED SERVICES CONTINGENCY OPTION ACT (PRESENTLY TITLED RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN), CHOOSING OPTIONS 1 AND 4, FOR THE PURPOSE OF PROVIDING AN ANNUITY OF ONE-HALF OF HIS REDUCED RETIRED PAY FOR HIS WIFE. ACCORDING TO THE COPY OF THE ANNUITY OPTION FORM IN THE FILE, THE MEMBER AND HIS PRESENT WIFE WERE MARRIED ON OCTOBER 24, 1940, IN GREENWICH, CONNECTICUT, AND IT APPEARS THAT MRS. MEULENBERG HAD PREVIOUSLY BEEN MARRIED TO ONE EDMUND W. SCHEDLER, WHICH MARRIAGE HAD PURPORTEDLY BEEN TERMINATED BY A DIVORCE DECREE ENTERED ON OCTOBER 23, 1940, IN THE BRAVOS DISTRICT, STATE OF CHIHUAHUA, REPUBLIC OF MEXICO.

IT IS REPORTED THAT DUE TO AN ADMINISTRATIVE OVERSIGHT IN 1954 WHEN THE MEMBER'S RETIRED PAY ACCOUNT WAS ESTABLISHED, THE FACTS AND CIRCUMSTANCES SURROUNDING SUCH DIVORCE WERE OVERLOOKED. HOWEVER, THE STATUS OF MRS. MEULENBERG AS THE LAWFUL SPOUSE OF THE MEMBER IS NOW BEING QUESTIONED AS A RESULT OF A RECENT ADMINISTRATIVE REVIEW OF THE MEMBER'S RETIRED PAY ACCOUNT. AS A RESULT YOU STATE THAT THE MEXICAN DIVORCE PROCEEDINGS HAVE CAST A "SHADOW OF UNCERTAINTY" ON THE VALIDITY OF THE MEMBER'S 1940 MARRIAGE TO MRS. SCHEDLER, FOR ANNUITY PURPOSES, CITING OUR DECISIONS 43 COMP. GEN. 567, B-153183, DATED FEBRUARY 14, 1964, AND 44 COMP. GEN. 485, B-155795, DATED FEBRUARY 16, 1965, AS HAVING POSSIBLE APPLICATION TO THE PRESENT CASE.

AMONG THE ENCLOSURES RECEIVED WITH YOUR LETTER, IS AN ENGLISH TRANSLATION OF THE DECREE OF DIVORCE ENTERED OCTOBER 23, 1940, IN THE RECORDS OF THE CIVIL COURT OF FIRST INSTANCE, CIVIL BRANCH OF BRAVOS DISTRICT, STATE OF CHIHUAHUA, REPUBLIC OF MEXICO. THE DECREE EVIDENCES THAT MRS. SCHEDLER (NOW MRS. MEULENBERG) HAD PREVIOUSLY MARRIED EDMUND W. SCHEDLER ON FEBRUARY 13, 1932, IN PASSAY, RIZAL PROVINCE, PHILIPPINE ISLANDS; THAT THERE WERE TWO CHILDREN OF THE MARRIAGE WHO WERE IN THE CUSTODY OF THEIR FATHER BY MUTUAL AGREEMENT AT THE TIME OF THE 1940 DIVORCE CTION; AND THAT A DIVORCE WAS GRANTED TO MRS. SCHEDLER FROM HER THEN HUSBAND ON OCTOBER 23, 1940. THE FINDING OF FACTS RECITED IN THIS DECREE INDICATE THAT THE THEN RUTH SPENCER SCHEDLER FILED HER PETITION FOR A DIVORCE ON AUGUST 29, 1940, EXHIBITING A STATEMENT OF HER REGISTRATION IN THE CITY HALL OF JUAREZ AS EVIDENCE OF HER RESIDENCY; THAT THE DEFENDANT (EDMUND W. SCHEDLER) IN THE ACTION WAS SERVED WITH SUMMONS BY PUBLICATION IN THE OFFICIAL PERIODICAL OF THE STATE OF HIHUAHUA; THAT AS A RESULT OF SUCH PUBLICATION, THERE BEING NO ANSWER FROM THE DEFENDANT, THE COMPLAINT WAS DEEMED TO BE NEGATIVELY ANSWERED; AND THAT CERTAIN "CONFESSIONAL EVIDENCE" OFFERED BY THE PLAINTIFF (MRS. SCHEDLER), "CONSTITUTED FULL PROOF" OF THE FACTS IN ACCORDANCE WITH MEXICAN LAW. THE COURT THEREUPON ENTERED JUDGMENT PROVIDING THAT THE MARRIAGE BETWEEN THE PARTIES TO THE SUIT "IS HEREBY DISSOLVED WITH ALL ITS LEGAL CONSEQUENCES; BOTH PARTIES BEING FREE TO CONTRACT NEW MARRIAGES.'

THE ACTION WHICH SHOULD BE TAKEN IN THIS CASE IS GOVERNED BY THE HOLDING IN OUR DECISION OF FEBRUARY 16, 1965, 44 COMP. GEN. 485. LIKE THE PARTIES TO THE MEXICAN DIVORCE PROCEEDINGS IN THAT CASE, THERE IS NO EVIDENCE THAT EITHER MR. OR MRS. SCHEDLER ESTABLISHED A LEGAL RESIDENCE OR DOMICILE IN THAT COUNTRY. THAT FACT FURNISHES A BASIS FOR UNCERTAINTY AS TO THE LEGAL EFFECT OF THE MEXICAN DECREE OF DIVORCE AS IT RELATES TO THE VALIDITY OF COLONEL MEULENBERG'S MARRIAGE. HOWEVER, THE LEGAL PRESUMPTION IN FAVOR OF THE VALIDITY OF THE SECOND MARRIAGE WARRANTS CONTINUED DEDUCTIONS FROM HIS RETIRED PAY IN ACCORDANCE WITH THE ELECTION OF ANNUITY EXERCISED BY HIM IN 1954. IT IS ASSUMED THAT APPROPRIATE LEGAL PROCEEDINGS WILL BE INSTITUTED TO DETERMINE THE VALIDITY OF THE MARRIAGE HERE IN QUESTION. MRS. MEULENBERG'S RIGHT TO RECEIVE SUCH ANNUITY WILL BE DETERMINED ON THE BASIS OF THE COURT'S HOLDING IN THAT CASE.