B-207625(1), SEP 22, 1982

B-207625(1): Sep 22, 1982

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UPON HIS DEATH PAYMENT OF AN ANNUITY TO THE SECOND SPOUSE MAY NOT BE MADE UNLESS IT IS ESTABLISHED IN A COURT OF COMPETENT JURISDICTION THAT HIS MARRIAGE TO HER WAS VALID. OTHERWISE THE ELECTION TO PARTICIPATE IN THE PLAN IS VOID AS HAVING BEEN MADE WITH THE INTENTION OF PROVIDING AN ANNUITY TO AN INELIGIBLE BENEFICIARY. THE AMOUNT DEDUCTED FROM MEMBER'S RETIRED PAY FOR COVERAGE COSTS ARE TO BE PAID TO THE ELIGIBLE BENEFICIARY UNDER 10 U.S.C. 2771. RETIRED (DECEASED): THIS ACTION IS IN RESPONSE TO A REQUEST FOR DECISION FROM A DISBURSING OFFICER. AN ANNUITY ACCOUNT WAS ESTABLISHED IN THE NAME OF AMELIA. EVIDENCE WAS RECEIVED BY THE NAVY FINANCE CENTER WHICH RAISED DOUBT AS TO THE VALIDITY OF AMELIA'S STATUS AS MR.

B-207625(1), SEP 22, 1982

DIGEST: A SERVICE MEMBER RETIRED PRIOR TO THE EFFECTIVE DATE OF THE SURVIVOR BENEFIT PLAN CONTRACTED A SECOND MARRIAGE APPARENTLY WITHOUT HAVING DISSOLVED HIS PRIOR MARRIAGE. HE THEREAFTER ELECTED SPOUSE COVERAGE AS AUTHORIZED BY SECTION 3(B) OF PUBLIC LAW 92-425 IN THE NAME OF THE SECOND SPOUSE. UPON HIS DEATH PAYMENT OF AN ANNUITY TO THE SECOND SPOUSE MAY NOT BE MADE UNLESS IT IS ESTABLISHED IN A COURT OF COMPETENT JURISDICTION THAT HIS MARRIAGE TO HER WAS VALID. OTHERWISE THE ELECTION TO PARTICIPATE IN THE PLAN IS VOID AS HAVING BEEN MADE WITH THE INTENTION OF PROVIDING AN ANNUITY TO AN INELIGIBLE BENEFICIARY. IF THAT BE THE CASE, THE AMOUNT DEDUCTED FROM MEMBER'S RETIRED PAY FOR COVERAGE COSTS ARE TO BE PAID TO THE ELIGIBLE BENEFICIARY UNDER 10 U.S.C. 2771.

CHIEF PETTY OFFICER JAMES G. STRATTON, USN, RETIRED (DECEASED):

THIS ACTION IS IN RESPONSE TO A REQUEST FOR DECISION FROM A DISBURSING OFFICER, NAVY ACCOUNTING AND FINANCE CENTER, CONCERNING THE ELIGIBILITY OF AMELIA K. STRATTON TO RECEIVE AN ANNUITY UNDER THE SURVIVOR BENEFIT PLAN, 10 U.S.C. SECS. 1447-2455, AS THE SURVIVING SPOUSE OF THE LATE CHIEF PETTY OFFICER JAMES G. STRATTON, USN, RETIRED, WHO DIED FEBRUARY 3, 1981. THIS MATTER HAS BEEN ASSIGNED SUBMISSION NUMBER DO-N-1393 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE SUBMISSION SHOWS THAT MR. STRATTON RETIRED FROM THE NAVY IN 1950. DECEMBER 27, 1972, HE COMPLETED AN ELECTION FORM (DD 1881) TO PARTICIPATE IN THE SURVIVOR BENEFIT PLAN IN THE MANNER AUTHORIZED BY SECTION 3(B) OF PUBLIC LAW 92-425, APPROVED SEPTEMBER 21, 1972, 86 STAT. 706, 711 (10 U.S.C. 1448 NOTE), SELECTING SPOUSE COVERAGE ONLY ON THE FULL AMOUNT OF HIS RETIRED PAY. ON THE ELECTION FORM HE FILED, HE LISTED AMELIA K. STRATTON AS HIS SPOUSE AND THE DATE OF THEIR MARRIAGE AS BEING NOVEMBER 7, 1943.

FOLLOWING HIS DEATH ON FEDRUARY 3, 1981, AN ANNUITY ACCOUNT WAS ESTABLISHED IN THE NAME OF AMELIA, AS SURVIVING SPOUSE. SHORTLY THEREAFTER, EVIDENCE WAS RECEIVED BY THE NAVY FINANCE CENTER WHICH RAISED DOUBT AS TO THE VALIDITY OF AMELIA'S STATUS AS MR. STRATTON'S SPOUSE. ACCORDING TO THAT INFORMATION, MR. STRATTON HAD PREVIOUSLY MARRIED ELLEN MARIE WOODWARD ON JUNE 7, 1926, AND ELLEN WAS STILL ALIVE. THIS INFORMATION APPEARS TO HAVE BEEN SUPPLIED BY ELLEN'S DAUGHTER ACTING ON ELLEN'S BEHALF AND INCLUDES A COPY OF THE MARRIAGE CERTIFICATE SHOWING THAT ELLEN AND JAMES G. STRATTON WERE MARRIED IN 1926 IN MARYLAND. AS A RESULT, THE ANNUITY PAYMENTS TO AMELIA WERE SUSPENDED ON MAY 15, 1981. SHE WAS REQUESTED TO PROVIDE THE FINANCE CENTER WITH A COPY OF HER MARRIAGE CERTIFICATE TO MR. STRATTON, AS WELL AS A COPY OF HIS DIVORCE DECREE FROM ELLEN. THE ONLY INFORMATION SUPPLIED BY HER IN RESPONSE TO THAT REQUEST WAS A COPY OF THEIR MARRIAGE CERTIFICATE SHOWING THAT THEIR MARRIAGE WAS PERFORMED IN NEW YORK IN 1943.

SINCE NO EVIDENCE WAS RECEIVED TO INDICATE THAT THE APPARENT IMPEDIMENT TO MR. STRATTON'S MARRIAGE TO AMELIA WAS REMOVED, AND IN VIEW OF OUR DECISION AT 57 COMP.GEN. 426 (1978), THE DISBURSING OFFICER QUESTIONS WHETHER AMELIA IS A PROPER BENEFICIARY UNDER THE PLAN.

SECTION 1450 OF TITLE 10, U.S.C. ESTABLISHES THE BENEFICIARIES OF SURVIVOR BENEFIT PLAN ANNUITIES BY PROVIDING IN PART:

"(A) EFFECTIVE AS OF THE FIRST DAY AFTER THE DEATH OF A PERSON TO WHOM SECTION 1448 OF THIS TITLE APPLIES, A MONTHLY ANNUITY UNDER SECTION 1451 OF THIS TITLE SHALL BE PAID TO -

"(1) THE ELIGIBLE WIDOW OR WIDOWER;"

FOR THE PURPOSE OF THE SURVIVOR BENEFIT PLAN, 10 U.S.C. SEC. 1447(3), AS AMENDED, DEFINES "WIDOW" AS FOLLOWS:

"'WIDOW' MEANS THE SURVIVING WIFE OF A PERSON WHO, IF NOT MARRIED TO THE PERSON AT THE TIME HE BECAME ELIGIBLE FOR RETIRED OR RETAINER PAY -

"(A) WAS MARRIED TO HIM FOR AT LEAST ONE YEAR IMMEDIATELY BEFORE HIS DEATH; OR

"(B) IS THE MOTHER OF ISSUE BY THAT MARRIAGE."

DECISION MATTER OF CLINE, 57 COMP.GEN. 426 (1978), INVOLVED A SITUATION SIMILAR TO THE PRESENT CASE IN WHICH TWO PERSONS CLAIMED ENTITLEMENT TO AN ANNUITY AS SURVIVING SPOUSE. THE FIRST SPOUSE CLAIMED BY VIRTUE OF PROOF OF THE EARLIER MARRIAGE THE MEMBER'S DEATH, AND THE SECOND CLAIMED BY VIRTUE WITH NO EVIDENCE OF DISSOLUTION OF THE MARRIAGE AT OF THE SUBSEQUENT CEREMONIAL MARRIAGE AND HAVING BEEN NAMED AS SPOUSE ON THE MEMBER'S ANNUITY ELECTION FORM. THAT CASE, LIKE THE PRESENT CASE, INVOLVED AN ELECTION TO PARTICIPATE IN THE PLAN BY A PERSON WHO WAS RETIRED PRIOR TO ENACTMENT OF THE PLAN. THUS, TO PARTICIPATE IN THE PLAN, THE RETIRED MEMBER HAD TO MAKE AN AFFIRMATIVE ELECTION UNDER SECTION 3(B) OF PUBLIC LAW 92-425, AS DID MR. STRATION. THE CLINE DECISION HELD THAT SINCE IN SUCH A CASE AN AFFIRMATIVE ELECTION TO PARTICIPATE MUST BE MADE, WHERE A MEMBER ELECTED TO PARTICIPATE IN THE PLAN, SELECTING SPOUSE COVERAGE, BUT NAMED AN INDIVIDUAL WHO COULD NOT QUALIFY AS HIS SPOUSE BY REASON OF THE FACT THAT HE APPARENTLY WAS STILL MARRIED TO ANOTHER, THE ELECTION WAS DEFECTIVE AND THEREFORE INVALID. THIS WAS BECAUSE THE ELECTION FORM SHOWED THAT THE RETIRED MEMBER'S INTENTION WAS TO PARTICIPATE IN THE PLAN TO PROVIDE COVERAGE FOR AN INELIGIBLE BENEFICIARY. SINCE NO OTHER VALID ELECTION WAS MADE, IT WAS CONCLUDED THAT NO ANNUITY COULD BE PAID AND ALL COVERAGE COSTS WERE TO BE PAID TO THE ELIGIBLE BENEFICIARY UNDER 10 U.S.C. SEC. 2771.

IN THE PRESENT CASE, THERE APPEARS TO BE LITTLE QUESTION THAT THE JAMES G. STRATTON OF BOTH MARRIAGES WAS THE SAME PERSON. ON MARCH 27, 1945, THE MR. STRATTON OF THE MARRIAGE TO ELLEN EXECUTED A GENERAL POWER OF ATTORNEY, SPECIFICALLY NAMING "MRS. ELLEN MARIE STRATTON" AS HIS ATTORNEY FOR THAT PURPOSE. THE SIGNATURE OF THAT DOCUMENT, WHICH WAS TO BE THE SAME AS THE SIGNATURE OF WITNESSED AND NOTARIZED BY APPROPRIATE NAVAL PERSONNEL, APPEARS MR. STRATTON ON THE COPY OF THE SURVIVOR BENEFIT PLAN ELECTION FORM NAMING AMELIA AS HIS SPOUSE. AN ATTEMPTED MARRIAGE TO ANOTHER WHILE AN INDIVIDUAL STILL HAS A LIVING SPOUSE FROM AN UNDISSOLVED MARRIAGE IS ILLEGAL AND VOID FROM ITS INCEPTION. SEE MCKINNEY'S CONSOLIDATED LAWS, N.Y. DOM.REL. SEC. 6; AND 52 AM.JUR. 2D, MARRIAGE, SECT. 67. THEREFORE, UNLESS IT CAN BE ESTABLISHED THAT MR. STRATTON'S MARRIAGE TO ELLEN WAS DISSOLVED PRIOR TO HIS MARRIAGE TO AMELIA, IT APPEARS THAT AMELIA COULD NOT QUALIFY AS HIS SURVIVING SPOUSE FOR ANNUITY PURPOSES UNDER THE PLAN. COMPARE MACCONNELL V. UNITED STATES, 217 CT.CL. 33 (1978). SEE ALSO MATTER OF BRAXTON, B-189133, SEPTEMBER 21, 1977.

NOTHING HAS BEEN PRESENTED TO US WHICH INDICATES THAT MR. STRATTON EVER ATTEMPTED TO HAVE HIS MARRIAGE TO ELLEN LEGALLY TERMINATED. WHILE SUCH LACK OF EVIDENCE DOES NOT ESTABLISH THAT HE WAS STILL MARRIED TO ELLEN AT HIS DEATH, NEITHER DOES IT SUPPORT THE PROPOSITION THAT HE WAS VALIDLY MARRIED TO AMELIA EITHER. FURTHERMORE, AMELIA HAS FURNISHED A COPY OF THEIR MARRIAGE LICENSE APPLICATION WHICH CONTAINED A DENIAL BY HIM OF ANY PRIOR MARRIAGE.

THEREFORE, BASED ON THE RECORD IN THIS CASE, THE VALIDITY OF MR. STRATTON'S MARRIAGE TO AMELIA IS TOO DOUBTFUL FOR US TO PERMIT PAYMENT OF A SURVIVOR ANNUITY TO HER AS MR. STRATTON'S ELIGIBLE WIDOW. UNLESS AMELIA CAN ESTABLISH THE VALIDITY OF HER MARRIAGE IN COURT OF COMPETENT JURISDICTION, IT APPEARS THAT MR. STRATTON MADE HIS ELECTION TO PARTICIPATE IN THE PLAN ON THE BASIS OF PROVIDING AN ANNUITY TO AN INELIGIBLE BENEFICIARY AND THE ELECTION TO PARTICIPATE IS DEFECTIVE AND INVALID. MATTER OF CLINE, DISCUSSED ABOVE.

WE NOTE, HOWEVER, THAT ON JUNE 9, 1977, MR. STRATTON EXECUTED A DESIGNATION OF BENEFICIARY FORM (NAVFINCEN 5890/2) NAMING AMELIA AS THE RECIPIENT OF ANY ARREARAGES OF RETIRED PAY DUE AT HIS DEATH. SINCE UNDER 10 U.S.C. SEC. 2771, THE LAW GOVERNING SETTLEMENT OF ACCOUNTS OF DECEASED MEMBERS, ANY PERSON MAY BE NAMED TO RECEIVE AMOUNTS DUE REGARDLESS OF RELATIONSHIP TO THE DECEDENT, AMELIA MAY RECEIVE THE AMOUNTS WITHHELD FROM MR. STRATTON'S RETIRED PAY FOR SURVIVOR BENEFIT PLAN COVERAGE COSTS, LESS THE AMOUNT ALREADY PAID HER AS A SURVIVOR ANNUITY.