B-228818, Aug 4, 1988, 67 Comp.Gen. 561

B-228818, Aug 4, 1988, 67 Comp.Gen. 561

Military Personnel - Pay - Survivor Benefits - Annuities - Eligibility - Former Spouses Army officer, having validly divorced his first wife in 1946, married again in 1960. When he then married a third wife in 1972 without dissolving his second marriage, his third wife was not legally married to him and therefore did not qualify as the beneficiary of his Survivor Benefit Plan (SBP) annuity. Since the second wife was legally married to the retired officer at the time of his death, she is his widow and is the proper beneficiary of the SBP annuity in spite of the third ceremonial marriage.

Lieutenant Colonel John Tiernan Sharkey, USAR (Retired) (Deceased) - Conflicting Claims for Survivor Benefit Plan Annuity:

This decision is in response to a request by the Army Finance and Accounting Center that we determine whether Ms. Maria Aurelia Mocanu Sharkey or Ms. Carmen Gorostiza Sharkey /1/ is the proper beneficiary of the Survivor Benefit Plan (SBP) annuity provided by the late Lieutenant Colonel John Tiernan Sharkey, a retired officer of the Army Reserve. determine that Ms. Maria Aurelia Mocanu Sharkey is the proper beneficiary. However, we also conclude that a waiver of collection should be granted for the SBP annuity paid to Ms. Carmen Gorostiza Sharkey before the Army suspended payments to her.

BACKGROUND

Colonel Sharkey divorced his first wife, Elizabeth Ruth Sharkey, in 1946. On February 8, 1960, he married Ms. Maria Aurelia Mocanu Sharkey in a civil ceremony in Gibraltar. There is no evidence to show that this marriage was ever terminated by divorce or annulment. On February 21, 1972, he entered into a ceremonial marriage with Ms. Carmen Gorostiza Sharkey in London, England. He began to receive military retired pay from the Army after he reached 60 years of age on October 24, 1979. He died on June 6, 1984, and the Army then established an SBP annuity account for Ms. Carmen Gorostiza Sharkey. However, on July 25, 1985, the Army received a letter with supporting documentation from Ms. Maria Aurelia Mocanu Sharkey who claimed that she was the eligible widow and beneficiary for the purpose of the SBP annuity. The Army then suspended payments to Ms. Carmen Gorostiza Sharkey and forwarded the record to our Office for a final determination.

ANALYSIS AND CONCLUSION

Provisions of law governing the SBP program are contained in sections 1447-1455 of title 10, United States Code. Subsection 1448(a) provides that the Plan applies to a person who is married or has a dependent child at the time he becomes entitled to retired or retainer pay unless he elects not to participate before the first day for which he becomes eligible for that pay. Thus, SBP spouse coverage commences automatically when a married individual becomes entitled to retired or retainer pay, unless the individual affirmatively elects not to participate in the SBP program.

Under the provisions of 10 U.S.C. Sec. 1331, which applies to Reserve service personnel, a person is entitled to retired pay upon application to the Secretary of the military department for such pay, if he is at least 60 years of age, has performed at least 20 years of service computed under the provisions of 10 U.S.C. Sec. 1332 and met the other requirements of that section. We have expressed the view that SBP coverage for a married reservist's lawful spouse commences automatically at the time he applies for retired pay at age 60 under 10 U.S.C. Sec. 1448(a) in the absence of a contrary election. /2/

In addition, we have repeatedly and consistently held that where a service member marries a subsequent "wife" without dissolving his prior marriage(s), the subsequent "wife" is not legally married to him and does not qualify as the beneficiary of his SBP annuity. Since the prior wife was legally married to him at the time of his death, she is his "widow" and is the proper beneficiary of the SBP annuity in spite of the subsequent ceremonial marriage. See Chief Petty Officer Robert W. McEachern (Retired) (Deceased), B-229157, Jan. 11, 1988; Chief Petty Officer Howard E. Moore, USN, Retired (Deceased), B-194469, May 14, 1979; Staff Sergeant Roger A. Cline, USA (Retired) (Deceased), 57 Comp.Gen. 426 (1978).

In the present case, we find that the evidence presented establishes that Colonel Sharkey contracted a legitimate marriage with Ms. Maria Aurelia Mocanu Sharkey on February 8, 1960, and that this marriage was not terminated by divorce or annulment prior to his death in 1984. It is consequently our view that she automatically was covered by the SBP as his lawful wife when he became entitled to retired pay at age 60 in 1979, and that she then became entitled to an SBP annuity as his widow 5 years later when he died.

As to the conflicting claim of Ms. Carmen Gorostiza Sharkey, we find that the record establishes that she married Colonel Sharkey in good faith and without knowledge of his other marriage. Nevertheless, her marriage to Colonel Sharkey was bigamous and invalid, and consequently she cannot qualify for an annuity as his widow under the SBP law.

Accordingly, we find that Ms. Maria Aurelia Mocanu Sharkey is the proper beneficiary of the SBP annuity at issue. In view of the circumstances of this case and pursuant to 10 U.S.C. Sec. 1453, we also conclude that collection should be waived of the amount of the SBP annuity paid to Ms. Carmen Gorostiza Sharkey before the Army suspended payments to her. Compare Kathryn H. Vandergrift, 55 Comp.Gen. 1238 (1976).

/1/ Slight variations in the spelling of these names appear in the record.

/2/ See 53 Comp.Gen. 832 (1974). Under 10 U.S.C. Sec. 1448(a) reservists may participate in the SBP program upon completing 20 years' satisfactory service for Reserve retirement purposes. Reservists who elect not to become SBP program participants at that time remain eligible for automatic SBP coverage when they later become entitled to retired pay at age 60.