B-239039, Jan 17, 1991

B-239039, Jan 17, 1991

MILITARY PERSONNEL - Pay - Death gratuities - Eligibility - Spouses DIGEST: GAO does not object to Navy decision that a deceased member's second spouse is his widow for purposes of eligibility for a military Identification and Privileges Card where the member's first spouse, who herself remarried, maintains that she remarried in reliance upon a divorce from the member that she says she now is unsure ever was finalized.

Lieutenant Commander P. J. Sheldon:

This responds to your request that we determine the legal widow of Petty Officer (PO) Arthur L. Clark, USN (Deceased), for the purpose of issuing a Uniformed Services Identification and Privileges Card.

The record indicates that PO Clark, while a member of the Navy, married Eleanor T. Clark on July 30, 1949. Eleanor says that in late 1962 she and PO Clark visited a lawyer in California to initiate divorce proceedings. PO Clark then left her and married Pauline V. Clark in 1964; they remained married until his death in 1973. Eleanor, relying on the 1962 divorce, married Milton Ward in 1967; they were divorced 6 years later.

Eleanor subsequently came to believe that PO Clark had not followed through with the 1962 divorce, on which basis she claims to be his widow for purposes of obtaining an Identification and Privileges Card. (The record reflects no other claims by Eleanor Clark deriving from the matter in issue.) Pauline, who evidently has been the beneficiary of military spouse privileges since her marriage to PO Clark, argues that Eleanor's marriage to Milton Ward establishes the validity of Eleanor's 1962 divorce from PO Clark, so that Pauline should retain her card as PO Clark's widow. Pauline has been unable to locate a divorce decree for Eleanor's marriage to PO Clark, asserting that California, where the divorce presumably took place, did not keep centralized marriage records in 1962.

Eligibility for an Identification and Privileges Card is based on the requirements in Department of Defense Instruction No. 1000.13, which provides that such cards will be issued to, among others, a deceased member's surviving dependents. In this respect, we have held that where a divorce is premised on a decree of doubtful validity, e.g., a foreign divorce decree secured by a party that did not have a bona fide residence in that country, the marital status of the parties is too doubtful to serve as a basis for the payment of public funds. See Major Donald E. Shaff, USAF (Retired) (Deceased), B-195250, Jan. 23, 1980. Here, however, there is no divorce decree to consider, only the actions of PO Clark and Eleanor after 1962.

The record shows that the Navy initially determined under its guidelines that since Eleanor had remarried (for which there is documentation) there is ample reason to conclude that there is a divorce decree on file in another state or country, and that Pauline therefore is PO Clark's legal widow for purposes of the benefits authorized by the card. Eleanor states only that she is fairly sure that PO Clark did not pursue divorce in 1962 since, she says, she has no divorce decree. In these circumstances, we see no reason to object to the Navy's initial decision, especially in light of the administrative nature of eligibility determinations under the Defense Instruction. In order to find for Eleanor, we would have to conclude, in effect, that both the member's and Eleanor's second marriages were invalid and perhaps bigamous. In our view, it would be unfair to compel Pauline, who has been considered the member's spouse/widow for the last 26 years and who seemingly never before had reason to question her marriage's validity, to present proof of her late husband's prior divorce to refute Eleanor's eligibility.

Accordingly, we find reasonable the Navy's determination that Pauline T. Clark is PO Clark's eligible widow for purposes of issuance of the Identification and Privileges Card.