B-203903, FEB 11, 1985

B-203903, FEB 11, 1985

PAY - RETIRED - SURVIVOR BENEFIT PLAN - SPOUSE - EXCLUDED DIGEST: 1. A SURVIVING SPOUSE WHO DOES NOT QUALIFY AS AN ELIGIBLE WIDOW FOR PURPOSES OF THE SURVIVOR BENEFIT PLAN MAY NOT RECEIVE AN ANNUITY UNDER THE PLAN ON THE BASIS THAT SHE HAD AN INSURABLE INTEREST IN HER SPOUSE SINCE COVERAGE FOR HER WAS AVAILABLE ONLY AS A SPOUSE AND COVERAGE WAS ELECTED FOR HER AS A SPOUSE, NOT AS AN INDIVIDUAL WITH AN INSURABLE INTEREST. THE MEMBER'S ELECTION TO PARTICIPATE IN THE PLAN WAS MADE 5 YEARS AFTER HIS INITIAL ELIGIBILITY TO PARTICIPATE IN THE PLAN (UNDER SECTION 3(B) OF PUB. LAW 92-425) HAD EXPIRED, AND WAS BASED ON HIS LATER MARRIAGE. IN SUCH A CASE, HE WAS ELIGIBLE TO ELECT COVERAGE FOR HIS NEWLY ACQUIRED SPOUSE, NOT FOR A PERSON WITH AN INSURABLE INTEREST. PAY - RETIRED - SURVIVOR BENEFIT PLAN - SPOUSE - EXCLUDED 2. THE MERE FACT THAT A RETIRED OFFICER DESIGNATED HIS SPOUSE AS HIS SOLE BENEFICIARY WHEN HE ELECTED TO PARTICIPATE IN THE SURVIVOR BENEFIT PLAN, IS NOT A VALID BASIS FOR A CLAIM FOR ANNUITY UNDER THE PLAN UNLESS THE SURVIVING SPOUSE MEETS THE STATUTORY QUALIFICATIONS OF THE PLAN. ONE OF THE QUALIFICATIONS A SPOUSE MUST MEET, IF THE SPOUSE AND THE RETIREE WERE MARRIED AFTER THE RETIREE RETIRED AND HIS INITIAL ELIGIBILITY TO ELECT COVERAGE IN THE PLAN EXPIRED, IS THAT THE RETIREE AND THE SPOUSE BE MARRIED AT LEAST 1 YEAR PRIOR TO THE RETIREE'S DEATH. PAY - RETIRED - SURVIVOR BENEFIT PLAN - SPOUSE - EXCLUDED 3. WHERE A SURVIVING SPOUSE DOES NOT QUALIFY AS A "WIDOW" FOR SURVIVOR BENEFIT PLAN PURPOSES BECAUSE SHE AND THE RETIREE WERE MARRIED AFTER HE WAS RETIRED BUT WERE NOT MARRIED FOR AT LEAST 1 YEAR PRIOR TO THE RETIREE'S DEATH, A CLAIM THAT THEY WERE MARRIED UNDER COMMON LAW PRIOR TO THEIR OFFICIAL CEREMONIAL MARRIAGE IS NOT SUFFICIENT UNLESS THE COMMON LAW MARRIAGE HAS BEEN PROVEN. WHERE THE PARTIES ALLEGEDLY HELD THEMSELVES OUT AS HUSBAND AND WIFE WHILE RESIDING IN STATES WHERE COMMON LAW MARRIAGES MAY NOT BE LEGALLY CONTRACTED, BUT TRAVELED FOR VISITS TO OR PASSED THROUGH ON AN AIRPLANE TRIP JURISDICTIONS WHERE SUCH MARRIAGES MAY BE LEGALLY CONTRACTED, THE EXISTENCE OF A COMMON LAW MARRIAGE IS TOO DOUBTFUL FOR THE COMPTROLLER GENERAL TO RECOGNIZE IT. PAY - RETIRED - SURVIVOR BENEFIT PLAN - SPOUSE - EXCLUDED 4. A NAVY OFFICER RETIRED IN 1970, MARRIED IN 1978 AND 2 MONTHS LATER ELECTED COVERAGE UNDER THE SURVIVOR BENEFIT PLAN FOR HIS SPOUSE. HE DIED LESS THAN 1 YEAR AFTER THE MARRIAGE. SINCE THEY WERE MARRIED LESS THAN 1 YEAR BEFORE HIS DEATH THE SPOUSE DOES NOT QUALIFY AS AN ELIGIBLE WIDOW FOR AN ANNUITY UNDER THE PLAN. ALLEGATIONS THAT THEY HAD ENTERED INTO A COMMON LAW MARRIAGE SOMETIME IN 1973-1975, PRIOR TO THE 1978 CEREMONIAL MARRIAGE, EVEN IF PROVEN WOULD NOT QUALIFY HER AS THE WIDOW BECAUSE THE RETIREE MUST HAVE ELECTED COVERAGE UNDER THE PLAN WITHIN 1 YEAR AFTER HIS MARRIAGE WHICH, IF THE COMMON LAW MARRIAGE WERE VALID, WOULD HAVE EXPIRED AT THE LATEST IN 1976, OVER A YEAR BEFORE HE MADE THE ELECTION.

COMMANDER MIKE J. TRENS, USN, RETIRED:

THIS ACTION IS IN RESPONSE TO A REQUEST FOR RECONSIDERATION OF OUR DECISION, COMMANDER MIKE J. TRENS, USN (RETIRED), B-203903, SEPTEMBER 3, 1981, BY HIS WIDOW, BARBARA K. TRENS, THROUGH HER ATTORNEY.

THE FACTS OF THAT CASE ARE THAT COMMANDER TRENS RETIRED FROM THE U.S. NAVY ON AUGUST 1, 1970. ON FEBRUARY 22, 1978, HE MARRIED MRS. TRENS. APRIL 5, 1978, COMMANDER TRENS ELECTED TO PARTICIPATE IN THE SURVIVOR BENEFIT PLAN, 10 U.S.C. 1447-1455 (1976), PURSUANT TO SECTION 1448(A)(5) TO PROVIDE AN ANNUITY FOR HIS WIFE. ON DECEMBER 9, 1978, COMMANDER TRENS SAILED FROM HONOLULU, HAWAII, ON THE MERCHANT VESSEL M/V HOLOHOLO. THE M/V HOLOHOLO WAS NEVER HEARD FROM AGAIN, AND ALL PERSONS ABOARD WERE CONSIDERED MISSING AND PRESUMED DEAD.

WE HELD THAT SINCE THE FACTS IN THE RECORD DID NOT SUPPORT THE CONCLUSION THAT COMMANDER TRENS WAS ALIVE AFTER DECEMBER 11, 1978, MRS. TREN'S CLAIM FOR AN ANNUITY UNDER THE SURVIVOR BENEFIT PLAN WAS TOO DOUBTFUL TO BE ALLOWED DUE TO THE STATUTORY REQUIREMENT THAT THEY BE MARRIED FOR AT LEAST 1 YEAR IMMEDIATELY PRIOR TO HIS DEATH.

THROUGH A NUMBER OF SUBMISSIONS, THE ATTORNEY FOR THE CLAIMANT HAS ASSERTED SEVERAL BASES FOR MRS. TREN'S CLAIM FOR AN ANNUITY. IN HIS ARGUMENT, HE RAISES A VARIETY OF ISSUES NOT CONSIDERED IN OUR ORIGINAL DECISION. WE FIND THAT NON OF THE ARGUMENTS PRESENTED PROVIDE A SUFFICIENT BASIS TO ALLOW MRS. TRENS' CLAIM FOR AN ANNUITY UNDER THE SURVIVOR BENEFIT PLAN.

THE SURVIVOR BENEFIT PLAN

THE SURVIVOR BENEFIT PLAN, ESTABLISHED BY PUBLIC LAW 92-425, APPROVED SEPTEMBER 21, 1972, 86 STAT. 706, AS AMENDED, IS A BENEFIT PLAN TO PROVIDE ANNUITIES FOR SPOUSES AND DEPENDENTS OF DECEASED MEMBERS OF THE UNIFORMED SERVICES. IF COVERAGE IS ELECTED BY THE MEMBER, DEDUCTIONS ARE MADE FROM THE MEMBER'S RETIRED OR RETAINER PAY TO PAY FOR THE COVERAGE.

MEMBERS WHO RETIRED PRIOR TO THE EFFECTIVE DATE OF THE SURVIVOR BENEFIT PLAN, SEPTEMBER 21, 1972, WERE PROVIDED AN OPPORTUNITY TO ELECT PARTICIPATION IN THE PLAN UNDER SUBSECTION 3(B) OF PUBLIC LAW 92-425. THE SUBSECTION ALSO ALLOWS A PERSON WHO WAS RETIRED AT THE TIME THE PLAN WAS ESTABLISHED, BUT WHO WAS NOT MARRIED OR DID NOT HAVE A DEPENDENT CHILD ON THE FIRST ANNIVERSARY OF THE EFFECTIVE DATE OF THE ACT, TO LATER ELECT TO PARTICIPATE IF HE LATER MARRIES OR ACQUIRES A DEPENDENT CHILD. SUBSECTION 3(B) PROVIDED THAT HE COULD THEN ELECT COVERAGE UNDER THE PLAN BY COMPLYING WITH THE ELECTION REQUIREMENTS STATED IN THE FOURTH SENTENCE OF 10 U.S.C. SEC. 1448(A) (CURRENTLY 10 U.S.C. 1448(A)(5) (1982)). ONE OF THOSE REQUIREMENTS IS THAT THE ELECTION TO PARTICIPATE BE SUBMITTED TO THE SECRETARY OF THE SERVICE CONCERNED WITHIN 1 YEAR AFTER THE MARRIAGE OR ACQUISITION OF THE DEPENDENT CHILD.

SINCE COMMANDER TRENS WAS NOT MARRIED AND APPARENTLY HAD NO DEPENDENT CHILDREN ON THE FIRST ANNIVERSARY DATE OF THE ACT, HE WAS ELIGIBLE TO PARTICIPATE IN THE PLAN UPON HIS MARRIAGE TO MRS. BARBARA TRENS IN 1978. /1/ AS IS INDICATED ABOVE, COMMANDER TRENS SUBMITTED HIS ELECTION TO PARTICIPATE IN THE PLAN LESS THAN 2 MONTHS AFTER HIS MARRIAGE.

UPON THE DEATH OF THE PARTICIPATING SERVICE MEMBER, THE PLAN PROVIDES PAYMENT OF A MONTHLY ANNUITY TO THE "ELIGIBLE WIDOW OR WIDOWER." U.S.C. 1450(A)(1). A WIDOW AS DEFINED UNDER THE PLAN IS:

"(3) *** 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." 10 U.S.C. SEC. 1447(3).

SINCE THERE APPARENTLY WAS NO ISSUE OF THE MARRIAGE BETWEEN COMMANDER AND BARBARA TRENS, AND SINCE THERE WAS A LACK OF EVIDENCE THAT COMMANDER TRENS WAS ALIVE AFTER DECEMBER 11, 1978, WE HELD THAT MRS. TRENS' CLAIM WAS TOO DOUBTFUL TO BE ALLOWED, SINCE SHE DID NOT MEET THE REQUIREMENT OF MARRIAGE FOR AT LEAST 1 YEAR IMMEDIATELY PRIOR TO COMMANDER TRENS' DEATH.

COUNSEL FOR THE CLAIMANT NOW ARGUES THAT SINCE MRS. TRENS WAS NAMED AS COMMANDER TRENS' SOLE BENEFICIARY, SHE SHOULD RECEIVE THE ANNUITY. WHILE COMMANDER TRENS DID STATE ON HIS REQUEST FOR PARTICIPATION IN THE SURVIVOR BENEFIT PLAN THAT MRS. TRENS WAS HIS SOLE BENEFICIARY, THAT FACT ALONE IS NOT A BASIS FOR NOR DOES IT ENTITLE HER TO AN ANNUITY.

THE RIGHTS OF INDIVIDUALS TO RECEIVE BENEFITS UNDER FEDERAL STATUTES ARE BY VIRTUE OF THE LANGUAGE OF THE STATUTE AND SUBJECT TO THE CONDITIONS AND LIMITATIONS CONTAINED THEREIN. UNDER THE LAW, THOSE ELIGIBLE AS BENEFICIARIES UNDER THE SURVIVOR BENEFIT PLAN ARE LISTED IN 10 U.S.C. SEC. 1450(A) SUBJECT TO THE DEFINITIONS CONTAINED IN 10 U.S.C. SEC. 1447. THUS, A PERSON NAMED AS A WIFE TO BE A BENEFICIARY MUST QUALIFY AS THE DECEASED MEMBER'S WIDOW AT THE TIME OF HIS DEATH IN ORDER TO ACQUIRE BASIC ELIGIBILITY FOR PAYMENT OF AN ANNUITY UNDER 1450(A).

COMMON LAW MARRIAGE

COUNSEL FOR THE CLAIMANT NOW ASSERTS THAT COMMANDER AND MRS. TRENS WERE MARRIED UNDER COMMON LAW SEVERAL YEARS PRIOR TO THEIR CEREMONIAL MARRIAGE ON FEBRUARY 22, 1978, AND THAT MRS. TRENS MEETS THE DEFINITION OF WIDOW UNDER THE PLAN. COUNSEL ASSERTS THAT COMMANDER AND MRS. TRENS LIVED TOGETHER IN A COMMON LAW MARITAL RELATIONSHIP FROM 1973 TO 1978. HE HAS FURNISHED VARIOUS AFFIDAVIT, STATEMENT AND OTHER DOCUMENTARY EVIDENCE TO SUPPORT THIS. AS HE NOTES, HOWEVER, DURING THIS PERIOD THE COUPLE WERE RESIDENTS OF CALIFORNIA AND HAWAII, JURISDICTIONS WHICH DO NOT RECOGNIZE COMMON LAW MARRIAGE UNLESS SUCH MARRIAGE IN VALIDLY CONTRACTED IN A JURISDICTION WHICH DOES RECOGNIZE COMMON LAW MARRIAGE. /2/

TO OVERCOME THIS OTHERWISE FATAL DEFECT IN HIS ARGUMENT THAT A COMMON LAW MARRIAGE WAS CONTRACTED, HE INDICATES THAT DURING THIS PERIOD COMMANDER AND MRS. TRENS VISITED RELATIVES IN AND TRAVELED IN MEXICO BRIEFLY IN 1973, IN DECEMBER 1974 AND FOR A FEW MONTHS IN 1975, DURING WHICH THEY HELD THEMSELVES OUT AS HUSBAND AND WIFE. HE ASSERTS THAT A COMMON LAW TYPE OF MARRIAGE MAY BE ESTABLISHED UNDER MEXICAN LAW, AND THESE VISITS WERE SUFFICIENT TO DO SO. AS ADDITIONAL SUPPORT COUNSEL INDICATES THAT THEY TOOK A CROSS-COUNTRY AIRPLANE FLIGHT INCLUDED A STOP AT THE AIRPORT IN ATLANTA, GEORGIA. HE STATES THAT GEORGIA IS A STATE IN WHICH A COMMON LAW MARRIAGE MAY BE ENTERED INTO, AND THIS AIRPLANE FLIGHT VIA ATLANTA ALSO ESTABLISHED THEIR RELATIONSHIP AS HUSBAND AND WIFE. THUS, COUNSEL ARGUES THAT THE COMMON LAW MARRIAGE WAS ESTABLISHED DURING 1973, 1974 OR 1975 IN JURISDICTIONS IN WHICH SUCH MARRIAGES MAY BE CONTRACTED, AND THAT UPON THE PARTIES' RETURN HOME TO THEIR RESIDENCE IN HAWAII OR CALIFORNIA, THEIR MARRIAGE WOULD BE RECOGNIZED.

COUNSEL CITES NO AUTHORITY TO SUPPORT HIS CONCLUSION THAT THE VISITS TO MEXICO OR THE TRANSCONTINENTAL AIRPLANE FLIGHT VIA GEORGIA WERE SUFFICIENT TO ESTABLISH A COMMON LAW MARRIAGE IN THOSE JURISDICTIONS, AND WE FIND THE MATTER TOO DOUBTFUL FOR US TO CONCLUDE THAT A VALID MARRIAGE WAS SO ESTABLISHED.

IN ADDITION, THE FACT THAT COMMANDER TRENS ELECTED TO PARTICIPATE IN THE SURVIVOR BENEFIT PLAN VERY SHORTLY AFTER HIS 1978 CEREMONIAL MARRIAGE, REQUESTING COVERAGE FOR HIS WIFE WHOM HE MARRIED ON FEBRUARY 22, 1978, SEEMS TO INDICATE THAT HE AT LEAST DOUBTED THAT HE WAS MARRIED TO HER PRIOR TO THAT DATE, AND HE REALIZED THAT IT WAS THE 1978 MARRIAGE WHICH ALLOWED HIM TO ELECT PARTICIPATION IN HER BEHALF.

IN ANY EVENT EVEN IF, AS COUNSEL ARGUES, IT COULD BE ESTABLISHED THAT COMMANDER TRENS ELECTED TO PARTICIPATE IN THE SURVIVOR BENEFIT PLAN VERY SHORTLY AFTER HIS 1978 CEREMONIAL MARRIAGE, REQUESTING COVERAGE FOR HIS WIFE WHOM HE MARRIED ON FEBRUARY 22, 1978, SEEMS TO INDICATE THAT HE AT LEAST DOUBTED THAT HE WAS MARRIED TO HER PRIOR TO THAT DATE, AND HE REALIZED THAT IT WAS THE 1978 MARRIAGE WHICH ALLOWED HIM TO ELECT PARTICIPATION IN HER BEHALF.

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

NATURAL PERSON WITH AN INSURABLE INTEREST

UNDER THE SURVIVOR BENEFIT PLAN A PERSON WHO IS NOT MARRIED AND HAS NO DEPENDENT CHILD MAY ELECT TO PROVIDE AN ANNUITY FOR A NATURAL PERSON WITH AN INSURABLE INTEREST IN THE MEMBER. 10 U.S.C. SEC. 1448(B)(1). THE COST OF THIS COVERAGE IS AT A HIGHER RATE THAN COVERAGE FOR A SPOUSE. U.S.C. SEC. 1452(C). COUNSEL ASSERTS THAT SINCE MRS. TRENS LIVED WITH COMMANDER TRENS FOR MANY YEARS PRIOR TO THEIR MARRIAGE, AND WAS FINANCIALLY DEPENDENT UPON HIM, SHE HAD AN INSURABLE INTEREST IN MR. TRENS AND SHOULD BE GRANTED AN ANNUITY ON THAT BASIS.

AS POINTED OUT ABOVE, ANNUITIES UNDER THE PLAN MAY ONLY BE RECEIVED IN ACCORDANCE WITH THE STATUTES WHICH PROVIDE FOR THEM. THE STATUTES GOVERNING ELECTIONS OF COVERAGE UNDER THE PLAN IN FAVOR OF A "NATURAL PERSON WITH AN INSURABLE THE PLAN IN FAVOR OF A "NATURAL PERSON WITH AN INSURABLE INTEREST" ARE DETAILED IN 10 U.S.C. SECS. 1448, 1450 AND 1452. UNDER 10 U.S.C. SEC. 1448(B) THE MEMBER COULD DESIGNATE AS A BENEFICIARY A NATURAL PERSON WITH AN INSURABLE INTEREST IN HIM AT THE TIME THE MEMBER BECAME ELIGIBLE FOR RETIRED OR RETAINER PAY. IN THIS CASE, SINCE COMMANDER TRENS WAS ALREADY RETIRED WHEN THE PLAN BECAME EFFECTIVE, WE WOULD HAVE HAD TO HAVE MADE SUCH AN ELECTION WHEN HE WAS FIRST ELIGIBLE TO PARTICIPATE IN THE PLAN, WHICH WAS WITHIN, 18 MONTHS OF THE DATE OF ITS ESTABLISHMENT, SEPTEMBER 21, 1972. PUB.LAW 92-425, SEC. 3(B), AS AMENDED. HE DID NOT ELECT TO PARTICIPATE AT THAT TIME. AS INDICATED ABOVE, HIS ELECTION TO PARTICIPATE IN 1978 COULD ONLY HAVE BEEN AUTHORIZED UNDER THE FOURTH SENTENCE OF 10 U.S.C. SEC. 1448(A), WHICH AUTHORIZED A PERSON WHO HAD NO SPOUSE WHEN HE BECAME ELIGIBLE TO PARTICIPATE IN THE PLAN TO ELECT TO PARTICIPATE IF HE LATER MARRIES OR ACQUIRES A DEPENDENT CHILD. HOWEVER, NO PROVISION IS MADE FOR ELECTING COVERAGE FOR OTHER THAN A SPOUSE OR CHILD IN THESE CIRCUMSTANCES.

THEREFORE, REGARDLESS OF WHETHER OR NOT MRS. TRENS HAD AN INSURABLE INTEREST IN COMMANDER TRENS, SINCE AN ELECTION TO PROVIDE MRS. TRENS AN ANNUITY AS A PERSON WITH AN INSURABLE INTEREST WAS NOT MADE WITHIN 18 MONTHS OF SEPTEMBER 21, 1972, SHE MAY NOT RECEIVE AN ANNUITY ON THAT BASIS.

OTHER ISSUES

COUNSEL FOR THE CLAIMANT POINTS TO CALIFORNIA AND SOCIAL SECURITY LAWS WHICH ALLOW BENEFITS TO SPOUSES WHO HAVE NOT BEEN MARRIED FOR AT LEAST 1 YEAR OR TO PUTATIVE SPOUSES. WE REITERATE THE FACT THAT THE BENEFITS AVAILABLE UNDER THE SURVIVOR BENEFIT PLAN ARE AVAILABLE ONLY PURSUANT TO THE STATUTES WHICH ARE APPLICABLE TO THE PLAN. THE LAWS OF CALIFORNIA AUTHORIZING SPOUSAL TYPE BENEFITS TO PUTATIVE SPOUSES OR STATUTES APPLICABLE TO SOCIAL SECURITY BENEFITS ARE NOT RELEVANT TO MRS. TRENS' CLAIM FOR A SURVIVOR BENEFIT PLAN ANNUITY.

COUNSEL FOR THE CLAIMANT ALSO ASSERTS THAT THE REQUIREMENT PROVIDED BY 10 U.S.C. SEC. 1447(3) APPLICABLE TO MRS. TRENS THAT SHE HAD BEEN MARRIED TO COMMANDER TRENS AT LEAST 1 YEAR PRIOR TO HIS DEATH, IS ARBITRARY, UNREASONABLE, DISCRIMINATORY AND UNCONSTITUTIONAL. WE POINT OUT THAT THE PROVISION WAS PASSED BY CONGRESS FOR A SPECIFIC REASON (DISCUSSED BELOW), AND IT MUST BE GIVEN FULL EFFECT BY OUR OFFICE. WE CONSIDER IT INAPPROPRIATE FOR US TO QUESTION THE CONSTITUTIONALITY OF A STATUTE ENACTED BY CONGRESS, SINCE THIS IS A MATTER FOR DETERMINATION BY THE COURTS. B-114578, NOVEMBER 9, 1973; B-124985, AUGUST 17, 1955.

FINALLY, COUNSEL RAISES THE ISSUE OF THE LEGISLATIVE PURPOSE OF THE SURVIVOR BENEFIT PLAN. WE AGREE THAT THE PURPOSE OF THE PLAN IS TO PROTECT MILITARY WIDOWS AND DEPENDENT CHILDREN. HOWEVER, THE LEGISLATIVE HISTORY OF THE 1-YEAR REQUIREMENT SHOWS THAT CONGRESS SOUGHT TO PREVENT SPOUSE SURVIVORS WHO ACQUIRE SUCH STATUS ONLY BY VIRTUE OF A "DEATH BED" MARRIAGE FROM AUTOMATICALLY RECEIVING THE ANNUITY UPON THE DEATH OF THE SPOUSE. HENCE, TO DENY AN ANNUITY TO AN INDIVIDUAL WHO DOES NOT SATISFY THE CONDITIONS IMPOSED BY CONGRESS, DOES NOT APPEAR TO CONTRAVENE THE LEGISLATIVE PURPOSE OF THE ACT. SEE E.G. MASTER SERGEANT PAUL J. METZLER, USMC, RETIRED, 56 COMP.GEN. 1022 (1977). CONCLUSION

AFTER CONSIDERATION OF THE RECORD AND THE INFORMATION PRESENTED WITH THE REQUEST FOR RECONSIDERATION WE FIND THAT NOTHING IN THE RECORD PROVIDES US WITH SUFFICIENT BASIS TO FIND THAT MRS. TRENS WAS AN ELIGIBLE WIDOW UNDER THE SURVIVOR BENEFIT PLAN. ACCORDINGLY, OUR ORIGINAL DECISION IS AFFIRMED.

/1/ ALTHOUGH COMMANDER TRENS WAS MARRIED TO SOMEONE ELSE DURING PART OF THE PERIOD BETWEEN HIS RETIREMENT AND THE FIRST ANNIVERSARY DATE OF THE ACT, THERE IS NO EVIDENCE IN THE RECORD THAT HE MADE AN ELECTION TO COVER THAT WIFE UNDER THE PLAN, AND THAT MARRIAGE TERMINATED IN DIVORCE PRIOR TO THE FIRST ANNIVERSARY DATE OF THE ACT.

/2/ CAL. CIV. CODE SECS. 4100, 4104, 4200, 4213 (DEERING 1984); COLBERT V. COLBERT, 169 P.2D 633 (CAL. 1946), POWELL V. ROGERS, 496 F.2D 1248 (9TH CIR. 1974), CERT. DENIED 419 U.S. 1032; AND HAWAII REV. STAT. SEC. 572- 1(7), (8) (1976), AND ATTY. GEN. OP. 73-5, REFERRED TO IN HAWAII REV. STAT. SEC. 572-1 NOTE.