B-149378, AUGUST 10, 1962, 42 COMP. GEN. 112

B-149378, AUGUST 10, 1962, 42 COMP. GEN. 112

PAY - RETIRED - ANNUITY ELECTIONS FOR DEPENDENTS - REMARRIAGE AFTER RETIREMENT THE REMARRIAGE OF A MEMBER OF THE UNIFORMED SERVICES AFTER RETIREMENT TO HIS FORMER WIFE WHO LOST HER RIGHT TO THE SURVIVOR ANNUITY ELECTED FOR HER UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN UPON THEIR DIVORCE AFTER THE MEMBER'S RETIREMENT DOES NOT REVIVE ANY RIGHT TO AN ANNUITY, EVEN THOUGH RETIRED PAY DEDUCTIONS CONTINUED AFTER THE DIVORCE BECAUSE THE MEMBER HAD NOT ELECTED THE OPTION TO HAVE THE DEDUCTIONS STOPPED WHEN HE NO LONGER HAD A WIFE; THEREFORE, THE WIFE MUST BE REGARDED AS ANY OTHER DEPENDENT ACQUIRED AFTER RETIREMENT AND INELIGIBLE FOR AN ANNUITY AS THE WIDOW OF A MEMBER UPON HIS DEATH.

TO THE SECRETARY OF THE NAVY, AUGUST 10, 1962:

BY LETTER DATED JULY 5, 1962, THE ASSISTANT SECRETARY OF THE NAVY (INSTALLATIONS AND LOGISTICS) REQUESTED A DECISION AS TO WHETHER THE WIDOW OF A RETIRED MEMBER OF THE NAVY WOULD BE ENTITLED TO AN ANNUITY UNDER THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN, 10 U.S.C. 1431 1446, IF THE MEMBER (1) HAD A VALID ELECTION OF OPTION 1 IN EFFECT AT TIME OF RETIREMENT, (2) DIVORCED HIS WIFE AFTER RETIREMENT, AND (3) SUBSEQUENTLY REMARRIED THE SAME WOMAN. YOUR REQUEST FOR DECISION WAS ASSIGNED SUBMISSION NO. SS-N-660 BY THE DEPARTMENT OF DEFENSE MILITARY PAY AND ALLOWANCE COMMITTEE.

THE RETIRED SERVICEMAN'S FAMILY PROTECTION PLAN PROVIDES A SYSTEM WHEREBY MILITARY PERSONNEL MAY, IF THEY CHOOSE TO RECEIVE A REDUCED AMOUNT OF RETIRED PAY, PROVIDE ANNUITIES FOR DEPENDENTS--- SURVIVING SPOUSE AND CHILDREN. THE PLAN, WHILE FEDERALLY ADMINISTERED, IS DEVISED TO BE SELF- SUPPORTING IN THAT THE AMOUNTS OF THE REDUCTION IN RETIRED PAY SHOULD FINANCE THE AMOUNTS OF DEPENDENTS' ANNUITIES PAYABLE UNDER THE PLAN.

UNDER SECTION 1434 (A) (1) A MEMBER MAY MAKE THE ANNUITY PAYABLE TO, OR ON BEHALF OF, THE SURVIVING SPOUSE, ENDING WHEN THE SPOUSE DIES OR REMARRIES. IN ELECTING TO PROVIDE AN ANNUITY FOR HIS WIFE, THE RETIRED MEMBER MAY ELECT AN ANNUITY WITH OR WITHOUT THE OPTION TO HAVE RETIRED PAY DEDUCTIONS STOPPED WHEN HE NO LONGER HAS A WIFE ELIGIBLE FOR AN ANNUITY. SEE SECTION 4 (A) (4) OF THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953, 37 U.S.C. 373 (A) (4) (1952 ED., SUPP. II), AND 10 U.S.C. 1434 (C). WHERE THE MEMBER DIVORCES HIS WIFE AFTER RETIREMENT AND REMARRIES HER, THAT WIFE WOULD SATISFY THE LITERAL DEFINITION OF THE TERM "WIDOW" IN THE UNIFORMED SERVICES CONTINGENCY OPTION ACT OF 1953 AND THE TERM "SPOUSE" IN 10 U.S.C. 1434 AND 1435 REGARDLESS OF WHETHER THE RETIRED MEMBER HAD ELECTED OPTION (4) UNDER THE 1953 ACT OR OPTION (C) UNDER SECTION 1434, SINCE THE STATUTE DEFINES THOSE TERMS AS MEANING THE SPOUSE OF THE MEMBER ON THE DATE THE MEMBER IS RETIRED OR BECOMES ENTITLED TO RETIRED PAY.

IF HE ELECTS TO HAVE THE DEDUCTIONS STOPPED IN CASE HE IS DIVORCED OR HIS WIFE DIES, HIS PREMIUMS (RETIRED PAY DEDUCTIONS) ARE SOMEWHAT HIGHER THAN THEY WOULD BE WITHOUT THAT OPTION. IT SEEMS CLEAR THAT THE ELECTION TO HAVE, OR NOT TO HAVE, THE RETIRED PAY DEDUCTION STOPPED IN THAT EVENT AFFECTS ONLY THE AMOUNT OF THE PREMIUM PAYMENT. THERE IS NOTHING IN THE STATUTE TO SUGGEST THAT SUCH ELECTION WOULD HAVE, OR WAS INTENDED TO HAVE, A DETERMINATIVE EFFECT ON WHETHER AN ANNUITY WOULD BE PAYABLE IN THE EVENT OF A REMARRIAGE TO THE FORMER WIFE.

CLEARLY, THE DISSOLUTION OF THE MARITAL STATUS TERMINATES THE WIFE'S PARTICIPATION IN THE ANNUITY PROGRAM WHERE RETIRED PAY DEDUCTIONS ARE TERMINATED UPON DIVORCE UNDER A SECTION 1434 (C) ELECTION AND WE FIND NO BASIS FOR A CONCLUSION THAT THE REMARRIAGE OF THE RETIRED MEMBER TO HER WOULD REVIVE HER RIGHT TO AN ANNUITY. TO HOLD OTHERWISE WOULD PERMIT A RETIRED MEMBER'S WIDOW TO PARTICIPATE IN THE BENEFITS OF THE PLAN EVEN THOUGH NO PREMIUMS WERE PAID DURING THE PERIOD BETWEEN THE DATE OF THE MEMBER'S DIVORCE FOLLOWING HIS RETIREMENT AND HIS REMARRIAGE TO HER, WHICH PERIOD COULD EXTEND FOR A COMPARATIVELY LONG TIME. THE CIRCUMSTANCE THAT RETIRED PAY DEDUCTIONS WILL BE MADE DURING THE PERIOD AFTER THE DIVORCE WHERE THE MEMBER DOES NOT ELECT THAT OPTION, RESULTS FROM THE ELECTION MADE BY THE MEMBER WITH RESPECT TO THE PREMIUM PAYMENTS AND NOT WITH RESPECT TO AN ELECTION RELATING TO CIRCUMSTANCES UNDER WHICH THE ANNUITY ITSELF WILL BE PAID. IT MAY BE NOTED THAT SECTION 4 OF THE ACT OF OCTOBER 4, 1961, PUBLIC LAW 87-381, AMENDING 10 U.S.C. 1436 TO PERMIT THE WITHDRAWAL OF RETIRED MEMBERS FROM PARTICIPATION IN THE FAMILY PROTECTION PLAN FOR SEVERE FINANCIAL HARDSHIP, SPECIFICALLY PROVIDES THAT "THE ABSENCE OF AN ELIGIBLE BENEFICIARY SHALL NOT OF ITSELF BE A BASIS FOR SUCH ACTION.'

THERE IS NO PROVISION UNDER THE FAMILY PROTECTION PLAN WHEREBY A DEPENDENT ACQUIRED AFTER RETIREMENT MAY BE PROVIDED AN ANNUITY UNDER THE PLAN. AFTER A DIVORCE THE MEMBER'S WIFE CEASES TO BE A BENEFICIARY UNDER THE PLAN AND EVEN THOUGH DEDUCTIONS CONTINUE TO BE MADE FROM THE MEMBER'S RETIRED PAY UNDER THE TERMS OF HIS OPTION, HIS REMARRIAGE TO HIS FORMER WIFE COULD GIVE HER NO GREATER RIGHT THAN ANY OTHER DEPENDENT ACQUIRED AFTER RETIREMENT EITHER BY MARRIAGE, ADOPTION, OR NATURAL BIRTH.