BNUMBER:  B-261962
DATE:  February 16, 1996
TITLE:  Tiffany A. Russell-Survivor Benefit Plan Annuity

**********************************************************************

Matter of:Tiffany A. Russell-Survivor Benefit Plan Annuity

File:     B-261962

Date:February 16, 1996

DIGEST

Widow of deceased member is proper Survivor Benefit Plan annuitant 
rather than child adopted during prior marriage because under 10 
U.S.C.  sec.  1450(a), widow has superior claim over dependent children.

DECISION

Ms. Willie M. Russell, on behalf of Tiffany A. Russell, a minor, 
appeals the settlement of our Claims Group which found Tiffany, as the 
adopted daughter of Staff Sergeant David S. Russell III, USAF 
(Retired) (Deceased) not entitled to a Survivor Benefit Plan (SBP) 
annuity.

Sergeant Russell married Willie M. Russell on August 23, 1969, and 
they adopted Tiffany at a later date.  Sergeant Russell retired on 
July 1, 1988, at which time he elected SBP child only coverage.  
However, because an election of less than full spousal coverage 
required concurrence of the member's spouse and Willie Russell did not 
sign the spousal notification, maximum spouse and child coverage was 
established.

On February 27, 1989, the marriage was dissolved by divorce and the 
divorce decree did not mention SBP coverage.  On August 26, 1989, 
Sergeant Russell married Carolyn F. Russell.  Sergeant Russell died on 
February 1, 1994.

On July 13, 1989, the Defense Finance and Accounting Service received 
a copy of the divorce decree and complied with the provisions of the 
decree regarding the payment of the portion of Sergeant Russell's 
retired pay awarded to Willie Russell and the award of child support.  
However, at that time, deductions were not stopped for spousal SBP 
coverage.  On July 3, 1990, Sergeant Russell wrote to DFAS requesting 
that the SBP deductions be stopped.  The spousal deductions were 
stopped and a refund was made of the costs collected from June 1, 
1989, through July 31, 1990.  The cost of child only coverage 
continued to be deducted.

After Sergeant Russell's death, DFAS received claims for the SBP 
annuity from Carolyn Russell and from Willie Russell on behalf of 
Tiffany Russell.  DFAS was unaware of Sergeant Russell's marriage to 
Carolyn until receipt of her claim.  She subsequently submitted a copy 
of their marriage certificate showing that the marriage had lasted 
more than 1 year prior to his death.

DFAS found that Carolyn Russell was the proper SBP annuitant, 
established an annuity for her on April 22, 1994, and collected the 
delinquent SBP costs of $1,892.27 for September 1, 1990, to February 
1, 1994, from the annuity.  DFAS submitted the matter to our Office in 
view of Willie Russell's claim on behalf of Tiffany, and by settlement 
dated December 8, 1994, our Claims Group agreed with DFAS that Carolyn 
Russell was the proper annuitant because under 10 U.S.C.  sec.  1450(a), a 
surviving spouse has a superior claim to the annuity over surviving 
dependent children.
 
In her appeal, Willie Russell argues she was not advised that she 
needed to concur in Sergeant Russell's election for child only 
coverage in July 1988 and was not aware of the existence of the SBP 
coverage at the time of the divorce because Sergeant Russell indicated 
he had no insurance coverage.  If she had been aware of the coverage, 
she states, she would have asked the divorce court to order former 
spouse and child coverage for herself and Tiffany.  She also argues 
that by his actions in July 1990, requesting that spouse coverage be 
stopped because of the divorce, Sergeant Russell was showing his 
intent to revert to child only coverage for Tiffany.

DFAS records show that a letter was sent to Sergeant Russell at the 
address listed on the election form in August 1988, regarding the need 
for spousal concurrence for his election of child only coverage to be 
effective.  No reply was received to this letter, resulting in maximum 
spouse and child coverage.  Therefore, at that time, as Sergeant 
Russell's spouse, Willie Russell was covered by the SBP by operation 
of statute and regulations.

While we do not know what information concerning the SBP Sergeant 
Russell may have provided at the time of the divorce proceeding, other 
than Willie Russell's statement in her appeal that he said he had no 
insurance coverage, an inquiry by either Willie Russell or her 
attorney to DFAS could have revealed the existence of the SBP 
coverage.  Steps then could have been taken to obtain former spouse 
coverage for Willie.  However, none of these actions were taken, and 
when Sergeant Russell submitted a copy of the divorce decree which did 
not provide for former spouse coverage in July 1990, DFAS took the 
proper action by continuing child only coverage.

Since there was no former spouse coverage in effect, when Carolyn 
Russell demonstrated that she was Sergeant Russell's widow and that 
the marriage had met the 1-year requirement of 10 U.S.C.  sec.  1447(a), 
she became the eligible widow of the member under the SBP.  As stated 
by the Claims Group, she therefore had a superior claim to that of the 
member's dependent children.  See Staff Sergeant Martin P. Roberts, 60 
Comp. Gen. 240 (1981).

Accordingly, the Claims Group's settlement, which determined that 
Carolyn Russell is the proper SBP annuitant, is sustained.  If she 
should lose her eligibility for the annuity (death, or remarriage 
before the age of 55 years), the annuity would be payable to Sergeant 
Russell's dependent children.  10 U.S.C.  sec.  1450(b), and 60 Comp. Gen. 
240 at 243 (1981).

/s/Seymour Efros
forRobert P. Murphy
General Counsel