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B-155090, OCT. 13, 1964

B-155090 Oct 13, 1964
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IS EXEMPT FROM SECTION 212 OF THE ECONOMY ACT. THE RECORD SHOWS THAT COMMANDER MROSS WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER THE PROVISIONS OF 10 U.S.C. 1202 ON AUGUST 1. WHICH WAS RATED AT ZERO PERCENT DISABLING. PURSUANT TO 10 U.S.C. 1210 THE SECRETARY OF THE NAVY DETERMINED THAT THE DISABILITY FOR WHICH HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST HAD CHANGED. THAT HIS DISABILITY HAD BECOME PERMANENT AND THAT SUCH PERMANENT DISABILITY WAS 40 PERCENT DISABLING. HE WAS TRANSFERRED TO THE PERMANENT DISABILITY RETIRED LIST EFFECTIVE JULY 1. THE DISABILITY FOR WHICH HE WAS TRANSFERRED TO THE PERMANENT LIST. FOR WHICH HE WAS TEMPORARILY RETIRED. ONLY THE LATTER CONDITION HAS BEEN ADMINISTRATIVELY DETERMINED TO HAVE BEEN INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR CAUSED BY AN INSTRUMENTALITY OF WAR DURING A PERIOD OF WAR.

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B-155090, OCT. 13, 1964

TO COMMANDER M. L. CONNER, SC, USN:

BY SECOND ENDORSEMENT DATED AUGUST 31, 1964, THE COMPTROLLER OF THE NAVY FORWARDED YOUR LETTER OF AUGUST 12, 1964, REQUESTING AN ADVANCE DECISION AS TO WHETHER COMMANDER JOSEPH W. MROSS, USN (RETIRED), 329647, IS EXEMPT FROM SECTION 212 OF THE ECONOMY ACT, APPROVED JUNE 30, 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A, FROM JULY 1, 1964, THE DATE OF HIS TRANSFER TO THE PERMANENT DISABILITY RETIRED LIST FROM THE TEMPORARY DISABILITY RETIRED LIST.

THE RECORD SHOWS THAT COMMANDER MROSS WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST UNDER THE PROVISIONS OF 10 U.S.C. 1202 ON AUGUST 1, 1959, SOLELY BY REASON OF ARTERIOSCLEROTIC HEART DISEASE, WHICH WAS RATED AT ZERO PERCENT DISABLING. PURSUANT TO 10 U.S.C. 1210 THE SECRETARY OF THE NAVY DETERMINED THAT THE DISABILITY FOR WHICH HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST HAD CHANGED, THAT HIS DISABILITY HAD BECOME PERMANENT AND THAT SUCH PERMANENT DISABILITY WAS 40 PERCENT DISABLING. ACCORDINGLY, HE WAS TRANSFERRED TO THE PERMANENT DISABILITY RETIRED LIST EFFECTIVE JULY 1, 1964. THE DISABILITY FOR WHICH HE WAS TRANSFERRED TO THE PERMANENT LIST, IN ADDITION TO ARTERIOSCLEROTIC HEART DISEASE, FOR WHICH HE WAS TEMPORARILY RETIRED, INCLUDED ARTHRITIS OF THE CERVICAL, DORSAL AND LUMBAR SPINE, AND PERFORATION OF THE LEFT EAR DRUM. ONLY THE LATTER CONDITION HAS BEEN ADMINISTRATIVELY DETERMINED TO HAVE BEEN INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR CAUSED BY AN INSTRUMENTALITY OF WAR DURING A PERIOD OF WAR. COMMANDER MROSS' MEDICAL SERVICE RECORD SHOWS THAT HIS LEFT EAR DRUM WAS RUPTURED ON DECEMBER 7, 1941, DURING THE JAPANESE ATTACK ON PEARL HARBOR WHILE SERVING NUMBER 7 GUN ON THE U.S.S. RALEIGH DUE TO HIS NOT HAVING TIME TO PROPERLY GET COTTON INTO HIS EAR.

YOU SAY THAT COMMANDER MROSS HAS BEEN RECEIVING REDUCED RETIRED PAY BECAUSE OF THE LIMITATION ON DUAL COMPENSATION IN THE 1932 ACT SINCE OCTOBER 14, 1961. BECAUSE OF YOUR DOUBT AS TO WHETHER IT MAY BE CONSIDERED THAT HE RETIRED JULY 1, 1964, FOR DISABILITY INCURRED IN COMBAT OR AS A RESULT OF AN INSTRUMENTALITY OF WAR WITHIN THE MEANING OF THAT ACT SINCE HE ACTUALLY ENTERED A RETIRED PAY STATUS WHEN HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST ON AUGUST 1, 1959, FOR A DISABILITY WHICH DID NOT MEET EITHER OF THE TWO CONDITIONS WHICH COULD EXEMPT HIM FROM THE RESTRICTIONS OF THE ACT YOU HAVE REQUESTED A DECISION IN THE MATTER.

SECTION 59A, TITLE 5, U.S. CODE, PROVIDES AS FOLLOWS:

"/A) AFTER JUNE 30, 1932, NO PERSON HOLDING A CIVILIAN OFFICE OR POSITION, APPOINTIVE OR ELECTIVE, UNDER THE UNITED STATES GOVERNMENT OR THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA OR UNDER ANY CORPORATION, THE MAJORITY OF THE STOCK OF WHICH IS OWNED BY THE UNITED STATES, SHALL BE ENTITLED, DURING THE PERIOD OF SUCH INCUMBENCY, TO RETIRED PAY FROM THE UNITED STATES FOR OR ON ACCOUNT OF SERVICES AS A COMMISSIONED OFFICER IN ANY OF THE SERVICES MENTIONED IN TITLE 37, AT A RATE IN EXCESS OF AN AMOUNT WHICH WHEN COMBINED WITH THE ANNUAL RATE OF COMPENSATION FROM SUCH CIVILIAN OFFICE OR POSITION, MAKES THE TOTAL RATE FROM BOTH SOURCES MORE THAN $10,000; AND WHEN THE RETIRED PAY AMOUNTS TO OR EXCEEDS THE RATE OF $10,000 PER ANNUM SUCH PERSON SHALL BE ENTITLED TO THE PAY OF THE CIVILIAN OFFICE OR POSITION OR THE RETIRED PAY, WHICHEVER HE MAY ELECT. AS USED IN THIS SECTION, THE TERM "RETIRED PAY" SHALL BE CONSTRUED TO INCLUDE CREDITS FOR ALL SERVICE THAT LAWFULLY MAY ENTER INTO THE COMPUTATION THEREOF.

"/B) THIS SECTION SHALL NOT APPLY TO ANY PERSON WHOSE RETIRED PAY, PLUS CIVILIAN PAY, AMOUNTS TO LESS THAN $10,000: PROVIDED, THAT THIS SECTION SHALL NOT APPLY TO ANY REGULAR OR EMERGENCY COMMISSIONED OFFICER RETIRED FOR DISABILITY (1) INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES, OR (2) CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY DURING A PERIOD OF WAR (AS THAT TERM IS USED IN CHAPTER 11 OF TITLE 38).'

REFERENCE TO THE PERTINENT NAVY REGISTERS DISCLOSES THAT COMMANDER MROSS CONTINUED TO SERVE ON ACTIVE DUTY SUBSEQUENT TO THE TIME HE SUFFERED INJURY TO HIS LEFT EAR DRUM AND THAT AT THE TIME HE WAS RELIEVED FROM ACTIVE DUTY AND PLACED ON THE TEMPORARY DISABILITY RETIRED LIST HE WAS SERVING AS A TEMPORARY LIEUTENANT COMMANDER OF THE REGULAR NAVY BUT THAT HIS PERMANENT GRADE WAS ENLISTED. THUS HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IN THE GRADE OF LIEUTENANT COMMANDER UNDER 10 U.S.C. 1372 (1/--- THE RANK OF COMMANDER BEING THE GRADE TO WHICH HE WAS ADVANCED UNDER 10 U.S.C. 6150 BY REASON OF HIS HAVING BEEN SPECIALLY COMMENDED BY THE SECRETARY OF THE NAVY FOR HIS PERFORMANCE OF DUTY IN ACTUAL COMBAT.

THE DISEASE FOR WHICH HE WAS TEMPORARILY RETIRED WAS DETERMINED NOT TO HAVE BEEN ONE WHICH WOULD EXEMPT THE OFFICER UNDER THE TERMS OF 10 U.S.C. 59A (B). WHILE IT WAS DETERMINED THAT PERFORATION OF HIS EAR DRUM WAS INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES AND WAS ALSO CAUSED BY AN INSTRUMENTALITY OF WAR DURING A PERIOD OF WAR, IT WAS NOT AFFIRMATIVELY DETERMINED THAT THE ARTHRITIS OF THE SPINE WAS SO CAUSED OR INCURRED.

WITH AN INDIVIDUAL WHOSE NAME IS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST IS NOT PERMANENTLY RETIRED AND MAY BE RETURNED TO ACTIVE DUTY OR RELEASED FROM THE SERVICE WITHOUT PERMANENT RETIREMENT, HE NEVERTHELESS ENTERS A RETIRED STATUS AT THAT TIME AND BECOMES ENTITLED TO RECEIVE "RETIRED PAY" WITHIN THE MEANING OF THE 1932 ACT. ALTHOUGH ADJUSTMENT IN RETIRED PAY MAY RESULT FROM THE DETERMINATION MADE AT THE TIME SUCH A PERSON IS TRANSFERRED TO THE PERMANENT DISABILITY RETIRED LIST DUE TO CHANGES IN CIRCUMSTANCES, SUCH AS AN INCREASE IN THE PERCENTAGE OF DISABILITY, A RECOMPUTATION OF HIS RETIREMENT RATE DOES NOT CONSTITUTE A NEW RETIREMENT. HIS TEMPORARY RETIREMENT FROM ACTIVE SERVICE MERELY BECOMES A PERMANENT STATUS AND HE ACQUIRES THE RIGHTS PERTAINING TO THAT STATUS. IT IS ONLY THE DISABILITY FOR WHICH A MEMBER IS ACTUALLY RETIRED THAT MAY BE CONSIDERED IN DETERMINING WHETHER HE RETIRED BECAUSE OF DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES OR CAUSED BY AN INSTRUMENTALITY OF WAR WITHIN THE MEANING OF THE 1932 ACT. THE VETERANS ADMINISTRATION SCHEDULE FOR RATING DISABILITIES PROVIDES THAT FOR PERFORATION OF THE TYMPANIC MEMBRANE THE DISABILITY RATING IS ZERO PERCENT. THE OFFICER CONTINUED ON ACTIVE DUTY AND PERFORMED SATISFACTORY SERVICE FOR ALMOST 18 YEARS AFTER SUFFERING DAMAGE TO HIS LEFT EAR DRUM. HIS ABILITY TO HEAR APPARENTLY REMAINED UNCHANGED THROUGH THE YEARS AFTER HIS INJURY UP TO AND INCLUDING THE TIME OF HIS RETIREMENT. THE NAVY DID NOT REGARD THAT INJURY, STANDING ALONE, AS ENTITLING HIM TO DISABILITY RETIREMENT AND IT WAS NOT CONSIDERED WHEN HE WAS TEMPORARILY RETIRED. ESTABLISHING COMMANDER MROSS' DISABILITY AS 40 PERCENT DISABLING, IT IS CLEAR THAT THE PERFORATION OF HIS LEFT EAR DRUM WAS NOT CONSIDERED. WE DO NOT REGARD THE LISTING OF THAT INJURY AS ONE OF THE CONDITIONS FOR WHICH HE WAS PERMANENTLY RETIRED AS FURNISHING SUFFICIENT BASIS FOR A CONCLUSION THAT HE WAS RETIRED FOR DISABILITY UNDER CIRCUMSTANCES CONTEMPLATED BY SECTION 212 (B) OF THE ECONOMY ACT. IT IS OUR VIEW THAT UNTIL THE REPEAL OF SECTION 212, PROVIDED BY SECTION 402 (A) (20) OF THE DUAL COMPENSATION ACT APPROVED AUGUST 19, 1964, PUB.L. 88-488, 78 STAT. 494, BECOMES EFFECTIVE ON DECEMBER 1, 1964, COMMANDER MROSS IS SUBJECT TO THE LIMITATIONS OF THE ECONOMY ACT AND REDUCTION OF HIS RETIRED PAY ON THAT BASIS IS PROPER.

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