B-165515, NOV. 19, 1968

B-165515, NOV. 19, 1968

TO ADMIRAL W. J. SMITH:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 21, 1968, REQUESTING ADVICE CONCERNING THE PROPRIETY OF AN ADMINISTRATIVE DETERMINATION THAT LIEUTENANT WILLIAM A. MERKLE, 4019, USCG (RET.), WAS RETIRED FOR A DISABILITY (DEAFNESS) CAUSED BY AN INSTRUMENTALITY OF WAR SO AS TO BE EXEMPT FROM THE APPLICATION OF THE DUAL COMPENSATION ACT OF 1964, NOW CODIFIED IN 5 U.S.C. 5532.

YOU SAY THAT LIEUTENANT MERKLE WAS FIRST ENLISTED IN THE COAST GUARD IN 1935 AND, WHILE SO SERVING, WAS EXPOSED ACCIDENTALLY TO THE MUZZLE BLAST OF A 5-INCH GUN IN MAY 1937; THAT HE RECOVERED FROM A TEMPORARY LOSS OF HEARING AFTER TREATMENT AND THE PASSAGE OF TIME AND WAS DISCHARGED AT EXPIRATION OF ENLISTMENT IN JUNE 1938; THAT HIS HEALTH RECORD STATES THAT WHEN HE REENLISTED IN FEBRUARY 1939 HIS HEARING WAS 30/30 IN BOTH EARS AND HIS EARS WERE "O.K;,; AND THAT SOMETIME IN NOVEMBER 1942 THE VESSEL ON WHICH HE WAS SERVING PARTICIPATED IN A DEPTH-CHARGE ATTACK WHICH INVOLVED CONSIDERABLE "RACKET.' HIS EARS STARTED BLEEDING, BUT LATER HEALED. DEAFNESS AND RINGING IN THE EARS FOLLOWED. A PHYSICAL EXAMINATION IN MARCH 1943 INCIDENT TO A PROMOTION TO PAY CLERK DESCRIBED HIS HEARING AS ONLY 30/12 IN BOTH EARS AND REFERRED TO "CALCAREOUS DEPOSITS ON EAR DRUMS- -, PARTIAL DEAFNESS.' HOWEVER, HE WAS FOUND FIT FOR DUTY, SINCE THE DEAFNESS INVOLVED WAS APPARENTLY NOT CONSIDERED SUFFICIENTLY DISABLING TO RENDER HIM UNFIT IN VIEW OF THE NATURE OF HIS DUTIES AS PAY CLERK.

A PHYSICAL EXAMINATION IN AUGUST 1943 INCIDENT TO PROMOTION TO ENSIGN INDICATED A HEARING OF 30/30 FOR BOTH EARS, WITH AN ENTRY "DRUM RETRACTED- GRANULAR TISSUE; OLD SCAR.' HIS DEAFNESS BECAME SO MUCH WORSE BY AUGUST 1944 THAT A WAIVER WAS REQUIRED FOR PROMOTION TO LIEUTENANT, JUNIOR GRADE. IN DECEMBER 1944 THE FINAL HEARING EVALUATION, WHEN HE WAS ABLE TO CONTINUE HIS DUTIES, CORRESPONDS TO ROUGHLY 30/1 OR 30/3 OR 30/4. THIS IS A LOSS OF 70 TO 100 DECIBELS, AIR CONDUCTION, BI-LATERAL. THIS WAS HIS CONDITION AT THE TIME OF THE RETIRING BOARD, WHICH FINALLY RESULTED IN HIS RETIREMENT EFFECTIVE JUNE 1, 1945, WITH THE FOLLOWING FINDINGS: "THAT LIEUTENANT (J.G.) WILLIAM A. MERKLE, U.S. COAST GUARD, IS INCAPACITATED FOR ACTIVE SERVICE BY REASON OF ACOUSTIC TRAUMA, CHRONIC, INCURRED IN 1942, AS A RESULT OF WHICH HE SUFFERS FROM OTOSCLEROSIS WITH LOSS OF HEARING, OR DEAFNESS; THAT HIS INCAPACITY IS PERMANENT; IS THE RESULT OF AN INCIDENT OF SERVICE; IS NOT THE RESULT OF HIS OWN VICIOUS HABITS; AND BECAME DISABLING PRIOR TO HIS PROMOTION ON 1 AUGUST 1944, TO THE GRADE OF LIEUTENANT (J.G.) FOR TEMPORARY SERVICE AND SUBSEQUENT TO HIS PROMOTION ON 1 AUGUST 1943, TO THE GRADE OF ENSIGN FOR TEMPORARY SERVICE, THE PRESENT CONDITION OF DEAFNESS BEING A NORMAL PROGRESSION OF THE CONDITION WHICH EXISTED AT THE TIME HE WAS PHYSICALLY EXAMINED FOR PROMOTION TO THE GRADE OF LIEUTENANT (J.G.), WHEN MILD OTOSCLEROSIS WAS DISCOVERED, OFFICIALLY NOTED, AND WAIVER GRANTED, AND NOT DUE TO AGGRAVATION RESULTING FROM SERVICE ACTIVITY.'

YOU SAY THAT IT APPEARS THAT HIS RETIREMENT FOR DISABILITY (DEAFNESS) WAS CAUSED BY AN INSTRUMENTALITY OF WAR (DEPTH CHARGES, ETC.) AND INCURRED IN LINE OF DUTY DURING A PERIOD OF WAR, AND THAT SUBJECT TO OUR VIEWS THE COAST GUARD IS PREPARED TO ADMINISTRATIVELY SO DETERMINE FOR THE PURPOSES OF THE DUAL COMPENSATION ACT OF 1964.

YOU CITE REFERENCES POINTING OUT THAT FOR THE PURPOSES OF THE DUAL COMPENSATION ACT THE CAUSE OF DISABILITY FOR WHICH AN OFFICER IS RETIRED, RATHER THAN THE PERCENTAGE OF DISABILITY, IS THE CONTROLLING FACTOR, THAT A DIRECT CAUSAL RELATIONSHIP MUST BE ESTABLISHED BETWEEN THE DISABILITY UPON WHICH RETIREMENT IS BASED AND EITHER ARMED CONFLICT OR THE OPERATION OF AN INSTRUMENTALITY OF WAR, AND THAT IT IS ONLY THE DISABILITY FOR WHICH A MEMBER IS ACTUALLY RETIRED WHICH MAY BE CONSIDERED IN MAKING A DETERMINATION THAT THE DISABILITY WAS CAUSED BY AN INSTRUMENTALITY OF WAR AND NOT MERELY A DISABILITY INCLUDED IN THE COMPUTATION OF THE PERCENTAGE OF DISABILITY FOR RETIRED PAY PURPOSES.

ON THE BASIS OF THE INFORMATION CONTAINED IN YOUR LETTER IT REASONABLY APPEARS THAT A DETERMINATION THAT THE DISABILITY FOR WHICH LIEUTENANT MERKLE WAS RETIRED WAS CAUSED BY AN INSTRUMENTALITY OF WAR WITHIN THE MEANING OF THE DUAL COMPENSATION ACT, 5 U.S.C. 5532, WOULD BE PROPER. YOUR QUESTION IS ANSWERED ACCORDINGLY.