B-170962, JAN 11, 1971, 50 COMP GEN 480

B-170962: Jan 11, 1971

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THE CONCLUSION THAT THE EXEMPTION PROVISION IN THE DUAL COMPENSATION ACT (5 U.S.C. 5532(C)) TO THE REQUIREMENT THAT THE RETIRED PAY OF A REGULAR OFFICER MUST BE REDUCED WHEN EMPLOYED AS A CIVILIAN BY THE FEDERAL GOVERNMENT (5 U.S.C. 5532(B)) APPLIES ONLY IF THE RETIREMENT WAS THE DIRECT RESULT OF ARMED CONFLICT OR WAS CAUSED BY AN INSTRUMENTALITY OF WAR IN WARTIME IS JUSTIFIED ON THE BASIS OF THE LEGISLATIVE HISTORY OF THE PROVISION AND ITS LONGSTANDING ADMINISTRATIVE INTERPRETATION. HOLDING THAT A DISABILITY - A PERFORATED EARDRUM - THAT WAS WAR-INCURRED BUT WAS NOT DISABLING AND DID NOT CONSTITUTE A SIGNIFICANT FACTOR IN THE OFFICER'S RETIREMENT MET THE REQUIREMENTS OF THE EXCEPTION TO THE DUAL COMPENSATION RESTRICTION WILL NOT BE FOLLOWED AS THE CASE IS BASED ON THE PARTICULAR FACTS INVOLVED.

B-170962, JAN 11, 1971, 50 COMP GEN 480

COMPENSATION - DOUBLE - EXEMPTIONS - DUAL COMPENSATION ACT - DISABILITY "AS A DIRECT RESULT OF ARMED CONFLICT," ETC. THE CONCLUSION THAT THE EXEMPTION PROVISION IN THE DUAL COMPENSATION ACT (5 U.S.C. 5532(C)) TO THE REQUIREMENT THAT THE RETIRED PAY OF A REGULAR OFFICER MUST BE REDUCED WHEN EMPLOYED AS A CIVILIAN BY THE FEDERAL GOVERNMENT (5 U.S.C. 5532(B)) APPLIES ONLY IF THE RETIREMENT WAS THE DIRECT RESULT OF ARMED CONFLICT OR WAS CAUSED BY AN INSTRUMENTALITY OF WAR IN WARTIME IS JUSTIFIED ON THE BASIS OF THE LEGISLATIVE HISTORY OF THE PROVISION AND ITS LONGSTANDING ADMINISTRATIVE INTERPRETATION; AND, THEREFORE, MROSS V UNITED STATES, 186 CT. CL. 165, HOLDING THAT A DISABILITY - A PERFORATED EARDRUM - THAT WAS WAR-INCURRED BUT WAS NOT DISABLING AND DID NOT CONSTITUTE A SIGNIFICANT FACTOR IN THE OFFICER'S RETIREMENT MET THE REQUIREMENTS OF THE EXCEPTION TO THE DUAL COMPENSATION RESTRICTION WILL NOT BE FOLLOWED AS THE CASE IS BASED ON THE PARTICULAR FACTS INVOLVED.

TO THE SECRETARY OF THE ARMY, JANUARY 11, 1971:

FURTHER REFERENCE IS MADE TO LETTER OF OCTOBER 2, 1970, FROM THE ASSISTANT SECRETARY OF THE ARMY (MANPOWER AND RESERVE AFFAIRS) REQUESTING A DECISION ON SEVERAL QUESTIONS CONCERNING THE APPLICATION OF CERTAIN PROVISIONS OF THE DUAL COMPENSATION ACT, 5 U.S.C. 5532(C), IN THE CASE OF OFFICERS OF A REGULAR COMPONENT OF A UNIFORMED SERVICE WHO RETIRE FOR DISABILITY UNDER THE CIRCUMSTANCES STATED.

SECTION 201(A) OF THE DUAL COMPENSATION ACT, PUBLIC LAW 88-448, APPROVED AUGUST 19, 1964, CODIFIED IN 5 U.S.C. 5532(B), PROVIDES THAT A RETIRED OFFICER OF A REGULAR COMPONENT OF A UNIFORMED SERVICE, WHO HOLDS A CIVILIAN POSITION UNDER THE UNITED STATES, IS ENTITLED TO RECEIVE THE FULL PAY OF THAT POSITION, BUT THAT DURING THE PERIOD FOR WHICH HE RECEIVES SUCH PAY, HIS MILITARY RETIRED PAY IS REQUIRED TO BE REDUCED UNDER THE FORMULA THERE PRESCRIBED.

SECTION 201(B) OF THE SAME ACT, 5 U.S.C. 5532(C), PROVIDES, IN PERTINENT PART THAT SUCH REDUCTION IN RETIRED PAY DOES NOT APPLY TO A RETIRED OFFICER OF A REGULAR COMPONENT OF A UNIFORMED SERVICE -

(1) WHOSE RETIREMENT WAS BASED ON DISABILITY -

(A) RESULTING FROM INJURY OR DISEASE RECEIVED IN LINE OF DUTY AS A DIRECT RESULT OF ARMED CONFLICT; OR

(B) CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY DURING A PERIOD OF WAR *** .

SECTION 202 OF THE DUAL COMPENSATION ACT, NOW 5 U.S.C. 3501, INCLUDES AMONG PREFERENCE ELIGIBLE EMPLOYEES A RETIRED MEMBER OF THE UNIFORMED SERVICE RETIRED FOR DISABILITY FOR THE REASONS STATED ABOVE; AND SECTION 203 OF THAT ACT, NOW 5 U.S.C. 6303, ALLOWS CREDIT TO SUCH A MEMBER FOR ACTIVE MILITARY SERVICE FOR THE PURPOSE OF ANNUAL LEAVE AS A CIVILIAN EMPLOYEE.

THE ASSISTANT SECRETARY STATES THAT PARAGRAPH 4-32, ARMY REGULATION 635- 40, IMPLEMENTS 5 U.S.C. 5532; AND THAT THAT PARAGRAPH PROVIDES FOR A DETERMINATION THAT A DISABILITY RESULTED FROM ARMED CONFLICT OR INSTRUMENTALITY OF WAR "ONLY WHEN IT IS ALSO DETERMINED THAT THE DISABILITY SO INCURRED IN ITSELF RENDERS THE MEMBER PHYSICALLY UNFIT." SAYS THAT WHERE A MEMBER IS RETIRED BECAUSE OF PHYSICAL DISABILITY AND A CONTRIBUTORY DISABILITY RESULTING FROM ARMED CONFLICT OR INSTRUMENTALITY OF WAR IS PRESENT, BUT NOT, PER SE, UNFITTING, HE IS DENIED THE SPECIAL ADVANTAGES OF 5 U.S.C. 5532 AND OTHER SECTIONS.

THE ASSISTANT SECRETARY FURTHER STATES THAT THE CITED ARMY REGULATION IS BASED ON THE CONSISTENT POSITION OF THE ARMY JUDGE ADVOCATE GENERAL THAT, FOR A MEMBER TO BE CONSIDERED AS HAVING BEEN RETIRED FOR DISABILITY INCURRED IN COMBAT, THERE MUST BE A DIRECT CAUSAL CONNECTION BETWEEN THE DISABILITY FOR WHICH RETIRED AND COMBAT. IN THIS CONNECTION, IT IS STATED THAT THE REGULATION IS IN ACCORD WITH OUR DECISIONS OF OCTOBER 13, 1964, B -155090, AND NOVEMBER 19, 1968, B 165515.

THE ASSISTANT SECRETARY REFERS TO THE DECISION OF THE COURT OF CLAIMS IN THE CASE OF MROSS V UNITED STATES, 186 CT. CL. 165 (1968), INVOLVING THE DUAL COMPENSATION PROVISIONS OF SECTION 212 OF THE ECONOMY ACT OF 1932, AS AMENDED, 5 U.S.C. 59A (1958 ED.) - THIS SECTION HAS BEEN REPEALED BY SECTION 402(A)(20) OF THE ABOVE-MENTIONED ACT OF AUGUST 19, 1964, PUBLIC LAW 88-448. SINCE THE HOLDING IN THE MROSS CASE IS CONTRARY TO OUR DECISION OF OCTOBER 13, 1964, B-155090, INVOLVING THE SAME CASE, THE FOLLOWING QUESTIONS ARE ASKED:

A. DOES THE COURT OF CLAIMS' DECISION IN JOSEPH W. MROSS V THE UNITED STATES ALTER THE DECISIONS OF THE COMPTROLLER GENERAL THAT ONLY THE DISABILITY FOR WHICH A MEMBER IS ACTUALLY RETIRED MAY BE CONSIDERED AS ENTITLING HIM TO BE BENEFITS OF SECTION 5532(C), TITLE 5, U.S.C. AND RELATED SECTIONS?

B. IF THE REPLY TO A IS AFFIRMATIVE, MAY A MEMBER WHO IS RETIRED BECAUSE OF A DISABILITY NOT THE DIRECT RESULT OF ARMED CONFLICT OR INSTRUMENTALITY OF WAR BE ENTITLED TO THE BENEFITS OF SECTION 5532(C), TITLE 5, U.S.C. AND RELATED SECTIONS IF HE ALSO HAS A DISABILITY DIRECTLY THE RESULT OF ARMED CONFLICT OR INSTRUMENTALITY OF WAR BUT WHICH ALONE WOULD NOT CAUSE HIS RETIREMENT BECAUSE OF PHYSICAL DISABILITY?

C. IF THE REPLY TO A IS AFFIRMATIVE, MAY A MEMBER WHO IS RETIRED BECAUSE OF THE COMBINED EFFECTS OF MORE THAN ONE DISABILITY, NO ONE OF WHICH, PER SE, WOULD CAUSE HIS RETIREMENT, BE CONSIDERED TO BE ENTITLED TO THE BENEFITS OF SECTION 5532(C), TITLE 5, U.S.C. AND RELATED SECTIONS IF ONE OR MORE OF THE DISABILITIES WHICH COMBINE TO CAUSE HIS RETIREMENT WAS DIRECTLY THE RESULT OF ARMED CONFLICT OR INSTRUMENTALITY OF WAR?

THE MROSS CASE WAS THE SUBJECT OF OUR DECISION OF OCTOBER 13, 1964, B 155090. BRIEFLY, THE FACTS AS THERE RELATED SHOW THAT COMMANDER MROSS, U.S. NAVY, 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 THIS 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, 1964.

THE DISABILITIES FOR WHICH HE WAS TRANSFERRED TO THE PERMANENT LIST, IN ADDITION TO HIS 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 HAD 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 SHOWED THAT HIS LEFT EAR DRUM WAS RUPTURED ON DECEMBER 7, 1941, DURING THE JAPANESE ATTACK ON PEARL HARBOR WHILE SERVING NO. 7 GUN ON THE U.S.S. RALEIGH.

ON OCTOBER 14, 1961, COMMANDER MROSS BECAME A CIVILIAN EMPLOYEE OF THE GOVERNMENT, AND HIS RETIRED PAY HAD BEEN REDUCED BECAUSE OF THE LIMITATION ON DUAL COMPENSATION IN THE 1932 ACT.

IN OUR DECISION OF OCTOBER 13, 1964, WE SAID THAT "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." WE POINTED OUT THAT THE OFFICER CONTINUED ON ACTIVE DUTY AND PERFORMED SATISFACTORY SERVICE FOR ALMOST 18 YEARS AFTER SUFFERING DAMAGE TO HIS LEFT EAR DRUM. 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. CONCLUDED THAT WE DID 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.

IN THE LIGHT OF A CORRECTION OF COMMANDER MROSS' RECORDS IN JANUARY 1965 BY THE BOARD FOR THE CORRECTION OF NAVAL RECORDS, THE MATTER WAS FURTHER CONSIDERED BY US IN DECISION OF FEBRUARY 10, 1965, B-155090. FOR THE REASONS THERE STATED, WE FOUND NO BASIS FOR A CONCLUSION THAT THE CORRECTION OF HIS RECORD BROUGHT HIM WITHIN THE EXEMPTION FROM THE LIMITATIONS OF SECTION 212 OF THE ECONOMY ACT OR THE 1964 DUAL COMPENSATION ACT.

IN HOLDING THAT THE OFFICER MET THE REQUIREMENTS OF THE EXCEPTION TO THE DUAL COMPENSATION RESTRICTION, THE COURT OF CLAIMS IN THE MROSS CASE (186 CT. CL. 165), AFTER REFERRING TO THE TEMPORARY AND PERMANENT DISABILITY RETIREMENT PROVISIONS OF 10 U.S.C. 1201 AND 1202, INCLUDING THE CORRECTION ACTION, STATED ON PAGES 171 AND 172 THAT:

*** SINCE PLAINTIFF HAD 20 YEARS OF ACTIVE MILITARY SERVICE AT THE TIME OF HIS TEMPORARY RETIREMENT AND WAS SUFFERING FROM THREE DISABILITIES WHICH WERE CONSIDERED IN THE DETERMINATION THAT HE WAS UNFIT FOR DUTY, HIS NAME WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST. WE THEREFORE CONCLUDE THAT PLAINTIFF'S EAR INJURY WAS A BASIS FOR HIS TEMPORARY RETIREMENT, JUST AS IT WAS FOR HIS PERMANENT RETIREMENT.

FOR THE REASONS STATED WE FIND THAT PLAINTIFF'S EAR INJURY WAS A DISABILITY FOR WHICH HE WAS PLACED ON THE TEMPORARY DISABILITY RETIRED LIST AND LATER PERMANENTLY RETIRED; THAT HIS DISABILITY MEETS THE REQUIREMENTS OF THE EXCEPTION TO THE DUAL COMPENSATION ACT, AND THAT HE IS ENTITLED TO RECOVER THE RETIREMENT PAY WITHHELD BY DEFENDANT SINCE OCTOBER 1961. ***

FOR THE REASONS STATED BELOW, WE DO NOT VIEW THE COURT'S DECISION IN THE MROSS CASE, WHICH WAS BASED ON THE PARTICULAR FACTS IN THAT CASE, AS CONSTITUTING A PRECEDENT TO BE FOLLOWED IN SIMILAR TYPE CASES.

SECTION 212(B) OF THE ECONOMY ACT OF 1932, CH. 314, 47 STAT. 406, AS AMENDED, 5 U.S.C. 59AB) (1958 ED.), PROVIDED THAT THE DUAL COMPENSATION PROVISIONS OF SECTION 212(A) OF THAT ACT DID 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."

THE SO-CALLED ECONOMY ACT OF 1932 WAS A PART OF THE ACT MAKING APPROPRIATIONS FOR THE LEGISLATIVE BRANCH OF THE GOVERNMENT FOR THE LEGISLATIVE BRANCH OF THE GOVERNMENT FOR THE FISCAL YEAR ENDING JUNE 30, 1933; AND THE LEGISLATIVE HISTORY OF PART II, TITLE II, OF THAT ACT SHOWS THAT ITS PRIMARY PURPOSE WAS "TO EFFECT ECONOMIES IN THE NATIONAL GOVERNMENT." SEE HOUSE REPORT NO. 1126 (ON H.R. 11597) DATED APRIL 25, 1932, AND SENATE REPORT NO. 756 (ON H.R. 11267) DATED MAY 9, 1932. WOULD SEEM FROM THE LEGISLATIVE HISTORY THAT THE MOOD OF THE CONGRESS AT THAT TIME WAS TO LIMIT CERTAIN EXEMPTIONS SUCH AS THAT CONTAINED IN SECTION 212(B) RATHER THAN TO BROADEN ITS SCOPE.

THE LEGISLATIVE HISTORY OF THE EXEMPTION TO THE DUAL COMPENSATION RESTRICTION OF THE 1932 ACT SHOWS, IN OUR OPINION, THAT CONGRESS INTENDED TO EXEMPT FROM THE RESTRICTION ONLY THOSE "REGULAR OR EMERGENCY COMMISSIONED OFFICERS RETIRED FOR DISABILITY INCURRED IN COMBAT WITH AN ENEMY OF THE UNITED STATES," WHERE DISABILITY DIRECTLY RESULTED IN RENDING THE MEMBER PHYSICALLY UNFIT FOR DUTY AND FOR WHICH HE WAS ACTUALLY RETIRED. IN SUPPORT OF THIS VIEW, THE FOLLOWING EXCERPTS ARE TAKEN FROM THE DEBATE ON THE EXEMPTION PROVISION ON THE SENATE FLOOR WHICH APPEARS IN 75 CONG. REC. AT PAGES 12146 AND 12178:

MR. FLETCHER. *** I THINK THIS OUGHT NOT TO APPLY TO A RETIRED OFFICER WHO IS RETIRED FOR INJURY RECEIVED IN BATTLE. I OFFER THE AMENDMENT BECAUSE I THINK THAT AN OFFICER WHO HAS BEEN ACTUALLY WOUNDED IN BATTLE OUGHT NOT TO BE DEPRIVED OF HIS RETIRED PAY.

MR. GEORGE. *** I CONCEDE THAT IN SOME INSTANCES THERE MIGHT BE AN OFFICER OF MINOR RANK WHO WAS WOUNDED AND RETIRED ON ACCOUNT OF DISABILITY ACTUALLY INCURRED IN BATTLE WHO SHOULD HAVE AN OPPORTUNITY TO COME INTO THE EMPLOYMENT OF THE GOVERNMENT *** .

MR. REED. *** WE OUGHT NOT TO MAKE IT IMPOSSIBLE FOR THEM TO GET THE PAY FOR THE WORK THEY DO IF THEY ARE RETIRED FOR WOUNDS RECEIVED IN ACTION OR DISABILITY INCURRED IN LINE OF DUTY.

WE FIND NOTHING IN THE AMENDMENTS TO THE 1932 ACT NOR ITS LEGISLATIVE HISTORY TO SUPPORT THE VIEW THAT CONGRESS INTENDED TO ENLARGE THE SCOPE OF THE EXEMPTION PROVISION. FOR A FURTHER DISCUSSION OF THE LEGISLATIVE HISTORY OF SECTION 212(B) OF THE 1932 ACT CONCERNING A RELATED MATTER, SEE 48 COMP. GEN. 219 (1968).

MOREOVER, WE FIND NOTHING IN THE DUAL COMPENSATION ACT OF 1964 NOR IN ITS LEGISLATIVE HISTORY WHICH WOULD INDICATE THAT CONGRESS INTENDED TO BROADEN THE SCOPE OF THE EXEMPTION RESTRICTION IN 5 U.S.C. 5532(C) SO AS TO MAKE IT APPLY TO THOSE OFFICERS WHERE THERE IS NO DIRECT CASUAL RELATIONSHIP BETWEEN THE DISABILITY INCURRED BECAUSE OF EITHER ARMED CONFLICT OR INSTRUMENTALITY OF WAR AND THE DISABILITY WHICH RENDERS HIM PHYSICALLY UNFIT FOR DUTY AND FOR WHICH HE IS ACTUALLY RETIRED. CF. B 165515, NOVEMBER 18, 1968. IN THIS CONNECTION, IT IS STATED ON PAGE 16 OF SENATE REPORT NO. 935 DATED MARCH 4, 1964, TO ACCOMPANY H.R. 7381, WHICH BECAME THE DUAL COMPENSATION ACT, THAT:

THE PROPOSED LAW WOULD CONTINUE THE PRINCIPLE OF TREATING SEPARATELY THOSE RETIRED MILITARY PERSONNEL WHOSE RETIREMENT WAS BASED ON DISABILITY RESULTING FROM AN INJURY OR DISEASE RECEIVED IN LINE OF DUTY AS A DIRECT RESULT OF ARMED CONFLICT, OR CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY DURING A PERIOD OF WAR.

REGULATIONS IMPLEMENTING THE PROVISIONS OF THE DUAL COMPENSATION ACT ARE CONTAINED IN PARAGRAPH 4-33, ARMY REGULATION 635-40 AND PROVIDE IN PERTINENT PART AS FOLLOWS:

*** A DETERMINATION THAT A DISABILITY RESULTED FROM INJURY OR DISEASE RECEIVED IN LINE OF DUTY AS A DIRECT RESULT OF ARMED CONFLICT WILL BE APPROPRIATE ONLY WHEN IT IS ALSO DETERMINED THAT THE DISABILITY SO INCURRED IN ITSELF RENDERS THE MEMBER PHYSICALLY UNFIT.

B. INSTRUMENTALITY OF WAR. A DETERMINATION THAT A DISABILITY WAS CAUSED BY AN INSTRUMENTALITY OF WAR AND INCURRED IN LINE OF DUTY WILL BE APPROPRIATE ONLY WHEN IT IS ALSO DETERMINED THAT THE DISABILITY SO INCURRED IN ITSELF RENDERS THE MEMBER PHYSICALLY UNFIT AND WAS INCURRED DURING ONE OF THE PERIODS OF WAR AS DEFINED BY LAW. WE BELIEVE THE ABOVE REGULATIONS CORRECTLY INTERPRET THE LAW.

IT HAS BEEN THE UNIFORM INTERPRETATION OF THE STATUTE BY THE JUDGE ADVOCATE GENERAL OF THE ARMY AND BY THIS OFFICE THAT THE EXEMPTION PROVISION IN THE DUAL COMPENSATION ACTS APPLIES ONLY WHERE THE DISABILITY FOR WHICH A REGULAR OFFICER IS RETIRED WAS THE DIRECT RESULT OF ARMED CONFLICT OR WAS CAUSED BY AN INSTRUMENTALITY OF WAR IN TIME OF WAR.

THE RECORD IN THE MROSS CASE CLEARLY ESTABLISHES THAT HIS WAR INCURRED (PERFORATED EAR DRUM) WAS NOT DISABLING AND THAT HE SUBSEQUENTLY SERVED ON ACTIVE DUTY FOR 18 YEARS SATISFACTORILY WITH SUCH CONDITION AND WAS ACTUALLY APPOINTED A COMMISSIONED OFFICER AND PROMOTED SEVERAL TIMES AFTER SUCH INJURY WAS INCURRED. THAT RECORD ALSO CLEARLY ESTABLISHES THAT THE DISABILITY FOR WHICH HE WAS ACTUALLY RETIRED WAS A HEART CONDITION AND THAT HIS WAR-INCURRED INJURY DID NOT CONSTITUTE A SIGNIFICANT FACTOR IN HIS DISABILITY RETIREMENT.

THE COURT OF CLAIMS SEEMS TO HAVE TAKEN THE POSITION THAT ANY WAR INCURRED INJURY - NO MATTER HOW MINOR OR INSIGNIFICANT THE DISABILITY RESULTING THEREFROM MAY BE AT THE TIME OF RETIREMENT - ENTITLES A REGULAR OFFICER TO THE BENEFITS THAT FLOW FROM THE PROVISIONS OF 5 U.S.C. 5532(C). IN THAT VIEW OF THE LAW, A REGULAR OFFICER RETIRED BECAUSE OF SOME PEACETIME DISABILITY WHOLLY UNRELATED TO WARTIME SERVICE IS EXEMPT FROM THE DUAL COMPENSATION ACT RESTRICTIONS AND ENTITLED TO THE OTHER BENEFITS THAT FLOW FROM 5 U.S.C. 5532(C) SIMPLY BECAUSE HE HAS A MINOR ADDITIONAL DISABILITY RESULTING FROM ARMED CONFLICT WHICH WOULD NOT IN ITSELF ENTITLE HIM TO DISABILITY RETIREMENT.

THAT APPLICATION OF THE LAW REPRESENTS A BROAD DEPARTURE FROM THE LONGSTANDING ADMINISTRATIVE INTERPRETATION OF SECTION 212(B) OF THE ECONOMY ACT OF 1932, WHICH IS SUPPORTED BY ITS LEGISLATIVE HISTORY AND THE STATED INTENT TO CONTINUE THE PRINCIPLE OF THAT SECTION IN THE DUAL COMPENSATION ACT OF 1964. IT IS OUR VIEW, THEREFORE, THAT UNTIL THE COURTS HAVE HAD AN OPPORTUNITY TO RECONSIDER THIS MATTER IN OTHER CASES, WITH SPECIFIC REFERENCE TO THE ABOVE-MENTIONED LEGISLATIVE HISTORY OF THE EXEMPTION PROVISION AND ITS LONGSTANDING ADMINISTRATIVE INTERPRETATION, ANY CHANGE IN THE CONCLUSIONS REACHED IN OUR PRIOR DECISION IN THE MROSS CASE WOULD NOT BE JUSTIFIED.

ACCORDINGLY, QUESTION "N" IS ANSWERED IN THE NEGATIVE. SINCE QUESTION "A" IS ANSWERED IN THE NEGATIVE, NO ANSWER IS REQUIRED FOR QUESTIONS "B" AND "C."