B-155090, FEB. 10, 1965

B-155090, FEB. 10, 1965

TO COMMANDER JOSEPH W. MROSS, USN, RETIRED:

YOUR LETTER DATED JANUARY 17, 1965, REFERS TO OUR DECISION, B 155090, OF OCTOBER 13, 1964, IN WHICH WE CONCLUDED THAT YOU WERE SUBJECT TO THE LIMITATIONS OF SECTION 212 OF THE ECONOMY ACT, APPROVED JUNE 30, 1932, CH. 314. 47 STAT. 406, AS AMENDED, 5 U.S.C. 59A.

YOU CONTEND THAT THAT CONCLUSION IS AFFECTED BY THE DECISION RECOMMENDED BY THE BOARD FOR THE CORRECTION OF NAVAL RECORDS AND APPROVED BY THE SECRETARY OF THE NAVY, SET FORTH IN LETTER TO YOU DATED JANUARY 6, 1965, FROM THE CHAIRMAN OF THE BOARD, AS FOLLOWS:

" "IT IS THE DECISION OF THIS BOARD THAT THE NAVAL RECORD OF CDR JOSEPH W. MROSS, USN (RET.), 329 647, BE CORRECTED WHERE APPROPRIATE TO SHOW THAT THE PEB WHICH MET ON 28 MAY 1959 AND FOUND HIM UNFIT FOR DUTY WITHIN THE CONTEMPLATION OF TITLE 10, U.S. CODE, CHAPTER 61, BY REASON OF ARTERIOSCLEROTIC HEART DISEASE, MITRAL INSUFFICIENCY, NUMBER 4700, ALSO FOUND THAT HE WAS SUFFERING FROM ARTHRITIS, CERVICAL, DORSAL AND LUMBAR SPINE, NUMBER 7221, AND PERFORATED LEFT EAR DRUM, HEALED, NUMBER 8720; THAT THOSE DISABILITIES WERE RECORDED IN THE PEB FINDINGS AND HE WAS ASSIGNED A ZERO PERCENTUM DISABILITY RATING FOR ARTHRITIS, CERVICAL, DORSAL AND LUMBAR SPINE, UNDER VA CODE NUMBER 5003 AND A ZERO PERCENTUM RATING FOR PERFORATION, LEFT EAR DRUM, HEALED, UNDER VA CODE NUMBER 7005; THAT THE SECNAV PLACE HIS NAME ON THE TDRL WITH A ZERO PERCENTUM DISABILITY RATING UNDER VA CODE NUMBERS 7005, 5003 AND 6211, EFFECTIVE 1 AUGUST 1959.'"

YOUR INTERPRETATION OF THE RECORD AS CORRECTED IS THAT YOUR RETIREMENT FOR TEMPORARY DISABILITY ON AUGUST 1, 1959," ATTRIBUTED TO UNFITNESS FOR DUTY BECAUSE OF ARTERIOSCLEROTIC HEART DISEASE, ARTHRITIS, AND PERFORATED LEFT EAR DRUM.' THUS YOU CONTEND THAT "INASMUCH AS ZERO PERCENT DIVIDED BY THE THREE DISABILITIES RESULTS IN ZERO, THAT EQUAL CONSIDERATION MUST BE GIVEN TO EACH DISABILITY.' SUCH ARGUMENT--- APPARENTLY BASED ON THE ASSUMPTION THAT ANY ONE OF THE DISABILITIES NOTED BY THE PHYSICAL EVALUATION BOARD WOULD HAVE BEEN SUFFICIENT TO RENDER YOU UNFIT FOR ACTIVE SERVICE--- IS NOT SUPPORTED BY THE RECORD. ALL THAT THE DECISION OF THE CORRECTION BOARD DOES IS RECOGNIZE THAT THE PHYSICAL EVALUATION BOARD WHICH FOUND YOU UNFIT FOR DUTY BY REASON OF ARTERIOSCLEROTIC HEART DISEASE, MITRAL INSUFFICIENCY, ALSO FOUND THAT YOU WERE SUFFERING FROM ARTHRITIS AND HAD A PERFORATED LEFT EAR DRUM WHICH HAD HEALED. THE DECISION DOES NOT PURPORT TO SHOW THAT THE PHYSICAL EVALUATION BOARD FOUND THAT THE HEALED EAR INJURY WAS DISABLING TO THE EXTENT OF WARRANTING YOUR BEING PLACED ON THE TEMPORARY DISABILITY RETIRED LIST. FURTHERMORE, YOUR RECORD OF SATISFACTORY SERVICE FOR MORE THAN 18 YEARS AFTER SUFFERING DAMAGES TO YOUR LEFT EAR DRUM NEGATIVES ANY CONCLUSION THAT THIS INJURY--- THE ONLY ONE OF YOUR PHYSICAL DEFECTS WHICH COULD HAVE EXEMPTED YOU FROM THE APPLICATION OF SECTION 212 OF THE ECONOMY ACT--- STANDING ALONE, WOULD HAVE BEEN SUFFICIENT TO SUPPORT A FINDING THAT YOU WERE UNFIT FOR FURTHER ACTIVE DUTY AS OF AUGUST 1, 1959.

IT IS OUR VIEW THAT THE CORRECTION OF YOUR RECORD SHOWN ABOVE FURNISHES NO BASIS FOR A CONCLUSION THAT YOU ARE EXEMPT FROM THE LIMITATIONS OF SECTION 212 OF THE ECONOMY ACT OR OF THE 1964 DUAL COMPENSATION ACT, PUB.L. 88-448, APPROVED AUGUST 19, 1964, 78 STAT. 494.