             NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
             is not citable as precedent. It is a public record.

  United States Court of Appeals for the Federal Circuit
                                   04-3241

                            RAMON FONTELERA,

                                                Petitioner,

                                      v.

                  OFFICE OF PERSONNEL MANAGEMENT,

                                                Respondent.

                          _______________________

                          DECIDED: December 9, 2004
                          _______________________

Before, LOURIE, Circuit Judge, ARCHER, Senior Circuit Judge, and PROST,
Circuit Judge.

PER CURIAM.


      Ramon Fontelera (“Fontelera”) appeals the Merit Systems Protection

Board’s (“Board”) decision affirming the Office of Personnel Management’s

(“OPM”) determination that he was not entitled to a Civil Service Retirement

System (“CSRS”) annuity. Fontelera v. Office of Pers. Mgmt., No. SE-831M-03-

0042-I-1 (M.S.P.B. Feb. 18, 2003). We affirm.

      On November 27, 1954, Fontelera received an excepted, indefinite civilian

appointment with the 30th Naval Construction Regiment at Subic Bay in the

Philippines and served under that indefinite appointment until his resignation,

effective December 16, 1955. Fontelera received another excepted, indefinite
appointment, effective April 30, 1958, with the United States Naval Public Works

Center at Subic Bay. He served under this indefinite appointment until he retired

on September 30, 1988.

       Fontelera applied for a civil service deferred retirement annuity on

September 29, 1995.       In an initial decision, dated June 11, 1996, OPM

determined that Fontelera was not eligible for CSRS annuity benefits. However,

an OPM letter dated the following day, signed by the same person, advised

Fontelera that action on his retirement claim had been completed; he would

receive an annuity adjustment payment for accrued annuity due retroactive to the

beginning date of his annuity; and he would receive a monthly annuity payment.

On April 1, 1998, OPM advised Fontelera that he had met the requirement for

entitlement for the minimum annuity. Three years later, however, OPM advised

Fontelera that it had disallowed his application for a deferred annuity. Fontelera

was subsequently notified that he had been overpaid in the amount of

$46,998.50. Fontelera then sought reconsideration on the basis that he was

entitled to CSRS deferred annuity benefits. Fontelera specifically argued that

there was no overpayment because he was entitled to receive CSRS annuity

benefits.1

       OPM issued a final decision finding that Fontelera was not entitled to

CSRS annuity benefits and that he had been overpaid in the amount of

       1
             Fontelera did not indicate that he sought a waiver or compromise of
the overpayment when he sought reconsideration of OPM’s decision. As such,
the Board could not consider the issue of waiver on appeal.               Under
5 U.S.C. § 8346(b) recovery of an annuity overpayment must be waived when
the annuitant is without fault and recovery would be against equity and good
conscience. See 5 C.F.R. §831.1401 (2002).


04-3241                                 2
$46,998.50. Fontelera appealed that decision to the Board. In an initial decision,

the Administrative Judge (“AJ”) affirmed OPM’s determination. Based on the

record, the AJ concluded that Fontelera was not entitled to a CSRS deferred

annuity, because none of his service was covered service. The full Board denied

Fontelera’s petition for review, and the Initial Decision became final. We have

jurisdiction pursuant to 5 U.S.C. § 7703.

         We must affirm a decision of the Board unless it is arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law; obtained without

procedures required by law, rule, or regulation having been followed; or

unsupported by substantial evidence. 5 U.S.C. § 7703(c).

         Eligibility for CSRS coverage requires that an employee complete at least

five years of creditable service and that at least one of the two years of service

prior to separation be “subject to” the Civil Service Retirement Act (“CSRA”), i.e.,

covered service. Rosete v. Office of Pers. Mgmt., 48 F.3d 514, 516 (Fed. Cir.

1995).

         In view of the fact that both of Fontelera’s appointments were indefinite

appointments, which are specifically excluded from retirement coverage,

5 C.F.R. § 831.201(a)(13), the AJ first noted that although Fontelera’s service

was all creditable service, none of it was covered service. The AJ found further

support for this finding in Fontelera’s Notice of Personnel Action Forms (“SF-50”),

noting that all of Fontelera’s SF-50s stated that his retirement coverage was

“none” or “other” and none of the SF-50s for any period of Fontelera’s

employment indicated that he was covered under the CSRS. The AJ additionally




04-3241                                     3
found that none of the documentation in the record reflected that any retirement

contributions were ever withheld from Fontelera’s pay. Finally, the AJ found that

Fontelera was entitled to retirement pay in accordance with the Filipino

Employment Personnel Instructions (“FEPI”), which was consistent with the

notations on his SF-50s indicating coverage in a retirement plan “other” than the

CSRS. 2   As such, substantial evidence supports the AJ’s determination that

Fontelera was not entitled to a CSRS annuity.

      We are not persuaded by Fontelera’s arguments that the AJ relied on an

unofficial transcript summarizing his service rather than upon an official summary

of his service, because the AJ’s decision does not rely upon a summary of

Fontelera’s service; rather, the decision references only the SF-50s. We also

find Fontelera’s remaining arguments unpersuasive.

      Accordingly, we affirm the Board’s decision.




      2
              The CSRA provides that employees subject to another retirement
system for government employees are excluded from CSRS coverage.
5 U.S.C. § 8331(1); see DeGuzman v. Dep’t of Navy, 213 Ct. Cl. 1005 (1982)
(holding that a collective bargaining agreement between the Federation of
Filipino Employees Association and United States Armed Forces Bases in the
Philippines is another retirement system for Government employees under
5 U.S.C. § 8331(1)).


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