                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2016 MSPB 44

                             Docket No. DE-0831-14-0340-I-1

                                   Richard L. Miller,
                                        Appellant,
                                             v.
                           Office of Personnel Management,
                                         Agency.
                                    December 20, 2016

           Debra D’Agostino, Esquire, Washington, D.C., for the appellant.

           Roxann Johnson, Washington, D.C., for the agency.

                                         BEFORE

                            Susan Tsui Grundmann, Chairman
                               Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The Office of Personnel Management (OPM) has filed a petition for review
     of the initial decision, which reversed and remanded its reconsideration decision
     regarding the computation of the appellant’s Civil Service Retirement System
     (CSRS) annuity. For the reasons discussed below, we GRANT the petition for
     review, REVERSE the initial decision, and AFFIRM OPM’s reconsideration
     decision.

                                     BACKGROUND
¶2         The appellant has a complicated history of civilian and military service that
     began in 1970 and concluded in 2012. See, e.g., Initial Appeal File (IAF), Tab 4
                                                                                      2

     at 46, 55, Tab 22, Initial Decision (ID) at 2-4. The periods most relevant to this
     decision include August 27 to October 25, 1990, and August 22, 1994, to
     December 22, 1995. See, e.g., IAF, Tab 1 at 6, Tab 11 at 26-37; ID at 7-9.
¶3         During the first pertinent period, the appellant was both a civilian
     employee with the Defense Intelligence Agency (DIA) and an Air Force reservist
     when he was called to active duty, effective August 27, 1990. IAF, Tab 4 at 25,
     55, Tab 11 at 77. The appellant was in a leave without pay (LWOP) status with
     the DIA beginning August 27, 1990. PFR File, Tab 1 at 8, Tab 3 at 5; ID at 8.
     The DIA separated him effective June 22, 1991. IAF, Tab 4 at 25, Tab 11 at 77.
¶4         During the next pertinent period, the appellant was reinstated to a civilian
     service position with the DIA, effective August 22, 1994.      IAF, Tab 4 at 25,
     Tab 11 at 77.    He then retired from the DIA effective December 22, 1995,
     pursuant to a Voluntary Early Retirement Authority (VERA) authorized by OPM.
     IAF, Tab 11 at 77, 156.    In the interim, effective September 1, 1994, he also
     retired from active duty with the Air Force under a Temporary Early Retirement
     Authority (TERA).     IAF, Tab 4 at 50.     However, the Air Force Board for
     Correction of Military Records (AFBCMR) later corrected the appellant’s records
     to retroactively designate the period beginning September 1, 1994 , as active
     military duty. IAF, Tab 12 at 26-29. As a result of this correction, the appellant
     no longer met the requirements of his VERA and TERA retirements, and they
     were canceled. IAF, Tab 4 at 13, 25, 38, 49, Tab 12 at 39.
¶5         The appellant eventually returned to civilian service with the DIA until his
     final retirement in 2012. IAF, Tab 4 at 21-25. Following that 2012 retirement,
     OPM found that the appellant had approximately 15 years and 3 months of
     creditable Federal service for purposes of his CSRS annuity. Id. at 11, 13-14.
     After the appellant disputed that calculation, OPM issued its reconsideration
     decision, finding that the appellant had 15 years, 3 months, and 29 days of
     creditable Federal service. Id. at 5-7. In calculating the appellant’s creditable
     service, OPM excluded the periods from August 27 to October 25, 1990, and from
                                                                                         3

     August 22, 1994, to December 22, 1995. Id. at 6. The appellant filed this appeal.
     IAF, Tab 1.
¶6         Relying on OPM’s CSRS and Federal Employees Retirement System
     (FERS) Handbook for Personnel and Payroll Offices (1998) (Handbook), the
     administrative judge found that the appellant was potentially entitled to
     additional civilian service credit from August 27 through October 25, 1990, and
     remanded the matter to OPM for further processing. 1 ID at 7-8; Handbook,
     available        at         https://www.opm.gov/retirement-services/publications-
     forms/csrsfers-handbook/ (last visited Dec. 15, 2016). He also found that the
     appellant was entitled to civilian service credit from August 22, 1994 , through
     December 22, 1995. ID at 9. OPM has filed a petition for review disputing those
     findings.   Petition for Review (PFR) File, Tab 1.       The appellant has filed a
     response. PFR File, Tab 3.
¶7         We issued an order asking OPM to clarify the application of its Handbook
     to the determination of the appellant’s CSRS service credit for purposes of his
     annuity calculation. PFR File, Tab 4. OPM has responded to the order, and the
     appellant has replied. PFR File, Tabs 5-6.

                                         ANALYSIS
¶8         Pursuant to 5 U.S.C. § 8332(c)(1)(A), a Federal employee covered under
     the CSRS who, like the appellant, first became an employee before October 1,
     1982, is generally entitled to have active-duty military service performed before
     his separation from Federal service included as CSRS creditable service for
     retirement annuity calculation purposes.      However, as detailed below, section
     8332(c)(2) provides that an employee usually cannot receive both military and

     1
       The administrative judge also found that the appellant was not entitled to civili an
     service credit from June 21 through 30, 1982, because he did not waive his military
     service credit for the same period. ID at 5-7. Neither party disputes that finding on
     review, and we decline to disturb it.
                                                                                           4

     civilian retirement service credit for the same periods.         Forsythe v. Office of
     Personnel Management, 85 M.S.P.R. 593, ¶¶ 6, 9 (2000).               Section 8332(c)(2)
     states the following:
           If an employee or Member is awarded retired pay based on any
           period of military service, the service of the employee or Member
           may not include credit for such period of military service unless the
           retired pay is awarded—
              (A) based on a service-connected disability—
                  (i) incurred in combat with an enemy of the United States ; or
                  (ii) caused by an instrumentality of war and incurred in line of
                  duty during a period of war as defined by section 1101 of
                  title 38; or
              (B) under chapter 1223 of title 10 (or under chapter 67 of that
              title as in effect before the effective date of the Reserve Officer
              Personnel Management Act).
     5 U.S.C. § 8332(c)(2);see 5 C.F.R. § 831.301(a)(2) (stating the same exception
     using different language).
¶9         In addition, section 8332(j) provides that, absent a deposit, post-1956
     military service is excluded from civilian service credit once an employee
     becomes eligible for Social Security old-age benefits.            Hooten v. Office of
     Personnel Management, 114 M.S.P.R. 205, ¶ 6 (2010). Section 8332(j)(1) states:
           Notwithstanding any other provision of this section, [post-1956]
           military service, except military service covered by military leave
           with pay from a civilian position . . . shall be excluded in
           determining the aggregate period of service on which an
           annuity . . . is based . . . if the individual . . . is entitled, or would on
           proper application be entitled, at the time of that determination, to
           monthly old-age or survivors benefits under section 402 of title 42
           based on the individual’s wages and self-employment income.
     5 U.S.C. § 8332(j)(1); see 5 C.F.R. § 831.301(a)(3) (stating the same exception
     using different language); see also 5 U.S.C. § 8332(j)(2) (permitting an employee
     to make a service deposit, with interest, in order to receive credit for military
     service otherwise excluded under section 8332(j)(1)).
                                                                                           5

      August 27 – October 25, 1990
¶10         It is undisputed that the appellant was simultaneously employed as a
      civilian at DIA and performing active-duty military service for the Air Force
      during the period of August 27, 1990, to June 22, 1991. IAF, Tab 4 at 51, Tab 11
      at 77. OPM did not include that period in his civilian service credit computation
      because of the concurrent active-duty military service. IAF, Tab 4 at 6-7, 11.
      The administrative judge found that because the appellant was in an LWOP status
      from August 27 to October 25, 1990, he was entitled to CSRS service credit if he
      was required to make, and did make, a military service deposit for that period. 2
      ID at 8. In doing so, he relied on section 22A6.1-2(A) of the Handbook, which
      states that an individual first employed in a CSRS-covered position before
      October 1, 1982, is entitled to civilian service credit for periods that he is
      considered to be on both active duty with the military and on leave of absence
      from his civilian position. ID at 8. As the administrative judge observed, the
      Handbook indicates that a deposit may be required depending on the employee’s
      eligibility for Social Security benefits. ID at 8; Handbook, § 22A6.1-2(A)(1). He
      remanded this issue to OPM to determine whether the appellant was required to
      make, and did make, a deposit, then to recalculate the annuity accordingly.
      ID at 8. We reverse this finding.
¶11         An appellant bears the burden of proving his entitlement to retirement
      benefits by preponderant evidence.        See Cheeseman v. Office of Personnel
      Management,       791    F.2d     138,    140-41     (Fed.    Cir. 1986);     5 C.F.R.
      § 1201.56(b)(2)(ii). Based upon our review of the record, the appellant failed to
      meet that burden.




      2
        The appellant did not claim CSRS service credit for the period from October 26, 1990,
      through his separation from the DIA on June 22, 1991. IAF, Tab 11 at 36-37.
                                                                                            6

¶12         The administrative judge’s interpretation of OPM’s Handbook is contrary
      to the plain language of section 8332(c)(2). 3 See Chevron, U.S.A., Inc. v. Natural
      Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984) (stating that courts
      and agencies must give effect to clear congressional intent); Graves v.
      Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 13 (2016) (observing that if
      the language of a statute is clear, it is conclusive of its meaning absent clearly
      expressed legislative intent to the contrary). Section 8332(c)(2) precludes the
      award of double credit for overlapping periods of civilian and military service,
      except under circumstances that do not appear to apply in this case.
      See Forsythe, 85 M.S.P.R. 593, ¶ 9 (finding that OPM properly denied an
      appellant CSRS service credit for periods during which his military and civilian
      service overlapped); 5 C.F.R. § 831.301(a)(2).         Here, the appellant received
      military retirement service credit for the period August 27 to October 25, 1990.
      IAF, Tab 4 at 25. In the absence of proof that the appellant waived this credit, he
      cannot receive CSRS credit for the same period. IAF, Tab 4 at 13, 51.
¶13          This is the case regardless of whether the appellant made or could make a
      deposit.   The Board has recognized that OPM is charged by Congress with
      interpreting civil service retirement law and, as such, its interpretation of civil
      service retirement statutes is entitled to great deference unless the interpretation
      is clearly erroneous. Hicks v. Office of Personnel Management, 44 M.S.P.R. 340,
      344 (1990). The Board also has recognized that the Handbook lacks the force of
      law, but is entitled to deference in proportion to its “power to persuade.” Warren
      v. Department of Transportation, 116 M.S.P.R. 554, ¶ 7 n.2 (2011) (citations
      omitted), aff’d per curiam, 493 F. App’x 105 (Fed. Cir. 2013).           In the instant
      matter, OPM has concluded that 5 U.S.C. § 8332(c)(2) controls. Moreover, the

      3
        According to OPM, this provision of its Handbook would only apply if the appellant
      was not in receipt of military retired pay, or if he met one of the exceptions listed in
      5 U.S.C. § 8332(c)(2)(A)-(B). PFR File, Tab 1 at 13-14, Tab 5 at 8-9.
                                                                                              7

      Handbook does not explain why the general prohibition against an individual
      receiving both civilian and military service credit for the same period, delineated
      in both the statute and regulation, would not apply in a situation like this. 4 See
      5 U.S.C. § 8332(c)(2); 5 C.F.R. § 831.301(a)(2).            Therefore, we do not find
      OPM’s Handbook persuasive, and to the extent that the Handbook may conflict
      with 5 U.S.C. § 8332(c)(2) and 5 C.F.R. § 831.301(a)(2), the statute is
      controlling. Graves, 123 M.S.P.R. 434, ¶ 13.
¶14         On review, the appellant presents a September 2016 decision issued by the
      Department of Veterans Affairs’ Board of Veterans’ Appeals, finding that he
      incurred two service-connected medical disorders. PFR File, Tab 6 at 15, 30-33.
      He   argues    that   this   decision   shows   that   he    meets   the   exception   in
      section 8332(c)(2)(A) permitting both military and CSRS retirement credit for
      “retired pay . . . awarded based on a service-connected disability.” PFR File, Tab
      6 at 7-8.     However, he does not present argument or evidence that either
      service-connected disorder was the basis for an award of retired pay.                  Id.
      Therefore, his new evidence does not state a basis for review. Russo v. Veterans
      Administration, 3 M.S.P.R. 345, 349 (1980) (finding that the Board will not grant
      a petition for review based on new evidence absent a showing that it is of
      sufficient weight to warrant an outcome different from that of the initial
      decision).

      August 22, 1994 – December 22, 1995
¶15         For the period of August 22, 1994, to December 22, 1995, the appellant
      was employed as a civilian at DIA. IAF, Tab 11 at 77. However, as a result of
      AFBCMR’s correcting his military service dates, his military records were




      4
        OPM asserts that it is currently revising its Handbook to ensure that it comports with
      5 U.S.C. § 8332(c), (j). PFR File, Tab 1 at 16 n.3, Tab 5 at 9.
                                                                                         8

      corrected to reflect continuous military service during this period. IAF, Tab 4
      at 48-50, 61, Tab 12 at 26, 39.
¶16         The administrative judge found that these circumstances fell within an
      exception, entitling the appellant to civilian service credit. ID at 9. In doing so,
      he relied on section 22A6.1-4(B) of the Handbook, which provides for CSRS
      service credit when a court awards a former service member retroactive military
      reinstatement “with back pay and allowances.” Id. According to this provision,
      neither a deposit for military service, nor waiver of military service credit, is
      required. Handbook, § 22A6.1-4(B). Agencies are directed to consult with OPM
      before crediting such service.    Id.   The administrative judge ordered OPM to
      recompute the appellant’s annuity to include this period. ID at 10. Again, we
      reverse.
¶17         Under the circumstances, we are persuaded by the interpretation of
      5 U.S.C. § 8332(c)(2) that OPM has maintained throughout this appeal; we are
      not persuaded by the Handbook to the extent that it may suggest a different
      interpretation. Although section 22A6.1-4(B) of the Handbook suggests that a
      “court” judgment could result in an individual’s entitlement to both civilian and
      military retirement pay for the same period, it is unclear wh ether that includes a
      decision by the AFBCMR. In any event, the provision directs agencies to consult
      OPM for an advisory opinion when such a court judgment exists —it does not
      appear to provide a definitive entitlement.     More importantly, the Handbook
      again fails to explain why the general prohibition against an individual receiving
      both civilian and military service credit for the same period, delineated in both
      the statute and regulation, would not apply. See 5 U.S.C. § 8332(c)(2); 5 C.F.R.
      § 831.301(a)(2). Therefore, we do not find OPM’s Handbook persuasive.
¶18         In the absence of proof that the appellant waived his military retirement
      service credit, he has not shown that he is entitled to CSRS credit for the period
                                                                                             9

      of August 22, 1994, to December 22, 1995. 5 5 U.S.C. § 8332(c)(2); IAF, Tab 4
      at 13, 54. To the extent that the Handbook conflicts with 5 U.S.C. § 8332(c)(2)
      and 5 C.F.R. § 831.301(a)(2), the statute remains controlling.                  Graves,
      123 M.S.P.R. 434, ¶ 13.
¶19         We recognize that the appellant has alleged that he did not receive military
      retirement credit for this period.      PFR File, Tab 3 at 12-13.        However, the
      evidence he cites, a letter from the Defense Finance and Accounting Service, does
      not prove his claim. IAF, Tab 15 at 53. Instead, it states that, following the
      AFBCMR decision, the appellant received 15 months of constructive Air Force
      “non-pay” service credit for the period 1994 through 1996. Id. The appellant
      suggests that the “non-pay” notation shows that he has not received military
      retirement pay for that period, but we are not persuaded.             PFR File, Tab 3
      at 12-13. The letter indicates that these 15 months were part of a larger “total of
      63 months of constructive [military] service credit . . . approved by the Secretary
      of the Air Force” for the appellant.             IAF, Tab 15 at 53.        In addition,
      documentation associated with the appellant’s retroactive reinstatement to active
      duty shows that his military pay would be offset by interim civilian earnings.
      IAF, Tab 12 at 27, 29. Therefore, it appears that the reference to “15 months of
      constructive service credit non-pay” simply indicates that the appellant did not
      receive back pay, but otherwise received military service credit for that period.




      5
        The appellant argues that no deposit is required because DIA withheld CSRS
      contributions from his pay during this period. PFR File, Tab 3 at 15; see 5 U.S.C.
      § 8332(j) (discussing when such a deposit is required). The record reflects that the
      appellant requested a refund for those contributions. IAF, Tab 12 at 50. According to
      OPM’s records, these withholdings were to be refunded at retirement. IAF, Tab 4 at 25.
      In any event, because the appellant failed to meet his burden to prove that he waived his
      military retirement service credit, we find it unnecessary to r esolve whether a CSRS
      deposit would be required.
                                                                                         10

¶20            The appellant has failed to meet his burden of proving that he is entitled to
      receive the benefits he seeks. Accordingly, we reverse the initial decision and
      affirm OPM’s reconsideration decision.

                                                   ORDER
¶21            This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) ( 5 C.F.R.
      § 1201.113(c)).

                           NOTICE TO THE APPELLANT REGARDING
                              YOUR FURTHER REVIEW RIGHTS
               You have the right to request review of this final decision by the
      U.S. Court of Appeals for the Federal Circuit. You must submit your request to
      the court at the following address:
                                      United States Court of Appeals
                                          for the Federal Circuit
                                        717 Madison Place, N.W.
                                         Washington, DC 20439

      The court must receive your request for review no later than 60 calendar days
      after the date of this order.            See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
      Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
      has held that normally it does not have the authority to waive this statutory
      deadline and that filings that do not comply with the deadline must be dismissed.
      See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
               If you need further information about your right to appeal this decision to
      court, you should refer to the Federal law that gives you this right. It is found in
      title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
      Dec. 27, 2012). You may read this law as well as other sections of the United
      States     Code,     at   our     website,    http://www.mspb.gov/appeals/uscode/htm.
      Additional         information      is    available    at    the   court’s   website,
      www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
                                                                                 11

Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:


______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
