Error: Bad annotation destination
             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

                                        06-3147


                                CLYDE B. WASHBURN,

                                                 Petitioner,

                                            v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                 Respondent.


                           ____________________________

                             DECIDED: November 17, 2006
                           ____________________________


Before LOURIE, SCHALL, and DYK, Circuit Judges.

Opinion for the court filed by Circuit Judge LOURIE. Dissenting opinion filed by Circuit
Judge DYK.

LOURIE, Circuit Judge.

                                       DECISION

      Clyde B. Washburn (“Washburn”) appeals from the final decision of the Merit

Systems Protection Board (“the Board”) affirming the decision of the Office of Personnel

Management (“OPM”) that denied his request for military service credit under the Civil

Service Retirement System (“CSRS”). Washburn v. Office of Pers. Mgmt., DC-0831-05-

0557-I-1 (M.S.P.B. Jan. 19, 2006).        Because we see no error in the Board’s
determination that Washburn failed to establish that he was entitled to the requested

benefit, we affirm.

                                     BACKGROUND

        Washburn retired from the Department of the Army on May 3, 2003 with a

military service time credit of one year and twenty-two days. Washburn did not make a

deposit payment for an annuity attributable to that one year and twenty-two day active-

duty service time prior to retiring, and his CSRS annuity payment was reduced at age

sixty-two when he became eligible for Social Security because his military service credit

was no longer included in the calculation of his benefit.

       Upon learning of the benefit reduction, Washburn filed an appeal to the OPM on

April 14, 2005, stating that he was not aware of his entitlement to receive credit for

military service time prior to retiring, and seeking to pay the required deposit. On May

23, 2005, the OPM determined that Washburn was adequately notified of the need to

pay the deposit prior to retiring, that he failed to make the deposit during the required

time period, and that the reduction of Washburn’s annuity upon reaching age sixty-two

and becoming eligible for Social Security was therefore required.

       Washburn timely appealed the decision of the OPM to the Board. On September

30, 2005, the Administrative Judge (“AJ”) affirmed the decision of the OPM. The AJ

determined that the documentary evidence consistently supported a finding that

Washburn had clear notice that he had to make a deposit for his military service in order

to avoid losing credit for that service at age sixty-two when he was eligible for Social

Security, and that he failed to do so.     The AJ also determined that in light of that

unrebutted evidence, Washburn’s uncorroborated and unsworn statement that he was




06-3147                                  -2-
unaware of the need to make the deposit was insufficient to carry his burden of proving

eligibility for benefits by a preponderance of the evidence.

       On January 19, 2006, the initial decision became the final decision of the Board.

See 5 C.F.R. § 1201.113.        Washburn timely appealed to this court, and we have

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                       DISCUSSION

       The scope of our review in an appeal from a decision of the Board is limited. We

must affirm the Board’s decision unless it was “(1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; (2) obtained without procedures

required by law, rule, or regulation having been followed; or (3) unsupported by

substantial evidence.” 5 U.S.C. § 7703(c); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d

1307, 1311 (Fed. Cir. 2003).       Washburn has the burden of proving entitlement to

retirement benefits by a preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2); see

also Licausi v. Office of Pers. Mgmt., 350 F.3d 1359, 1364 (Fed. Cir. 2003).

       On appeal, Washburn argues that he was not informed that he would be eligible

for the post-1956 military service credit only if he paid the deposit prior to his retirement.

The government responds that the Board’s decision is supported by substantial

evidence.

       We agree with the government that the Board correctly decided that Washburn

was not entitled to the retirement benefit at issue.           Under the Omnibus Budget

Reconciliation Act of 1982, Pub. L. No 97-253, §§ 306-07, 96 Stat. 763, 795-96 (1982),

civil service retirees who retired after September 8, 1982 and performed active duty

military service after December 31, 1956 may receive credit for that military service




06-3147                                  -3-
under both CSRS and Social Security. In order to receive credit from CSRS for that

military service upon reaching age sixty-two and becoming eligible for Social Security,

the retiree must pay a deposit of seven percent of his or her estimated earnings or basic

pay for the credited service time prior to retirement. If the deposit is not made prior to

retirement, the retiree’s payment is recomputed upon reaching age sixty-two and

verification of Social Security eligibility without credit for the post-1956 military service.

       Washburn bears the burden of proving by a preponderance of the evidence that

he is entitled to the claimed retirement benefit. 5 C.F.R. § 1201.56(a)(2). Based on

evidence including Washburn’s SF 2801 retirement application form and OPM Form

1515, the Board found Washburn had adequate notice of the consequences of failing to

pay the deposit to secure credit for his military service before retiring from his employing

agency. Washburn’s SF 2801 form indicates that he was aware that he had post-1956

military service and that he had not paid a deposit to his employing agency for that

service.   Although the AJ advised Washburn of the need to address the record

documents submitted by the OPM, he did not challenge them before the AJ, nor did he

challenge the record in his appeal to this court. In addition, the SF 2801-1 form that is a

required attachment to the SF 2801 retirement application details the amount of post-

1956 military service time credited to Washburn at the time of his retirement. Although

the signature block of the SF 2801-1 form was stamped “unavailable to sign,” and

although the information on the form was certified by the Army on May 20, 2003, after

Washburn’s retirement, Washburn, again, did not challenge the relevance or accuracy

of the SF 2801-1 document before the AJ or in his appeal here.




06-3147                                    -4-
      In light of this unchallenged documentary evidence, substantial evidence

supports the Board’s decision that Washburn failed to prove he is entitled to the

retirement benefits at issue by a preponderance of the evidence. We have considered

Washburn’s additional “Memorandum of [Appeal]” received on September 11, 2006, but

find no new challenge to the documentary evidence. We therefore affirm the Board’s

decision.




06-3147                              -5-
                        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
                                          06-3147


                                  CLYDE B. WASHBURN,

                                                                 Petitioner,

                                             v.

                       OFFICE OF PERSONNEL MANAGEMENT,

                                                                 Respondent.


DYK, Circuit Judge, dissenting.

       The petitioner is a retired federal employee who, prior to his retirement, failed to

pay the deposit required to receive retirement credit for his active-duty military service

pursuant to 5 U.S.C. § 8334(c) (2000). The petitioner contends that he is entitled to

make a late payment and receive credit. The Merit Systems Protection Board (“MSPB”)

assumed, and the parties appear to agree, that petitioner was entitled to notice (prior to

his retirement) as to the dates of any creditable military service.             The Office of

Personnel Management (“OPM”) does not dispute that the failure to provide such notice

before the effective date of the retirement would entitle petitioner to pay the deposit late

and to receive any appropriate credit.

       OPM contends, and the Board agreed, that Washburn received notice of his

creditable military service from contemporaneous documents.             The only document

relied on by the Board, OPM, and the majority that noted the fact that Washburn had

creditable military service was Form 2801-1. However, on its face Form 2801-1 was
dated May 20, 2003, over two weeks after Washburn’s retirement date (May 3, 2003)

and almost two months after he submitted his retirement application (March 25, 2003).

The Board opinion did not address this discrepancy, stating in a conclusory fashion that

“[t]he appellant’s retirement application also included an OPM SF 2801-1 form,” nor

does the majority address the discrepancy in the dates. On appeal we requested that

OPM address this discrepancy.        In response, OPM merely pointed to a checklist

supposedly included in the retirement application that noted that the Form 2801-1 was

attached.   The clear post-retirement date of Form 2801-1 makes this checklist of

dubious value, and the date on the checklist itself is illegible. In my opinion, the Board’s

conclusion that Washburn had notice of his creditable military service was not

supported by substantial evidence. I would vacate the Board’s decision and remand for

further proceedings.




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