                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MARVIN L. JARMIN,                               DOCKET NUMBER
                   Appellant,                        SF-0831-16-0161-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: August 19, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Marvin L. Jarmin, Mount Vernon, Washington, pro se.

           Sarah Murray, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the decision of the Office of Personnel Management (OPM) denying him
     service credit for retirement purposes for service he performed with the Army
     Reserves. Generally, we grant petitions such as this one only when: the initial


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                        2

     decision contains erroneous findings of material fact; the initial decision is based
     on an erroneous interpretation of statute or regulation or the erroneous application
     of the law to the facts of the case; the administrative judge’s rulings during either
     the course of the appeal or the initial decision were not consistent with required
     procedures or involved an abuse of discretion, and the resulting error affected the
     outcome of the case; or new and material evidence or legal argument is available
     that, despite the petitioner’s due diligence, was not available when the record
     closed. See title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, we conclude that
     the petitioner has not established any basis under section 1201.115 for granting
     the petition for review.     Therefore, we DENY the petition for review and
     AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
     § 1201.113(b).
¶2         Following a period of nearly 2 years of active duty military service with the
     U.S. Army, the appellant transferred to the U.S. Army Reserves in North Dakota
     on December 8, 1955, and was honorably discharged on December 31, 1961.
     Initial Appeal File (IAF), Tab 4 at 9, 14.      In 1965, he began duty with the
     Department of Agriculture as a civilian employee and remained so employed until
     his retirement on September 30, 1986, under the Civil Service Retirement System
     (CSRS). Id. at 15; IAF, Tab 1 at 4. In 2012, the appellant began to question why
     his retirement did not include credit for the time he spent in the reserves, and he
     sought a correction of his military records. IAF, Tab 4 at 3. The Department of
     the Army’s Board for Correction of Military Records acknowledged a minor error
     and amended the appellant’s records to afford him an additional day of service,
     but it continued to reflect that his military service ended on December 8, 1955,
     when he was released from active duty.         Id. at 11, 13.   The appellant then
     submitted an inquiry to OPM, which advised him that only active military duty
     time is creditable towards an annuity. Id. at 21. OPM subsequently repeated its
                                                                                            3

     position and advised the appellant of his right to request reconsideration.           Id.
     at 22. On reconsideration, OPM affirmed its initial decision. Id. at 23-24.
¶3           The appellant filed an appeal in which he repeated his claim that his service
     in the reserves from December 8, 1955, to December 31, 1961, was active duty
     service and should be included in the computation of his annuity. IAF, Tab 1.
     He maintained that, during that period, he was routinely “called out” to provide
     disaster relief services, id. at 11, and he again sought correction of his records, 2
     id. at 12-13.
¶4           In   her   initial   decision,   the   administrative   judge   affirmed   OPM’s
     reconsideration decision, finding that the appellant did not show that his reserve
     status from December 8, 1955, through December 31, 1961, is creditable active
     duty military service under the CSRS. IAF, Tab 8, Initial Decision (ID) at 7-10. 3
¶5           The appellant has filed a petition for review, Petition for Review (PFR)
     File, Tab 1, to which OPM has responded in opposition, PFR File, Tab 5.
¶6           Title 5, U.S. Code, section 8332(c)(1)(A) provides in pertinent part that the
     service of an individual who, like the appellant, first becomes an employee before
     October 1, 1982, shall include credit for each period of military service
     performed before the date of separation on which the entitlement to an annuity is
     based. See Dambrava v. Office of Personnel Management, 466 F.3d 1061, 1063
     (Fed. Cir. 2002). “Military service,” as is relevant to this appeal, is honorable

     2
         The appellant declined a hearing. IAF, Tab 1 at 1.
     3
       During adjudication, the administrative judge determined to sanction OPM for its
     repeated failures to respond to her orders or to seek an extension of time in which to do
     so. IAF, Tabs 2-3, 6. She found that an appropriate sanction ordinarily would be to
     not consider the evidence in defense of the appeal, although she acknowledged that,
     because OPM had not submitted any evidence, that sanction would be moot. ID at 6.
     Finding that the appellant had produced a detailed and comprehensive file related to the
     matter at issue sufficient to allow her to properly adjudicate the appeal on the merits,
     the administrative judge concluded that he would not be prejudiced by her issuing the
     decision in the absence of any information by OPM, and she did so. ID at 6-7. Neither
     party has challenged this ruling on review, and we discern no basis upon which to
     disturb it.
                                                                                          4

     active duty service in the armed services.          5 U.S.C. § 8331(13)(A).        The
     CSRS/Federal Employees Retirement System (FERS) Handbook to which the
     Board defers provides that active military service is duty in the armed services of
     the United States performed on a full-time basis with military pay and
     allowances, and contemplates that all of an individual’s time and efforts are at the
     disposal of the military authorities and that he dissociates himself from the
     performance of civilian employment during the period of military service.
     CSRS/FERS       Handbook      (Handbook),     Chapter 22A2.1-2D,       available    at
     https://www.opm.gov/retirement-services/ publications-forms/csrsfers-handbook/;
     see Moore v. Department of Veterans Affairs, 109 M.S.P.R. 386, ¶ 9 (2008). The
     Handbook further provides that active service in the various reserve components
     of the branches of the uniformed services is creditable when an individual is
     called to active duty. Handbook, Chapter 22A2.1-2E.
¶7         Based on our review, we find that the appellant has not shown error in the
     administrative judge’s finding that the appellant failed to establish that his
     reserve service was active duty service.        In fact, he acknowledges that he
     completed 4 years of college during that period of time, IAF, Tab 1 at 11, such
     that all of his time and efforts were not at the disposal of the military authorities.
     He also alleges that he supported the Federal Emergency Management Agency in
     providing disaster relief. PFR File, Tab 1 at 2. He has, however, submitted no
     evidence supporting his claim, and, to the extent that he did perform work
     associated with disaster relief, he has not shown that it was active service. The
     appellant argues on review that the fact that his Certificate of Discharge from the
     Armed Services, reflects a date of December 31, 1961, IAF, Tab 1 at 5,
     demonstrates that he performed active duty service until that date.        PFR File,
     Tab 1 at 2. However, that document does not specify that the service performed
     was active duty service as contemplated by OPM’s laws and regulations. Finally,
     the appellant contends that OPM had incomplete facts regarding dates for the
     computation of his annuity when it rendered its decision. Id. On the contrary,
                                                                                       5

     OPM relied on the appellant’s verified service history as documented in his
     Official Personnel Folder. IAF, Tab 1 at 21-25.
¶8        In sum, we conclude that the appellant has not met his burden to show that
     he is entitled to the benefit he seeks, Thomas v. Office of Personnel Management,
     107 M.S.P.R. 334, ¶ 15 (2007), and he has not shown error in the administrative
     judge’s decision so finding.

                     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
                                                                                  6

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.
