              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
                                     05-3172

                             RAFAELITO D. BORO,

                                                       Petitioner,

                                        v.

                   OFFICE OF PERSONNEL MANAGEMENT,

                                                       Respondent.

                        ___________________________

                        DECIDED: December 9, 2005
                        ___________________________

Before LOURIE, RADER, and LINN, Circuit Judges.

RADER, Circuit Judge.

      The Office of Personnel Management (OPM), denied Mr. Rafaelito D.

Boro’s request for a deferred retirement annuity under the Civil Service

Retirement Act (CSRA), 5 U.S.C. §§ 8331-8351 (2005).          The Merit Systems

Protection Board (Board) affirmed. Boro v. Office of Pers. Mgmt., No. SF-0831-

04-0329-I-1 (Mar. 8, 2005). Because Mr. Boro has not shown entitlement to

retirement benefits under 5 C.F.R. § 1201.56(a)(2) (2005), this court affirms.

                                             I.

      Mr. Boro, a Philippines national, worked for the Department of the Navy at

Subic Bay in the Philippines from 1955 until 1984.         Mr. Boro at first held

intermittent excepted service temporary appointments, and then held a
continuous but indefinite appointment in the excepted service.       On March 3,

1999, Mr. Boro applied for deferred annuity benefits under the Civil Service

Retirement System (CSRS). The OPM denied Mr. Bono’s application because

he had never served in a position subject to the CSRS. Although Mr. Boro’s

continuous service was creditable, the Board found that it was not covered

service, i.e., service “subject to” the CSRA under 5 U.S.C. § 8333(b).

                                             II.

      This court affirms 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; or unsupported by substantial

evidence. See 5 U.S.C. § 7703 (2005); Yates v. Merit Sys. Prot. Bd., 145 F.3d

1480, 1483 (Fed. Cir. 1998). Mr. Boro has the burden of demonstrating his

entitlement to annuity benefits.       See 5 C.F.R. § 1201.56(a)(2) (2005);

Cheeseman v. Office of Pers. Mgmt., 791 F.2d 138, 141 (Fed. Cir. 1986).

      The relevant statute, which governs this case, is 5 U.S.C. § 8333:

          (a) An employee must complete at least 5 years of civilian service
          before he is eligible for an annuity under this subchapter.

          (b) An employee or Member must complete, within the last 2 years
          before any separation from service . . . at least 1 year of creditable
          civilian service during which he is subject to this subchapter before
          he or his survivors are eligible for annuity under this subchapter
          based on the separation. If an employee or Member . . . fails to meet
          the service requirement of the preceding sentence, the amounts
          deducted from his pay during the service for which no eligibility for
          annuity is established based on the separation shall be returned to
          him on the separation. Failure to meet this service requirement does
          not deprive the individual or his survivors of annuity rights which
          attached on a previous separation.

          (c) A Member or his survivor is eligible for an annuity under this



05-3172                                  2
          subchapter only if the amounts named by section 8334 of this title
          have been deducted or deposited with respect to his last 5 years of
          civilian service, or, in the case of a survivor annuity under section
          8341(d) or (e)(1) of this title, with respect to his total service.

See also Carreon v. Office of Pers. Mgmt., 321 F.3d 1128, 1130 (Fed. Cir. 2003)

(“Entitlement to CSRS annuity benefits requires the employee to have completed

at least five years of civilian service, and to have completed at least one year of

creditable civilian service subject to CSRA within two years of his separation from

service.”). Thus, Mr. Boro would not be barred from receiving an annuity under 5

U.S.C. § 8333 if his appointment were subject to the CSRA, if he had completed

at least one year of “creditable service subject to CSRA” within two years of his

separation from service, and if he had made contributions to the Civil Service

Retirement and Disability Fund. See Rosete v. Office of Pers. Mgmt., 48 F.3d

514, 516 (Fed. Cir. 1995) (quoting       Noveloso v. Office of Pers. Mgmt., 45

M.S.P.R. 321, 323 (1990), aff'd mem., 925 F.2d 1478 (Fed. Cir. 1991)) (“Covered

service only includes an appointment that is subject to the CSRA and for which

an employee must deposit part of his or her pay into the Civil Service Retirement

and Disability Fund.”).

       Upon investigation of Mr. Boro’s employment records, which it deemed

complete, the Board found that Mr. Boro's appointments were non-permanent

and were excluded from CSRS coverage. The Board found that the Standard

Form 50 (SF 50) “Notification of Personnel Action” (NPA) forms for Mr. Boro’s

services indicated that the appellant’s retirement status was “none” or “other,” i.e.

other than the CSRA. Further, no deductions were ever withheld from Mr. Boro's

salary for deposit into the Civil Service Retirement fund. Finally, the Board noted



05-3172                                  3
that Mr. Boro’s entitlement to severance pay, which was documented on the SF

50 form associated with his final separation, indicated that Mr. Boro was not

covered by the CSRA. See, e.g., Paderes v. Office of Pers. Mgmt., 63 M.S.P.R.

642, 645 (1994); aff’d, 61 F.3d 919 (Fed. Cir. 1995) (Table). Therefore, Mr. Boro

did not meet the eligibililty requirements of § 8333.

       Mr. Boro argues that because of an alleged temporary lapse of legal

authority which excluded indefinite, nonpermanent appointments from CSRA, the

CSRA did cover his service. This court has already rejected this argument. See,

e.g., Casilang v. Office of Pers. Mgmt., 248 F.3d 1381 (Fed. Cir. 2001) (the

revocation of Executive Order No. 10,180, effective January 23, 1955, did not

convert all indefinite excepted appointments into appointments covered by

CSRA). For the foregoing reasons, this court affirms the final decision of the

Board sustaining OPM's denial of Mr. Boro's request for annuity benefits.




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