                 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

                                        04-3464

                                WILLIAM R. LINDSLEY,

                                                             Petitioner,

                                           v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                             Respondent.

                            __________________________

                              DECIDED: March 11, 2005
                            __________________________


Before MAYER, Circuit Judge, PLAGER, Senior Circuit Judge, and GAJARSA, Circuit
Judge.

PER CURIAM.

      William R. Lindsley petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) affirming the reconsideration decision of the Office of

Personnel Management (OPM) finding that his active duty military service was not

creditable toward a Civil Service Retirement System (“CSRS”) annuity. Because the

Board’s decision is supported by substantial evidence and is not arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law, we affirm.

      Mr. Lindsley held a Federal civilian position in the Mississippi National Guard

(MNG) from March 1, 1972 until August 17, 1986, when he was separated from that

position. He was on Active Guard Reserve (“AGR”) duty in the MNG from August 18,
1986, until September 24, 1996, immediately after which he returned to civilian

employment in the MNG.

         In February 2002, Mr. Lindsley filed an application to make a deposit to obtain

CSRS credit for his AGR service. After the MNG informed him that his AGR service

was not creditable, Mr. Lindsley requested reconsideration by OPM of his application.

OPM affirmed the denial of service credit, after which Mr. Lindsley appealed to the

Board.     The administrative judge assigned to the case issued an initial decision

reversing OPM’s decision. Lindsley v. Office of Pers. Mgmt., No. AT-0831-02-0767-I-1

(M.S.P.B. Nov. 27, 2002). The full Board granted OPM’s petition for review, reversed

the initial decision, and affirmed OPM’s reconsideration decision as modified by the

Board’s opinion. Lindsley v. Office of Pers. Mgmt., 96 M.S.P.R. 259 (2004).

         As correctly stated by the Board, Mr. Lindsley’s AGR service is creditable for

CSRS annuity purposes only if he had valid reemployment rights under the Uniformed

Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301-33

(“USERRA”). See Moravec v. Office of Pers. Mgmt., 393 F.3d 1263, 1266-67 (Fed. Cir.

2004); Dowling v. Office of Pers. Mgmt., 393 F.3d 1260, 1262 (Fed. Cir. 2004). The

Board applied the proper test for determining whether Mr. Lindsley had USERRA

reemployment rights, i.e., whether or not he intended to abandon his civilian career for

one in the military. See Moravec, 393 F.3d at 1268 (citing Woodman v. Office of Pers.

Mgmt., 258 F.3d 1372, 1378 (Fed. Cir. 2001)). The Board found that Mr. Lindsley

intended to pursue a military career based on the following facts: he was separated

from his civilian position instead of seeking a leave of absence; shortly after his

separation in 1986 he applied for and received a lump-sum refund of the retirement

04-3464                                     2
contributions he had made during his first period of civilian employment; and he

remained on active duty for a substantial period of time after consenting to an indefinite

extension of his AGR duty.      Thus the Board considered relevant and appropriate

factors, and the totality of the Board’s findings, which are supported by the record,

constitutes substantial evidence supporting the Board’s conclusion that Mr. Lindsley

intended to abandon his civilian career. See Moravec, 393 F.3d at 1268; Dowling, 393

F.3d at 1263; 5 U.S.C. §7703(c). Furthermore, Mr. Lindsley has not shown that the

Board’s decision was arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law. See 5 U.S.C. § 7703(c). We therefore must affirm the Board’s

determination that Mr. Lindsley did not have reemployment rights and therefore cannot

receive credit for his AGR service.




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