                  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




                                         04-3233

                                   WILLIAM O. MEEK,

                                                  Petitioner,

                                             v.

                       OFFICE OF PERSONNEL MANAGEMENT,

                                                  Respondent.


                            ___________________________

                            DECIDED: December 13, 2004
                            ___________________________


Before BRYSON, Circuit Judge, PLAGER, Senior Circuit Judge, and PROST, Circuit
Judge.

PER CURIAM.

                                        DECISION

       Petitioner William Meek seeks review of an order of the Merit Systems Protection

Board, Docket No. PH-0831-03-0227-I-1, in which the Board upheld the decision of the

Office of Personnel Management ("OPM") denying Mr. Meek’s request that his

retirement annuity benefits under the Civil Service Retirement System ("CSRS") include

credit for his post-1956 military service. We affirm.
                                     BACKGROUND

       A civil service annuitant who retires after September 7, 1982, is entitled to credit

for active military service performed after 1956 under both the CSRS and the Social

Security System, but only if the annuitant deposits with the Civil Service Retirement

Fund an amount equal to seven percent of his or her total post-1956 military pay. 5

U.S.C. §§ 8332(j) & 8334(j); Collins v. Office of Pers. Mgmt., 45 F.3d 1569, 1570-71

(Fed. Cir. 1995).    If the annuitant fails to make the requisite deposit, OPM must

recompute the annuitant's annuity payment when the annuitant first becomes eligible for

Social Security benefits to exclude credit for post-1956 military service.       5 U.S.C.

§ 8332(j)(1); Collins, 45 F.3d at 1571.

       Mr. Meek served in the United States Marine Corps from 1959 to 1969. He

subsequently worked in the federal civilian service from 1971 to 1992, when he retired

at age 51. In the course of electing retirement from civilian service, Mr. Meek signed

OPM's Form 1515, entitled "Military Service Deposit Election." That form indicated that

Mr. Meek had served in the military after 1956 and was eligible for a civil service

annuity. It advised Mr. Meek that if he wished to be eligible at age 62 for a Social

Security benefit that included credit for his post-1956 military service, he needed to

make a deposit to the CSRS or else his civil service benefits would be reduced when he

reached age 62. The form also referred to an attached form entitled "Information for

Completing OPM Form 1515," which specifies that the amount of the deposit for post-

1956 military service is seven percent of military basic pay and that the consequence of

not making a deposit is a reduction in annuity at age 62. Mr. Meek signed a statement




04-3233                                     2
indicating that he had read the information regarding his right to make the deposit for

post-1956 military service, and that he had elected not to make the deposit.

         On February 18, 2003, after Mr. Meek reached the age of 62 and became eligible

for Social Security benefits, OPM recalculated his civil service annuity because he had

not made a deposit prior to his retirement. The recalculation eliminated credit for his

post-1956 military service, thereby reducing his monthly retirement payment from $1637

to $1058.

         Mr. Meek appealed OPM's decision to the Merit Systems Protection Board,

asserting that he had been unaware that he needed to make a deposit for his post-1956

military service. The Board found, however, that Mr. Meek had been properly informed

of the consequences of not making a deposit for his post-1956 service through forms he

read and signed at the time of his retirement. The Board therefore concluded that Mr.

Meek had made “a free and informed choice not to make the deposit," and that he was

not entitled to an unreduced annuity. After the full Board denied Mr. Meek’s petition for

review, he sought review by this court.

                                      DISCUSSION

         On appeal, Mr. Meek argues that he is entitled to an unreduced monthly annuity

payment of $1637. In order to obtain that level of annuity, however, he was required to

make a deposit equal to seven percent of his post-1956 military pay. The record shows

that he was placed on notice of the need to make the deposit and that he elected not to

do so.

         Form 1515 sets forth the consequences of failing to make a deposit and cautions

retirees that the decision about making a deposit may affect their rights under the Civil




04-3233                                     3
Service Retirement Act. The form informed Mr. Meek that he "must either make a

deposit for the military service or have [his] annuity benefits reduced at age 62.” His

signature appears below the statement "I have read this information concerning my

rights to make a deposit for post-1956 military service . . . . I have decided not to make

. . . this deposit." Likewise, Form 2801 stated that “[i]f you performed military service on

or after January 1, 1957, you may pay a deposit of 7% of your military basic pay (plus

interest, if applicable) to cover that service . . . . If you do not make the deposit and you

are eligible for Social Security benefits at age 62, your annuity will be recomputed (at

age 62) to eliminate the credit for the post-1956 military service.” Form 2801 further

stated: "You CANNOT change your decision after you retire.”

       Given that Form 1515 was "an unambiguous election form that notifies the signer

of the consequences of election," Collins, 45 F.3d at 1573, and that Form 2801 also

informed Mr. Meek of the consequence of electing not to pay the deposit, Mr. Meek is

"not relieved from the consequences of [his] written election absent a showing that

mental incompetence, duress or fraud is the reason for an election one later seeks to

void," id.   Mr. Meek does not assert mental incompetence, duress or fraud as the

reason for having made the election not to pay the deposit. While he states that he was

"on medication for [his] last three years of work" prior to retiring, he does not contend

that taking medication rendered him incompetent to make the decision whether to pay

the deposit.    Accordingly, the Board's determination that Mr. Meek was knowingly

elected not to make the deposit is supported by substantial evidence.

       Mr. Meek also argues that he "should have been able to retire on disability

instead of being assigned light duty and put on medication for [his] last three years of




04-3233                                      4
work."    Before the Board, Mr. Meek noted that he was denied disability retirement

benefits. To the extent Mr. Meek is seeking review of the denial of disability retirement

benefits, that issue is not within the scope of the present proceeding, which is confined

to review of OPM’s decision as to the computation of Mr. Meek’s civil service annuity.

         Mr. Meek also contends that the Board failed to consider a letter from the Social

Security Administration stating that he qualified for Social Security benefits of $182 per

month. Mr. Meek argues that because he received credit for his post-1956 military

service towards his Social Security benefits without paying a deposit, he is likewise not

required to pay a deposit to receive credit for his post-1956 military service towards his

annuity benefits. That argument, however, is contrary to the law, which treats Social

Security benefits and civil service retirement benefits differently with respect to credit for

post-1956 military service.    While "military years are [ ] automatically creditable for

social security benefit purposes," a civil service retirement annuitant with post-1956

military service must make a deposit prior to retirement in order to receive credit for that

service once he starts receiving Social Security benefits. Collins, 45 F.3d at 1570,

quoting S. Rep. No. 97-504, 97th Cong., 2d Sess. 231 (1982). We therefore reject Mr.

Meek's argument that he need not pay a deposit because he received military credit in

his Social Security benefits without making a deposit.

         Because the Board’s decision was supported by substantial evidence and is not

challenged on any other legal ground, we affirm the Board’s decision upholding OPM’s

calculation of Mr. Meek's civil service retirement annuity.




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