                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RICHARD A. ROCKWOOD,                            DOCKET NUMBER
                   Appellant,                        CH-0831-16-0016-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: June 9, 2016
       MANAGEMENT,
                   Agency.



         THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Richard A. Rockwood, Blue Island, Illinois, pro se.

           Kristine Prentice, 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 final decision of the Office of Personnel Management (OPM)
     reducing the appellant’s retirement annuity by eliminating credit for his
     post-1956 military service. Generally, we grant petitions such as this one only


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     when: the initial 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).

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant served on active military duty from September 25, 1972, to
     September 24, 1976. Initial Appeal File (IAF), Tab 4 at 36. After his military
     service, he was employed by the Department of Veterans Affairs from
     November 24, 1976, to May 25, 1984, and by the U.S. Postal Service from
     May 26, 1984, to March 2, 2012. Id. at 25, 27. On March 2, 2012, the appellant
     retired under the Civil Service Retirement System (CSRS) without having paid a
     deposit for his post-1956 military service. Id. at 24, 30, 37. In a final decision
     dated September 23, 2015, OPM notified the appellant that it had recomputed his
     monthly CSRS annuity benefit by eliminating credit for his post-1956 military
     service because he had not made a deposit for that service and he had become
     eligible for Social Security benefits at age 62. Id. at 67.
¶3         The appellant filed a Board appeal challenging OPM’s decision to reduce
     his annuity, asserting that he had been told that his annuity would not be reduced
     if he did not collect Social Security benefits. IAF, Tab 1 at 2, 4. He did not
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     request a hearing.       Id. at 1.   In an initial decision based on the parties’
     submissions, the administrative judge affirmed OPM’s decision, finding that the
     appellant failed to make a post-1956 military service deposit prior to his
     retirement or prior to OPM’s adjudication of his application for retirement and
     that there was no administrative error on the part of OPM or the employing
     agency that caused the appellant’s failure to make the deposit. IAF, Tab 8, Initial
     Decision (ID).       The appellant has filed a petition for review of the initial
     decision, and OPM has responded. Petition for Review (PFR) File, Tabs 1, 4.
¶4           An annuitant who retires after September 7, 1982, is entitled to receive
     credit for active duty military service performed after 1956 under both the CSRS
     and the Social Security system if he deposits an amount equal to 7 percent of his
     total post-1956 military pay, plus interest, with the Civil Service Retirement and
     Disability Fund. Hooten v. Office of Personnel Management, 114 M.S.P.R. 205,
     ¶ 6 (2010); see 5 U.S.C. § 8334(j). If the annuitant fails to make such a deposit,
     OPM must recalculate the annuity payments when the annuitant first becomes
     eligible for Social Security benefits to exclude credit for the post-1956 military
     service. 5 U.S.C. § 8334(j); Hooten, 114 M.S.P.R. 205, ¶ 6. Those who retire on
     or after October 1, 1983, must make the deposit before their separation from the
     service upon which entitlement to an annuity is based. Hooten, 114 M.S.P.R.
     205, ¶ 6; 5 C.F.R. § 831.2104.          The Board will order OPM to permit a
     post-separation deposit, however, if there was administrative error by the
     individual’s employing agency or OPM and the annuitant’s failure to make the
     deposit prior to retirement was the product of that administrative error.
     Hooten, 114 M.S.P.R. 205, ¶ 6; 5 C.F.R. § 831.2107(a)(1). The Board has found
     administrative error where the agency provides material misinformation regarding
     the deposit or the consequences of failing to make the deposit to the employee
     prior     to   his     separation.      Lancaster   v.   Office    of   Personnel
     Management, 112 M.S.P.R. 76, ¶ 8 (2009).         The appellant has the burden of
                                                                                           4

     proving by a preponderance of the evidence that an administrative error took
     place. Id.
¶5         The appellant appears to argue that his employing agency committed an
     administrative error by incorrectly informing him that his annuity would not be
     reduced after he became eligible for Social Security benefits if he did not collect
     Social Security benefits and that his failure to make a deposit prior to retirement
     was the product of that administrative error. PFR File, Tab 1 at 3-4, 6; IAF, Tab
     1 at 2, 4.      He further contends that he should be allowed to make a
     post-separation deposit, with interest, to receive an unreduced annuity due to his
     reliance on this misinformation. PFR File, Tab 1 at 6. OPM argued below that,
     even if the appellant received erroneous information from his employing agency,
     no administrative error occurred because the appellant received and signed
     Standard Form (SF) 2801, Application for Immediate Retirement, and OPM
     Form 1515, Military Service Deposit Election, which correctly notified him of his
     opportunity to make a deposit prior to his separation and of the consequences of
     failing to do so. IAF, Tab 4 at 4-5.
¶6         The Board has held that the 1990 version of the SF-2801 provides sufficient
     notice of the opportunity to make a deposit and of the consequences of not doing
     so. Drury v. Office of Personnel Management, 79 M.S.P.R. 493, ¶¶ 12-13 (1998).
     Here, the record reflects that the agency provided the appellant the 2007 version
     of the SF-2801. IAF, Tab 4 at 11-24. Although the Board has not addressed
     previously whether the 2007 version of the SF-2801 provides an applicant
     sufficient notice, the 1990 and 2007 versions contain essentially identical relevant
     language. 2 See Drury, 79 M.S.P.R. 493, ¶ 12; IAF, Tab 4 at 13. The appellant


     2
        Both the 2007 and 1990 versions of the SF-2801 explain that employees who
     performed military service after January 1, 1957, “may pay a deposit . . . to cover that
     service” and that it “must be paid to your agency while you are still employed.” IAF,
     Tab 4 at 13 (emphasis in original); see Drury, 79 M.S.P.R. 493, ¶ 12. Both versions
     further state that, if an employee does not pay the military service deposit and becomes
     eligible for Social Security benefits at age 62, his “annuity will be recomputed (at age
                                                                                              5

     does not dispute that he received and completed the 2007 version of the SF-2801,
     and the record reflects that he listed his dates of military service on the
     application form and checked “No” in response to the question about whether he
     paid a deposit to his agency for this service. IAF, Tab 4 at 24. Thus, we find that
     the 2007 version of the SF-2801 afforded the appellant sufficient notice of his
     opportunity to make a deposit for his post-1956 military service prior to his
     separation and of the consequences of not doing so. See Drury, 79 M.S.P.R. 493,
     ¶¶ 12-13.
¶7         In addition, the agency provided the appellant with the 2000 version of
     OPM Form 1515, which explained that an individual will receive CSRS credit for
     post-1956 military service after becoming eligible for Social Security benefits
     only if he makes a deposit for that service before separation from Federal service,
     and that failure to pay the deposit will result in a reduction in his CSRS annuity
     when he becomes eligible for Social Security benefits. IAF, Tab 4 at 37-39. The
     form requires the individual to complete and sign an “Employee Election” in
     which he is given the choice between making and not making a deposit. Id. at 37.
     The appellant placed an “X” in the box corresponding to “I do not want to pay (or
     complete) this deposit” and signed the form. Id.
¶8         Because the appellant received and completed the SF-2801 and OPM
     Form 1515, we find that his unsubstantiated allegation that his employing agency
     provided him incorrect information regarding the reduction to his annuity upon
     becoming eligible for Social Security benefits is insufficient to show that he was
     incorrectly advised of his right to make a deposit for his post-1956 military

     62) to eliminate credit for the post-1956 military service.” IAF, Tab 4 at 13; see Drury,
     79 M.S.P.R. 493, ¶ 12. In the application section, both the 1990 and 2007 versions ask
     the applicant to list the nature and dates of all military service performed and, if any of
     the service occurred on or after January 1, 1957, to indicate whether he paid a deposit
     to the agency for this service. IAF, Tab 4 at 24; see Drury, 79 M.S.P.R. 493, ¶ 12.
     Both forms further advise that “[y]ou must pay this deposit to your agency before
     separation. You cannot pay OPM after you retire.” IAF, Tab 4 at 24; see Drury,
     79 M.S.P.R. 493, ¶ 12.
                                                                                      6

      service and of the consequences of failing to do so. We therefore agree with the
      administrative judge that the appellant did not show that his failure to make a
      post-1956 military service deposit prior to his separation was caused by an
      administrative error within the meaning of 5 C.F.R. § 831.2107.
¶9         The appellant also states on review that he was poisoned by the water while
      stationed at Camp Lejeune, North Carolina, which may have affected his
      judgment in this matter. PFR File, Tab 1 at 3. The appellant did not mention
      below that he was suffering from any impaired judgment at the time of his
      retirement, nor did he allege that his impaired judgment had any effect on his
      ability to comprehend the information provided to him regarding making a
      post-1956 military service deposit. IAF, Tab 1. Rather, as discussed above, he
      alleged only that the agency incorrectly informed him that his annuity would not
      be reduced upon becoming eligible for Social Security benefits if he did not
      collect Social Security benefits. Id. at 2, 4. Because the appellant did not raise
      this argument below and he has not shown that he was precluded from doing so,
      we need not consider this argument now for the first time on review. See Banks
      v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (explaining that the
      Board generally will not consider an argument raised for the first time in a
      petition for review absent a showing that it is based on new and material evidence
      not previously available despite the party’s due diligence).
¶10        Even if we were to consider the appellant’s argument that his judgment was
      affected by his exposure to contaminated water at Camp Lejeune, the result in this
      matter would be the same. A showing of mental incompetence may relieve an
      appellant “from the consequences of a written election he seeks to void.” Collins
      v. Office of Personnel Management, 45 F.3d 1569, 1573 (Fed. Cir. 1995).
      However, we do not interpret the appellant’s statement as an allegation that he
      was incompetent to make an election regarding the post-1956 military service
      deposit. To the extent that the appellant intended to make such an allegation, he
      has proffered no evidence, such as an affidavit or medical documentation, that
                                                                                        7

      would support a finding that he was incapable of making a rational decision
      regarding the deposit or unable to fully understand the consequences of not
      making the deposit because of his alleged exposure to contaminated water in the
      1970s. Cf. Frizzell v. Department of the Air Force, 53 M.S.P.R. 413, 416 (1992)
      (rejecting the appellant’s claim that he was incompetent to enter into a settlement
      agreement because there was no evidence that his claimed condition “was such as
      to render him incapable of making a rational decision to sign the agreement, or
      that he was unable to fully understand the nature of the agreement”).
¶11        Accordingly, we affirm the initial decision in this matter.

                      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 U.S. 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 U.S. Code, at our
      website, http://www.mspb.gov/appeals/uscode.htm.        Additional information is
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available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se 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:                              ______________________________
                                            William D. Spencer
                                            Clerk of the Board
Washington, D.C.
