                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     FERMIN R. FAJAYAN,                              DOCKET NUMBER
                   Appellant,                        SF-0831-15-0097-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: May 11, 2015
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL *

           Rodelio V. Mendoza, Camarines Sur, Philippines, for the appellant.

           Karla W. Yeakle, 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 Office of Personnel Management’s (OPM’s) reconsideration decision
     denying his application for a deferred annuity. Generally, we grant petitions such
     as this one only when: the initial decision contains erroneous findings of material


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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
     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, and based on the following points and authorities, 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        The appellant applied for a deferred annuity under the Civil Service
     Retirement System (CSRS). In his application he indicated that he was waiving
     his military retired pay in order to receive credit for military service for Civil
     Service Retirement Benefits. Initial Appeal File (IAF), Tab 5 at 9. OPM denied
     his application, finding that the appellant had not shown that he separated from a
     position subject to CSRS coverage after completing at least 5 years of creditable
     civilian service with at least 1 of the last 2 years prior to separation being in a
     position covered by CSRS. Id. at 4. OPM acknowledged that the appellant had
     performed at least 20 years of military reserve service and is in receipt of military
     retirement benefits but found that this service cannot be used for civilian credit to
     meet the requirement of having at least 5 years of creditable service. Id. On
     appeal, the administrative judge affirmed OPM’s decision, noting that the
     appellant had only 9 days of civilian service and that this service was not
     creditable service. IAF, Tab 10, Initial Decision at 2.
¶3        In his petition for review, the appellant reiterates the arguments that he
     made below. Petition for Review (PFR) File, Tab 1.
                                                                                       3

¶4        An appellant bears the burden of proving by preponderant evidence that he
     is entitled to the annuity he seeks.        See Hawco v. Office of Personnel
     Management, 52 M.S.P.R. 290, 292-93 (1992). The documentation submitted by
     the appellant shows that he is over age 62. See IAF, Tab 5 at 8. If he meets the
     requirements of 5 U.S.C. § 8333(b), he would be eligible for a deferred annuity
     pursuant to 5 U.S.C. § 8338(a).       To be eligible for a deferred annuity, the
     appellant must have completed 5 years of creditable service and must have served
     at least 1 of the last 2 years of his federal service in a position subject to CSRS,
     i.e., in a “covered” position.   See 5 U.S.C. § 8333(a)-(b); see also Mendez v.
     Office of Personnel Management, 51 M.S.P.R. 81, 85 (1991).
¶5        Only if the appellant would have been eligible for deferred annuity benefits
     at age 62 based on civilian service alone may he waive his military retired pay to
     combine the time spent in military service with the time that he spent in civilian
     government service for computation of his annuity.       See Johnson v. Office of
     Personnel Management, 102 M.S.P.R. 589, ¶ 8 (2006).                  Here, as the
     administrative judge found, the appellant has failed to meet his burden to show
     that he is eligible for a deferred annuity. He did not have 5 years of creditable
     service. Indeed, the appellant admits that he had only 9 days of service. PFR
     File, Tab 1 at 5. His waiver of his military retired pay cannot be used for civilian
     credit to meet the requirement of having at least 5 years of creditable service and
     provides no basis for OPM to award an annuity.         See id. The administrative
     judge properly affirmed OPM’s reconsideration decision.

                     NOTICE TO THE APPELLANT REGARDING
                        YOUR FURTHER REVIEW RIGHTS
          You have the right to request review of this final decision by the United
     States Court of Appeals for the Federal Circuit. You must submit your request to
     the court at the following address:
                                                                                  4

                          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 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
United States 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
                                                                                5

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.
