Mariano D. Untalan, Petitioner, v. Office of Personnel Management, Respondent, 846 F.2d 77 (Fed. Cir. 1988)

Petitioner, Mariano D. Untalan, seeks review of the final decision of the Merit Systems Protection Board (board), Docket No. SE08318510212, denying his claim of entitlement to a retirement annuity. We affirm the decision of the board.

Although petitioner established that he had more than five years of creditable service for civil service retirement purposes, the board noted that petitioner admitted he had not been employed by the U.S. Government in a position covered by the Civil Service Retirement Act (Act), 5 U.S.C. § 8331, et seq. As he contended below, petitioner argues that creditable service should be treated as covered service, referring to 5 U.S.C. § 8333 (1982). However, subsection (b) of 5 U.S.C. § 8333 specifically provides that, in addition to having at least five years of creditable service as required by subsection (a), an employee "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 [the Act]." (Emphasis added.) Since petitioner has not established that he occupied a position that was "subject to" or covered by the Act, the decision of the board must be affirmed.