Bernardo L. Macaspac, Petitioner, v. Office of Personnel Management, Respondent, 864 F.2d 148 (Fed. Cir. 1988)

Annotate this Case
U.S. Court of Appeals for the Federal Circuit - 864 F.2d 148 (Fed. Cir. 1988) Nov. 9, 1988

Before NIES, Circuit Judge, COWEN, Senior Circuit Judge, and ARCHER, Circuit Judge.

PER CURIAM.


DECISION

On reconsideration, the Office of Personnel Management (OPM) denied petitioner's application for a deferred civil service retirement annuity, on a finding by OPM that he did not have five years of creditable civilian service. Petitioner appealed to the Merit Systems Protection Board (MSPB or Board), which upheld the determination of OPM (MSPB Docket No. SE08318810016). We affirm the decision of the MSPB.

OPINION

The petitioner's claim for retirement benefits is based on his contention that he had served as a "civilian guerrilla" with the Army of the United States from 1943 to 1946; that he had served in the "Labor Bn. U.S. Army from 1945 to 1946;" and that he had other military service in the form of three years of service from 1946 to 1949 in the New Philippine Scouts.

Under the applicable statute, 5 U.S.C. § 8333, a government employee is not entitled to a civil service retirement annuity unless he can establish that he has completed five years of creditable civilian service. Petitioner's military service cannot be used to establish his eligibility for the annuity. See Tirado v. Department of the Treasury, 757 F.2d 263, 264-65 (Fed. Cir. 1985).

Although the burden was upon the petitioner to establish that he had at least five years of civilian service in order to qualify for the annuity, he offered no proof in support of his claim that he had served as a civilian guerrilla with the Army of the United States from 1943 to 1946, or that he had ever performed any civilian service for the United States Government.

Since the petitioner failed to establish his eligibility for the claimed annuity under the statute, the MSPB correctly upheld the decision of the OPM.