Efren C. Cruz, Petitioner, v. Office of Personnel Management, Respondent, 864 F.2d 148 (Fed. Cir. 1988)

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U.S. Court of Appeals for the Federal Circuit - 864 F.2d 148 (Fed. Cir. 1988) Nov. 7, 1988

Before MARKEY, Chief Judge, and EDWARD S. SMITH and BISSELL, Circuit Judges.

PER CURIAM.


DECISION

The decision of the Merit Systems Protection Board (board), No. SE08318710417 affirming the Office of Personnel Management's (OPM's) denial of Efren C. Cruz's (Cruz's) application for a deferred civil service retirement annuity, is affirmed.

OPINION

Cruz has not met his burden of showing the board's decision arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or obtained without procedures required by law, rule, or regulation having been followed, or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1982); Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140 (Fed. Cir. 1986), cert. denied, 479 U.S. 1037 (1987). Though military service can in certain circumstances be counted toward computation of a civil service annuity, military service alone cannot establish eligibility for an annuity. Tirado v. Department of the Treasury, 757 F.2d 263, 264-65 (Fed. Cir. 1985); see 5 U.S.C. § 8333(a) (1982).

Administrative Law Judge Martinez correctly affirmed OPM's denial of Cruz's application because Cruz presented no evidence of civilian service. See Cheeseman, 791 F.2d at 140-41 (burden on petitioner to establish entitlement to annuity).