Anastacio C. Castro, Petitioner, v. Office of Personnel Management, Respondent, 907 F.2d 158 (Fed. Cir. 1990)

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U.S. Court of Appeals for the Federal Circuit - 907 F.2d 158 (Fed. Cir. 1990) June 12, 1990

43 M.S.P.R. 152.

AFFIRMED.

Before RICH and ARCHER, Circuit Judges, and RUDI M. BREWSTER, District Judge.* 

PER CURIAM.


DECISION

Anastacio C. Castro appeals from the July 24, 1989 Initial Decision of the Administrative Judge (AJ) in Docket No. SE08318910418, which became the final decision of the Merit Systems Protection Board (MSPB) when the MSPB declined review on December 27, 1989. We affirm.

OPINION

We see no error in the AJ's conclusion that Castro lacked the required five years of creditable service. With respect to Castro's alleged employment with the Army prior to May 12, 1945 as a laborer and mess boy, Castro appears to argue in his brief to this court that his employment status was so informal that no records were kept. However, this does not change the fact that there was still no evidence before the AJ as to whether this work was actually creditable toward civil service retirement benefits or even as to the dates of this work.

The only other argument in Castro's brief appears to be that even if he did not have the minimum 5 years of creditable service, the fact that he had at least 2 or 3 years should entitle him to some annuity benefit. However, the 5 year requirement for annuity benefits is set by law (5 USC 8333(a)) and this court is without authority to waive it.

 *

Judge Rudi M. Brewster of the Southern District of California, sitting by designation