Silvestre B. Lopez, Sr., Petitioner, v. Office of Personnel Management, Respondent, 930 F.2d 38 (Fed. Cir. 1991)

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U.S. Court of Appeals for the Federal Circuit - 930 F.2d 38 (Fed. Cir. 1991) March 13, 1991

Before RICH, PAULINE NEWMAN and ARCHER, Circuit Judges.



Silvestre B. Lopez, Sr. (Lopez) appeals from the September 22, 1989 Initial Decision of the Administrative Judge (AJ) in Docket No. SE08318910654, which became the final decision of the Merit Systems Protection Board when it declined review on August 15, 1990. We affirm.


Under 5 USC 8333(a), an employee must complete at least five years of civilian service before he is eligible for a civil service retirement annuity. The AJ concluded that Lopez' alleged service as a guerilla with the United States Armed Forces in the Far East (USAFFE) from October 1941 through 1944 was military service. With a single exception not applicable here (see 5 USC 8332(g)), time served in the military can not be counted in measuring an employee's initial eligibility for a civil service retirement annuity. See Tirado v. Dep't of the Treasury, 757 F.2d 263, 264-65 (Fed. Cir. 1985).

Although the Office of Personnel Management was able to verify that Lopez had spent the period of January 1, 1945 through January 20, 1946 in civilian service with the Army, this civilian service standing alone is of insufficient duration to satisfy the five-year requirement. Accordingly, we affirm the decision below.