NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

RICHARD J. MCGRATH,

Petitioner

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent

______________________

2019-2187

______________________

Petition for review of the Merit Systems Protection 

Board in No. DC-0841-18-0798-I-1.

______________________

Decided: May 29, 2020

______________________

RICHARD J. MCGRATH, Fairfax Station, VA, pro se. 

 DOUGLAS T. HOFFMAN, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by JOSEPH H.

HUNT, STEVEN JOHN GILLINGHAM, ROBERT EDWARD 

KIRSCHMAN, JR. 

 ______________________

Before CHEN, HUGHES, and STOLL, Circuit Judges.

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2 MCGRATH v. OPM

HUGHES, Circuit Judge.

Richard McGrath petitions for review of a final decision 

of the Merit Systems Protection Board affirming the Office 

of Personnel Management’s decision declining to credit 87 

days of military service toward his retirement annuity under the Federal Employee Retirement System. Because 

the Board’s decision is in accordance with the law and is 

supported by substantial evidence, we affirm.

I

Mr. McGrath served honorably in the United States 

Army from July 1, 1968 to April 7, 1976. Mr. McGrath then 

served a total of 87 days in the Army National Guard of 

Connecticut between 1977 and 1978.

Mr. McGrath was subsequently employed by the U.S. 

Patent and Trademark Office (PTO), where he worked until he retired in 2015. When the PTO Human Relations 

Office calculated Mr. McGrath’s active military service for 

purposes of estimating his Federal Employee Retirement 

System (FERS) annuity, the PTO included the 87 days of

National Guard service. The U.S. Office of Personnel Management (OPM) later calculated Mr. McGrath’s active military service for FERS and did not credit those 87 days. 

Mr. McGrath asked OPM to recalculate his FERS annuity 

to include his National Guard service. OPM responded, 

stating that the PTO’s inclusion of his 87 days of National 

Guard duty was in error.

In its initial decision of March 28, 2018, OPM found 

that Mr. McGrath was not entitled to receive credit for his 

National Guard service in the computation of his FERS annuity. OPM affirmed this finding in a final decision on August 22, 2018. In that final decision, OPM stated that 

Mr. McGrath’s National Guard service was not creditable 

because it was not “performed under either a ‘call’ by the 

President or an ‘order’ by the Secretary of State.” J.A. 231. 

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MCGRATH v. OPM 3

Mr. McGrath appealed OPM’s final decision to the Merit 

Systems Protection Board.

On June 13, 2019, the Administrative Judge affirmed 

OPM’s final decision. McGrath v. Office of Pers. Mgmt., 

No. DC-0841-18-0798-I-1 (M.S.P.B. June 13, 2019). In her

decision, the Administrative Judge explained that service 

in the National Guard was ordinarily not creditable “military service” under 5 U.S.C. § 8411(c)(1), which provides 

such credit for “each period of military service.” The statutory definition of “military service” at 5 U.S.C. § 8401(31) 

excludes service in the National Guard, “except when ordered to active duty in the service of the United States or 

full-time National Guard duty (as such term is defined in 

section 101(d) of title 10) if such service interrupts creditable civilian service under this subchapter and is followed 

by reemployment in accordance with chapter 43 of title 38 

that occurs on or after August 1, 1990.” The second exception, for full-time National Guard duty, applies only to service performed after August 1, 1990. The Administrative 

Judge found that this exception thus did not apply to 

Mr. McGrath’s service in 1977 and 1978. Mr. McGrath 

does not contest this finding on appeal. The Administrative Judge then determined that Mr. McGrath’s service in 

the National Guard also did not fit within the first exception, being ordered to active duty in service of the United 

States. The Administrative Judge held that, for the service 

to be creditable under the first exception, Mr. McGrath was 

required to show by a preponderance of the evidence that

either he or his unit was formally called into service by the 

President or the Army National Guard of the United 

States.

The Administrative Judge’s initial decision became the 

final decision of the Board on July 18, 2019. Mr. McGrath 

timely petitioned for review. We have jurisdiction under 

28 U.S.C. § 1295(a)(9). 

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4 MCGRATH v. OPM

II

Our review of a decision by the Board is limited. The 

Board’s decision may only be reversed if we conclude that 

it was “(1) arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law; (2) obtained without 

procedures required by law, rule, or regulation having been 

followed; or (3) unsupported by substantial evidence[.]” 

5 U.S.C. § 7703(c); see Lengerich v. Dep’t of Interior, 454 

F.3d 1367, 1369 (Fed. Cir. 2006). The Board’s interpretation of statutes, however, is a question of law that this 

Court reviews de novo. Lengerich, 454 F.3d at 1370.

Mr. McGrath argues that the Board misinterpreted the 

governing statutes when it determined under what circumstances service in the National Guard would be creditable. 

Specifically, Mr. McGrath argues that the Board improperly interpreted 10 U.S.C. § 12602, which concerns general 

compensation and benefits for members of the Army National Guard of the United States. Mr. McGrath argues 

that the 87 days of service at issue should be considered “in 

Federal service as a Reserve of the Army” under either 

§ 12602(a)(1) or (2).

In its final decision, the Board considered § 12602 but 

determined that it did not relieve Mr. McGrath of the requirements set forth in 5 U.S.C. § 8401(31). That section 

provides definitions specific to FERS and explicitly states

that creditable military service “does not include service in 

the National Guard except when ordered to active duty in 

the service of the United States.” 5 U.S.C. § 8401(31).

We agree with the Board’s interpretation. The provisions of 10 U.S.C. § 12602(a) do not render creditable, for 

purposes of FERS, National Guard service that does not fit 

within the exceptions provided by 5 U.S.C. § 8401(31). Section 12602 concerns benefits for reserve components of the 

Army. Definitions for those purposes may differ from definitions for purposes of FERS, a civil service retirement system governed by chapter 84 of Title 5. If, as Mr. McGrath 

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MCGRATH v. OPM 5

asserts, members of the Army National Guard are always 

deemed to be in federal service by virtue of their continuous 

membership in the Army National Guard of the United 

States, even when serving as members of the Army National Guard of a state, there could be no National Guard 

duty that is not in federal service—and § 8401(31)’s requirement that creditable National Guard service be “in 

the service of the United States” would be mere surplusage. 

Cf. 10 U.S.C. § 12401 (“Members of the Army National 

Guard of the United States and the Air National Guard of 

the United States are not in active Federal service except 

when ordered thereto under law.”).

We conclude that the Board did not err in holding that

Mr. McGrath must show that, for the 87 days in dispute,

he was formally ordered into federal service, pursuant to 

Title 10, by the President or other federal authority. Clark 

v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003) (holding that “members of the National Guard only serve the 

federal military when they are formally called into the military service of the United States” (citing Perpich v. Dep’t 

of Defense, 496 U.S. 334 (1990))). Other courts have consistently drawn the same distinction. See id. at 1366–68

(collecting cases). Substantial evidence supports the 

Board’s factual finding that neither Mr. McGrath nor his 

unit were formally called into federal service during the 87 

days at issue.

III

We have considered Mr. McGrath’s additional arguments and find them unpersuasive. For the foregoing reasons, we affirm the Board’s decision.

AFFIRMED

No costs.

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