NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit
05-3172 RAFAELITO D. BORO, Petitioner,

v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

__________________ _________ DECIDED: December 9, 2005

__________________ _________ Before LOURIE, RADER, and LINN, Circuit Judges

. RADER, Circuit Judge

. The Office of Personnel Management (OPM), denied Mr. Rafaelito D. Boro’s request for a deferred retirement annuity under the Civil Service Retirement Act (CSRA), 5 U.S.C. §§ 8331 -8351 (2005). The Merit Systems Protection Board (Board) affirmed. Boro v. Office of Pers. Mgmt. , No. SF-0831- 04-0329-I-1 (Mar. 8, 2005). Because Mr. Boro has not shown entitlement to retirement benefits under 5 C.F.R. § 1201.56(a)(2) (2005), this court affirms

. I. Mr. Boro, a Philippines national, work ed for the Department of the Navy at Subic Bay in the Philippines from 1955 until 1984. Mr. Boro at first held intermittent excepted service te mporary appointments, and then held acontinuous but indefinite appoi ntment in the except ed se rvice. On March 3, 1999, Mr. Boro applied for deferred annuity benefits under the Civil Service Retirement System (CSRS). The OPM denied Mr. Bono’s application because he had never served in a po sition subject to the CSRS . Although Mr. Boro’s continuous service was creditable, the Board found that it w a s not covered service, i.e., service “subject to” the CSRA under 5 U.S.C. § 8333(b).
II. This court affirms a decision of the B oard unless it is arbitrary, capricious , an abuse of discretion, or otherwi se not in accordance with law; obtained withou t procedures required by law, rule, or r egulation; or unsupported by substantial evidenc e. See 5 U. S. C. § 7703 (2005); Yates v. Merit Sys. Prot. Bd. , 145 F.3d 1480, 1483 (Fed. Cir. 1998). Mr. Boro has the burden of demonstrating his entitlement to annuity benefits. See 5 C.F.R. § 1201.56( a)(2) (2005); Cheeseman v. Office of Pers. Mgmt. , 791 F.2d 138, 141 (Fed. Cir. 1986). The relevant statute, which gov erns this case, is 5 U.S.C. § 8333:

(a) An employee must complete at least 5 years of civilian s e rvice before he is eligible for an annuity under this subchapter. (b) An employee or Member must complete, within the last 2 y ears before any separation from servi c e . . . at least 1 year of creditable civilian service dur ing whic h he is subject to this subc hapter before he or his survivors are eligible for annuity under this subchapt er based on the separation. If an employee or Member . . . fails to meet the service requirement of the preceding sentence, the amounts deducted f r om his pay during the serv ice for which no eligibility for annuity is established based on the separation sha l l be returned to him on the separation. Failure to m eet this service requirement does not depriv e the indiv i dual or his survivors of annuity rights which attached on a previous separation. (c) A Member or his survivor is eligible for an annuity under this

05-3172 2subchapter only if the amounts named by section 8334 of this title have been deducted or depos ited with respect to his last 5 years of civilian s e rvice, or, in the case of a surviv or annuity under section 8341(d) or (e)(1) of this title, wit h respect to his total service. See also Carreon v. Office of Pers. Mgmt. , 321 F.3d 1128, 1130 (Fed. Cir. 2003) (“ Entitlement to CSRS annuity benefits r equires the employee to have completed at least five years of civilian ser v ice, and to have completed at least one y ear of creditable c i vilian s e rvice subject to CSRA within two years of his s eparation from service.”). Thus, Mr. Boro would not be barred from receiving an annuity under 5 U.S.C. § 8333 if his appointment were subject to the CSRA, if he had com p leted at least one year of “creditable service subject to CSRA ” within two years of his separation from service, and if he had made contributions to the Civil Service Retirement and Disab ility Fu nd. See Rosete v. Office of Pers. Mgmt. , 48 F.3d 514, 516 (Fed. Cir. 1995) (quoting Noveloso v. O ffice of Pers. Mgmt. , 45 M.S.P.R. 321, 323 (1990), aff'd mem. , 925 F.2d 1478 (Fed. Cir. 1991)) (“Covered service only includes an appoi nt ment that is subject to the CSRA and for which an employ ee must deposit part of his or her pay into the Civil Serv ice Retirem ent and Disability Fund.”). Upon inv e stigation of Mr. Boro’s em ployment records, which it deemed complete, the Board f ound that Mr. Bo ro's appointments we re non-permanent and were exc l uded from CSRS cover age. The Board found that the Standard Form 50 (SF 50) “Notificati on of Personnel Action” (N PA) forms for Mr. Boro’s services indicated that the appellant’s retire ment status was “none” or “other,” i.e. other than the CSRA. Further, no deductions were ever withheld from Mr. Boro's salary for deposit into the Civil Service Retirement fund. Finally, the Board noted

05-3172 3that Mr. Boro’s entitlement to severanc e pay, which was documented on the SF 50 form associated with his final separati on, indicat ed that Mr. Boro was not covered by the CSRA. See, e.g. , Paderes v. Office of Pers. Mgmt. , 63 M.S.P.R. 642, 645 (1994); aff’d , 61 F.3d 919 (Fed. Cir. 1995) (Table ). Therefore, Mr. Boro did not meet the eligibililt y requirements of § 8333. Mr. Boro argues that because of an alleged temporary lapse of lega l authority which excluded i ndefinite, nonpermanent appointments from CSRA, the CSRA did cover his service. This c ourt has already rejected this argument. See,
e.g. , Casilang v. Office of Pers. Mgmt. , 248 F.3d 1381 (Fed. Cir. 2001) (the revocation of Executiv e Order No. 10, 180, effective January 23, 1955, did not convert all indefinite excepted appoint ments into appointments covered by CSRA). For the foregoing reas ons, this court affirms the fi nal decision of the Board sustaining OPM's denial of Mr. Bo ro's request for annuity benefits.

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