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 

06-3147 

CLYDE B. WASHBURN, 

 Petitioner, 

v. 

OFFICE OF PERSONNEL MANAGEMENT, 

 Respondent. 

____________________________ 

DECIDED: November 17, 2006 

____________________________ 

 

Before LOURIE, SCHALL, and DYK, Circuit Judges. 

Opinion for the court filed by Circuit Judge LOURIE. Dissenting opinion filed by Circuit 

Judge DYK. 

LOURIE, Circuit Judge. 

DECISION 

Clyde B. Washburn (“Washburn”) appeals from the final decision of the Merit 

Systems Protection Board (“the Board”) affirming the decision of the Office of Personnel 

Management (“OPM”) that denied his request for military service credit under the Civil 

Service Retirement System (“CSRS”). Washburn v. Office of Pers. Mgmt., DC-0831-05-

0557-I-1 (M.S.P.B. Jan. 19, 2006). Because we see no error in the Board’s 
determination that Washburn failed to establish that he was entitled to the requested 

benefit, we affirm. 

BACKGROUND 

Washburn retired from the Department of the Army on May 3, 2003 with a 

military service time credit of one year and twenty-two days. Washburn did not make a 

deposit payment for an annuity attributable to that one year and twenty-two day activeduty service time prior to retiring, and his CSRS annuity payment was reduced at age 

sixty-two when he became eligible for Social Security because his military service credit 

was no longer included in the calculation of his benefit. 

Upon learning of the benefit reduction, Washburn filed an appeal to the OPM on 

April 14, 2005, stating that he was not aware of his entitlement to receive credit for 

military service time prior to retiring, and seeking to pay the required deposit. On May 

23, 2005, the OPM determined that Washburn was adequately notified of the need to 

pay the deposit prior to retiring, that he failed to make the deposit during the required 

time period, and that the reduction of Washburn’s annuity upon reaching age sixty-two 

and becoming eligible for Social Security was therefore required. 

Washburn timely appealed the decision of the OPM to the Board. On September 

30, 2005, the Administrative Judge (“AJ”) affirmed the decision of the OPM. The AJ 

determined that the documentary evidence consistently supported a finding that 

Washburn had clear notice that he had to make a deposit for his military service in order 

to avoid losing credit for that service at age sixty-two when he was eligible for Social 

Security, and that he failed to do so. The AJ also determined that in light of that 

unrebutted evidence, Washburn’s uncorroborated and unsworn statement that he was 

06-3147 -2- 
unaware of the need to make the deposit was insufficient to carry his burden of proving 

eligibility for benefits by a preponderance of the evidence. 

On January 19, 2006, the initial decision became the final decision of the Board. 

See 5 C.F.R. § 1201.113. Washburn timely appealed to this court, and we have 

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). 

DISCUSSION 

The scope of our review in an appeal from a decision of the Board is limited. We 

must affirm the Board’s decision unless 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 Briggs v. Merit Sys. Prot. Bd., 331 F.3d 

1307, 1311 (Fed. Cir. 2003). Washburn has the burden of proving entitlement to 

retirement benefits by a preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2); see

also Licausi v. Office of Pers. Mgmt., 350 F.3d 1359, 1364 (Fed. Cir. 2003). 

On appeal, Washburn argues that he was not informed that he would be eligible 

for the post-1956 military service credit only if he paid the deposit prior to his retirement. 

The government responds that the Board’s decision is supported by substantial 

evidence. 

We agree with the government that the Board correctly decided that Washburn 

was not entitled to the retirement benefit at issue. Under the Omnibus Budget 

Reconciliation Act of 1982, Pub. L. No 97-253, §§ 306-07, 96 Stat. 763, 795-96 (1982), 

civil service retirees who retired after September 8, 1982 and performed active duty 

military service after December 31, 1956 may receive credit for that military service 

06-3147 -3- 
under both CSRS and Social Security. In order to receive credit from CSRS for that 

military service upon reaching age sixty-two and becoming eligible for Social Security, 

the retiree must pay a deposit of seven percent of his or her estimated earnings or basic 

pay for the credited service time prior to retirement. If the deposit is not made prior to 

retirement, the retiree’s payment is recomputed upon reaching age sixty-two and 

verification of Social Security eligibility without credit for the post-1956 military service. 

Washburn bears the burden of proving by a preponderance of the evidence that 

he is entitled to the claimed retirement benefit. 5 C.F.R. § 1201.56(a)(2). Based on 

evidence including Washburn’s SF 2801 retirement application form and OPM Form 

1515, the Board found Washburn had adequate notice of the consequences of failing to 

pay the deposit to secure credit for his military service before retiring from his employing 

agency. Washburn’s SF 2801 form indicates that he was aware that he had post-1956 

military service and that he had not paid a deposit to his employing agency for that 

service. Although the AJ advised Washburn of the need to address the record 

documents submitted by the OPM, he did not challenge them before the AJ, nor did he 

challenge the record in his appeal to this court. In addition, the SF 2801-1 form that is a 

required attachment to the SF 2801 retirement application details the amount of post1956 military service time credited to Washburn at the time of his retirement. Although 

the signature block of the SF 2801-1 form was stamped “unavailable to sign,” and 

although the information on the form was certified by the Army on May 20, 2003, after 

Washburn’s retirement, Washburn, again, did not challenge the relevance or accuracy 

of the SF 2801-1 document before the AJ or in his appeal here. 

06-3147 -4- 
In light of this unchallenged documentary evidence, substantial evidence 

supports the Board’s decision that Washburn failed to prove he is entitled to the 

retirement benefits at issue by a preponderance of the evidence. We have considered 

Washburn’s additional “Memorandum of [Appeal]” received on September 11, 2006, but 

find no new challenge to the documentary evidence. We therefore affirm the Board’s 

decision. 

06-3147 -5- 
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 

06-3147 

CLYDE B. WASHBURN, 

 Petitioner, 

v. 

OFFICE OF PERSONNEL MANAGEMENT, 

 Respondent. 

DYK, Circuit Judge, dissenting. 

The petitioner is a retired federal employee who, prior to his retirement, failed to 

pay the deposit required to receive retirement credit for his active-duty military service 

pursuant to 5 U.S.C. § 8334(c) (2000). The petitioner contends that he is entitled to 

make a late payment and receive credit. The Merit Systems Protection Board (“MSPB”) 

assumed, and the parties appear to agree, that petitioner was entitled to notice (prior to 

his retirement) as to the dates of any creditable military service. The Office of 

Personnel Management (“OPM”) does not dispute that the failure to provide such notice 

before the effective date of the retirement would entitle petitioner to pay the deposit late 

and to receive any appropriate credit. 

OPM contends, and the Board agreed, that Washburn received notice of his 

creditable military service from contemporaneous documents. The only document 

relied on by the Board, OPM, and the majority that noted the fact that Washburn had 

creditable military service was Form 2801-1. However, on its face Form 2801-1 was 
 

 

dated May 20, 2003, over two weeks after Washburn’s retirement date (May 3, 2003) 

and almost two months after he submitted his retirement application (March 25, 2003). 

The Board opinion did not address this discrepancy, stating in a conclusory fashion that 

“[t]he appellant’s retirement application also included an OPM SF 2801-1 form,” nor 

does the majority address the discrepancy in the dates. On appeal we requested that 

OPM address this discrepancy. In response, OPM merely pointed to a checklist 

supposedly included in the retirement application that noted that the Form 2801-1 was 

attached. The clear post-retirement date of Form 2801-1 makes this checklist of 

dubious value, and the date on the checklist itself is illegible. In my opinion, the Board’s 

conclusion that Washburn had notice of his creditable military service was not 

supported by substantial evidence. I would vacate the Board’s decision and remand for 

further proceedings. 

06-3147 2