UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

RICHARD A. ROCKWOOD,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

CH-0831-16-0016-I-1

DATE: June 9, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Richard A. Rockwood, Blue Island, Illinois, pro se.

Kristine Prentice, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

affirmed the final decision of the Office of Personnel Management (OPM) 

reducing the appellant’s retirement annuity by eliminating credit for his 

post-1956 military service. Generally, we grant petitions such as this one only 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

when: the initial decision contains erroneous findings of material fact; the initial 

decision is based on an erroneous interpretation of statute or regulation or the 

erroneous application of the law to the facts of the case; the administrative 

judge’s rulings during either the course of the appeal or the initial decision were 

not consistent with required procedures or involved an abuse of discretion, and 

the resulting error affected the outcome of the case; or new and material evidence 

or legal argument is available that, despite the petitioner’s due diligence, was not 

available when the record closed. See title 5 of the Code of Federal Regulations, 

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this 

appeal, we conclude that the petitioner has not established any basis under section 

1201.115 for granting the petition for review. Therefore, we DENY the petition 

for review and AFFIRM the initial decision, which is now the Board’s final 

decision. 5 C.F.R. § 1201.113(b). 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant served on active military duty from September 25, 1972, to 

September 24, 1976. Initial Appeal File (IAF), Tab 4 at 36. After his military 

service, he was employed by the Department of Veterans Affairs from 

November 24, 1976, to May 25, 1984, and by the U.S. Postal Service from 

May 26, 1984, to March 2, 2012. Id. at 25, 27. On March 2, 2012, the appellant 

retired under the Civil Service Retirement System (CSRS) without having paid a 

deposit for his post-1956 military service. Id. at 24, 30, 37. In a final decision 

dated September 23, 2015, OPM notified the appellant that it had recomputed his 

monthly CSRS annuity benefit by eliminating credit for his post-1956 military 

service because he had not made a deposit for that service and he had become 

eligible for Social Security benefits at age 62. Id. at 67.

¶3 The appellant filed a Board appeal challenging OPM’s decision to reduce 

his annuity, asserting that he had been told that his annuity would not be reduced 

if he did not collect Social Security benefits. IAF, Tab 1 at 2, 4. He did not
3

request a hearing. Id. at 1. In an initial decision based on the parties’

submissions, the administrative judge affirmed OPM’s decision, finding that the 

appellant failed to make a post-1956 military service deposit prior to his 

retirement or prior to OPM’s adjudication of his application for retirement and 

that there was no administrative error on the part of OPM or the employing 

agency that caused the appellant’s failure to make the deposit. IAF, Tab 8, Initial 

Decision (ID). The appellant has filed a petition for review of the initial 

decision, and OPM has responded. Petition for Review (PFR) File, Tabs 1, 4. 

¶4 An annuitant who retires after September 7, 1982, is entitled to receive 

credit for active duty military service performed after 1956 under both the CSRS 

and the Social Security system if he deposits an amount equal to 7 percent of his 

total post-1956 military pay, plus interest, with the Civil Service Retirement and 

Disability Fund. Hooten v. Office of Personnel Management, 114 M.S.P.R. 205, 

¶ 6 (2010); see 5 U.S.C. § 8334(j). If the annuitant fails to make such a deposit, 

OPM must recalculate the annuity payments when the annuitant first becomes 

eligible for Social Security benefits to exclude credit for the post-1956 military 

service. 5 U.S.C. § 8334(j); Hooten, 114 M.S.P.R. 205, ¶ 6. Those who retire on 

or after October 1, 1983, must make the deposit before their separation from the 

service upon which entitlement to an annuity is based. Hooten, 114 M.S.P.R. 

205, ¶ 6; 5 C.F.R. § 831.2104. The Board will order OPM to permit a 

post-separation deposit, however, if there was administrative error by the 

individual’s employing agency or OPM and the annuitant’s failure to make the 

deposit prior to retirement was the product of that administrative error. 

Hooten, 114 M.S.P.R. 205, ¶ 6; 5 C.F.R. § 831.2107(a)(1). The Board has found 

administrative error where the agency provides material misinformation regarding 

the deposit or the consequences of failing to make the deposit to the employee 

prior to his separation. Lancaster v. Office of Personnel 

Management, 112 M.S.P.R. 76, ¶ 8 (2009). The appellant has the burden of 
4

proving by a preponderance of the evidence that an administrative error took 

place. Id.

¶5 The appellant appears to argue that his employing agency committed an 

administrative error by incorrectly informing him that his annuity would not be 

reduced after he became eligible for Social Security benefits if he did not collect

Social Security benefits and that his failure to make a deposit prior to retirement 

was the product of that administrative error. PFR File, Tab 1 at 3-4, 6; IAF, Tab 

1 at 2, 4. He further contends that he should be allowed to make a 

post-separation deposit, with interest, to receive an unreduced annuity due to his 

reliance on this misinformation. PFR File, Tab 1 at 6. OPM argued below that, 

even if the appellant received erroneous information from his employing agency, 

no administrative error occurred because the appellant received and signed 

Standard Form (SF) 2801, Application for Immediate Retirement, and OPM 

Form 1515, Military Service Deposit Election, which correctly notified him of his 

opportunity to make a deposit prior to his separation and of the consequences of 

failing to do so. IAF, Tab 4 at 4-5. 

¶6 The Board has held that the 1990 version of the SF-2801 provides sufficient 

notice of the opportunity to make a deposit and of the consequences of not doing 

so. Drury v. Office of Personnel Management, 79 M.S.P.R. 493, ¶¶ 12-13 (1998). 

Here, the record reflects that the agency provided the appellant the 2007 version 

of the SF-2801. IAF, Tab 4 at 11-24. Although the Board has not addressed 

previously whether the 2007 version of the SF-2801 provides an applicant 

sufficient notice, the 1990 and 2007 versions contain essentially identical relevant 

language.

2 See Drury, 79 M.S.P.R. 493, ¶ 12; IAF, Tab 4 at 13. The appellant 

 2 Both the 2007 and 1990 versions of the SF-2801 explain that employees who 

performed military service after January 1, 1957, “may pay a deposit . . . to cover that 

service” and that it “must be paid to your agency while you are still employed.” IAF, 

Tab 4 at 13 (emphasis in original); see Drury, 79 M.S.P.R. 493, ¶ 12. Both versions 

further state that, if an employee does not pay the military service deposit and becomes 

eligible for Social Security benefits at age 62, his “annuity will be recomputed (at age 
5

does not dispute that he received and completed the 2007 version of the SF-2801, 

and the record reflects that he listed his dates of military service on the 

application form and checked “No” in response to the question about whether he 

paid a deposit to his agency for this service. IAF, Tab 4 at 24. Thus, we find that 

the 2007 version of the SF-2801 afforded the appellant sufficient notice of his 

opportunity to make a deposit for his post-1956 military service prior to his 

separation and of the consequences of not doing so. See Drury, 79 M.S.P.R. 493, 

¶¶ 12-13. 

¶7 In addition, the agency provided the appellant with the 2000 version of 

OPM Form 1515, which explained that an individual will receive CSRS credit for 

post-1956 military service after becoming eligible for Social Security benefits 

only if he makes a deposit for that service before separation from Federal service, 

and that failure to pay the deposit will result in a reduction in his CSRS annuity 

when he becomes eligible for Social Security benefits. IAF, Tab 4 at 37-39. The 

form requires the individual to complete and sign an “Employee Election” in 

which he is given the choice between making and not making a deposit. Id. at 37. 

The appellant placed an “X” in the box corresponding to “I do not want to pay (or 

complete) this deposit” and signed the form. Id. 

¶8 Because the appellant received and completed the SF-2801 and OPM 

Form 1515, we find that his unsubstantiated allegation that his employing agency 

provided him incorrect information regarding the reduction to his annuity upon 

becoming eligible for Social Security benefits is insufficient to show that he was 

incorrectly advised of his right to make a deposit for his post-1956 military 

 

62) to eliminate credit for the post-1956 military service.” IAF, Tab 4 at 13; see Drury, 

79 M.S.P.R. 493, ¶ 12. In the application section, both the 1990 and 2007 versions ask 

the applicant to list the nature and dates of all military service performed and, if any of 

the service occurred on or after January 1, 1957, to indicate whether he paid a deposit 

to the agency for this service. IAF, Tab 4 at 24; see Drury, 79 M.S.P.R. 493, ¶ 12. 

Both forms further advise that “[y]ou must pay this deposit to your agency before 

separation. You cannot pay OPM after you retire.” IAF, Tab 4 at 24; see Drury, 

79 M.S.P.R. 493, ¶ 12. 
6

service and of the consequences of failing to do so. We therefore agree with the 

administrative judge that the appellant did not show that his failure to make a 

post-1956 military service deposit prior to his separation was caused by an 

administrative error within the meaning of 5 C.F.R. § 831.2107. 

¶9 The appellant also states on review that he was poisoned by the water while 

stationed at Camp Lejeune, North Carolina, which may have affected his 

judgment in this matter. PFR File, Tab 1 at 3. The appellant did not mention 

below that he was suffering from any impaired judgment at the time of his 

retirement, nor did he allege that his impaired judgment had any effect on his 

ability to comprehend the information provided to him regarding making a 

post-1956 military service deposit. IAF, Tab 1. Rather, as discussed above, he 

alleged only that the agency incorrectly informed him that his annuity would not 

be reduced upon becoming eligible for Social Security benefits if he did not 

collect Social Security benefits. Id. at 2, 4. Because the appellant did not raise 

this argument below and he has not shown that he was precluded from doing so, 

we need not consider this argument now for the first time on review. See Banks

v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (explaining that the 

Board generally will not consider an argument raised for the first time in a 

petition for review absent a showing that it is based on new and material evidence 

not previously available despite the party’s due diligence). 

¶10 Even if we were to consider the appellant’s argument that his judgment was 

affected by his exposure to contaminated water at Camp Lejeune, the result in this 

matter would be the same. A showing of mental incompetence may relieve an 

appellant “from the consequences of a written election he seeks to void.” Collins 

v. Office of Personnel Management, 45 F.3d 1569, 1573 (Fed. Cir. 1995).

However, we do not interpret the appellant’s statement as an allegation that he 

was incompetent to make an election regarding the post-1956 military service 

deposit. To the extent that the appellant intended to make such an allegation, he 

has proffered no evidence, such as an affidavit or medical documentation, that
7

would support a finding that he was incapable of making a rational decision 

regarding the deposit or unable to fully understand the consequences of not 

making the deposit because of his alleged exposure to contaminated water in the 

1970s. Cf. Frizzell v. Department of the Air Force, 53 M.S.P.R. 413, 416 (1992) 

(rejecting the appellant’s claim that he was incompetent to enter into a settlement 

agreement because there was no evidence that his claimed condition “was such as 

to render him incapable of making a rational decision to sign the agreement, or 

that he was unable to fully understand the nature of the agreement”).

¶11 Accordingly, we affirm the initial decision in this matter. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S. 

Court of Appeals for the Federal Circuit. You must submit your request to the 

court at the following address: 

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar days 

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 

2012). If you choose to file, be very careful to file on time. The court has held 

that normally it does not have the authority to waive this statutory deadline and 

that filings that do not comply with the deadline must be dismissed. See Pinat v. 

Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in 

title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27, 

2012). You may read this law as well as other sections of the U.S. Code, at our 

website, http://www.mspb.gov/appeals/uscode.htm. Additional information is 
8

available at the court’s website, www.cafc.uscourts.gov. Of particular relevance 

is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained 

within the court’s Rules of Practice, and Forms 5, 6, and 11.

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website 

at http://www.mspb.gov/probono for information regarding pro bono 

representation for Merit Systems Protection Board appellants before the Federal 

Circuit. The Merit Systems Protection Board neither endorses the services 

provided by any attorney nor warrants that any attorney will accept representation 

in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board