NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2009-3140 RONALD P. ALLY, Petitioner,

v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

Ronald P. Ally , of Houston, Texas, pro se. Armando A. Rodriguez-Feo , Trial Attorney, Commercia l Litigation Branch, Civil Division, United States Departm ent of Justice, of Washington, DC, for respondent. With him on the brief were Tony West , Assistant Attorney General, Jeanne E. Davidson , Director, and Patricia M. McCarthy , Assistant Director. Of counsel was Paul St. Hillaire , Office of Personnel Management, of Washington, DC. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2009-3140 RONALD P. ALLY, Petitioner,

v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

Petition for review of the Meri t Systems Protection Board in DA0831080497-I-1.

__________________________ DECIDED: August 7, 2009

__________________________

Before SCHALL, PLAGER, and MOORE, Circuit Judges

. PER CURIAM. Ronald P. Ally petitions for review of a final decision of the Merit Systems Protection Board (Board) relating to his retirement annuity under the Civil Service Retirement System (CSRS). 1 The Board affirmed a decisi on of the Office of Personnel Management (OPM) that reduced Mr. Ally’s annuity by eliminating cred it for his military

service. We affirm

.

1 Ally v. Office of Pers. Mgmt. , No. DA-0831-08-0497-I-1 (Nov. 13, 2008) (initial decision); Ally v. Office of Pers. Mgmt. , No. DA-0831-08-0497-I-1 (Feb. 18, 2009) (final order denying petition for review).2009-3140 2 Mr. Ally retired from the United States Postal Service effective March 25, 1997, after nearly twenty-eight years of service. His original CSRS retirement annuity computation was based on total service, incl uding credit for active duty military service between January 12, 1967, and December 21, 1968. In 2008, when Mr. Ally became eligible at the age of sixty- two for Social Security benefits, OPM notified him that his annuity would be recomputed without credit fo r his military service because he had not made a deposit for the service. Mr. Ally appealed to the Board, which affirmed OPM’s

decision. We review a decision of the Boar d to determine, among other things, whether it is supported by substantial evidence. See 5 U.S.C. § 7703(c). Under 5 U.S.C. § 8332(c)(1)(A), “the servic e [used to compute the annuity] of an individual who first becomes an employee . . . before October 1, 1982, shall include credit for each period of military service performed before the date of the separation on which the entitlement to an annuity under this subchapter is based . . . .” That section, however, is qualified by section 8332(j)(1), wh ich provides that “[n]otwithstanding any other provision of this section,” when a reti ree becomes entitled at the age of sixty-two to Social Security benefits, OPM “shall r edetermine the aggregate period of service on which the annuity is based . . . so as to exclude [military] service [performed after December 1956].” Section 8332(j)(1) in turn is qualified by section 8332(j)(2), which states that the “provisions of paragraph (1) of this subsection relating to credit for military service shall not apply to—(A) any period of military service of an employee . . . with respect to which the employee . . . has made a deposit with interest, if any, under section 8334(j) of this title.” Thus the annuity of an employee such as Mr. Ally who retires before he is eligible for Social Se curity benefits will be reco mputed without credit2009-3140 3 for military service when he becomes eligible for such benefits, unless he has made the deposit required by 5 U.S.C. § 8334(j). OPM’s regulations require that a deposit fo r military service be made at the time of retirement unless the failure to make the depos it is the result of administrative error. 5 C.F.R. § 831.2104(a). It is undisputed that Mr. Ally did not make the required deposit when he retired. The question, then, is whether Mr. Ally’s failure to make the deposit

was the result of administrative error. Mr. Ally alleges that the consequences of electing not to make a deposit were not explained to him when he retired. The adm inistrative judge, however, found that Mr. Ally had been advised of the r equirement to make the deposit while still employed and the potential effect on his annuity of not ma king the deposit. Specifically, Mr. Ally completed and signed the 1990 version of SF- 2801, entitled “Applicat ion for Immediate Retirement.” In response to a question in Schedule A of the application that asks whether the applicant has paid a deposit for post-1956 military service, Mr. Ally checked “no.” Schedule A also explains that the deposit must be made before retirement and refers the applicant to Section B of the instru ctions for the effect on his annuity if the deposit is not paid. Section B of the instructions states in relevant part: The military service deposit must be pai d to your agency while you are still employed. . . . If you do not make the deposit and you are eligible for Social Security benefits at age 62, y our annuity will be recomputed (at age 62) to eliminate credit for the post-1956 military service. Mr. Ally also signed Form 1515, “Military Service Deposit Election,” which again explains that annuity benefit s will be reduced at age sixty-tw o if the military service deposit is not made before retirement. Mr. A lly checked the option indicating that he did not want to make the deposit.2009-3140 4 The forms signed by Mr. Ally contain specific, detailed information about the deposit requirement and the consequences of not making a deposit before retirement. The Board’s findings that Mr. Ally was properly advised that his annuity would be reduced at the age of sixty- two if he failed to make the deposit and that no

administrative error occurred that would entit le Mr. Ally to make a belated deposit are supported by substantial evidence. T he decision of the Board is affirmed.

COSTS Each party shall bear its own costs.