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

04-3460 LEROY H. GRANT, Petitioner,

v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

___________________________ DECIDED: March 14, 2005

___________________________ Before GAJARSA, Circuit Judge , PLAGER, Senior Circuit Judge , and DYK, Circuit Judge

. PER CURIAM. Leroy H. Grant appeals from the final decision of t he Merit Systems Protection Board (“Board”), which affirmed the decision of the Office of Personnel Management (“OPM”), denying Grant Civil Service Retirement System (“CSRS”) cred it for his military service. King v. OPM , 97 M.S.P.R. 307 (2004). We affirm

. BACKGROUND Grant served in the United States Navy from 1960 to 1969. He left the Navy and began a federal civilian career in 1970, and retir ed from federal civilian service in 1999. This case concerns Grant’s eligibility to claim CSRS credit for his military service. We summarized the statutory and regul atory background to CSRS credit for military service in Collins v. OPM , 45 F.3d 1569 (Fed. Cir. 1995):A civil service annuitant . . . who re tires after September 7, 1982, is entitled to credit for active duty milit ary service performed after 1956 under both the CSRS and the Social Security System, but only if the annuitant deposits with the Civil Service Retire ment Fund an amount equal to seven percent of the person's total post-1956 military pay. If an annuitant fails to make the requisite deposit, OPM is obligated to recompute the person's annuity payment when the person first becomes eligible for Social Security benefits. The recomputation excludes credit for the post-1956 military service for which no deposit had been m ade to earn entitlement to credit. OPM has promulgated regulations which provide that an eligible employee must file an application fo r deposit with, and make payment to, the appropriate office in the empl oying agency. A former employee may also file an application for deposit, but must make the required deposit to OPM “prior to final adjudication of the application for retirement of survivor benefits.” An applicant is required to make the deposit before the date of retirement or before the date OPM ta kes final action on the retirement application. Id. at 1570-71 (citations omitted). When Grant applied for retirement in March 1999, he completed the 1990 version of Standard Form 2801 (the “SF-2801”). On this form he indicated that he served in the armed forces, and was directed to fill out Schedule A, which asked in pertinent part: If any of your military service occurr ed on or after January 1, 1957, have you paid a deposit to your agency for th is service? (You must pay this deposit to your agency before separation. You cannot pay OPM after you retire.) See Section B of the instructions for the effect on your annuity if the deposit is not paid. (Resp’t App. at 49.) Section B of the instructions, in pertinent part, stated that: 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. ( Id. at 44-45.) Grant stated t hat he had not paid the deposit. However, Grant did not receive, and t hus did not complete, Form 1515, entitled “Service Credit Payments for Post-1956 Military Service.” Form 1515 is part of OPM’s

04-3460 2retirement application package, and explains to applicants that “you must either make a deposit for the military service or have y our annuity benefits reduc ed at age 62.” The form then asks for an explicit election whether or not to make the deposit, requiring an applicant not making the deposit to check the box stating: “I do not want to make (or complete) this deposit. I understand this decision is irrevocable.” Grant’s retirement became effective on Ap ril 3, 1999. He di d not pay any deposit into the Civil Service Retirement F und as required by 5 U.S.C. § 8334(j). Grant became eligible for Social Secu rity benefits beginning in June 2001. Accordingly, OPM issued a final decision in June 2001, recomputing Grant’s CSRS annuity to remove all credit for his military service, thus reducing his monthly annuity from $2161 to $1625. Grant appealed OPM’s decis ion to the Merit Systems Protection Board. The administrative judge affirmed OP M’s decision on the basis that Grant had not made a deposit into the Civil Service Retirement Fund. The full Board then reopened the case to clarify “the case law on when an employee can make a deposit for post-1956 m ilitary service after separating from federal service.” King , 97 M.S.P.R. at 311. 1 The full Board held that an individual is entitled to make a deposit after separation fr om the federal service only if there was administrative error in the processing of his retirement application, and that administrative error caused the failure to make a deposit prior to the separation. Id. at 315-16. The Board also held that the failure to receive and complete Form 1515 was not administrative error, and thus does not entitle an employee to make a deposit after

1 Before the full Board, the case was consolidated with King v. OPM , No. CH-0831-02-0549-I-1, Wells v. OPM , No. AT-0831-03-0784-I-1, O’Kane v. OPM , No.

04-3460 3separation from the federal se rvice, if “an employee is pr ovided with full and complete information in the 1990 version of the re tirement application, Form SF-2801.” Id. at 317. As to the facts of Grant’s case, the full Board found: [T]he SF-2801 provided Mr. Grant with complete and accurate information about the deposit require ment and the consequences of not making a deposit before separation fr om federal service, he has not shown that the agency's failure to give him substantia lly similar information on Form 1515 . . . caused him not to make a deposit for his post-1956 military service before he left the government. Id. at 322. The full Board thus affirmed OPM’s decision. Grant petitions this court for review, we have jurisdiction pur suant to 28 U.S.C. § 1295(a)(9). DISCUSSION Under 5 U.S.C. § 8332(c)(1)(A), “the serv ice of an individual who first becomes an employee . . . before October 1, 1982, shall include credit for each period of military service performed . . . .” However, secti on 8332(c) is qualified by section 8332(j)(1), which provides that “[n]otwiths tanding any other provision of th is section, military service . . . performed by an individual after De cember 1956 . . . shall be excluded in determining the aggregate period of service on which an annuity payable . . . to the individual . . . is based, if the individual . . . is entitled . . . to mont hly old-age or survivors benefits under [Social Security].” 5 U.S.C. § 8332(j)(1) (2000) . 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 militar y service shall not apply to . . . any period of military service of an employee . . . with res pect to which the employee . . . has made a

PH-0831-03-0228-I-1, Newman v. OPM , No. AT-0831-03-0041-I-1, and Bullock v. OPM , No. DC-0831-03-0058-I-1. Only Grant’s case is before this court.

04-3460 4deposit . . . under section 8334(j) .” 5 U.S.C. § 8332(j)(2) ( 2000). In sum, Grant would only be eligible to receive both Social Secu rity benefits and military service credit for his CSRS annuity if he made a deposit into the Civ il Service Retirement Fund pursuant to 5 U.S.C. § 8334(j). OPM has promulgated regulations governing eligibility to make deposits into the Civil Service Retirement Fund. Specifica lly, under 5 C.F.R. § 831.2104(a), employees currently employed in federal service, and “a person who was eligible . . . but who failed to make the deposit before s eparation from service due to administrative error,” are entitled to make a deposit. It is not disputed that Grant failed to make a deposit while he was employed in federal service. The issue is therefore w hether Grant can still make the deposit, and under the regulation he is only able to do so if he was previously precluded from making a deposit “due to administrative error.” Grant first contends that the agency fa iled to provide him proper notice and counseling regarding the effects of failing to make a deposit. In particular, he emphasizes that he was not given a copy of Form 1515. He argues that these omissions constituted administrative error that entitles him to waiv er of the regulatory deadline. However, the Board found that “the SF- 2801 provided Mr. Grant with complete and accurate information about the deposit requirement and the consequences of not making a deposit before separation from federal service.” King , 97 M.S.P.R. at 322. We agr ee with the Board that the om ission of Form 1515 does not constitute administrative error where the em ployee receives full and fair notice of the requirement to make a deposit. The B oard’s finding that Form SF-2801 and its

04-3460 5accompanying instructions provided Grant with full and fair notice is supported by substantial evidence and must be affi rmed. 5 U.S.C. § 7703(c) (2000). In his reply brief, Grant alleges that he never received the instructions to SF2801, and thus suffered from a lack of notice. Grant did not present this argument to the Board. This court genera lly does not consider arguments or evidence not presented to the administrative judge, and we see no basis to do so here. Bosley v. Merit Sys. Prot. Bd. , 162 F.3d 665, 668 (Fed. Cir. 1998); Mueller v. United States Postal Serv. , 76 F.3d 1198, 1201-02 (Fed. Cir. 1996). We hold that Grant has waived this argument. CONCLUSION The decision of the Board is affirmed. COSTS No costs.

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