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 the Merit Systems Protection 

Board (“Board”), which affirmed the decision of the Office of Personnel Management 

(“OPM”), denying Grant Civil Service Retirement System (“CSRS”) credit 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 retired 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 regulatory background to CSRS credit for 

military service in Collins v. OPM, 45 F.3d 1569 (Fed. Cir. 1995): 
A civil service annuitant . . . who retires after September 7, 1982, is 

entitled to credit for active duty military service performed after 1956 under 

both the CSRS and the Social Security System, but only if the annuitant 

deposits with the Civil Service Retirement 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 made to earn entitlement to credit. 

OPM has promulgated regulations which provide that an eligible 

employee must file an application for deposit with, and make payment to, 

the appropriate office in the employing 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 takes 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 occurred on or after January 1, 1957, have 

you paid a deposit to your agency for this 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 paid 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, your annuity will be recomputed (at age 

62) to eliminate credit for the post-1956 military service. 

(Id. at 44-45.) Grant stated that he had not paid the deposit.

However, Grant did not receive, and thus did not complete, Form 1515, entitled 

“Service Credit Payments for Post-1956 Military Service.” Form 1515 is part of OPM’s 

04-3460 2 
retirement application package, and explains to applicants that “you must either make a 

deposit for the military service or have your annuity benefits reduced 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 April 3, 1999. He did not pay any deposit 

into the Civil Service Retirement Fund as required by 5 U.S.C. § 8334(j). 

Grant became eligible for Social Security 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 decision to the Merit Systems Protection 

Board. The administrative judge affirmed OPM’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 military 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 from 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 3 
separation from the federal service, if “an employee is provided with full and complete 

information in the 1990 version of the retirement 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 requirement and the consequences of not making a 

deposit before separation from federal service, he has not shown that the 

agency's failure to give him substantially 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 pursuant to 28 U.S.C. 

§ 1295(a)(9). 

DISCUSSION 

Under 5 U.S.C. § 8332(c)(1)(A), “the service of an individual who first becomes 

an employee . . . before October 1, 1982, shall include credit for each period of military 

service performed . . . .” However, section 8332(c) is qualified by section 8332(j)(1), 

which provides that “[n]otwithstanding any other provision of this section, military service 

. . . performed by an individual after December 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 monthly 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 military service shall not apply to . . . any period of 

military service of an employee . . . with respect 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 4 
deposit . . . under section 8334(j).” 5 U.S.C. § 8332(j)(2) (2000). In sum, Grant would 

only be eligible to receive both Social Security benefits and military service credit for his 

CSRS annuity if he made a deposit into the Civil 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. Specifically, 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 separation 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 whether 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 failed 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 waiver 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 agree with the Board that the omission of Form 1515 does not 

constitute administrative error where the employee receives full and fair notice of the 

requirement to make a deposit. The Board’s finding that Form SF-2801 and its 

04-3460 5 
accompanying instructions provided Grant with full and fair notice is supported by 

substantial evidence and must be affirmed. 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 generally 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. 

04-3460 6