Efren C. Cruz v. Office of Personnel Management

864 F.2d 148 Unpublished Disposition NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. Efren C. CRUZ, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent. No. 88-3333. United States Court of Appeals, Federal Circuit. Nov. 7, 1988. Before MARKEY, Chief Judge, and EDWARD S. SMITH and BISSELL, Circuit Judges. PER CURIAM. DECISION — 1 — The decision of the Merit Systems Protection Board (board), No. SE08318710417 affirming the Office of Personnel Management's (OPM's) denial of Efren C. Cruz's (Cruz's) application for a deferred civil service retirement annuity, is affirmed. OPINION — 2 — Cruz has not met his burden of showing the board's decision arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or obtained without procedures required by law, rule, or regulation having been followed, or unsupported by substantial evidence. 5 U.S.C. Sec. 7703(c) (1982); Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140 (Fed.Cir.1986), cert. denied, 479 U.S. 1037 (1987). Though military service can in certain circumstances be counted toward computation of a civil service annuity, military service alone cannot establish eligibility for an annuity. Tirado v. Department of the Treasury, 757 F.2d 263, 264-65 (Fed.Cir.1985); see 5 U.S.C. Sec. 8333(a) (1982). — 3 — Administrative Law Judge Martinez correctly affirmed OPM's denial of Cruz's application because Cruz presented no evidence of civilian service. See Cheeseman, 791 F.2d at 140-41 (burden on petitioner to establish entitlement to annuity).