Julio B. Fronda v. Office of Personnel Management

940 F.2d 678 Unpublished Disposition NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed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issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. Julio B. FRONDA, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Respondent. No. 91-3229. United States Court of Appeals, Federal Circuit. July 26, 1991. Before NIES, Chief Judge, and PAULINE NEWMAN and PLAGER, Circuit Judges. DECISION PER CURIAM. — 1 — Julio B. Fronda appeals from the decision of the Merit Systems Protection Board, Docket No. SE08319010387. The Board held that Mr. Fronda was not entitled to an annuity under the Civil Service Retirement Act because he had not performed five years of qualified civilian service with the United States Government as required by 5 U.S.C. Sec. 8333. We affirm. OPINION — 2 — Mr. Fronda applied for an annuity on the basis of his service with guerilla units of the Philippine Army during the Second World War from November 1, 1941 to February 27, 1946, a period of approximately 4 years, 4 months. The Office of Personnel Management denied Mr. Fronda's application after a search of his personnel records revealed that he had not served the United States Government in a civilian capacity for five years, with at least one of the final two years prior to separation in a position creditable under the Civil Service Retirement Act, as required by the statute. 5 U.S.C. Sec. 8333(a)-(b). The record showed only military service which, by itself, is not "civilian" service under the statute. Tirado v. Dept. of Treasury, 757 F.2d 263, 264 (Fed.Cir.1985). — 3 — Mr. Fronda states that he worked for six years in a combined military and civilian capacity. However, the only documentary evidence in the record shows Mr. Fronda's discharge from service as a Private First Class in the Philippine Army in 1946. Without evidence of five years of civilian service in the record, the Board correctly denied the annuity.