RICHARD L. MILLER, Petitioner
OFFICE OF PERSONNEL MANAGEMENT, Respondent
Petition for review of the Merit Systems Protection Board in
D'Agostino, The Federal Practice Group Worldwide Service,
Washington, DC, argued for petitioner.
Helman, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, DC, argued for
respondent. Also represented by Chad A. Readler, Robert E.
Kirschman, Jr., Allison Kidd-Miller.
Prost, Chief Judge, Schall and Chen, Circuit Judges.
SCHALL, CIRCUIT JUDGE.
Richard L. Miller is retired. Prior to his retirement, he
served in both the military and civilian sectors of the U.S.
government. On appeal, he challenges the December 20, 2016
final decision of the Merit Systems Protection Board
("Board") that affirmed the March 28, 2014
reconsideration decision of the Office of Personnel
Management ("OPM"). Miller v. Office of Pers.
Mgmt., No. DE-0831-14-0340-I-1, 2016 WL 7659226
(M.S.P.B. Dec. 20, 2016), ("Final
Decision"). In its reconsideration decision, OPM
determined the periods of Mr. Miller's government service
that were "creditable" for purposes of calculating
his civil service retirement annuity. Joint Appendix
appeal, Mr. Miller contends that the Board erred in affirming
OPM's determination that he was not entitled to civilian
service credit for three discrete time periods of his
government service: June 21, 1982, to June 30, 1982
("Period One"); August 27, 1990, to October 25,
1990 ("Period Two"); and August 22, 1994, to
December 22, 1995 ("Period Three"). For the reasons
set forth below, we hold that the Board erred in its decision
with respect to Periods One and Two, but that it did not err
in its decision with respect to Period Three. We therefore
affirm-in-part, reverse-in-part, and remand.
Board noted, Mr. Miller "has a complicated history of
civilian and military service that began in 1970 and
concluded in 2012." Final Decision at 1. That
history implicates a particular statutory scheme.
starting point is 5 U.S.C. § 8332. Section 8332(c)(1)(A)
provides that "the service 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 . . . is based . . . ." This section,
which covers Mr. Miller because he became an
"employee" before October 1, 1982, thus allows
credit for military service to count towards the calculation
of a civil service retirement annuity. However, there are
provisos to that allowance. They are spelled out in 5 U.S.C.
8332(c)(2) is the critical statute in this case. In relevant
part, it provides as follows:
If an employee . . . is awarded retired pay based on any
period of military service, the service of the employee . . .
may not include credit for such period of military
service unless the retired pay is awarded-
(A) based on a service-connected disability-
(i) incurred in combat with an enemy of the United States; or
(ii) caused by an instrumentality of war and incurred in line
of duty during a period of war as defined by section 1101 of
title 38; or
(B) under chapter 1223 of title 10 (or under chapter 67 of
that title as in effect before the effective date of the
Reserve Officer Personnel Management Act).
(emphasis added). It is undisputed that the provisions of
§ 8332(c)(2)(A)-(B) do not apply to Mr. Miller.
extent that an annuitant who does not satisfy the
requirements of § 8332(c)(2)(A)-(B) wishes to count
military service towards civil service retirement, the
annuitant must waive his or her military retired pay for that
period and, in some circumstances, pay a deposit. 5 C.F.R.
§ 831.301(c). OPM's regulation at 5 C.F.R. §
831.301(a) tracks the statutory scheme.
this statutory background in hand, we can turn to the facts
of the case.
Miller's Military and Civilian Service
noted above, there are three periods of time at issue in this
One (June 21, ...