66 F.3d 346
NOTICE: Federal Circuit Local Rule 47.6(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issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.
Benigno V. PONTECHA, Petitioner,
v.
OFFICE OF PERSONNEL MANAGEMENT, Respondent.
No. 95-3203.
United States Court of Appeals, Federal Circuit.
Sept. 11, 1995.
Before MAYER, MICHEL and CLEVENGER, Circuit Judges.
PER CURIAM.
Benigno V. Pontecha petitions for review of a decision of the Merit Systems Protection Board which affirmed the Office of Personnel Management's (OPM) denial of his application for a retirement annuity under the Civil Service Retirement System. Pontecha did not seek review of the board's initial decision of November 3, 1994, Docket No. SE0831940536-I-1, and it became final on December 8, 1994. We affirm.
Pontecha was a civilian employee of various activities associated with Clark Air Force Base in the Philippines. His final separation was effected on November 26, 1991, due to closure of the base. He subsequently applied to OPM for a retirement annuity. OPM denied the claim and Pontecha appealed to the board. The board affirmed OPM's decision, concluding that Pontecha's service was entirely in nonappropriated fund activities which do not meet the statutory eligibility requirements for a retirement annuity.
We review the board's decision within precisely defined statutory limits. 5 U.S.C. Sec. 7703(c) (1988); see Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984). We must affirm the decision unless we determine it was (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. Sec. 7703(c).
On appeal, Pontecha argues that his service was not "temporary or intermittent" as that phrase is used in 5 U.S.C. Sec. 8347(g) (1988), and that his service should not be excluded from coverage. This court rejected the same argument in Rosete v. Office of Personnel Management, 48 F.3d 514 (Fed.Cir.1995). The board determined that all of Pontecha's service occurred in nonappropriated fund activities which Congress specifically excluded from the retirement law provisions. 5 U.S.C. Secs. 2105(c), 8333 (1988 & Supp. V 1993). We see no reversible error in the board's decision.