In Montelongo v. Office of Personnel Management (CAFC No. 2018-2095, 10/2/19), the appeals court has reviewed a ruling by OPM that a former military cadet was not entitled to count four years at West Point as creditable civilian service in order to meet the five-year civilian service qualification for a FERS annuity.
Montelongo was a West Point for four years, then serviced in the U.S. Army just under twenty years when he retired from the military. His only civilian service was as a presidential appointee in the Department of the Air Force for just under four years. During that civilian service when a human resources officer advised him that he could get credit for his West Point years toward a FERS (Federal Employees Retirement System) civil service annuity by paying a fee to “buy back” those four years, Mr. Montelongo made a small payment to do so.. (Opinion p. 2)
Several years later, Montelongo applied to OPM for a FERS annuity. OPM concluded that only the time working as a presidential appointee (less than 4 years) counted as creditable civilian service. OPM would not count toward the required 5 years Montelongo’s years in active military service nor the years he was a cadet. The upshot was that Montelongo did not qualify for a FERS annuity as far as OPM was concerned and he appealed that decision to the Merit Systems Protection Board (MSPB). Presumably because it’s been well understood that military service does not count toward the creditable civilian service requirement, he did not argue that his almost 20 years in the Army should be counted. Instead, he focused on the time he served as a cadet at West Point. While the cadet time counted toward his total military service time, the Administrative Judge ruled that it is not creditable service toward a civil service annuity under FERS. The AJ sustained OPM’s ruling. (p. 3)
The court reached the same seemingly obvious conclusion that cadet time does not count toward creditable civilian service. The court declined to make a distinction between the cadet service and regular military service and count the cadet service toward creditable civilian service, something Montelongo urged it to do. As the court points out “nothing in the FERS statute makes that distinction….” (p. 7)
Ah, but what about the “buy back” advice that Montelongo was given by an Air Force HR person? The court explains that no such advice “overrides the clear language of the statute.” (p. 7) (No mention is made as to what happened to the “small payment” that he made to buy back the four years as a cadet.)
The Board’s and therefore OPM’s decision on the matter are affirmed and Mr. Montelongo will not receive a FERS annuity.
