Does National Guard Service Count Toward Federal Retirement?

September 24, 2020 10:42 AM
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The case is McGrath v Office of Personnel Management (CAFC No. 2019-2187 (nonprecedential) 5.29.2020) As the decision explains, Mr. McGrath served 87 days of military service in 1977 and 1978 with the Army National Guard of Connecticut. When he submitted his FERS retirement application to the Patent and Trademark Agency, its retirement office did a computation (preliminary since only OPM can do the actual final computation) and included the 87 days in its computation. However, when it got to OPM for the official final computation, that agency declined to include those 87 days. McGrath asked OPM to reconsider, but in its response OPM indicated that the Patent and Trademark Office had included the 87 days in error in its original computation. (Opinion p. 2)

OPM explained that the 87 days were not creditable because Mr. McGrath’s service in the Guard was “not ‘performed under either a “call” by the President or an “order” by the Secretary of State.’ “(p. 2)

On appeal to the Merit Systems Protection Board (MSPB), the judge affirmed OPM’s decision. The Administrative Judge explained that the law excludes service in the National Guard as creditable military service except in narrowly defined circumstances, none of which McGrath’s service met. While the law does provide for crediting National Guard duty performed full-time on or after August 1, 1990, McGrath’s service at issue was performed in 1977 and 1978. To otherwise count toward his retirement computation,  McGrath would have to prove—which he could not and did not– that his 87 days were performed because “he or his unit was formally called into service by the President or the Army National Guard of the United States.” (p. 2)

The federal appeals court has now ruled supporting the OPM determination as well as MSPB’s decision denying Mr. McGrath’s appeal, stating “We agree with the Board’s interpretation.” (p.4)

© 2020 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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