Military Service Excluded from FERS Vesting

Veterans sitting in a row

Buy Additional FERS With Military Service

Logo for the Federal Employees Retirement System.

The Federal Employees Retirement System (FERS) pension vests at five years: “an employee or Member must complete at least 5 years of civilian service creditable under section 8411 in order to be eligible” for the FERS annuity. 5 U.S. Code § 8410.

Moreover, a federal employee with prior military service can “buy” additional FERS credit on a month-for-month basis with the military service by paying the amount which would have been deducted from the paycheck each month. 5 U.S. Code § 8411.

But what is the interplay between these two provisions? And can military service be used to reach the 5-year threshold for FERS to vest?

Military Service Not Count For FERS Vesting Period

The Court of Appeals for the Federal Circuit recently ruled that while military service can be used to buy additional FERS credit, it cannot be used to qualify for the 5 years of service in order for FERS to vest. Montelongo.1Montelongo vs Office of Personnel Management, 939 F.3d 1351 (Fed.Cir. 2019).

A former soldier was a West Point cadet for 4 years, then ultimately retired after a 20-year Army career. He was later a presidential appointee to a federal civilian position, where he served just under 4 years. While there, he used his West Point time to “buy” four additional years of FERS.

The Office of Personnel Management (OPM) concluded that for purposes of determining whether the FERS pension had vested, only his actual civilian service counted, and not his creditable military service. And that meant the employee had just under 4 years of service, thereby not qualifying for a FERS pension.

The Court of Appeals upheld the OPM finding that the service needed to meet two components to satisfy the 5-year vesting:

  1. Creditable service under § 8411, and
  2. Civilian service, under § 8410.

In this case, while the employee had almost 8 years of creditable service, counting his West Point time he used to purchase additional credit. But only 4 years of that time was civilian service, as the rest of the credit was military service. The employee did not meet the 5-year civilian service requirement, so his FERS was not vested.

Quoting a prior decision, the court concluded:

“The plain language of § 8410 requires five years of civilian service. To allow the non-civilian, i.e. military, service to count towards the eligibility criteria in § 8410 would render superfluous the word ‘civilian.’”

Montelongo.2Montelongo vs Office of Personnel Management, 939 F.3d 1351, 1354 (Fed.Cir. 2019).

This decision is consistent with the principle that what counts as creditable service for one purpose may not necessarily count for other purposes. By way of example, a military member who was in ROTC in college, then received an educational deferral for law school, ultimately enters the military with time in service credit for pay purposes while in law school. But that time does not count for retirement purposes – it still takes 20 years to actually receive a military retirement.

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