                 NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                   is not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit

                                        04-3288

                                  MARCIA M. GAYLE,

                                                             Petitioner,

                                           v.

                      OFFICE OF PERSONNEL MANAGEMENT,

                                                             Respondent.

                            __________________________

                             DECIDED: November 5, 2004
                            __________________________


Before MAYER, Chief Judge, PLAGER, Senior Circuit Judge, and PROST, Circuit
Judge.

PER CURIAM.

      Marcia M. Gayle petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) sustaining the decision of the Office of Personnel

Management (“OPM”) that denied as untimely her application for disability retirement

benefits under the Federal Employees’ Retirement System (“FERS”). We affirm.

      An application for disability retirement benefits under FERS must be filed with

OPM before the employee’s separation from service or within one year of separation. 5

U.S.C. § 8453 (2000). This time limitation may be waived if the employee is “mentally

incompetent” on the date of separation or within one year thereafter and files her

application within one year of her restoration to competency. Id.
       Ms. Gayle was separated from her position at the Defense Commissary Agency

on August 31, 1996. She applied for disability retirement benefits on June 5, 2002, and

thus did not file her application within the statutory one-year time period. Therefore, the

only question in her case is whether she was mentally incompetent from August 31,

1997, to June 5, 2001.

       After reviewing the medical documentation submitted by Ms. Gayle in support of

her claim, OPM found that she did not demonstrate she was mentally incompetent

during the relevant period and accordingly dismissed her claim for disability retirement

benefits. OPM denied her request for reconsideration, and Ms. Gayle appealed to the

Board. The Board’s administrative judge affirmed OPM’s decision after examining the

submitted medical evidence. Gayle v. Office of Pers. Mgmt., No. NY-844E-03-0202-I-1

(M.S.P.B. July 18, 2003) (initial decision). The initial decision became the final decision

of the Board when Ms. Gayle’s petition for review was denied.

       On appeal to this court, Ms. Gayle contends that her medical records show she

was unable to function during the relevant time period. The Board found that the only

document indicating Ms. Gayle was mentally incompetent is a doctor’s statement

consisting entirely of conclusory assertions and lacking a reasoned explanation for its

findings. Furthermore, the Board found the doctor’s statement was contradicted by

more detailed medical records that were contemporaneous with Ms. Gayle’s medical

treatment and that did not show she was incompetent during the time in question.

Based on our review of the record, we cannot say the Board’s decision that Ms. Gayle

was not entitled to a waiver of the one-year time limit is arbitrary, capricious, an abuse

of discretion, not in accordance with the law, or unsupported by substantial evidence,

04-3288                                     2
the standard for our review of the Board’s determinations on mental incompetence. See

5 U.S.C. § 7703(c) (2000); McLaughlin v. Office of Pers. Mgmt., 353 F.3d 1363, 1367

(Fed. Cir. 2004).




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