                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     STEVEN C. COLLINS, II,                          DOCKET NUMBER
                   Appellant,                        SF-0841-14-0346-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: August 14, 2014
       MANAGEMENT,
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Steven C. Collins, II, Spring Valley, California, pro se.

           Cynthia Reinhold, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the Office of Personnel Management’s (OPM) reconsideration decision
     finding that the December 12, 2012 effective date of his retirement annuity was
     correct under the Federal Employees’ Retirement System (FERS). Generally, we

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     grant petitions such as this one only when: the initial decision contains erroneous
     findings of material fact; the initial decision is based on an erroneous
     interpretation of statute or regulation or the erroneous application of the law to
     the facts of the case; the judge’s rulings during either the course of the appeal or
     the initial decision were not consistent with required procedures or involved an
     abuse of discretion, and the resulting error affected the outcome of the case; or
     new and material evidence or legal argument is available that, despite the
     petitioner’s due diligence, was not available when the record closed. See Title 5
     of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
     After fully considering the filings in this appeal, and based on the following
     points and authorities, we conclude that the petitioner has not established any
     basis under section 1201.115 for granting the petition for review. Therefore, we
     DENY the petition for review and AFFIRM the initial decision, which is now the
     Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2        The record reflects that the appellant submitted a completed disability
     retirement application to OPM on February 9, 2012. Initial Appeal File (IAF),
     Tab 4 at 11. The appellant had been off work from his position with the Social
     Security Administration (SSA) since June 8, 2011, due to complications from
     certain medical conditions. Hearing Compact Diskette (HCD); IAF, Tab 4 at 19.
     Due to the delay in OPM’s processing of the appellant’s disability retirement
     application, the SSA Human Resource Specialist made multiple attempts to
     contact OPM to no avail. HCD (Sanchez testimony). Because the appellant had
     been in leave without pay (LWOP) status for a year without any decision by OPM
     on his disability retirement application, he was in danger of losing his medical
     coverage.   As a result, SSA and the appellant’s physician allowed the appellant,
     either as an accommodation or through the Family and Medical Leave Act of
     1993, to return to duty on June 18, 2012, in a modified work schedule so that he
     could provide for his family, maintain his health insurance, and begin to repay the
     health insurance premium debt he had accrued during the year of LWOP. HCD
                                                                                       3

     (testimony of Garrett, Sanchez, and Collins). The appellant continued to work as
     he could in a modified work schedule, until his application for disability
     retirement was approved. See id. OPM was notified by email that the appellant
     was on LWOP from June 11, 2011—June 11, 2012, and because he “needed to be
     at work to continue his health benefits and provide for his family,” his last day in
     a pay status was December 5, 2012. HCD (Sanchez testimony). The appellant’s
     official Individual Retirement Record certified that his last day in pay status was
     December 11, 2012. IAF, Tab 4 at 11.
¶3           On appeal, the appellant argued that he should receive disability retirement
     annuities for the period of time he was unable to work a full eight hour day while
     he waited for OPM to make a decision on his disability retirement application.
     IAF, Tab 1.     Specifically, the appellant asserted that the effective date of his
     disability retirement should have taken into consideration the period of time he
     was on LWOP from June 11, 2011, to June 11, 2012, and the modified work
     schedule of no more than 5 hours a day that he worked from June 12, 2012, until
     his last day in a pay status on December 5, 2012, in order to retain his medical
     insurance. IAF, Tab 1.
¶4           Affirming OPM’s reconsideration decision, the administrative judge found
     that the date a FERS annuity commences is not driven by the date an application
     for disability retirement is filed, or the first day that an employee began to miss
     days from work because of a disabling condition.        Initial Decision (ID) at 6.
     Rather, the administrative judge found that under 5 U.S.C. § 8464(a)(1)(C) a
     disability retirement annuity “commences the day after separation from the
     service or the day after pay ceases and the requirements for title to an annuity are
     met.”     ID at 6.    The administrative judge found further that, because the
     appellant’s date of separation and last day in a pay status was December 11, 2012,
     OPM correctly determined that December 12, 2012, is the statutory date for the
     commencement of the appellant’s annuity. ID at 6.         The administrative judge
                                                                                             4

     noted that the Board is provided no basis upon which to grant equitable relief
     concerning the commencement date for the appellant’s annuity. ID at 7.
¶5        On review, the appellant challenges the initial decision and he argues that
     he should not be held responsible for OPM’s delay in granting his disability
     retirement application.     Petition for Review (PFR), Tab 1.            Specifically, the
     appellant argues that he became disabled on June 11, 2011, rather than on
     December 11, 2012. To support his claim that he became disabled in June 2011,
     the appellant has submitted a letter from his doctor who was unable to testify at
     the hearing. Id.
¶6        We have considered the appellant’s arguments on review concerning the
     administrative judge’s weighing of the evidence, however, the applicable law and
     the record evidence support the administrative judge’s findings that                OPM
     correctly determined December 12, 2012, as the commencement date for the
     appellant’s disability retirement under 5 U.S.C. § 8464(a)(1)(C).               Thus, we
     discern no reason to reweigh the evidence or substitute our assessment of the
     record evidence for that of the administrative judge. See Crosby v. U.S. Postal
     Service, 74 M.S.P.R. 98, 105-106 (1997) (finding no reason to disturb findings
     when the administrative judge considered the evidence as a whole, drew
     appropriate   inferences,    and   made    reasoned      conclusions);     Broughton    v.
     Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶7        Under 5 C.F.R. § 1201.56(a)(2), an employee bears the burden of
     persuasion by a preponderance of the evidence in an appeal from OPM’s decision
     on a voluntary disability retirement application. Chavez v. Office of Personnel
     Management, 6 M.S.P.R. 404, 417 (1981).           When a retirement applicant is
     employed, OPM may allow the annuity only after the employee’s separation. See
     Riggs v. Office of Personnel Management, 709 F.2d 1486, 1487 (Fed. Cir. 1983)
     (disability retirement applicant who was on active duty qualified by separating
     from the service “as the statute requires”); Young v. Office of Personnel
     Management,        99   M.S.P.R.   563,   ¶9   (2005).       Specifically,     5   U.S.C.
                                                                                    5

     § 8464(a)(1)(C) and 5 C.F.R. § 844.301, explicitly provide that a disability
     retirement annuity commences on the day after the employee is separated from
     service or the day after his pay ceases and he meets the requirement for an
     annuity. See Widmer v. Office of Personnel Management, 103 M.S.P.R. 363, ¶ 10
     (2006); Young, 99 M.S.P.R. ¶ 10. In this case, the documentation submitted by
     OPM shows that the appellant’s last day in a pay status was December 11, 2012.
     Thus, as the administrative judge correctly found, the statute dictates that
     December 12, 2012, is the correct date for the commencement of the appellant’s
     disability retirement annuity.
¶8         To the extent that the appellant has submitted a written statement from his
     physician for a first time on review, the Board need not consider it because the
     appellant has made no showing that it was unavailable prior to the close of the
     record below. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).
     Moreover, even if we were to consider his physician’s statement, it does not
     change the fact that the appellant’s last day in a pay status was December 11,
     2012. The Board is afforded no basis to grant equitable relief concerning the
     statutory commencement date for an annuity. See Devlin v. Office of Personnel
     Management, 120 M.S.P.R. 78, ¶ 9 (2013). Accordingly, while the appellant does
     not agree with the administrative judge’s findings and determinations, he has
     provided no basis upon which to disturb the initial decision.

                     NOTICE TO THE APPELLANT REGARDING
                        YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the United
     States Court of Appeals for the Federal Circuit. You must submit your request to
     the court at the following address:
                               United States Court of Appeals
                                   for the Federal Circuit
                                 717 Madison Place, N.W.
                                  Washington, DC 20439
                                                                                  6

     The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
     If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court.             The Merit
SystemsProtection Board neither endorses the services provided by any attorney
nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
