       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

               FLOYD C. MITCHELL,
                    Petitioner,

                           v.

    OFFICE OF PERSONNEL MANAGEMENT,
                 Respondent.
            ______________________

                      2014-3043
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. AT844E120679-I-1.
                ______________________

                 Decided: June 9, 2014
                ______________________

   FLOYD C. MITCHELL, of Lithonia, Georgia, pro se.

    NATHANAEL B. YALE, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were STUART F. DELERY, Assistant Attorney
General, BRYANT G. SNEE, Acting Director, and KIRK T.
MANHARDT, Assistant Director. Of counsel on the brief
were JESSICA S. JOHNSON, Attorney-Advisor, Office of
General Counsel, Office of Personnel Management, of
Washington, DC.
2                                          MITCHELL v. OPM



                  ______________________

    Before O’MALLEY, REYNA, and HUGHES, Circuit Judges.
PER CURIAM.
    Over a decade after he resigned from his job at the
Department of Veterans Affairs, Floyd C. Mitchell applied
for disability retirement benefits under the Federal
Employees’ Retirement System.          Retirement benefit
applications generally must be filed within one year after
separation from federal service. If, however, as is the
issue here, the individual was mentally incompetent
either at the time of separation or at any time within a
year following separation, an application is considered
timely if filed within a year of competency being restored.
The Merit Systems Protection Board found that Mr.
Mitchell did not file his application within one year from
the date his mental competency was restored and that his
application was, therefore, untimely. Because the Board’s
decision is in accordance with law and supported by
substantial evidence, we affirm.
                            I.
    Mr. Mitchell resigned from his job as a medical clerk
at the Department of Veterans Affairs on July 8, 1998.
He did not file an application for disability retirement
benefits under the Federal Employees’ Retirement Sys-
tem until January 2011, over 12 years later. 1



      1 Although there is a discrepancy between Mr.
Mitchell’s application, which bears the date of January
12, 2010, and other evidence in the record, the Board
made a factual finding that his application was actually
filed in January 2011. That finding is supported by
substantial evidence and, in any event, a 2010 date would
not alter our affirmance of the Board’s decision.
MITCHELL v. OPM                                          3



     After receiving Mr. Mitchell’s application, OPM sent
him a letter. The letter advised Mr. Mitchell that, be-
cause his application was not filed within one year of
separation from service, it would only be considered
timely if he submitted evidence demonstrating that he
was mentally incompetent at separation or within one
year after separation. Mr. Mitchell submitted evidence,
but OPM issued an initial decision rejecting his applica-
tion as untimely. On reconsideration, OPM affirmed its
initial decision.
     Mr. Mitchell then appealed to the Board. The Board
affirmed, finding that even if Mr. Mitchell had submitted
sufficient evidence establishing incompetency at separa-
tion or within one year thereafter, he failed to prove that
he filed his application within one year after his compe-
tency was restored. The Board pointed to several reports
by social workers and medical personnel from 2006
through 2009 showing that Mr. Mitchell’s competency was
restored over one year before he filed his application. The
Board noted that some of the reports showed his Global
Assessment of Functioning (GAF) scores 2 had improved



   2    As the Board explained, the GAF scale is used to
rate an individual’s overall psychological functioning on a
scale of 0 to 100, with 1 indicating the most severe func-
tioning problems and 100 representing superior function-
ing. Lynum v. Office of Pers. Mgmt., 103 M.S.P.R. 426,
¶ 7 n.2 (2006) (citing Diagnostic and Statistical Manual of
Mental Disorders 34 (American Psychiatric Association
4th ed. 2000)). A GAF score of 35 represents “some im-
pairment in reality testing or communication or major
impairment in several areas such as work or school,
family relations, judgment, thinking or mood.” Initial
Appeal File, Tab 1. The Board has found that a score
between 51–60 means “[m]oderate symptoms (e.g., flat
affect and circumstantial speech, occasional panic at-
4                                          MITCHELL v. OPM



from a score of 35 in 2005, to scores in the 50 to 60 range
from 2006 through 2009. These reports also indicated Mr.
Mitchell’s competency was significantly improving. For
example, one report described him as having relevant
thought processes and judgment within normal limits,
another described his organized speech, and another
described him as alert and oriented. Finally, some of the
reports described Mr. Mitchell as actively seeking infor-
mation regarding his other benefits claims, such as his
Social Security disability claim and his application for a
student loan discharge due to disability. The Board
concluded that in light of this evidence, Mr. Mitchell had
failed to show by a preponderance of the evidence that he
filed his application within one year after his competency
was restored.
     Mr. Mitchell appeals. This court has jurisdiction un-
der 28 U.S.C. § 1295(a)(9).
                             II.
     A claim for disability retirement benefits must be filed
within one year after separation from service. 5 U.S.C.
§ 8453. This requirement may be waived for an employee
who is mentally incompetent at separation from service or
within one year thereafter, so long as the application is
filed within one year from the date competency is restored
or a fiduciary is appointed, whichever is earlier. Id.
    Mental incompetence for purposes of § 8453 is “a di-
minished ability to handle one’s affairs in normal fash-
ion.” French v. Office of Pers. Mgmt., 810 F.2d 1118, 1120
(Fed. Cir. 1987). A claimant can establish mental incom-
petence even if the claimant has “some minimal capacity


tacks) OR moderate difficulty in social, occupational, or
school functioning (e.g., few friends, conflicts with peers or
co-workers.”). Nash v. Office of Pers. Mgmt., 92 M.S.P.R.
527, ¶ 9 n.6 (2002).
MITCHELL v. OPM                                            5



to manage his own affairs” during the relevant period. Id.
at 1120. However, a person who suffers from mental
disabilities is not necessarily mentally incompetent. See
McLaughlin, 353 F.3d at 1367.
     We affirm a decision on mental incompetence during
the statutory filing period unless it is arbitrary, capri-
cious, an abuse of discretion, not in accordance with the
law, or unsupported by substantial evidence. 5 U.S.C.
§ 7703(c) (2012); McLaughlin v. Office of Pers. Mgmt., 353
F.3d 1363, 1367 (Fed. Cir. 2004). In this case, the Board’s
factual finding that Mr. Mitchell failed to file his applica-
tion within one year of the restoration of mental compe-
tency is supported by substantial evidence and must be
affirmed. As described above, the Board relied on reports
from social workers and medical personnel, as well as
other evidence in the record, demonstrating Mr. Mitchell’s
competency to handle his own affairs.
    On appeal Mr. Mitchell makes a number of argu-
ments. For instance, he argues that because he is consid-
ered disabled for Social Security purposes, he should also
be considered disabled for disability retirement purposes.
But “disability and mental incompetence for the purposes
of waiving the one-year filing deadline examine different
facts.” See McLaughlin, 353 F.3d at 1367. Thus, the
Board did not err by finding that Mr. Mitchell had not
shown that he remained incompetent on January 12,
2010, simply because of his Social Security disability
status.
    He also argues that because his separation was due to
disability, he has established a prima facie case of disabil-
ity, shifting the burden of proof to the Department of
Veterans Affairs and OPM. But because the Board found
Mr. Mitchell’s application untimely, the Board did not
need to reach the merits of his disability case.
   We have considered Mr. Mitchell’s remaining argu-
ments and find them unpersuasive.
6                                     MITCHELL v. OPM



                         III.
    Because the Board’s decision is in accordance with
law and supported by substantial evidence, we affirm.
                    AFFIRMED
    No costs.
