                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     ANTHONY W. JOHNSON,                             DOCKET NUMBER
                  Appellant,                         DA-844E-16-0061-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: December 12, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Anthony W. Johnson, Houston, Texas, pro se.

           Delores A. Saunders, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a timely petition for review of an initial decision
     that affirmed the final decision of the Office of Personnel Management (OPM)
     denying his application for disability retirement as untimely filed. Generally, we
     grant petitions such as this one only when: the initial decision contains erroneous


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orde rs,
     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 Boar d
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                           2

     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 administrative 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.
     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, 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 appellant was employed as a Rural Carrier by the U.S. Postal Service
     and he resigned on October 20, 2007. Initial Appeal File (IAF), Tab 5 at 205. 2
     The notice of personnel action documenting his separation from service stated
     that he resigned voluntarily for personal reasons.         Id.   Five years later, on
     November 20, 2013, OPM received the appellant’s application for disability
     retirement. Id. at 27. In his statement of disability, the appellant asserted that he
     suffered from a medical condition and a head injury, which affected his memory,
     his ability to pay attention, and his decision-making skills. Id. at 44. He also
     stated that he had a neck fracture, which caused him pain when he lifted anything,
     and that the Social Security Administration (SSA) had approved his disability
     claim. Id.

     2
       In November 2007, the appellant applied for a refund of the retirement deductions that
     were withheld from his salary during his Federal service. IAF, Tab 5 at 226-27. OPM
     refunded those deductions. Id. at 217-18. We note that, if an appellant is eligible for
     disability retirement when he withdrew his contributions, then he may still receive
     disability retirement. See Pagum v. Office of Personnel Management, 66 M.S.P.R. 599,
     602 (1995).
                                                                                         3

¶3         OPM issued an initial decision that denied the appellant’s application for
     disability retirement because it was filed more than 1 year after his separation
     from service and, therefore, was untimely filed.      Id. at 27.   OPM found that,
     although the law permits a waiver of the time limit if an employe e shows that he
     was mentally incompetent at the time of separation from service or within 1 year
     thereafter, the appellant did not show that he was mentally incompetent when he
     separated from service on October 20, 2007, or within the 1-year period ending
     on October 20, 2008.      Id.   The appellant’s representative filed a request for
     reconsideration with OPM on the appellant’s behalf.            Id. at 38-39.    The
     representative provided OPM with a June 18, 2007 evaluation from a clinical
     psychologist stating that the appellant had been diagnosed with a medical
     condition and poly substance dependence in remission. Id. at 6, 9, 11-19. His
     representative also provided OPM with a July 6, 2009 clinical interview and
     mental status examination prepared by a licensed psychologist and other medical
     records. Id. at 4, 21-26. OPM issued a reconsideration decision sustaining its
     original decision dismissing his application as untimely filed. Id. at 5.
¶4         The appellant, acting pro se, appealed OPM’s decision to the Board, and he
     requested a hearing. IAF, Tab 1 at 3, 7. The administrative judge informed the
     appellant of his burden of proving that his disability retirement application was
     timely or that he was entitled to a waiver of the time limit because he was
     mentally incompetent during the relevant time period for filing. IAF, Tab 8 at 2.
¶5         After holding the appellant’s requested hearing, the administrative judge
     issued an initial decision that affirmed OPM’s reconsideration decision denying
     the appellant’s application for disability retirement as untimely filed.       IAF,
     Tab 11, Initial Decision (ID) at 1, 8-10. The administrative judge found that a
     disability retirement application under the Federal Employees’ Retirement System
     (FERS) must be filed with OPM before the employee is separated from service or
     within 1 year thereafter, unless the employee shows that he was mentally
     incompetent at the time of separation or within the 1-year filing period thereafter,
                                                                                      4

     and that he filed his disability retirement application within 1 year after his
     mental competence was restored.     ID at 3.    The administrative judge found it
     undisputed that the appellant filed his application for disability reti rement more
     than 5 years after he resigned from the U.S. Postal Service. ID at 3-4.        The
     administrative judge further found that the appellant failed to establish that the
     1-year filing period should be waived because he did not submit medical evidence
     showing that he suffered from a condition that rendered him mentally
     incompetent when he separated from service or within the statutory 1-year filing
     period thereafter. ID at 9.
¶6         The appellant has filed a petition for review arguing that the evidence he
     submitted proved that he was mentally incompetent when he separated from
     service. Petition for Review (PFR) File, Tab 1 at 5. He argues that he was under
     a court ordered 4-month confinement at the Waco Freeman Center on January 1,
     2007, which prevented him from filing for benefits.         Id.   He reasserts his
     argument that his receipt of SSA disability benefits in 2013, with a “guardian and
     payee for all social security funds,” proves that he was mentally incompetent
     during the relevant filing period. He also resubmits part of a January 28, 2016
     letter prepared for the Office of Special Counsel by an occupational medical
     consultant. Id. at 7. In the letter, which is part of the record on appeal, the
     occupational medical consultant concludes that “[t]he medical documentation
     does not support the mental incompetence claimed by the [appellant],” and
     recommends that OPM deny his disability retirement application.        IAF, Tab 7
     at 6-8. We find that none of the appellant’s evidence or arguments submitted on
     review are persuasive.
¶7         Under 5 U.S.C. § 8453, an application for disability retirement under FERS
     must be filed with an employee’s employing agency before the employee
     separates from service or with the former employing agency or OPM within
     1 year after the employee’s separation.        See Bruce v. Office of Personnel
     Management, 119 M.S.P.R. 617, ¶ 7 (2013). The 1-year filing time limit may be
                                                                                        5

     waived if the employee is mentally incompetent at the date of separation or
     became mentally incompetent within 1 year thereafter and the application is filed
     with OPM within 1 year from the date the employee is restored to competency or
     is appointed a fiduciary, whichever is earlier. Id.
¶8         It is undisputed that the appellant’s disability retirement application was
     signed on November 14, 2013, and OPM received it on November 20, 2013, more
     than 5 years after the 1-year filing period had expired on October 20, 2008. IAF,
     Tab 5 at 4, 45; ID at 2. Thus, the issue in this case is whether the appellant
     showed that he was mentally incompetent during the period from October 20,
     2007, to October 20, 2008.        The appellant has the burden of proving, by
     preponderant evidence, that he was mentally incompetent during the relevant
     filing period. King v. Office of Personnel Management, 112 M.S.P.R. 522, ¶ 7
     (2009).   Preponderant evidence is that degree of relevant evidence that a
     reasonable person, considering the record as a whole, would accept as sufficient
     to find that a contested fact is more likely to be true than untrue.        5 C.F.R.
     § 1201.4(q) (2016).      In determining whether an applicant was mentally
     incompetent for the purposes of the time limit, the Board require s medical
     evidence supporting subjective opinions of mental incompetence. Arizpe v. Office
     of Personnel Management, 88 M.S.P.R. 463, ¶ 9 (2001). The definition of mental
     incompetence “may be satisfied by [a person] having some minimal capacity to
     manage his own affairs, and not needing to be committed”; the applicant need not
     show that he was a “raving lunatic continuously.” French v. Office of Personnel
     Management, 810 F.2d 1118, 1120 (Fed. Cir. 1987).
¶9         The appellant’s argument on review that, on January 1, 2007, he was
     involuntarily confined to the Waco Freeman Center for 4 months, does not show
     that he was incapable of timely filing his disability retirement application prior to
     his resignation on October 20, 2007, or during the 1-year period following his
     separation and ending on October 20, 2008. PFR File, Tab 1 at 5. The appellant
     does not identify the incident or diagnosis that resulted in his alleged
                                                                                        6

      court-ordered treatment at the Freeman Center. 3     He also fails to identify the
      condition(s) for which he was treated at the Freeman Center or the outcome of his
      treatment, and we are unable to find this information in the record. We therefore
      find that the appellant has failed to show that his 4-month court-ordered
      confinement at the Freeman Center on January 1, 2007, proves that he was
      mentally incompetent throughout the relevant period for filing his application.
¶10        On review, the appellant also resubmits the first page of a January 28, 2016
      letter prepared by the occupational medical consultant, stating that the “detailed
      psychological evaluation Dr. [J.G.] performed on 6/18/07” clearly indicated that
      the appellant had the capacity to understand how to fill out forms to receive
      benefits from social assistance organizations. Id. at 7. Dr. J.G. evaluated the
      appellant just 4 months before he resigned in October 2007, while his application
      for SSA disability was pending. ID at 6; IAF, Tab 5 at 11-19. The administrative
      judge considered the June 2007 psychological evaluation by Dr. J.G., which
      concluded that, while the appellant was incapable of handling his own funds, he
      could understand the meaning of filing for benefits. ID at 7; IAF, Tab 5 at 11.
¶11        Although Dr. J.G. also reported that the appellant was diagnosed with a
      particular medical condition, the administrative judge found that Dr. J.G.’s report
      did not indicate that he had access to any of the appellant’s medical or
      psychological reports. ID at 7; IAF, Tab 5 at 13, 19. The administrative judge
      found that Dr. J.G. reported this diagnosis based solely on the appellant’s
      statement of his history.   The administrative judge also found that the appeal
      record lacked documentation from the examination that resulted in this diagnosis
      or showed what symptoms the appellant experienced to warrant this diagnosis.
      ID at 7. The appellant does not dispute this finding on review.

      3
        Although unclear, the Freeman Center in Waco, Texas, apparently provided treatment
      for drug and alcohol addictions and may have offered dual-diagnosis treatment
      programs for individuals with drug or alcohol addictions and mental disorders. See
      http://www.recovery.org/providers/freeman-center-457772354/ (last visited Dec. 9,
      2016).
                                                                                       7

¶12        Dr. J.G. also rated the appellant’s overall psychological functioning
      at 65 on the Global Assessment of Functioning (GAF) Scale , and the
      administrative judge noted that, according to the Diagnostic and Statistical
      Manual of Mental Disorders, people with GAF ratings between 61 and 70 are
      considered to have some mild symptoms or some difficulty functioning, but
      generally function pretty well. Id. The administrative judge found that the record
      showed that the appellant generally was functioning well during the relevant
      filing period.   ID at 9.   Specifically, the administrative judge noted that the
      appellant already had applied for SSA disability benefits in April 2007, before his
      October 2007 resignation. Id. The administrative judge also noted that, upon the
      appellant’s resignation: he applied for a refund of his retirement deductions and
      used that money to pay an attorney to represent him in pending legal matters; he
      filed income tax forms for 2007; and he applied for unemployment benefits. Id.
      The administrative judge further noted that the medical records documenting the
      appellant’s interactions with medical personnel during the relevant period do not
      indicate that he had problems understanding and participating in discussions of
      his test results and treatment plans.   Id.   The administrative judge found this
      evidence was inconsistent with the conclusion that the appellant was mentally
      incompetent during the period from October 20, 2007, through October 20, 2008.
      ID at 9. The appellant has failed to identify any new and material evidence on
      review proving that he was mentally incompetent during the relevant time period.
¶13        On review, the appellant reasserts the argument he made below that he is
      mentally incompetent because he is required to have a representative payee for
      the SSA disability benefits he was awarded in 2013. PFR File, Tab 1 at 5. While
      not dispositive, the Board must consider an award of SSA disability benefits in
      determining an individual’s eligibility for disability retirement. See Szejner v.
      Office of Personnel Management, 99 M.S.P.R. 275, ¶ 12 (2005).                  The
      administrative judge properly considered the appellant’s award of SSA disability
      benefits, together with the other evidence submitted on appeal in affirming
                                                                                             8

      OPM’s reconsideration decision dismissing his application as untimely filed. ID
      at 8-10. The appellant did not provide documentation from the SSA showing the
      medical or psychological conditions for which his disability claim was approved
      in 2013 or the date that his conditions were determined to be disabling. ID at 6;
      see IAF, Tab 5 at 35-36. We therefore find that the 2013 SSA award, and the
      concurrent appointment of a representative payee, do not prove that the appellant
      was mentally incompetent when he resigned on October 20, 2007, or during t he
      1-year period for filing his disability retirement application, ending on October
      20, 2008.
¶14         For the first time on review, the appellant argues that his employing agency
      forced him to resign because of his on-duty misconduct. 4 PFR File, Tab 1 at 4.
      The appellant’s argument does not show that OPM erred in dismissing his
      disability retirement application as untimely filed, which is the only issue before
      the Board on review.       IAF, Tab 8.      If the appellant would like to file an
      involuntary resignation appeal against his former employing agency, he would
      need to file a separate appeal with the Board’s regional office. 5


      4
        The administrative judge considered the appellant’s testimony that he used poor
      judgment and engaged in misconduct prior to resigning and that the nature of his
      misconduct proved that he was mentally ill. ID at 5, 9. The administrative judge was
      not persuaded by the appellant’s argument that his misconduct proved that he was
      mentally incompetent. ID at 9; PFR File, Tab 1 at 4. The administrative judge found
      that the appellant’s testimony showed that he understood the consequences of his
      misconduct and that he decided to resign rather than to face the disciplinary action
      proposed by the agency. ID at 9.
      5
        The Board’s appellate jurisdiction does not include the authority to review cases when
      an employee has resigned voluntarily from his position. See Paone v. Department of
      the Army, 10 M.S.P.R. 284, 286 (1982); see 5 U.S.C. § 7512; 5 C.F.R. § 1201.3.
      However, an involuntary resignation is deemed to be tantamount to a discharge. Paone,
      10 M.S.P.R. at 287. Although the voluntary nature of the resignation is presumed valid,
      it is an issue of fact that may be rebutted by evidence establishing that the resignation
      was coerced or was otherwise involuntary. Id. The burden of proof to establish that the
      resignation was involuntary, and thus within the Board’s jurisdiction, is with the
      appellant. Id.; 5 C.F.R. § 1201.56(a)(2). The appellant also has the burden of proving
      that his appeal is timely filed. 5 C.F.R. § 1201.56(a)(2); see 5 C.F.R. § 1201.22(b).
                                                                                          9

¶15         Accordingly, because the appellant failed to establish a basis for waiving
      the statutory time limit for filing his application for disability retirement, we deny
      his petition for review.

                          NOTICE TO THE APPELLANT REGARDING
                             YOUR FURTHER REVIEW RIGHTS
               You have the right to request review of this final decision by the U .S.
      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

      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 an appeal to
      the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
                                                                                 10

http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
