                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROBERT D. FRANKLIN,                             DOCKET NUMBER
                   Appellant,                        AT-844E-15-0571-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: March 10, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Robert D. Franklin, Elizabethton, Tennessee, pro se.

           Thomas Styer, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the reconsideration decision of the Office of Personnel Management
     (OPM) denying his application for disability retirement under the Federal
     Employees’ Retirement System (FERS). Generally, we grant petitions such as


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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
     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. 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, 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).

                                      BACKGROUND
¶2          Effective March 16, 2012, the appellant was removed from his Painter
     position with the Department of Veterans Affairs (DVA).         Initial Appeal File
     (IAF), Tab 4 at 221.   In May 2013, the appellant submitted an application for
     disability retirement under FERS to the DVA. Id. at 237-38. In a letter dated
     April 17, 2014, OPM informed the appellant that his application did not meet the
     1-year filing deadline and requested evidence of mental incompetency during the
     filing period to prove his entitlement to a waiver of the filing deadline.       Id.
     at 212-13.   After the appellant responded, OPM issued an initial decision
     dismissing his application as untimely.      Id. at 131-33, 211.     The appellant
     requested reconsideration, and OPM affirmed its initial decision and found that he
     failed to show that he was mentally incompetent during the filing period. Id. at
     4‑6.
¶3          The appellant subsequently filed an appeal of OPM’s reconsideration
     decision and requested a hearing. IAF, Tab 1 at 1-6. In an order and summary of
                                                                                       3

     telephonic prehearing conference, the administrative judge informed the appellant
     of his burden of proving that he timely filed a disability retirement application or
     was mentally incompetent during the relevant filing period. IAF, Tab 7. In a
     prehearing submission, the appellant alleged that he submitted a disability
     retirement application on November 29, 2012.         IAF, Tab 8 at 4.     Later, he
     asserted and testified during the hearing that he first submitted a disability
     retirement application to the DVA on February 27, 2013.           IAF, Tab 9 at 1,
     Tab 10, Hearing Compact Disc (HCD) (00:13:06-00:14:03).
¶4         The administrative judge issued an initial decision affirming OPM’s
     reconsideration decision.    IAF, Tab 11, Initial Decision (ID) at 1, 6.        The
     administrative judge found that the appellant’s testimony that he filed a disability
     retirement application on or around February 28, 2013, was not credible.         ID
     at 4‑6. Therefore, he found that the appellant failed to prove that he timely filed
     his disability retirement application.   ID at 6.   He further found the appellant
     either abandoned or failed to prove his claim of mental incompetence during the
     filing period. Id.
¶5         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. The agency has filed a response in opposition, PFR File, Tab 3, to
     which the appellant has replied, PFR File, Tab 4.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶6         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.    5 U.S.C. § 8453; King v. Office of Personnel Management,
     112 M.S.P.R. 522, ¶ 7 (2009); 5 C.F.R. § 844.201(a)(1). The 1-year time limit
     for filing a disability retirement application following an employee’s separation
     from service may be waived if the employee is mentally incompetent at the date
     of separation or within 1 year thereafter and if the application is filed with the
                                                                                        4

     former employing agency or OPM within 1 year from the date the employee is
     restored to competency or is appointed a fiduciary, whichever is earlier. 5 U.S.C.
     § 8453; King, 112 M.S.P.R. 522, ¶ 7; 5 C.F.R. § 844.201(a)(4).        An employee
     seeking retirement benefits bears the burden of proving entitlement to those
     benefits by preponderant evidence. 2         Henderson v. Office of Personnel
     Management, 109 M.S.P.R. 529, ¶ 8 (2008); 5 C.F.R. § 1201.56(b)(2)(ii).
     The appellant has failed to prove that he timely filed an application for
     disability retirement.
¶7        As the administrative judge properly found, the appellant has failed to meet
     his burden of proving that he timely filed an application for disability retirement.
     ID at 6.   Because the appellant was removed on March 16, 2012, his filing
     deadline was on March 16, 2013. IAF, Tab 4 at 221. In a prehearing submission,
     the appellant asserted that he timely filed his application on November 29, 2012. 3
     IAF, Tab 8 at 4. However, he never substantiated this claim.
¶8        In a subsequent prehearing submission, and during his hearing testimony,
     the appellant asserted that he timely filed his disability retirement application on
     February 27, 2013. IAF, Tab 9 at 1; HCD (00:03:07-00:07:35). To support his
     argument, he submitted a signed statement from a current DVA Human Resources
     Specialist, a completed copy of Standard Form 3112A, Applicant’s Statement of
     Disability, dated February 27, 2013, and a letter from the Social Security
     Administration confirming an appointment for February 28, 2013, related to a
     claim for disability Supplemental Security Income. IAF, Tab 9 at 2-6. He also
     called the Human Resources Specialist as a witness during the hearing.
     HCD (00:14:20-00:35:00).

     2
      A preponderance of the evidence is the 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).
     3
       The appellant seems to have misread a date stamp that appears to identify
     November 29, 2013, as the date OPM received his disability retirement application.
     IAF, Tab 8 at 7.
                                                                                           5

¶9            The administrative judge found that the appellant’s documentary evidence
      and the Human Resources Specialist’s testimony showed only that he made
      preparatory steps to file a disability retirement application before the filing
      deadline and did not prove that he in fact timely filed an application. ID at 4.
      We agree. In a written statement, the Human Resources Specialist asserted that
      the appellant gave him copies of documents that would have been processed with
      a disability retirement application had they been submitted within the filing
      deadline, but he could not find such documents in the DVA’s records. IAF, Tab 9
      at 2.   Because the Human Resources Specialist did not start his position until
      May 2013, he could not confirm the DVA’s receipt of any documents related to
      the     appellant’s   disability   retirement   application   prior   to   that   date.
      HCD (00:28:10-00:34:35).
¶10           The administrative judge further found that the appellant’s testimony
      was not credible due to its inconsistency with his prior statements. ID at 5-6. We
      defer to the administrative judge’s demeanor-based credibility determination
      because the appellant has not provided a sufficiently sound reason on review to
      overturn it. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.
      2002) (finding that the Board must give deference to an administrative judge’s
      credibility determinations when they are based, explicitly or implicitly, on the
      observation of the demeanor of witnesses testifying at a hearing, and that the
      Board may overturn such determinations only when it has “sufficiently sound”
      reasons for doing so).
¶11           In his petition for review, the appellant reasserts that he timely filed a
      disability retirement application on February 27, 2013. PFR File, Tab 4 at 1-2.
      To support his argument, the appellant submits an affidavit from a former DVA
      Human Resources Specialist created on September 29, 2015.             PFR File, Tab 1
      at 2, 4. In the affidavit, the former Human Resources Specialist confirms meeting
      the appellant on February 28, 2013, to review his disability retirement
      application. Id. at 4. The former Human Resources Specialist further states that
                                                                                       6

      the appellant gave him the completed application at the meeting and he forwarded
      the application to his coworker for processing. Id. The appellant also submits a
      copy of an armband documenting his visit to an emergency room on February 27,
      2013. PFR File, Tab 4 at 2-3.
¶12        The Board generally will not consider evidence submitted for the first time
      on review absent a showing that:           (1) the documents and the information
      contained in the documents were unavailable before the record closed despite due
      diligence; and (2) the evidence is of sufficient weight to warrant an outcome
      different from that of the initial decision.    Cleaton v. Department of Justice,
      122 M.S.P.R. 296, ¶ 7 (2015); 5 C.F.R. § 1201.115(d). Where, as here, a hearing
      is held in a Board appeal, the record in the case ordinarily closes at the
      conclusion of the hearing. See Ruffin v. Department of the Treasury, 89 M.S.P.R.
      396, ¶ 6 (2001); 5 C.F.R. § 1201.59(a). Thus, we find that the record closed on
      September 3, 2015, the date of the hearing. IAF, Tab 5 at 1, Tab 10.
¶13        We find that the appellant has not shown that the affidavit and copy of an
      armband were unavailable despite his due diligence when the record closed, and
      thus, we decline to consider them. The appellant explains that he was unable to
      obtain the affidavit before the hearing because he believed he did not need it and
      only realized that it was important after the hearing. PFR File, Tab 4 at 1. He
      admits that he did not attempt to contact the former Human Resources Specialist
      until after the hearing.    Id.   Therefore, we find that the appellant did not
      demonstrate due diligence because he did not attempt to find the former Human
      Resources Specialist until after the record closed. Further, the appellant has not
      attempted to explain why the copy of the armband was unavailable despite his due
      diligence before the end of the hearing.
¶14        For these reasons, we find that the appellant has not provided a reason to
      disturb the administrative judge’s determination that the appellant failed to prove
      that he timely filed a disability retirement application. See Crosby v. U.S. Postal
      Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the
                                                                                         7

      administrative judge’s findings when she considered the evidence as a whole,
      drew appropriate references, and made reasoned conclusions).
      The appellant has failed to prove that he is entitled to a waiver of the 1-year time
      limit based on mental incompetence.
¶15         In response to OPM’s request for information necessary for a competency
      determination, the appellant submitted affidavits from his mother and friend
      describing his difficulty in performing day-to-day tasks. IAF, Tab 4 at 212-17.
      He also submitted a copy of his medical records and letters from the Office of
      Workers’ Compensation Programs approving his traumatic injury claim for the
      condition of chemical pneumonitis. Id. at 164-209, 211. In its reconsideration
      decision, OPM found that the appellant’s evidence was insufficient to show that
      he was mentally incompetent during the filing period. Id. at 5.
¶16         The administrative judge noted that the appellant did not claim mental
      incompetence during the filing period in his Board submissions or during the
      hearing, and thus, he effectively abandoned the claim at the Board level. ID at 6.
      The   administrative   judge   also   found   that   the   record   supports   OPM’s
      determination that the appellant did not prove that he was mentally incompetent
      during the filing period. Id. The appellant does not raise the issue of mental
      incompetence on review, and we find no reason to disturb the administrative
      judge’s finding.
¶17         The standard for an individual’s “mental incompetence is an inability to
      handle one’s personal affairs because of either physical or mental disease or
      injury.” Rapp v. Office of Personnel Management, 483 F.3d 1339, 1341 (Fed.
      Cir. 2007) (so finding in the context of the denial of a request for appointment of
      counsel). An individual can meet this standard even if he has “some minimal
      capacity to manage his own affairs.”          McLaughlin v. Office of Personnel
      Management, 353 F.3d 1363, 1368 (Fed. Cir. 2004) (quoting French v. Office of
                                                                                       8

      Personnel Management, 810 F.2d 1118, 1120 (Fed. Cir. 1987)). 4 In determining
      whether an individual was mentally incompetent during the relevant filing period,
      the Board requires medical evidence supporting subjective opinions of mental
      incompetence.    Arizpe v. Office of Personnel Management, 88 M.S.P.R. 463,
      ¶ 9 (2001).
¶18         We find that the medical evidence of record is inadequate to show that the
      appellant was mentally incompetent during the filing period because it does not
      support the conclusion that his medical condition of chemical pneumonitis and
      prescribed use of steroids rendered him unable to handle his personal affairs.
      IAF, Tab 4 at 164-80, 187, 190-93. Instead, the medical evidence demonstrates
      great improvement in his medical condition and a lack of serious side effects
      from using steroids. Id. Therefore, we agree with the administrative judge that
      the appellant has failed to show that he was mentally incompetent during the
      filing period.
¶19         In conclusion, we find that the administrative judge properly affirmed
      OPM’s reconsideration decision.

                       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:




      4
        French involved an application for disability retirement under the Civil Service
      Retirement System (CSRS); Rapp involved an application under FERS. See Rapp v.
      Office of Personnel Management, 108 M.S.P.R. 674, 676 (2008).          The waiver
      provisions of the CSRS and FERS are virtually identical and have been construed
      consistently with one another. See McLaughlin, 353 F.3d at 1368; see also King,
      112 M.S.P.R. 522, ¶ 7. Compare 5 U.S.C. § 8337(b), and 5 C.F.R. § 831.1204(d), with
      5 U.S.C. § 8453, and 5 C.F.R. § 844.201(a)(4).
                                                                                  9

                          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 U.S. 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 U.S. 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
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:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
