U.S. Court of Appeals, Federal Circuit
January 19, 1999
JAMES W. WELCH, PETITIONER,
OFFICE OF PERSONNEL MANAGEMENT, RESPONDENT.
Rich, Newman, and Rader, Circuit Judges.
The opinion of the court was delivered by: Newman, Circuit Judge.
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
James W. Welch petitions for review of the decision of the Merit Systems Protection Board, Docket No. BN831E970235-I-1, affirming the decision of the Office of Personnel Management that he is not eligible for disability retirement benefits. We affirm the decision of the Board.
Petitioner was employed as a shipfitter at the Portsmouth Naval Shipyard, Portsmouth New Hampshire, from October 1984 until he was removed for excessive absences on October 30, 1987. On April 30, 1996, more than eight years after his separation from employment, Petitioner filed an application for disability retirement. The Agency denied the application since it was not filed within one year of his separation from service and petitioner had not shown that he was mentally incompetent at the time of his separation or during the year following his separation. After the Board affirmed the decision of the Agency, this appeal followed.
The relevant statute requires that an application for disability retirement be filed within one year of the applicant's separation form employment. See 5 U.S.C. '8453. *fn1 This statutory deadline may be waived only if the applicant was mentally incompetent at the time of separation or during the year following separation. Id.; Marcee v. United States, 455 F.2d 525 (Ct. Cl. 1972). The Board found that Mr. Welch had not established, either before the Agency or the Board, that he was mentally incompetent during the relevant time period.
The evidence of incompetence that Petitioner presented to the Board consisted of his own testimony that his alcoholism and depression rendered him incompetent during the years between his separation and the time he filed his application for disability, and the statements of his daughter and one of his friends to the same effect. He also provided evidence of treatment for alcoholism during the period of his employment and a brief note by a physician who had treated him only since December, 1995. The Board found that this evidence was insufficient to establish mental incompetence for the year following his separation from service.
We must affirm a decision of the MSPB unless it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. 5 U.S.C. '7703(c). The Board's finding was supported by substantial evidence, and must be affirmed.