NOTE: Pursuant to Fed . Cir. R. 47.6, this dispo s ition is not citable as precede nt. It is a pu blic record. 

## United States Court of Appeals for the Federal Circuit

04-3440 MIGUEL A. VICENTE, Petitioner,

v. OFFICE OF PERSONNEL MANAGEMENT, Respondent.

______ ____________________ DECIDED: March 9, 2005

______ ____________________ Before CLEVENGER, RADER, and DYK, Circuit Judges

. PER CURIAM.
Miguel A. Vicente seeks review of t he final decision of the Merit Systems Protection Board ("Board"), affirming th e decision of the Office of Personnel Management ("OPM") to decline reconsideration of an earlier OPM decision denying Mr. Vicente disability retirement pursuant to the Federal Employee's Retirement System. See Vicente v. OPM , No. CH844E040600-I-1 (M.S.P.B. Aug. 2, 2004). We affirm

. I Mr. Vicente served as a letter carrier in th e Lakeview Station in Chicago, Illinois. On June 30, 2003, Mr. Vicente applied for disa bility retirement based on his claim that he suffered from arthritis, depression, an d back pain. On November 4, 2003, OPMdenied Mr. Vicente's application and inform ed him that he had the right to request reconsider ation of its decis ion s o long as OPM received the request within 30 days

— i.e. , by December 4, 2003. See 5 C.F.R. § 831.109(e)(1 ) (2004) ("A request for reconsider ation must be received by OPM wit hin 30 c a lendar days fr om the date of the original decision."). OPM did not receive Mr. Vicente's request for reconsideration until January 9, 2004. On February 10, 2004, OPM informed Mr. Vicente of the regul at ory criteria for waiv ing the 30-day limit applicable to reques ts for reconsideration and allowed him 30 days to present evidence that he was not notified of the 30-day limit an d was not otherwise aware of it, or t hat he was prevented by circum stances beyond his control from making a timely request. See id. § 831.109(e)(2) (setting forth regulatory criteria for waiving the 30-day time per iod of section 831.109(e)(1)); Azarkhish v. Offi ce of Pers. Mgmt. , 915 F.2d 675, 677 (Fed. Cir. 1990) (noting that OPM has discretion to extend the time limit for filin g a req ues t for reconsi deration, but only fo r t he justifications set forth in section 831.109(e)(2)) . Mr. Vicente did not respon d. On April 13, 2004, OPM again informed Mr. Vicente of the regulator y criteria for waiver and allowed him additional time to respond. On April 27, 200 4, Mr. Vicente responded with ev idence that the Social Security Administration approv ed his application for disability benefits on November 24, 2003. On May 25, 2004, OPM denied Mr. Vicente's request for reconsider ation as untimely. II On June 22, 2004, Mr. Vicente appealed OP M's reconsideration decision to the Board and received a hearing bef ore the Administ rative Judge ("AJ") to whom his case

04-3440 2was assigned. Mr. Vicente did not allege that OPM failed to notify him of the time limit; instead, he claims circumstances beyond hi s control, namely mental incapac ity, prevented him from requesting reconsi deration by December 4, 2003. Mr. Vicente's wife, Mar i an Vi cente, testified at the hearin g that Mr. Vicente wa s in a car accident on October 29, 2003, and suffered injuries to his neck and back

. Although Mrs. Vicente testified that Mr. Vic ente's mental conditio n had deteriorated, she did not state why his mental conditi on prevented him from timel y seeking reconsider ation. M r . Vicente himself did not testify or provide any medic a l documentation of his mental condition during the time peri od from November 4, 2003, the date upon which OPM denied hi s application for disability retirement, to January 9, 2004, the date that OPM finally received Mr. Vicente's request fo r reconsideration. The AJ heard the evidence pres ented and concluded that Mr. Vicente had not established that he s u ffered from a condit i on that was beyond his control and that precluded him from filing a requ est for reconsideration within the applicable time limit. The AJ thus affirmed OPM's denial of Mr. Vicente's reques t for reconsideration. Because Mr. Vicente did not seek review from the full Board, t he AJ's dec ision bec am e final on September 6, 2004. Mr. Vicente now seeks review by this court of the Board's decision. We have jurisdiction purs uant to 28 U.S.C. § 1295(a)(9) (2000).
III We must affirm the final dec ision of th e Board u n less we det ermine that it is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.
5 U.S.C. § 7703(c)(1) (2000). When the Board's final decisi on rests on findings of fact, those findings must be support ed by substantial evidenc e. Id. § 7703(c)(3).

04-3440 3We have reviewed the decision of the B oard and the record submitted to this court. We agree with the Board's conclusion t hat Mr. Vicente did not establish that he suffered from a mental condition or was inhibited by any circumstance beyond h i s control that precluded him fr om filing with O P M a request fo r reconsideration within the timing mandate of secti on 831.109(e)(1). It wa s his burden to do so. Se e 5 CFR § 1201.56(a)(2) (" In appeals from reconsiderat ion decisions of the Office of Personnel Management involv ing retirement benefits , if the appellant filed t he application, the appellant has the burden of prov ing, by a pr eponderance of the eviden ce, entitlement to the benefits."). Substantial evidence supports the fa ct-findings that underlie the Board's conclus i on. Detecting no error of fact or law in the Board's decision, we affirm.

04-3440 4