The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARMELITO GARAY, DOCKET NUMBER
Appellant, DA-0752-15-0235-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: September 24, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Carmelito Garay, Fort Worth, Texas, pro se.
Shelly M. Frank, Homestead Air Reserve Base, Florida, 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 agency’s action removing him from his dual status technician
position based on his loss of active military reserve status. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
¶2 The agency removed the appellant from his dual status Air Reserve
Technician position because he no longer met the requirements of the position,
based on his loss of active military reserve status. Initial Appeal File (IAF),
Tab 14 at 28-30, 44-46. The appellant filed this timely appeal. IAF, Tab 1. He
did not request a hearing. Id. In an initial decision, the administrative judge
affirmed the agency’s action based on the written record. IAF, Tab 16, Initial
Decision (ID).
¶3 A military technician (dual status) is required, as a condition of that
employment, to maintain active military reserve membership. 10 U.S.C.
§ 10216(a)(1)(B). The appellant stipulated that he is no longer an active member
of the reserve. IAF, Tab 10 at 1. Because the appellant no longer met a condition
of his employment, the administrative judge affirmed the appellant’s removal. ID
at 2-3. The administrative judge further found that the appellant’s removal
promoted the efficiency of the service and was reasonable under the
circumstances presented. ID at 3-6.
¶4 A dual status technician who is ineligible for an unreduced annuity and is
under age 60 when dual status is lost must be offered the opportunity to:
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(1) reapply for, and, if qualified, be appointed to, a position as a military
technician (dual status); or (2) reapply for a civil service position that is not a
technician position. See 10 U.S.C. § 10218(a)(3)(A). The administrative judge
found that the appellant was not eligible for an unreduced annuity and was under
the age of 50 when he lost his dual status. ID at 4. The administrative judge
further found that the appellant was not interested in either of the options noted
above, see 10 U.S.C. § 10218(a)(3)(A), but instead only requested that he be
given a nondual status technician position. ID at 5. As the administrative judge
correctly observed, the agency is not required to consider the appellant for a
nondual status technician position, of which she noted there are few available. ID
at 5-6 and n.1.
¶5 In his petition for review, the appellant essentially argues that the agency
should allow him to remain in his position until he is eligible to retire. Petition
for Review File, Tab 1 at 6. However, in quoting the relevant authorities, he
acknowledges that doing so is discretionary in that the agency “may” retain an
individual like the appellant who lost his active reserve status for medical
reasons, id., but he identifies no authority for the proposition that the agency must
do so, or that the Board is authorized to review the agency’s actions concerning
such a determination, regardless of whether those actions are substantive or
procedural in nature.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
United States 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
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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
United States 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.