The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PASQUALE J. VENTRIGLIA, DOCKET NUMBER
Appellant, DC-0752-18-0388-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: May 2, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Pasquale J. Ventriglia , Warrenton, Virginia, pro se.
Earl L. Cotton , Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal of his removal for lack of Board jurisdiction. For the
reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the Washington Regional
Office for further adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
The appellant served as an Electronic Technician at the agency’s Dulles
Processing and Distribution Center in Virginia. Initial Appeal File (IAF), Tab 5
at 8. The appellant began working for the agency in 1998. Id. Effective
March 3, 2018, the agency removed the appellant on the charge of improper
conduct. IAF, Tab 4 at 2-6, Tab 5 at 8. On March 19, 2018, the appellant filed
an appeal with the Board contesting his removal, claiming that he was preference
eligible. IAF, Tab 1.
The agency moved to dismiss the appeal for lack of jurisdiction, arguing
that the appellant was not an “employee” with Board appeal rights, as he was not
preference eligible based on his military service. IAF, Tab 5. The appellant
opposed the motion, averring that he was preference eligible because he served in
the U.S. Army in an active-duty status from 1979 to 1987, and was part of a
campaign or expedition for which the Korea Defense Service Medal (KDSM) was
authorized. IAF, Tabs 9, 10, 17. In support of his position, the appellant
submitted his Department of Defense Form 214, Certificate of Discharge from
Active Duty (DD Form 214), which outlined his more than 7 years of active
service, along with documentation from the National Personnel Records Center
stating that he was awarded the KDSM. IAF, Tab 9 at 10, Tab 17 at 5.
The administrative judge issued the appellant two orders outlining his
burden to establish jurisdiction over his appeal. IAF, Tabs 7, 13. In response, the
appellant stated that his DD Form 214 did not include the KDSM because the
form was issued to him in 1987, when he was honorably discharged from the
military and the KDSM was not awarded to him until 2005. IAF, Tab 17 at 1-5.
After considering the parties’ replies, the administrative judge issued an initial
decision dismissing the appeal for lack of Board jurisdiction. IAF, Tabs 17-19,
Tab 22, Initial Decision (ID) at 1-5. Specifically, the administrative judge found
that the appellant was not an “employee” with Board appeal rights, as he failed to
prove that he was a preference eligible because his DD Form 214 did not list
3
receipt of the KDSM (or any other relevant campaign badge). 2 ID at 4. The
appellant’s petition for review followed, and the agency responded in opposition.
Petition for Review File, Tabs 1, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant met his burden of establishing Board jurisdiction over his appeal by
preponderant evidence.
The Board’s jurisdiction is not plenary, but rather is limited to that granted
by law, rule, or regulation. Edwards v. Department of Veterans Affairs ,
82 M.S.P.R. 593, ¶ 4 (1999). An appellant bears the burden of proving Board
jurisdiction in a removal appeal by preponderant evidence. 5 C.F.R. § 1201.56(b)
(2)(i)(A). Under 5 U.S.C. chapter 75, subchapter II, an individual who meets the
definition of “employee” at 5 U.S.C. § 7511(a)(1) generally has the right to
challenge his removal from the Federal service by filing an appeal with the
Board. 5 U.S.C. §§ 7512(1), 7513(d). In order for a Postal Service employee to
meet this definition, he must: (1) be a preference eligible, a management or
supervisory employee, or an employee engaged in personnel work in other than a
purely nonconfidential clerical capacity; and (2) have completed 1 year of current
continuous service in the same or similar positions. Clark v. U.S. Postal Service,
118 M.S.P.R. 527, ¶ 7 (2012); see 39 U.S.C. § 1005(a); 5 U.S.C. § 7511(a)(1)(B)
(ii).
In accordance with 5 U.S.C. § 2108(3)(A), an individual who meets the
definition of a “veteran” in section 2108(1)(A) qualifies as “preference eligible.”
A “veteran” means an individual who “[s]erved on active duty in the armed forces
during a war, [or] in a campaign or expedition for which a campaign badge has
been authorized . . . .” 5 U.S.C. § 2108(1)(A). Our reviewing court has
explained that this provision requires an appellant to prove both that he was on
active duty in the armed forces during, or at the time of, the campaign, and that
he actually served in the campaign or expedition for which the campaign badge
2
The appellant withdrew his request for a hearing. IAF, Tab 21 at 3.
4
was authorized. 3 See Perez v. Merit Systems Protection Board, 85 F.3d 591, 594
(Fed. Cir. 1996).
In the initial decision, the administrative judge found that the appellant did
not prove that he was preference eligible because his DD Form 214 does not show
that he received an authorized campaign badge. ID at 4. Yet, there is no
requirement that an appellant provide a DD Form 214 listing a campaign badge in
order to be deemed preference eligible. While producing a DD Form 214 is one
of the methods by which an appellant can prove veterans’ preference eligibility, it
is not the only method. See Hamilton v. U.S. Postal Service, 86 M.S.P.R. 215,
¶ 7 (2000) (holding that a DD Form 214 is acceptable proof of entitlement to
veterans’ preference). According to the Office of Personnel Management (OPM),
a DD Form 214 “. . . or other official documents issued by the branch of service
are required as verification of eligibility for Veterans preference.” OPM,
Veterans Services, Vet Guide,
https://www.opm.gov/policy-data-oversight/veterans-services/vet-guide-for-hr-
professionals/ (last visited May 2, 2024).
The KDSM is included on the list of campaigns and expeditions which
qualify for veterans’ preference. Id. Section 543 of the Bob Stump National
Defense Authorization Act for Fiscal Year 2003 directed the Secretary of the
Army to issue the KDSM “to each . . . member of the Army [who] served in the
Republic of Korea or the waters adjacent thereto . . .” beginning on July 28, 1954.
Pub. L. No. 107-314, 116 Stat. 2458, 2549; see 10 U.S.C. § 7286. 4 The KDSM is
not listed on the appellant’s DD Form 214 included in the record, as that form
3
An Armed Forces Expeditionary Medal, such as the KDSM, is the same for preference
eligibility purposes as a campaign badge. Sellers v. U.S. Postal Service, 98 M.S.P.R.
44, ¶¶ 9-10 (2004); OPM, Veterans Services, Vet Guide, https://www.opm.gov/policy-
data-oversight/veterans-services/vet-guide-for-hr-professionals/ (last visited May 2,
2024).
4
This provision of law was originally codified in 2002 at 10 U.S.C. § 3755. It was
renumbered as 10 U.S.C. § 3756 in 2004, Pub. L. No. 108-375, 118 Stat. 1811, 2063,
and renumbered again as 10 U.S.C. § 7286 in 2018, Pub. L. No. 115-232, 132 Stat.
1636, 1838.
5
was issued in 1987, and the KDSM was not authorized by Congress until
approximately 16 years later. Because the appellant’s DD Form 214 did not
denote receipt of the KDSM, he submitted a letter from the office at the National
Personnel Records Center that oversees military records confirming that he was
awarded the KDSM. IAF, Tab 9 at 10. This submission is the type of document
recognized in OPM’s guidance as acceptable to verify eligibility for veterans’
preference.
We find that, based on the evidence of record, the appellant proved by
preponderant evidence that he is a preference eligible employee because he
served on active duty in the armed forces in a campaign for which a campaign
badge was authorized and he also completed 1 year of current continuous service
with the Postal Service in the same or similar positions. 5 As such, the appellant is
an “employee” under 5 U.S.C. § 7511(a)(1)(B)(ii), and the Board has jurisdiction
over this appeal. See 5 U.S.C. § 7513(d). A remand of this appeal to be
adjudicated on the merits is warranted. See Collins v. U.S. Postal Service,
88 M.S.P.R. 551, ¶¶ 10-11 (2001) (remanding an appeal of a removal for further
adjudication after finding that the appellant met his burden in proving that he is
an “employee” with Board appeal rights due to his preference eligibility).
5
Title 38 of the United States Code, section 5303A(d)(1)-(2), excludes a veteran from
preference eligibility if his active-duty service began after September 7, 1980, and he
did not serve either 24 continuous months on active duty or the full period for which he
was called. This provision does not apply to the appellant, as he began his more than
7 years of continuous active-duty service tenure in 1979. IAF, Tab 17 at 5.
6
ORDER
For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this remand order. 6
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
6
As an employee with Board appeal rights, the appellant had the right to receive prior
notice and an opportunity to respond to his proposed removal. See Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 546 (1985); see also Ray v. Department of the
Army, 97 M.S.P.R. 101, ¶ 22 (2004), aff’d, 176 F. App’x 110 (Fed. Cir. 2006) (Table).
The record on whether the appellant received this minimal due process is unclear. On
remand, this issue shall be addressed by the administrative judge. In addition, the
appellant repeatedly alleged that the agency removed him in reprisal for whistleblowing
activity. IAF, Tab 9 at 11-12, Tab 20 at 3. While Postal Service employees cannot
bring a claim of whistleblower reprisal under 5 U.S.C. § 1221, the claim can be raised
as an affirmative defense in a Board appeal of an otherwise appealable action. See Hess
v. U.S. Postal Service, 123 M.S.P.R. 183, ¶ 8 (2016). If the administrative judge
determines that the appellant raised this as an affirmative defense, it too shall be
adjudicated on remand.