Must Prior Military Service Be Applied to Reduce a Federal Probationary Period?

By on May 20, 2012 in Court Cases, News

In a recent decision the Federal Circuit refused to buy a probationary employee’s argument that he should receive credit for his military service against his probation requirement in determining whether he was covered by the statutory right to appeal his probationary separation to the Merit Systems Protection Board. (Wilder v. Merit Systems Protection Board, CAFC No. 2011-3105 (4/9/12))

Wilder served in the U.S. Army for 26 years. Following that career he became a maintenance management specialist for the Navy. When it hired Wilder, the agency made clear that his appointment required successful completion of a one-year probationary period. Before that probation was completed, Navy terminated Wilder for unacceptable performance. (Opinion p. 2)

Wilder tried to appeal to the Merit Systems Protection Board. However the Board held that he had no statutory right of appeal.  (Probationary employees terminated for reasons arising after hire have a limited appeal right to MSPB–if they can show the termination was based on partisan political activity or marital status discrimination.)

Wilder argued that his prior military service should be credited by the MSPB and had it done so he would have been deemed to have been an employee, entitled to full up procedural rights in any removal action as well as to the Board having jurisdiction to hear his appeal. (p. 3)

The MSPB held that Wilder’s “prior military service cannot be tacked on to his service with the agency to meet the statutory ‘1 year of current continuous service’ requirement for the right to appeal an adverse action to the Board.” (p. 3)

The appeals court has now agreed with that interpretation and Mr. Wilder is out of luck. (p. 9)

Wilder v. MSPB (11-3105)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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  1. Guest says:

    This guy sounds like the type who give Fed Employees a bad name. I’ll bet he thought his military time allowed him to sit back and do nothing, was probably on the ROAD program while in the service…(R)etired (O)n (A)ctive (D)uty.

  2. CaptBuck says:

    I am assuming that his 26 years military service resulted in a retirement. If this is the case then he had no rigbt to claim veteran’s status to begin with. When one retires one is being compensated for one’s service in the form of retirement pay and benefits. That means one is a retiree and not a veteran and since military service is already is being compensated one starts federal service with zero years of service.

    • Manage This! says:

      Sorry CaptBuck, but you are sorely wrong in your assessment.  A retiree is in fact a Veteran – regardless of how you interpret it, it is a matter of a legal definition not open for interpretation.

      As for Veterans Preferences the qualification depends entirely on their physical / mental status at the time of retirement.  Many “Vets” are disabled in some manner which awards them veterans points for preference in CS hiring.  Though I don’t agree this should be the case in all situations, quite often the hiring is forced upon the agency unless they can show through documentation that the “Vet” is not adequately qualified in the position applied for or would be unsuitable based on other documentable issues.  Not hiring that Vet can get an agency in a huge amount of trouble if not done correctly.  Though they do start out at 0 years of service like any other new hire, there are options to buy their service if they desire.

      Considering that many “Vets” also served during war time, they are automatically awarded 5 points preference and in some cases are awarded the maximum of 10 points.  The Federal jobs expect a Vet to be a reasonable match for work they have already done before – though aptitude is a big factor for retaining them once hired.

      As to compensation equating to retiree pay and such, the buy back process for CS is the same for retirees as it is for any other vet with one exception.  The retiree, on opting to take the buyback, sacrifices their retirement pay and benefits (tricare etc…) in favor of additional years of credit toward their CS retirement.  A savvy person can quickly recognize that giving up the retirement pay in most cases would not work out to their benefit financially, but it does grant quicker access to additional annual leave and CS retirement qualification with the posibility of higher compensation.  If a Vet is hired into a position (or potentially expects to be) much higher in pay than their Military compensation was, then they could potentially end up on the winning side financially.  That is a real test of which each vet must examine their potential carefully and weight the costs.  A bad decision could end up costing them significantly and the risk of loosing it all is on the table as well if they were to do something that violated the law or resulted in their termination for misconduct.  Bottom line, they could loose both retirements.  Stack that in the equation and you should be able to see how quickly your comment becomes not only inacurate but also misleading.

  3. HR Manager (Retired) says:

    Good decision. 

  4. steve5656546346 says:

    So, what part of “probationary period” was not clear to the former employee?

    Did this employee not realize that the ONLY purpose of the probationary period was so that the full scope of appeal rights do NOT apply?  That’s the whole point.

  5. Fed Peasant says:

    Typical ex-GI attitude.

    • Fed says:

      He got fired for not doing his job. Thank god he was probationary or they would have never been able to get rid of him!!  He couldn’t even be bothered to do his job for the first year.  How can you say they mistreated him?

    • ex-GI says:

      Not sure what you mean by that but I’m sure you’re a nonner

    • lazycs says:

      sounds like he had adapted to the CS mentality of no more than 20 hours  week doing any thing productive

  6. lazycs says:

    Gee that’s a shock making Vets jump thru hoops while new grads waltz thru

    • pungokayak says:

      The vets get the same treatment as new grads – there is a probation period.  The same skills and behaviors that make one successful in military life don’t always translate to the civilian workforce.  It is good to hear that supervisors are making decisions during the probationary period and correcting bad hire decisions.

      • lazycs says:

        Baloney Presidental fellows have 0 probation and the same for new college grad programs

        • pungokayak says:

          I don’t know about Presidential Fellows but I the DoD your garden variety new engineer or scientist has a probationary period despite their shiny new degree

          ________________________________

          • lazycs says:

            Amazing that you were hired when the laws of this country require Vet preference

          • Manage This! says:

            Amazing that you have so much time to post in these articles.  I am beginning to think that you believe it your job to tell everyone what to believe – even when it is contrary to obvious and clear facts.
            Your tag in these discussions appears to suit your status quite well.  A Lazy CS – spending your whole day reading articles and posting nasty comments.

        • small agency attorney says:

          Technically you’re right, newly hired employees in the excepted service don’t have to serve a probationary period.  However, and this is a big however, for the first two years non-preference eligibles aren’t employees as that term is used in Chapter 75.  In other words, they can basically be terminated for any non-discriminatory reason.  Preference eligibles become employees after a year under the statute. 

        • PMF and a Veteran says:

          Actually, I entered federal service as a Presidential Fellow, and there IS a probationary period.  Check your facts. 

    • Vet Threat says:

      Vets still need to perform their work at an acceptable level… If he had done his job, he would still have his job.

      • lazycs says:

        Sorry the only reason why he got the job was a clerical error cs hate to hire vets and will place any impediment to following the law

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