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

by Susan McGuire Smith |

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)

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Susan McGuire Smith

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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