                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KEVIN WHEELER BELL,                             DOCKET NUMBER
                  Appellant,                         DC-0752-14-0613-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: February 24, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Kevin Wheeler Bell, Takoma Park, Maryland, pro se.

           Stephen W. Furgeson, Esquire, Landover, Maryland, 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
     dismissed his reduction in force (RIF) demotion appeal for lack of jurisdiction.
     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 interpretation of statute or regulation or the erroneous application of

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. 2 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).

                                        BACKGROUND
¶2         The appellant has appealed a demotion that was the result of a RIF. Initial
     Appeal File (IAF), Tab 1 at 3. The agency filed a motion to dismiss the appeal
     asserting that the appellant was not preference eligible and therefore the Board
     lacks jurisdiction to hear the appeal.      IAF, Tab 5 at 7-14.      The administrative
     judge issued an order to show cause explaining the Board’s jurisdiction over RIF
     actions filed by U.S. Postal Service employees, including the statutory definition
     of preference eligible, and ordering the appellant to file evidence and argument
     that could establish the Board’s jurisdiction, including documentary evidence
     such as copies of his DD Form 214 (Certificate of Release or Discharge from
     Active Duty). IAF, Tab 10. The appellant did not respond to the order to show
     cause and, on July 17, 2014, the administrative judge dismissed his appeal,



     2
       There is an issue regarding the timeliness of the petition for review. Petition for
     Review (PFR) File, Tabs 1-3. However, we have not decided that issue because the
     petition for review fails to meet the Board’s criteria for review for the reasons set forth
     in this order. See Pacilli v. Department of Veterans Affairs, 113 M.S.P.R. 526, ¶ 12,
     aff’d, 404 F. App’x 466 (Fed. Cir. 2010).
                                                                                      3

     without holding a hearing, for lack of jurisdiction.         IAF, Tab 11, Initial
     Decision (ID).
¶3         The appellant has filed a petition for review, including alleged new
     evidence to support a nonfrivolous allegation that he is preference eligible.
     Petition for Review (PFR) File, Tab 1. The agency has not filed a response to the
     appellant’s petition for review.

                                        ANALYSIS
¶4         The appellant’s alleged new evidence consists of two copies of a DD
     Form 214 documenting his separation from the U.S. Marine Corps in 1986, and a
     letter dated September 30, 2015, from the Department of Veterans Affairs stating
     that he is a veteran with a service-connected disability receiving compensation.
     PFR File, Tab 1 at 4-6. Under 5 C.F.R. § 1201.115, the Board will not consider
     evidence submitted for the first time with the petition for review absent a showing
     that it was unavailable before the record was closed despite the party’s due
     diligence.    Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).      To
     constitute new evidence, the information contained in the documents, not just the
     documents themselves, must have been unavailable despite due diligence when
     the record closed. Grassell v. Department of Transportation, 40 M.S.P.R. 554,
     564 (1989); 5 C.F.R. § 1201.115(d).       The appellant has not shown that the
     information contained in the documents filed with his petition for review was
     unavailable prior to the record closing below.
¶5         Even if the appellant could establish that this information is new, it is not
     material to the Board’s jurisdictional determination. To be material, the alleged
     new evidence must be of sufficient weight to warrant an outcome different from
     that of the initial decision. Russo v. Veterans Administration, 3 M.S.P.R. 345,
     349 (1980).
¶6         The Board’s jurisdiction is limited to those matters over which it has been
     given jurisdiction by law, rule, or regulation.       Maddox v. Merit Systems
                                                                                          4

     Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Except as otherwise provided
     by law, U.S. Postal Service employees are deemed not to be employees under
     title 5 of the United States Code.     See 5 U.S.C. § 2105(e).     The provisions of
     title 5 relating to a preference eligible as defined in 5 U.S.C. § 2108(3) apply to
     an employee of the U.S. Postal Service in the same manner and under the same
     conditions as if the employee were subject to the competitive service. 39 U.S.C.
     § 1005(a)(2).   Thus, a preference-eligible employee of the U.S. Postal Service
     who has been demoted by a RIF is entitled to appeal that action to the Board.
     Love v. U.S. Postal Service, 76 M.S.P.R. 490, 493 (1997); see 39 U.S.C.
     § 1005(a)(2); 5 U.S.C. § 3501(b); 5 C.F.R. §§ 351.202(a)(2), 351.901.
¶7         A veteran who has served on active duty in the armed forces during
     statutorily specified time periods and was discharged under honorable conditions
     is preference eligible. 5 U.S.C. § 2108(1)-(3). A disabled veteran who served on
     active duty in the armed forces, was separated under honorable conditions, and
     has established the present existence of a service-connected disability or is
     receiving compensation, disability retirement benefits, or a pension because of a
     public statute administered by the Department of Veterans Affairs or a military
     department is also preference eligible. 3 Id.
¶8         The DD Form 214 the appellant has submitted on review shows that he
     received an entry-level separation.     PFR File, Tab 1 at 5-6.     According to the
     Marine Corps Separation and Retirement Manual, an entry-level separation is an
     uncharacterized administrative separation. Marine Corps Order 1900.16, Chapter
     6, ¶ 6205 (2013), available at http://www.marines.mil/News/Publications.aspx.
     Uncharacterized entry-level separations are considered “under conditions other

     3
       There is an exception to the definition of veteran and disabled veteran that does not
     apply to the appellant. See 5 U.S.C. § 2108(1)-(2) (referencing exception provided
     under 5 U.S.C. § 2108a). A person expecting to be discharged or released from active
     duty under honorable conditions can be treated as a veteran or disabled veteran for the
     purposes of making an appointment in the competitive service for a limited period of
     time while their discharge is pending. 5 U.S.C. § 2108a.
                                                                                      5

     than dishonorable” by the Department of Veterans Affairs.                38 C.F.R.
     § 3.12(k)(1).     Because the appellant did not serve during the time periods
     identified in 5 U.S.C. § 2108(1) and was not separated under honorable
     conditions, he is not preference eligible as defined at 5 U.S.C. § 2108(1)-(3), and
     the Board lacks jurisdiction over his appeal.        Dooley v. Tennessee Valley
     Authority, 43 M.S.P.R. 462, 467 n.4 (1990) (stating that an employee seeking to
     rely on his discharge to show his eligibility to file an appeal can rely only on a
     separation effected under “honorable conditions”).
¶9        The September 30, 2015 letter from the Department of Veterans Affairs
     states that the appellant was separated from active duty under honorable
     conditions.     PFR File, Tab 1 at 4.   However, the DD Form 214 the appellant
     submitted does not support this conclusion. The letter from the Department of
     Veterans Affairs is of insufficient weight to warrant an outcome different from
     that of the initial decision in light of the DD Form 214 showing that the appellant
     was separated under other than dishonorable conditions.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the U.S.
     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

     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
                                                                                  6

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 U.S. 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.
