                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     BRANDON SEWARD,                                DOCKET NUMBER
                 Appellant,                         DA-0752-14-0646-I-1

                  v.

     DEPARTMENT OF DEFENSE,                         DATE: September 29, 2015
                 Agency.




           Patricia A. Podolec, Oklahoma City, Oklahoma, for the appellant.

           Kathy A. Ault, Tinker Air Force Base, Oklahoma, for the agency.


                                          BEFORE

                             Susan Tsui Grundmann, Chairman
                                Mark A. Robbins, Member


                                           ORDER

¶1         The agency has filed a petition for review of the initial decision, which
     mitigated the appellant’s removal to a 60-day suspension.         The two Board
     members cannot agree on the disposition of the petition for review. Therefore,
     the initial decision now becomes the final decision of the Merit Systems
     Protection Board in this appeal.     Title 5 of the Code of Federal Regulations,
     section 1200.3(b) (5 C.F.R. § 1200.3(b)). This decision shall not be considered as
     precedent by the Board in any other case. 5 C.F.R. § 1200.3(d).
¶2        Based upon the initial decision, which now becomes the final decision of
     the Board, the parties’ obligations are set out below:
¶3        The agency must cancel the removal and substitute in its place a 60-day
     suspension without pay. See Kerr v. National Endowment for the Arts, 726 F.2d
                                                                                      2

     730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days
     after the date of this decision.
¶4         The agency must pay the appellant the correct amount of back pay, interest
     on back pay, and other benefits under the Office of Personnel Management’s
     regulations, no later than 60 calendar days after the date of this decision. The
     appellant must cooperate in good faith in the agency’s efforts to calculate the
     amount of back pay, interest, and benefits due, and to provide all necessary
     information the agency requests to help it carry out the Board’s Order. If there is
     a dispute about the amount of back pay, interest due, and/or other benefits, the
     agency must pay the appellant the undisputed amount no later than 60 calendar
     days after the date of this decision.
¶5         The agency must tell the appellant promptly in writing when it believes it
     has fully carried out the Board’s Order and of the actions it took to carry out the
     Board’s Order. The appellant, if not notified, should ask the agency about its
     progress. See 5 C.F.R. § 1201.181(b).
¶6         No later than 30 days after the agency tells the appellant that it has fully
     carried out the Board’s Order, the appellant may file a petition for enforcement
     with the office that issued the initial decision on this appeal if the appellant
     believes that the agency did not fully carry out the Board’s Order. The petition
     should contain specific reasons why the appellant believes that the agency has not
     fully carried out the Board’s Order, and should include the dates and results of
     any communications with the agency. 5 C.F.R. § 1201.182(a).
¶7         For agencies whose payroll is administered by either the National Finance
     Center of the Department of Agriculture (NFC) or the Defense Finance and
     Accounting Service (DFAS), two lists of the information and documentation
     necessary to process payments and adjustments resulting from a Board decision
     are attached.     The agency must timely provide DFAS or NFC with all
     documentation necessary to process payments and adjustments resulting from the
                                                                               3

Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.

                NOTICE TO THE APPELLANT REGARDING
                      YOUR RIGHT TO REQUEST
                     ATTORNEY FEES AND COSTS
      You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. § 1201.202. If you believe you meet these
requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR
DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees
motion with the office that issued the initial decision on your appeal.

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

Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)).     If you
submit your request by regular U.S. mail, the address of the EEOC is:
                          Office of Federal Operations
                   Equal Employment Opportunity Commission
                                P.O. Box 77960
                           Washington, D.C. 20013

     If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
                          Office of Federal Operations
                   Equal Employment Opportunity Commission
                               131 M Street, NE
                                 Suite 5SW12G
                           Washington, D.C. 20507
                                                                                    4

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.      See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.




FOR THE BOARD:                             ______________________________
                                           William D. Spencer
                                           Clerk of the Board
Washington, D.C.
                                                          DFAS CHECKLIST
                                          INFORMATION REQUIRED BY DFAS IN
                                         ORDER TO PROCESS PAYMENTS AGREED
                                           UPON IN SETTLEMENT CASES OR AS
                                            ORDERED BY THE MERIT SYSTEMS
                                                 PROTECTION BOARD
           AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN
                                           SETTLEMENT CASES
     CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
         OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
     1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
            and POC to send.
     2. Statement that employee was counseled concerning Health Benefits and TSP and the
            election forms if necessary.
     3. Statement concerning entitlement to overtime, night differential, shift premium,
            Sunday Premium, etc, with number of hours and dates for each entitlement.
     4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
            System), a statement certifying any lump sum payment with number of hours and
            amount paid and/or any severance pay that was paid with dollar amount.
     5. Statement if interest is payable with beginning date of accrual.

     6. Corrected Time and Attendance if applicable.

        ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if applicable.
4. Statement certified to be accurate by the employee which includes:
     a. Outside earnings with copies of W2's or statement from employer.
       b. Statement that employee was ready, willing and able to work during the period.
       c. Statement of erroneous payments employee received such as; lump sum leave, severance
       pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew
       Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
   a. Employee name and social security number.
   b. Detailed explanation of request.
   c. Valid agency accounting.
   d. Authorized signature (Table 63)
   e. If interest is to be included.
   f. Check mailing address.
   g. Indicate if case is prior to conversion. Computations must be attached.
   h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
   a. Must provide same data as in 2, a-g above.
   b. Prior to conversion computation must be provided.
   c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.
