                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SCOTT P. STANFORD,                              DOCKET NUMBER
                   Appellant,                        SF-0752-15-0444-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: September 15, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Mary Jo Henderson, Conyers, Georgia, for the appellant.

           Major Corey Pullig and Jennifer Gazzo, Camp Pendleton, California, 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
     sustained his removal. 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous application of 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. Therefore, we DENY the
     petition for review. Except as expressly MODIFIED by this Final Order to find
     that the penalty of removal would be reasonable even if the charge of
     insubordinate defiance of authority by failure to follow policies/regulations were
     not sustained, we AFFIRM the initial decision.

                                      BACKGROUND
¶2         The appellant was a GS‑12 Engineering Technician with the agency’s
     Water Resources Division at Camp Pendleton, California.          Initial Appeal File
     (IAF), Tab 6 at 14, 20.     In addition, for approximately 5 years prior to his
     removal, among other duties, the appellant served as the Water Resources
     Division’s Recycled Water Manager and was considered a subject matter expert
     in recycled water, which is filtered and disinfected waste water that is treated to a
     high level to meet specified criteria. IAF, Tab 6 at 29, 131, Tab 35, Hearing
     Compact Disc (HCD) (testimony of J.S., the Director of Camp Pendleton’s Office
     of Water Resources, and Facilities Maintenance Officer Lieutenant Colonel J.L.).
¶3         On December 11, 2014, the agency proposed the appellant’s removal based
     on two charges:       (1) falsification of time and attendance records; and
     (2) insubordinate defiance of authority by failure to follow policies/regulations.
     IAF, Tab 6 at 34‑38.      After the appellant orally responded to the notice of
     proposed removal, id. at 24‑28, on February 27, 2015, the deciding official
                                                                                            3

     sustained the charges and notified the appellant that he would be removed from
     Federal service, effective that same day, id. at 20‑21. However, the agency also
     presented the appellant with a last chance agreement, which would have held his
     removal in abeyance, provided that, among other things, he admitted to the
     charged misconduct.       Id. at 15‑19; HCD (testimony of the deciding official,
     Captain W.W.).     The appellant ultimately decided not to sign the last chance
     agreement and was removed from Federal service, effective March 18, 2015.
     IAF, Tab 6 at 14; HCD (testimony of the appellant and Captain W.W.).
¶4         Thereafter, the appellant filed a timely Board appeal challenging his
     removal    and   raised    affirmative   defenses    of   harmful    procedural    error,
     whistleblower reprisal, and prohibited personnel practices in violation of 5 U.S.C.
     § 2302(b)(6). IAF, Tab 1 at 4, 6, Tab 15 at 2‑6, Tab 17 at 2‑3. After holding the
     requested hearing, the administrative judge issued an initial decision finding that
     the agency proved both of the charges.          IAF, Tab 37, Initial Decision (ID)
     at 4-16; IAF, Tab 1 at 2. She found that the appellant failed to prove any of his
     affirmative defenses. 2 ID at 16‑22. Finally, she found that the agency proved a
     nexus between the charges and the efficiency of the service, ID at 22‑23, and that
     the penalty of removal was reasonable, ID at 23‑24.
¶5         The appellant has filed a petition for review of the initial decision, in which
     he challenges the administrative judge’s findings regarding the charges, nexus,
     and penalty. Petition for Review (PFR) File, Tab 1 at 3‑21, 24‑27. He also
     contests the administrative judge’s finding that he failed to prove his affirmative
     defense of harmful procedural error, and argues for the first time on review that


     2
       On review, the appellant does not challenge the administrative judge’s findings that he
     failed to prove his affirmative defenses of whistleblower reprisal and prohibited
     personnel practices in violation of 5 U.S.C. § 2302(b)(6), and we discern no basis to
     disturb these well‑reasoned findings. Petition for Review File, Tab 1; ID at 16‑19,
     21-22.
                                                                                       4

     the agency violated his due process rights. Id. at 21‑23. The agency has not
     responded to the petition for review.

                     DISCUSSION OF ARGUMENTS ON REVIEW
     The administrative judge correctly found that the agency proved the charge of
     falsification of time and attendance records.
¶6        In the charge of falsification of time and attendance records, the agency
     alleged that, on four occasions between March and May 2014, the appellant
     intentionally made false claims for hazardous duty pay on his timecards, resulting
     in his receiving approximately $1,600 in hazardous duty pay to which he was not
     entitled. IAF, Tab 6 at 34-35. The following facts are undisputed. The appellant
     made the claims for hazardous duty pay at issue based on his exposure to recycled
     water. Id.; HCD (testimony of the appellant, Lieutenant Colonel J.L., and the
     proposing official, Deputy Assistant Chief of Staff and Facilities Manager S.W.).
     On three of the timecards at issue, the appellant used a pay code indicating that he
     was entitled to hazardous duty pay based on exposure to poison and, on the fourth
     timecard, he used a pay code indicating that he was entitled to hazardous duty pay
     based on exposure to hazardous microorganisms. IAF, Tab 6 at 39, 42, 64‑65;
     HCD (testimony of the appellant, Director J.S., and Lieutenant Colonel J.L.).
¶7        To establish a charge of falsification, the agency must prove by
     preponderant   evidence    that   the   appellant   knowingly   supplied   incorrect
     information and that he did so with the intention of defrauding the agency.
     O’Lague v. Department of Veterans Affairs, 123 M.S.P.R. 340, ¶ 6 (2016); Boo v.
     Department of Homeland Security, 122 M.S.P.R. 100, ¶ 10 (2014).             For the
     reasons discussed below, we agree with the administrative judge that the agency
     proved the charge of falsification of time and attendance records. ID at 4‑12.
                                                                                           5

           The administrative judge correctly found that the appellant knowingly
           supplied incorrect information on his timecards.
¶8         The administrative judge correctly found that the appellant supplied
     incorrect information on his time cards when he claimed that he was entitled to
     hazardous duty pay. ID at 9‑10. J.S., the appellant’s second-line supervisor and
     a licensed professional water resources engineer, testified that recycled water
     does not contain poison or hazardous microorganisms and that bodily contact with
     recycled water is not harmful. ID at 6; HCD (testimony of Director J.S.). The
     agency uses recycled water in the irrigation system at Camp Pendleton’s hospital,
     and to water its golf course, pastures where horses graze, and fields where
     children play soccer and Marines perform physical training exercises. ID at 3,
     5-6; HCD (testimony of the appellant, Director J.S., Lieutenant Colonel J.L., and
     Deputy Assistant Chief S.W.). The appellant has not identified any poison or
     hazardous microorganisms in recycled water, either below or on review. HCD
     (testimony of the appellant); PFR File, Tab 1. Therefore, we discern no reason to
     disturb the administrative judge’s finding, which is supported by the weight of the
     record evidence. 3 See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997)
     (finding no reason to disturb an administrative judge’s findings when she
     considered the evidence as a whole, drew appropriate inferences, and made
     reasoned   conclusions);    Broughton     v.   Department    of   Health   &    Human
     Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶9         The administrative judge further found that the appellant knowingly
     supplied the incorrect information. ID at 9‑10. After analyzing the evidence and
     conducting a credibility analysis under the appropriate factors set forth in Hillen
     v. Department of the Army, 35 M.S.P.R. 453, 458 (1987), including the

     3
       We have considered the appellant’s generalized allegations on review that recycled
     water is potentially dangerous, and his claim that his blue jeans once became discolored
     after he was sprayed with recycled water, and find that they do not provide a basis for
     disturbing the initial decision. PFR File, Tab 1 at 5, 12‑13; HCD (testimony of the
     appellant).
                                                                                       6

      appellant’s demeanor, she found that his claim that he believed that recycled
      water contained poison or hazardous microorganisms was not credible.            ID
      at 9-10.     Among other things, she found that the appellant’s claim was
      inconsistent with his apparent lack of concern for the Marines, children, and other
      individuals at Camp Pendleton who came into contact with recycled water, and
      his own advocacy for the expanded use of recycled water at Camp Pendleton. ID
      at 9.
¶10           On review, the appellant challenges the administrative judge’s credibility
      determination, arguing that he did not advocate for the expanded use of recycled
      water at Camp Pendleton, but instead only advocated that additional staff be hired
      to support a potential expansion of the recycled water program directed by others.
      PFR File, Tab 1 at 5‑8. As an initial matter, his argument is a distinction without
      a difference. If the appellant believed that recycled water contained poison or
      hazardous microorganisms, it is inherently improbable that the primary focus of
      his concern regarding Camp Pendleton’s expanded use of recycled water would
      be an upgrade of his own position and hiring additional staff (as indicated by his
      evidence on review) rather than the safety of the public. See id. at 6-8; IAF,
      Tab 16 at 12‑13, Tab 22 at 26.
¶11           Moreover, J.S., the appellant’s second‑level supervisor, testified that the
      appellant was seeking to expand the recycled water program “as much as
      possible,” and, specifically, advocating for Camp Pendleton to use recycled water
      in toilets in barracks where enlisted Marines resided.        HCD (testimony of
      Director J.S.). The administrative judge found J.S.’s testimony to be credible,
      and her credibility determination was based in part on an assessment of J.S.’s
      demeanor. ID at 6, 9; see Little v. Department of Transportation, 112 M.S.P.R.
      224, ¶ 4 (2009) (finding that, when an administrative judge has heard live
      testimony, her credibility determinations must be deemed to be at least implicitly
      based upon the demeanor of the witnesses). The appellant’s argument on review
                                                                                           7

      that his advocacy was limited to staffing concerns does not provide a sufficiently
      sound reason to disturb the administrative judge’s finding.            See Haebe v.
      Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (finding that, when
      an administrative judge’s credibility determination is based explicitly or
      implicitly on the observation of the demeanor of witnesses testifying at a hearing,
      the Board cannot set the determination aside absent “sufficiently sound” reasons
      for doing so).
¶12         On review, the appellant also reiterates his assertions, raised below, that he
      was merely mistaken or confused about either the contents of recycled water or
      eligibility for hazardous duty pay.     PFR File, Tab 1 at 11‑13, 16‑17, 19‑20.
      These arguments constitute mere disagreement with the administrative judge’s
      well‑reasoned findings and credibility determinations, and do not provide a basis
      to disturb the initial decision. See Yang v. U.S. Postal Service, 115 M.S.P.R. 112,
      ¶ 12 (2010) (finding that mere disagreement with the administrative judge’s
      findings is insufficient to disturb the initial decision). The appellant alleges that
      he began claiming hazardous duty pay as the result of a November 2013 training
      session on the subject of time card entries and pay administration provided by the
      agency’s Human Resources Administration. Yet, he failed to present any cogent
      explanation, either below or on review, as to why that training, which included a
      brief overview on hazardous duty pay, led him to believe that he qualified for
      such pay based on his work with recycled water.           PFR File, Tab 1 at 11‑13,
      16-17, 19‑20; HCD (testimony of the appellant). He also failed to explain how or
      why, as the Recycled Water Manager and as a subject matter expert in recycled
      water, he would be confused about the contents of recycled water. 4 PFR File,
      Tab 1 at 11‑13, 16‑17, 19‑20; HCD (testimony of the appellant).

      4
        Regarding the appellant’s argument on review that the administrative judge erred in
      finding that he knowingly provided incorrect information because the proposing official
      admitted on cross examination that it was “possible” that the appellant did not
      understand recycled water or hazardous duty pay, PFR File, Tab 1 at 16, the agency
                                                                                            8

¶13         In sum, for the reasons discussed above, we agree with the administrative
      judge that the agency proved that the appellant knowingly supplied incorrect
      information on his timecards.

            The administrative judge correctly found that the appellant intended to
            defraud the agency.
¶14         We further agree with the administrative judge that the agency proved that
      the appellant provided the incorrect information at issue with the intent to defraud
      the agency. ID at 10‑12. The intent element of a falsification charge requires
      two distinct showings: (1) that the appellant intended to deceive or mislead the
      agency; and (2) that he intended to defraud the agency for his own private
      material gain.   Leatherbury v. Department of the Army, 524 F.3d 1293, 1300
      (Fed. Cir. 2008); O’Lague, 123 M.S.P.R. 340, ¶ 6; Boo, 122 M.S.P.R. 100, ¶ 10.
      Intent may be established by circumstantial evidence or inferred when the
      misrepresentation is made with a reckless disregard for the truth or with
      conscious purpose to avoid learning the truth. O’Lague, 123 M.S.P.R. 340, ¶ 6.
      The Board may consider plausible explanations for an employee’s providing
      incorrect   information in determining        whether the     misrepresentation was
      intentional. Boo, 122 M.S.P.R. 100, ¶ 10. Likewise, the absence of a credible
      explanation for the misrepresentation can constitute circumstantial evidence of
      intent to deceive. Nelson v. U.S. Postal Service, 79 M.S.P.R. 314, ¶ 7 (1998).
      Whether intent has been proven must be resolved by considering the totality of
      the circumstances. O’Lague, 123 M.S.P.R. 340, ¶ 6.



      bears the burden of proving the elements of a falsification charge by a preponderance of
      the evidence, which the Board’s regulations define as “the degree of relevant evidence
      that a reasonable person, considering the record as a whole, would accept as sufficient
      to find that a contested fact is more likely to be true than untrue.” 5 C.F.R.
      §§ 1201.4(q), 1201.56(b)(1)(ii).    Even if it were “possible” that the appellant
      misunderstood recycled water or hazardous duty pay, for the reasons discussed above,
      the administrative judge properly found the agency proved that it was more likely than
      not that he knew that the information that he provided was incorrect. ID at 9‑10.
                                                                                            9

¶15         Here, in finding that the agency proved that the appellant intended to
      defraud or deceive the agency, the administrative judge properly considered that
      the appellant first attempted to claim hazardous duty pay around the time that he
      learned that he would not receive a promotion or upgrade to a GS‑13. 5 ID at 10;
      IAF, Tab 22 at 12‑14; HCD (testimony of Director J.S.).            The administrative
      judge also properly considered the lack of a credible explanation for the
      appellant’s misrepresentation. ID at 10, 12; see Nelson, 79 M.S.P.R. 314, ¶ 7.
      Among other things, she found that, although the appellant attempted to attribute
      his actions to a misunderstanding of the November 2013 Human Resources
      Administration training, he did not claim hazardous duty pay until almost
      3 months after that training, despite his purported concerns about exposure to
      recycled water.     ID at 10; IAF, Tab 21 at 17‑19; HCD (testimony of the
      appellant).
¶16         The administrative judge also considered and rejected the appellant’s claims
      that he did not intend to defraud the agency because other agency employees were
      either aware of or authorized his claims for hazardous duty pay. ID at 10‑12. In
      pertinent part, the appellant claimed that he did not intend to defraud the agency
      because: (1) his first‑level supervisor, M.E., was aware that he was claiming
      hazardous duty pay and signed his timecards; and (2) his third‑level supervisor,
      Lieutenant Colonel J.L., purportedly directed him to use the pay code for
      hazardous microorganisms. 6 IAF, Tab 1 at 6, Tab 6 at 39‑42, Tab 22 at 4, 26;
      HCD (testimony of the appellant).


      5
       The appellant previously had performed essentially the same duties for approximately
      5 years without claiming hazardous duty pay. HCD (testimony of Director J.S. and
      Deputy Assistant Chief S.W.).
      6
       The appellant also argued below that he did not intend to deceive the agency because
      he consulted with an administrative assistant, L.P., about his use of hazardous duty pay
      codes. IAF, Tab 22 at 12‑14; HCD (testimony of the appellant). The appellant
      contacted L.P. because he received an error message when he attempted to input a
                                                                                               10

¶17         The administrative judge found that M.E.’s knowledge of the appellant’s
      claims for hazardous duty pay did not demonstrate that the appellant lacked intent
      to deceive because M.E. did not understand many aspects of recycled water, and
      failed to ask pertinent questions about the appellant’s claim for hazardous duty
      pay. ID at 11. The appellant’s general assertions on review that M.E. was aware
      of and authorized his claims for hazardous duty pay do not provide a basis to
      disturb that finding. 7 PFR File, Tab 1 at 13, 15, 21; see Yang, 115 M.S.P.R. 112,
      ¶ 12; Crosby, 74 M.S.P.R. at 106; Broughton, 33 M.S.P.R. at 359. Moreover, the
      record reflects that the agency disciplined M.E. for his role in signing the
      appellant’s timecards without ensuring that they were accurate. HCD (testimony
      of Deputy Assistant Chief S.W.).
¶18         The administrative judge further found that the appellant’s claim that
      Lieutenant Colonel J.L. had authorized his claim for hazardous duty pay was
      “misguided at best and disingenuous at worst.” ID at 10. It is undisputed that, in
      early 2014, when Lieutenant Colonel J.L. had been in his position for only a few

      hazardous duty pay code applicable only to wage grade employees in the agency’s
      electronic timekeeping system, and L.P. contacted the payroll office to assist him. IAF,
      Tab 22 at 12‑14; HCD (testimony of Lieutenant Colonel J.L.). The administrative
      judge found that L.P. did not authorize the appellant’s claims for hazardous duty pay
      because her role was limited to answering questions regarding pay codes, and she had
      no authority to determine whether an employee was eligible for hazardous duty pay.
      ID at 10‑11. The appellant does not challenge that finding on review, and we discern
      no basis to disturb it. PFR File, Tab 1 at 12.
      7
        We also have considered the appellant’s argument on review that the administrative
      judge’s statement that M.E. was a “plumber by training” was unsupported by the record.
      PFR File, Tab 1 at 15, 25‑26; ID at 11. We find that the administrative judge’s error in
      stating that M.E. was trained as a plumber did not affect the appellant’s substantive
      rights and does not form a basis for reversing the initial decision. See Panter v.
      Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory
      error that is not prejudicial to a party’s substantive rights provides no basis for reversal
      of an initial decision). The material fact is not that M.E. was specifically trained as a
      plumber, but rather, that he did not understand all aspects of recycled water, a finding
      supported by S.W.’s testimony. HCD (testimony of Deputy Assistant Chief S.W.); see
      5 C.F.R. § 1201.115(a) (defining a material factual error as one that is of sufficient
      weight to warrant an outcome different from that of the initial decision).
                                                                                          11

      months, he learned that the appellant was claiming hazardous duty pay based on
      exposure to poison and spoke with him about this because he was concerned.
      HCD (testimony of the appellant and Lieutenant Colonel J.L.).                      The
      administrative judge found Lieutenant Colonel J.L.’s testimony—that, during that
      conversation, he agreed to the hazardous microorganisms pay code because he
      relied on the appellant’s representations and subject matter expertise—to be more
      credible than the appellant’s testimony that Lieutenant Colonel J.L. directed him
      to use the pay code. ID at 10. Among other things, the administrative judge
      found that Lieutenant Colonel J.L. had nothing to gain with his frank testimony
      that he did not understand recycled water or hazardous duty pay, and should have
      asked more questions to fully understand the situation. ID at 10. She further
      found that, when the appellant spoke with Lieutenant Colonel J.L., he was aware
      that Lieutenant Colonel J.L. was new to his position and would not have a full
      appreciation of either hazardous duty pay or recycled water. ID at 10.
¶19         On review, the appellant challenges the administrative judge’s credibility
      determination, arguing that Lieutenant Colonel J.L. was not credible because he
      was afraid that S.W. would hold him responsible. PFR File, Tab 1 at 11‑12. We
      find that this argument does not provide a basis to disturb the administrative
      judge’s well‑reasoned credibility determination. See Haebe, 288 F.3d at 1301;
      see also Thomas v. U.S. Postal Service, 116 M.S.P.R. 453, ¶ 5 (2011) (finding
      that the credibility determinations of an administrative judge are virtually
      unreviewable on appeal). The record does not indicate that Lieutenant Colonel
      J.L. was afraid that S.W. would hold him responsible.            HCD (testimony of
      Lieutenant Colonel J.L.). Moreover, even if Lieutenant Colonel J.L. had such a
      fear, it is illogical to conclude that it would motivate him to falsely testify that he
                                                                                        12

      agreed to a hazardous duty pay code without sufficient knowledge and
      information. 8
¶20         In sum, we agree with the administrative judge that the knowledge of or
      authorization by other agency employees, who did not understand recycled water
      or hazardous duty pay and relied on the appellant’s subject matter expertise, does
      not indicate that the appellant did not intend to defraud the agency. ID at 10‑12.
      While the appellant’s supervisors may bear responsibility for failing to question
      him and gain an understanding of whether his hazardous duty pay claims were
      warranted, it is the appellant’s misconduct that is at issue in this appeal, not the
      failures of his supervisors. 9
¶21         Finally, we agree with the administrative judge that the agency established
      that the appellant intended to defraud the agency for his private material gain;
      specifically, to obtain approximately $1,600 in hazardous duty pay to which he
      was not entitled. ID at 10; see Boo, 122 M.S.P.R. 100, ¶ 12. For this reason, and
      the reasons discussed above, we affirm the administrative judge’s finding that the
      agency proved the charge of falsification of time and attendance records.

      The Board need not resolve whether the agency proved the charge of
      insubordinate defiance of authority by failure to follow policies/regulations.
¶22         In the charge of insubordinate defiance of authority by failure to follow
      policies/regulations, the agency alleged that, in April 2014, the appellant failed to
      submit a required Quarterly Reclaimed Water Site Inspections Report (the

      8
         We also have considered the appellant’s argument on review that Lieutenant
      Colonel J.L. should have understood hazardous duty pay because he attended the
      November 2013 Human Resources Administration training, and find it to be both
      unpersuasive and inconsistent with the appellant’s argument that this exact same
      training caused him to erroneously claim hazardous duty pay. PFR File, Tab 1 at 11;
      HCD (testimony of the appellant).
      9
        For this reason, we find that the appellant’s arguments regarding Prouty v. General
      Services Administration, 122 M.S.P.R. 117 (2014), a decision addressing the duty of
      Senior Executive Service employees to investigate and be aware of the activities of
      their subordinates, are inapposite. PFR File, Tab 1 at 26‑27.
                                                                                          13

      quarterly report) to the state of California, resulting in a violation of law, and
      leaving Camp Pendleton subject to a notice of violation from the State Water
      Resources Control Board and a potential lawsuit under the Clean Water Act. IAF,
      Tab 6 at 35. The agency further alleged that the preparation and submission of
      this report were within the parameters of the appellant’s position description and
      that he had submitted the report for the prior 2 years. Id.
¶23         The administrative judge found that the agency proved the charge.             ID
      at 12-16. She found that it was undisputed that the appellant failed to prepare and
      submit the report.    ID at 13.    She further found that the appellant’s position
      description required him to prepare and submit the report, ID at 15, and that his
      claim that his supervisors had agreed that he did not need to do so was not
      credible, ID at 14‑16.     Finally, she found that, although the agency did not
      establish that its own policies or regulations required the appellant to prepare and
      submit the quarterly report, the fact that the report was required under California
      state law was sufficient to prove the charge. ID at 16.
¶24         Insubordination is the willful and intentional refusal to obey an authorized
      order of a superior officer that the officer is entitled to have obeyed. Phillips v.
      General Services Administration, 878 F.2d 370, 373 (Fed. Cir. 1989). A charge
      of “insubordinate defiance of authority” also requires proof of defiant or insolent
      behavior. Alvarado v. Department of the Air Force, 103 M.S.P.R. 1, ¶ 23 (2006);
      Bennett v. Department of the Air Force, 84 M.S.P.R. 132, ¶ 6 (1999).
¶25         On review, as he did below, the appellant argues that the agency did not
      prove the charge because it did not establish that he was ordered to prepare and
      submit the quarterly report. 10 PFR File, Tab 1 at 10, 17‑18; HCD (testimony of
      the appellant). We agree with him that this is cause for concern, when, as here, a
      failure to obey an order is an element of a charge of insubordinate defiance of
      10
         The appellant also contests the administrative judge’s finding that his position
      description required him to prepare and submit the quarterly report, and challenges her
      credibility determination. PFR File, Tab 1 at 8‑10, 17.
                                                                                           14

      authority. 11 See Phillips, 878 F.2d at 373; Alvarado, 103 M.S.P.R. 1, ¶ 23;
      Bennett, 84 M.S.P.R. 132, ¶ 6. Neither the proposal nor decision letters reference
      the failure to obey an order, IAF, Tab 6 at 20‑23, 34‑39, and, in the initial
      decision, the administrative judge did not make any finding that the appellant
      failed to obey an order, ID at 12‑16.
¶26          Nevertheless, it is arguable that, because the agency charged the appellant
      with    “insubordinate     defiance     of    authority   by    failure    to    follow
      policies/regulations,” rather than “insubordinate defiance of authority,” the
      agency was required to establish only that he failed to comply with policies or
      regulations, and an order was not required. See IAF, Tab 6 at 35. We need not
      resolve this    issue, though,     because,   as discussed     below regarding      the
      reasonableness of the penalty, we find that the penalty of removal would be
      reasonable even if the charge of falsification of time and attendance records were
      the sole sustained charge. 12

      The agency proved a nexus between the charge of falsification of time and
      attendance records and the efficiency of the service.
¶27          On review, the appellant challenges the administrative judge’s finding that
      the agency proved a nexus between his misconduct and the efficiency of the
      service, arguing that she erroneously stated that his misconduct affected the
      morale of his subordinates and other agency staff, when in fact he had no
      subordinates, and there was no proof that his misconduct affected anyone’s
      morale. PFR File, Tab 1 at 3‑4; ID at 22. Even assuming that the administrative


      11
         Although the agency may have overlooked the appellant’s failure to prepare and
      submit the quarterly report, the Board is required to review the agency’s decision on an
      adverse action solely on the grounds invoked by the agency, and may not substitute
      what it considers to be a more adequate or proper basis. Fargnoli v. Department of
      Commerce, 123 M.S.P.R. 330, ¶ 7 (2016).
      12
         For this same reason, we do not address the appellant’s arguments regarding the
      requirements of his position description and the administrative judge’s credibility
      determination. PFR File, Tab 1 at 8‑10, 17.
                                                                                      15

      judge erred in these findings, her errors would not provide a basis for reversing
      the initial decision. See Panter, 22 M.S.P.R. at 282.
¶28        Falsification is inherently destructive of the agency’s faith in an employee’s
      trustworthiness and honesty, essential elements in the relationship of an employer
      and employee. Connett v. Department of the Navy, 31 M.S.P.R. 322, 328 (1986),
      aff’d, 824 F.2d 978 (Fed. Cir. 1987) (Table). The Board has consistently found a
      nexus between falsification of records and the efficiency of the service.      See
      Washington v. Department of Agriculture, 22 M.S.P.R. 374, 376 (1984); Trybul v.
      Department of the Army, 22 M.S.P.R. 290, 292 (1984), aff’d, 776 F.2d 1059
      (Fed. Cir. 1985) (Table). For these reasons, regardless of whether the appellant
      had subordinates or his misconduct affected the morale of other staff, the
      administrative judge correctly concluded that the agency established a nexus
      between the charge of falsification of time and attendance records and the
      efficiency of the service. ID at 22‑23.

      The administrative judge correctly found that the appellant failed to prove his
      affirmative defense of harmful procedural error.
¶29        On review, the appellant contests the administrative judge’s finding that he
      failed to prove his affirmative defense of harmful procedural error. PFR File,
      Tab 1 at 21‑26. The affirmative defense was based on a claim that the agency
      violated a provision of its Civilian Human Resources Manual when it allegedly
      considered a report prepared by its Office of the Inspector General (OIG) in
      reaching the decision to remove him. IAF, Tab 22 at 3‑4, 20‑21. Based on the
      testimony of the proposing and deciding officials, the administrative judge found
      that neither of them had reviewed the OIG report and, therefore, the appellant did
      not prove his claim of harmful procedural error. ID at 19‑21.
¶30        On review, the appellant argues that the testimony of the proposing and
      deciding officials was not credible.       PFR File, Tab 1 at 21‑22.           The
      administrative judge considered these same arguments below, and addressed them
                                                                                      16

      in the initial decision. ID at 20. The appellant’s repetition of his arguments on
      review does not provide a basis to disturb the administrative judge’s finding that
      he failed to prove his affirmative defense of harmful procedural error.        See
      Haebe, 288 F.3d at 1301; Thomas, 116 M.S.P.R. 453, ¶ 5; Davison v. Department
      of Veterans Affairs, 115 M.S.P.R. 640, ¶ 9 (2011).

      The Board will not consider the appellant’s new argument in the first instance on
      review that the agency violated his due process rights.
¶31         For the first time on review, the appellant contends that the agency violated
      his due process rights when it failed to provide him with a memorandum from a
      General that the proposing official considered in preparing the notice of proposed
      removal.      PFR File, Tab 1 at 22‑23; HCD (testimony of Deputy Assistant
      Chief S.W.).    We decline to consider this argument because the appellant has
      failed to demonstrate that it is based on new and material evidence that previously
      was unavailable to him despite due diligence. Banks v. Department of the Air
      Force, 4 M.S.P.R. 268, 271 (1980) (finding that the Board generally will not
      consider an argument raised for the first time on review absent a showing that it
      is based on new and material evidence not previously available despite the party’s
      due diligence); 5 C.F.R. § 1201.24(b) (requiring an appellant to show good cause
      for raising claims or defenses for the first time after the conference defining the
      issues in the case); see Harding v. U.S. Naval Academy, 567 F. App’x 920, 924
      (Fed. Cir. 2014) (finding that the U.S. Court of Appeals for the Federal Circuit
      would not consider an appellant’s due process claim raised in the first instance on
      appeal). 13




      13
        Although Harding is an unpublished decision, the Board may rely on unpublished
      Federal Circuit decisions when, as here, it finds the court’s reasoning persuasive.
      Mauldin v. U.S. Postal Service, 115 M.S.P.R. 513, ¶ 12 (2011).
                                                                                            17

      The penalty of removal is reasonable for the charge of falsification of time and
      attendance records.
¶32         Because we make no finding as to whether the agency proved the charge of
      insubordinate defiance of authority by failure to follow policies/regulations, we
      must evaluate whether the penalty of removal is reasonable if the charge of
      falsification of time and attendance records were the sole sustained charge. For
      the reasons discussed below, we conclude that the penalty of removal is
      reasonable.
¶33         When the Board does not sustain all of the agency’s charges, it will
      carefully consider whether the sustained charges merit the agency’s imposed
      penalty.   See Boo, 122 M.S.P.R. 100, ¶ 17.          In such a case, the Board may
      mitigate the agency’s penalty to the maximum reasonable penalty so long as the
      agency has not indicated in either its final decision or in proceedings before the
      Board that it desires that a lesser penalty be imposed on fewer charges. Lachance
      v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999). Here, the agency has not so
      indicated and, therefore, the Board must apply the relevant Douglas factors to
      determine the maximum reasonable penalty for the appellant’s sustained
      misconduct. 14 See Boo, 122 M.S.P.R. 100, ¶ 17.
¶34         In evaluating the penalty, the Board will consider, first and foremost, the
      nature and seriousness of the misconduct and its relation to the employee’s duties,
      position, and responsibilities, including whether the offense was intentional or
      was frequently repeated. Gaines v. Department of the Air Force, 94 M.S.P.R.
      527, ¶ 9 (2003).    Falsification is a serious offense that affects an employee’s
      reliability, veracity, trustworthiness, and ethical conduct, and the Board has
      frequently upheld the penalty of removal for a sustained charge of falsification.
      O’Lague,      123 M.S.P.R. ¶ 20;     Gebhardt      v.   Department       of   the    Air


      14
         In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305–06 (1981), the Board
      articulated a nonexhaustive list of 12 factors, both aggravating and mitigating, that are
      relevant to the penalty determination in adverse action cases.
                                                                                       18

      Force, 99 M.S.P.R. 49, ¶ 21 (2005), aff’d, 180 F. App’x 951 (Fed. Cir. 2006). In
      addition, the appellant’s false claims that recycled water contained poison or
      hazardous microorganisms eroded the agency’s trust and confidence in his ability
      to serve as a Recycled Water Manager and placed the safety and integrity of
      Camp Pendleton’s Water Resource Division into question. IAF, Tab 6 at 21, 36;
      HCD (testimony of Deputy Assistant Chief S.W.); see Talavera v. Agency for
      International Development, 104 M.S.P.R. 445, ¶ 12 (2007) (finding that an
      agency’s loss of trust in an employee is a significant aggravating factor).
      Furthermore, the appellant’s misconduct was both intentional and repeated, in
      that he provided false information on his timecards on four occasions, and
      continued to do so even after Lieutenant Colonel J.L. spoke with him about his
      improper use of the hazardous duty pay code for poison. IAF, Tab 6 at 39‑42;
      HCD (testimony of the appellant and Lieutenant Colonel J.L.). Finally, although
      not discussed by the proposing or deciding officials, the appellant’s attempt to
      blame his supervisors for failing to detect his falsification reflects a lack of
      remorse for his actions, which is an aggravating factor. See IAF, Tab 6 at 30,
      Tab 22 at 4; see also Neuman v. U.S. Postal Service, 108 M.S.P.R. 200, ¶ 26
      (2008) (finding that an appellant’s rationalizations and lack of remorse were
      aggravating factors).
¶35         As the deciding official recognized, the appellant’s 37 years of service, lack
      of prior discipline, and satisfactory performance are significant mitigating
      factors. IAF, Tab 6 at 21. However, the Board has found that falsification is a
      serious offense that may warrant removal, even for employees with extensive
      Federal service, satisfactory performance, and no prior disciplinary record. See
      Hylick v. Department of the Air Force, 85 M.S.P.R. 145, ¶¶ 22‑24             (2000)
      (finding that the penalty of removal was reasonable for 2 charges of deliberate
      misrepresentation when an appellant had 25 years of service, good performance,
      and    no    prior      disciplinary   record);   Tanner    v.    Department      of
                                                                                            19

      Transportation, 65 M.S.P.R. 169, 174 (1994) (finding that the penalty of removal
      was reasonable for charges of falsification and misrepresentation when an
      appellant had 12 years of Federal service, no prior disciplinary record, and
      numerous commendations); Walcott v. U.S. Postal Service, 52 M.S.P.R. 277, 284
      (finding that the penalty of removal was reasonable for a falsification charge
      when an appellant had 27 years of Federal service and no prior disciplinary
      record), aff’d, 980 F.2d 744 (Fed. Cir. 1992) (Table); Pitts v. Department of the
      Air Force, 29 M.S.P.R. 108, 110 (1985) (finding that the penalty of removal was
      reasonable for charges of falsification and deliberately falsifying a material fact
      in connection with a matter under official investigation when an appellant had 30
      years of Federal service, outstanding performance, and no prior disciplinary
      record), aff’d, 795 F.2d 1020 (Fed. Cir. 1986). Here, in light of the seriousness of
      the appellant’s misconduct and the other aggravating factors discussed above, we
      find that the penalty of removal is reasonable.
¶36         Finally, we have considered the appellant’s argument that his removal did
      not promote the efficiency of the service because the agency did not remove him
      until more than 2 weeks after the date specified in the decision letter, and find it
      unpersuasive.    PFR File, Tab 1 at 24‑25.        The agency wanted to afford the
      appellant time to consider the last chance agreement. 15          HCD (testimony of
      Captain W.W.). Under the circumstances at issue, we find that the agency’s delay
      in effectuating the appellant’s removal does not preclude a finding that his
      removal promotes the efficiency of the service. See Kumferman v. Department of
      the Navy, 19 M.S.P.R. 5, 6–7 (1984) (finding an appellant’s removal promoted




      15
        On review, the appellant takes issue with the administrative judge’s statement that the
      appellant was negotiating with the agency regarding the last chance agreement, arguing
      that there was no evidence of negotiations. PFR File, Tab 1 at 24‑25; ID at 23.
      However, it is irrelevant whether the agency was negotiating or merely affording him
      time to consider the last chance agreement. See Panter, 22 M.S.P.R. at 282.
                                                                                          20

      the efficiency of the service despite an agency’s 21–month delay in initiating the
      removal action), aff’d, 785 F.2d 286 (Fed. Cir. 1986).
¶37         Accordingly, we affirm the initial decision as modified herein.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, constitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request review of this final decision by the U.S. Court of Appeals for the Federal
      Circuit.
            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 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 want to request review of the Board’s decision concerning your
      claims     of   prohibited   personnel   practices   under   5   U.S.C.   § 2302(b)(8),
      (b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
      the Board’s disposition of any other claims of prohibited personnel practices, you
      may request review of this final decision by the U.S. Court of Appeals for the
      Federal Circuit or any court of appeals of competent jurisdiction. The court of
      appeals must receive your petition for review within 60 days after the date of this
      order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
      to file, be very careful to file on time. You may choose to request review of the
      Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
      court of appeals of competent jurisdiction, but not both. Once you choose to seek
      review in one court of appeals, you may be precluded from seeking review in any
      other court.
                                                                                 21

      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 U.S. 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 about the U.S. Court of Appeals for the Federal Circuit 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. Additional information
about other courts of appeals can be found at their respective websites, which can
be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      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:                               ______________________________
                                             Jennifer Everling
                                             Acting Clerk of the Board
Washington, D.C.
