         NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
                __________________________

              STEPHEN STRAUSBAUGH,
                    Petitioner,
                             v.
          GOVERNMENT PRINTING OFFICE,
                  Respondent.
                __________________________

                        2012-3115
                __________________________

   Petition for review of the Merit Systems Protection
Board in case no. AT4324090264-I-4.
              ___________________________

                 Decided: August 10, 2012
               ___________________________

      STEPHEN STRAUSBAUGH, of Carriere, Mississippi, pro
se.

    VINCENT D. PHILLIPS, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director,
DEBORAH A. BYNUM, Assistant Director. Of counsel on the
brief was THOMAS KELLY, Assistant General Counsel,
STEPHEN STRAUSBAUGH   v. GPO                             2


Office of the General Counsel, United States Government
Printing Office, of Washington, DC.
               __________________________

  Before NEWMAN, PROST, and MOORE, Circuit Judges.
PER CURIAM.
    Stephen Strausbaugh petitions for review of a final
decision of the Merit Systems Protection Board (Board)
denying his claim under the Uniformed Services Em-
ployment and Reemployment Rights Act of 1994
(USERRA), codified at 38 U.S.C. §§ 4301-4333. Straus-
baugh v. Gov’t Printing Office, No. AT-4324-09-0264-I-4
(M.S.P.B. Mar. 27, 2012). For the reasons discussed
below, we affirm.
                      BACKGROUND
    Mr. Strausbaugh is a member of the United States Air
Force Reserve. Effective March 17, 2008, Mr. Straus-
baugh was hired as an electrician by the Government
Printing Office (GPO) at its secure production facility
located at the NASA Stennis Space Center in Mississippi.
Mr. Strausbaugh was scheduled to be on reserve military
duty during the period from August 17, 2008 to August
31, 2008. During this time, however, Mr. Strausbaugh
was granted an excused absence to return home due to a
hurricane near the Gulf Coast.
    Though not a NASA approved shelter, the GPO al-
lowed designated employees and certain members of their
families to stay in the GPO facility to wait out the hurri-
cane. To prevent injury from physical hazards, children
and special-needs individuals were not allowed to stay at
the GPO facility. Instead, employees with children and
special-needs individuals were directed to stay at the
3                             STEPHEN STRAUSBAUGH    v. GPO


main NASA facility, which was an approved shelter that
could accommodate these individuals.
     On August 29, 2008, Mr. Strausbaugh received a call
from an administrative officer for the GPO facility inform-
ing him that he could volunteer to take refuge at the
facility. During this conversation, Mr. Strausbaugh asked
if he could bring his three-year old son. After being told
children and special-needs individuals were not permit-
ted, Mr. Strausbaugh argued with the administrative
officer. Mr. Strausbaugh was referred to the GPO facility
manager. A similar conversation took place between the
GPO facility manager and Mr. Strausbaugh, during which
the GPO facility manager explained that young children
were not permitted at the GPO facility because it was
unsafe for children.
    Despite the prior warnings that he could not bring
children, on August 31, 2008, the night of the storm, Mr.
Strausbaugh arrived at the GPO facility with his three-
year old son and his fiancée’s 80-year old mother. Mr.
Strausbaugh was turned away from the GPO facility
because he had a young child. Mr. Strausbaugh then
called the GPO facility manager, who reiterated that
young children could not stay there. A short time later,
Mr. Strausbaugh called the GPO facility manager again,
stating that he wanted the individuals with him to stay at
the GPO facility. The GPO facility manager informed Mr.
Strausbaugh that no one from his group was allowed to
take cover at the GPO facility because the GPO facility
manager had received a telephone call that Mr. Straus-
baugh was behaving in a threatening manner towards
other GPO personnel.
    Once the storm passed and the GPO facility reopened,
the GPO facility manager informed his superiors of Mr.
Strausbaugh’s behavior. On September 26, 2008, before
STEPHEN STRAUSBAUGH   v. GPO                             4


the end of his one-year probationary period, Mr. Straus-
baugh was terminated based on his personal conduct and
failure to follow instructions on both August 29, 2008 and
August 31, 2008.
    On January 26, 2011, Mr. Strausbaugh filed an ap-
peal with the Board alleging that the agency terminated
him based on discrimination motivated by his military
service. On March 27, 2012, the Board issued a final
decision denying Mr. Strausbaugh’s USERRA claim
because he presented no evidence to show that his mili-
tary service was a motivating factor in his termination.
Mr. Strausbaugh timely appealed the final decision of the
Board. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
                       DISCUSSION
     We must affirm the Board’s decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c).
    To prevail on a USERRA claim, the employee “bear[s]
the initial burden of showing by a preponderance of the
evidence that the employee’s military service was ‘a
substantial or motivating factor’ in the adverse employ-
ment action.” Sheehan v. Dep’t of the Navy, 240 F.3d
1009, 1013 (Fed. Cir. 2001) (footnote and citation omit-
ted). If the employee meets this requirement, the em-
ployer can avoid liability by showing by a preponderance
of the evidence that it would have taken the adverse
action exclusive of the employee’s military service. Erick-
son v. U. S. Postal Serv., 571 F.3d 1364, 1368 (Fed. Cir.
2009).
5                              STEPHEN STRAUSBAUGH     v. GPO


    On appeal, Mr. Strausbaugh recites his disagreement
with the conclusion of the administrative judge and the
Board that he failed to carry his initial burden. The
conclusion, based on credibility determinations and
weighing of evidence, is consistent with the record and
supported by substantial evidence. Mr. Strausbaugh
requests that this court reweigh the evidence already
considered by the administrative judge and the Board,
and make new credibility determinations. However, “an
evaluation of witness credibility is within the discretion of
the Board and . . . in general, such evaluations are ‘virtu-
ally unreviewable’ on appeal.” Kahn v. Dep’t of Justice,
618 F.3d 1306, 1313 (Fed. Cir. 2010) (quoting King v.
Dep’t of Health & Human Servs., 133 F.3d 1450, 1453
(Fed. Cir. 1998)). The evidence shows that on two occa-
sions Mr. Strausbaugh acted inappropriately, including
arguing with GPO employees, behaving in a threatening
manner, and creating a disruption during a potential
emergency situation. The Board’s determination that Mr.
Strausbaugh has not presented sufficient evidence to
establish that he was terminated because of his military
service is supported by substantial evidence.
    Citing 5 U.S.C. § 2302(b)(10), Mr. Strausbaugh also
contends that it was improper for the GPO to consider his
misconduct in an employment decision because the mis-
conduct occurred during a period that he was on military
duty and his off-work conduct was not unlawful. Section
2302(b)(10), however, only protects against discrimination
“on the basis of conduct which does not adversely affect
the performance of the employee or applicant or the
performance of others” and allows agencies to take into
account any criminal conviction in determining “suitabil-
ity or fitness,” regardless of the affect on performance. 5
U.S.C. § 2302(b)(10). To be clear, section 2302(b)(10) does
not prohibit an agency from considering conduct which
STEPHEN STRAUSBAUGH   v. GPO                             6


occurs during an employee’s military service, and does not
limit the agency to only illegal conduct. Moreover, Mr.
Strausbaugh was on a pass from his military service
when the conduct occurred.
    Mr. Strausbaugh also raises issues brought in a sepa-
rate case involving marital status discrimination. We do
not address these issues because they are not properly
before the court in this appeal. We have considered Mr.
Strausbaugh’s remaining arguments and find them
unpersuasive. Because the final decision of the Board
was supported by substantial evidence and was not arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law, we affirm.
                      AFFIRMED
                          COSTS
   No costs.
