                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DEGERALD R. WILSON,                             DOCKET NUMBER
                  Appellant,                         DA-3330-14-0422-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: June 11, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           DeGerald R. Wilson, San Antonio, Texas, pro se.

           Sally R. Bacon, Esquire, Fort Lee, Virginia, 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
     denied his request for corrective action under the Veterans Employment
     Opportunities Act of 1998 (VEOA) and the Uniformed Services Employment and
     Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333)
     (USERRA). Generally, we grant petitions such as this one only when: the initial

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 the law to the facts of the case; the 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, and based on the
     following points and authorities, 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. We AFFIRM the initial decision as
     to the appellant’s USERRA claim. We VACATE the initial decision as to his
     VEOA claims, and DISMISS them for lack of jurisdiction without reaching the
     merits.
¶2         In September 2013, the agency posted a vacancy announcement, DECA-13-
     951750-DE, for the part-time position of Store Worker. Initial Appeal File (IAF),
     Tab 1 at 4-9. The posting covered vacancies in numerous locations. Id. at 8-9.
     The appellant applied for the vacancies in Fort Sam Houston, Randolph Air Force
     Base, Lackland Air Force Base, and San Antonio.          See IAF, Tab 13 at 14.
     However, he was not selected for any of them. See id. at 14, 18.
¶3         The appellant filed a complaint with the Department of Labor (DOL)
     regarding his nonselection. See IAF, Tab 9 at 3-4. In May 2014, DOL informed
     the appellant that it had completed its investigation and determined that he did
     not meet the eligibility requirements for veterans’ preference.           Id. at 4.
     Subsequently, he appealed his nonselection to the Board. IAF, Tab 1 at 1-2, 12.
                                                                                            3

¶4         The administrative judge construed the appellant’s appeal as both a VEOA
     claim and a USERRA claim. 2          IAF, Tabs 7-8.      After holding the requested
     hearing, IAF, Tab 24, Hearing Compact Disk (HCD), the administrative judge
     issued a decision denying the appellant’s request for corrective action under both
     statutes, ID. The appellant has filed a petition for review. 3 Petition for Review
     (PFR) File, Tabs 1-2.
     The appellant’s VEOA claim is dismissed for lack of jurisdiction without
     reaching the merits.

¶5         Below, the administrative judge found that the appellant met his
     jurisdictional burden under VEOA, but that he failed to prove that the agency
     violated any of his rights. ID at 2-7. In doing so, the administrative judge erred.
     We find that the administrative judge should have instead dismissed the VEOA
     claims for lack of jurisdiction.         See Becker v. Department of Veterans
     Affairs, 115 M.S.P.R. 409, ¶¶ 1, 4 (2010) (vacating an initial decision on the
     merits to dismiss for lack of jurisdiction under VEOA because jurisdiction is a
     threshold issue).
¶6         VEOA provides a means for qualified veterans to seek redress from the
     Board for violations of veterans’ preference rights and denials of the right to

     2
       In his initial appeal, the appellant checked the box to indicate that he was alleging
     prohibited discrimination based upon race, color, religion, sex, national origin,
     disability, or age. IAF, Tab 1 at 12. However, the administrative judge properly
     declined to adjudicate these claims. IAF, Tab 25, Initial Decision (ID) at 2 n.1.
     Discrimination claims do not provide an independent basis for Board jurisdiction. See
     Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73
     (D.C. Cir. 1982). In addition, the Board lacks the authority to adjudicate claims of
     discrimination in a nonselection appeal under VEOA or USERRA. Goldberg v.
     Department of Homeland Security, 99 M.S.P.R. 660, ¶ 11 (2005).
     3
      In his petition for review, the appellant again disputed his nonselection for the vacant
     positions, generally. PFR File, Tab 1. Among other things, he questions whether
     nonveterans were selected for the positions at issue. Id. at 3. Although it is unclear if
     he was disputing the administrative judge’s findings under both VEOA and USERRA,
     we have considered his petition as reasserting claims under both statutes. See generally
     Ney v. Department of Commerce, 115 M.S.P.R. 204, ¶ 5 n.1 (2010) (the Board construes
     pro se pleadings liberally).
                                                                                      4

     compete for certain vacancy announcements. See 5 U.S.C. § 3330a(a)(1)(A)-(B);
     see generally Dale v. Department of Veterans Affairs, 102 M.S.P.R. 646, ¶ 7
     (2006) (a nonselection is not an action directly appealable to the Board, but may
     be brought under either USERRA or VEOA). However, because the appellant is
     not a preference eligible or qualified veteran under VEOA, his claim must be
     dismissed for lack of Board jurisdiction.
¶7        There are two types of VEOA claims, veterans’ preference claims
     under 5 U.S.C. § 3330a(a)(1)(A), and right-to-compete claims under 5 U.S.C.
     § 3330a(a)(1)(B).   To establish jurisdiction over a 5 U.S.C. § 3330a(a)(1)(A)
     veterans’ preference claim, an appellant must (1) show that he has exhausted his
     DOL remedy, and (2) make nonfrivolous allegations that he is a preference
     eligible within the meaning of VEOA; that the actions at issue occurred on or
     after the October 30, 1998 enactment date of VEOA; and that the agency violated
     his rights under a statute or regulation related to veterans’ preference. Vores v.
     Department of Army, 109 M.S.P.R. 191, ¶ 17 (2008), aff’d, 324 F. App’x 883
     (Fed. Cir. 2009).   To establish jurisdiction over a 5 U.S.C. § 3330a(a)(1)(B)
     right-to-compete claim, an appellant must (1) show that he exhausted his remedy
     with DOL, and (2) make nonfrivolous allegations that (i) he is a veteran within
     the meaning of 5 U.S.C. § 3304(f)(1), (ii) the actions at issue took place on or
     after the December 10, 2004 enactment date of the Veterans’ Benefits
     Improvement Act of 2004, and (iii) the agency denied him the opportunity to
     compete under merit promotion procedures for a vacant position for which the
     agency accepted applications from individuals outside its own workforce in
     violation of 5 U.S.C. § 3304(f)(1). Becker, 115 M.S.P.R. 409, ¶ 5.
¶8        Here, the appellant repeatedly has insinuated that he is a preference-eligible
     veteran. See, e.g., IAF, Tab 9 at 1. However, when he sought relief from DOL
     prior to his Board appeal, DOL determined that he was not entitled to any
     veterans’ preference. IAF, Tab 1 at 3, Tab 13 at 20. In addition, although the
     appellant claimed a 5-point veterans’ preference in his application for the Store
                                                                                       5

      Worker vacancy, IAF, Tab 13 at 14, the agency has indicated that if his
      application had not otherwise been eliminated from further consideration, this
      claimed preference would have been rejected, see HCD (testimony of Supervisory
      Human Resources Specialist, R.W.).
¶9          Pursuant to 5 U.S.C. § 2108(1)(C), (3)(B), preference eligibility generally
      applies to a veteran who “served on active duty as defined by section 101(21) of
      title 38 in the armed forces during the period beginning on August 2, 1990, and
      ending on January 2, 1992.” The appellant’s service fell within this date range.
      See IAF, Tab 11 at 11 (the appellant’s DD-214, documenting his service from
      August 29, 1990, to October 19, 1990), Tab 13 at 45 (same). Nevertheless, based
      upon the type and duration of his service, we find that the appellant failed to
      nonfrivolously allege that he is preference-eligible.
¶10         “Active duty” includes “full-time duty in the Armed Forces, other than
      active duty for training.” 38 U.S.C. § 101(21)(A); see Gordon-Cureton v. U.S.
      Postal Service, 105 M.S.P.R. 165, ¶¶ 7-8 (2007) (discussing the definition of
      “active duty” and the limitation for training). Here, the appellant acknowledged
      that he participated in basic training, but separated from the Army before
      completing any active duty. See HCD. Accordingly, the appellant’s service does
      not meet the “active duty” element required for veterans’ preference.
¶11         In addition to the above, an individual who entered on active duty after
      October 13, 1982, and who was discharged or released from a period of active
      duty before completing the shorter of either 24 months of continuous active duty,
      or the full period for which he was called or ordered to active duty, is generally
      not eligible for any benefit based on meeting the definition of preference-eligible
      in 5 U.S.C. § 2108(3). 38 U.S.C. § 5303A(d); Gordon-Cureton, 105 M.S.P.R.
      165, ¶ 11.   Here, even if the appellant’s service constituted “active duty,” he
      completed approximately 2 months of service, IAF, Tab 11 at 11, Tab 13 at 45,
      far short of the minimum service requirement. Although the statute imposing the
      minimum service requirement provides exemptions for discharges from active
                                                                                          6

      duty under sections 1171 and 1173 of Title 10, discharges for a disability incurred
      or aggravated in the line of duty, and persons with a service-connected
      disability, 38 U.S.C. § 5303A(d)(3)(A), the appellant has presented nothing to
      suggest that any of the exemptions apply to him. Instead, the record indicates
      that the minimum service requirement does apply because he was discharged for
      failing to meet fitness standards. IAF, Tab 13 at 44-45. 4
¶12         Because the appellant failed to nonfrivolously allege that he met the active
      duty or minimum service requirements to be preference-eligible, his 5 U.S.C.
      § 3330a(a)(1)(A) veterans’ preference claim must be dismissed for lack of
      jurisdiction.   Similarly, his 5 U.S.C. § 3330a(a)(1)(B) right-to-compete claim
      must be dismissed for lack of jurisdiction because the appellant failed to
      nonfrivolously allege that he is preference-eligible or that he separated from the
      armed forces after 3 years or more of active service. See 5 U.S.C. § 3304(f)(1).
      The administrative judge properly denied the appellant’s request for corrective
      action under USERRA.

¶13         To prevail on the merits of a USERRA claim under 38 U.S.C. § 4311(a), an
      appellant must prove by preponderant evidence that his uniformed service was a
      substantial or motivating factor in the agency’s action. Burroughs v. Department
      of the Army, 120 M.S.P.R. 392, ¶ 5 (2013). If the appellant makes that showing,
      the agency can avoid liability by showing, as an affirmative defense, that it would
      have taken the same action for a valid reason without regard to his uniformed




      4
        The record contains multiple copies of the appellant’s DD-214. A portion of one copy
      contains a blacked out section. IAF, Tab 11 at 11. Accordingly, we have relied only on
      the other copies, which show that the appellant was discharged from the military based
      upon the following: “did not meet procurement medical fitness standards – no
      disability.” IAF, Tab 11 at 12, Tab 13 at 45; see id., Tab 13 at 44 (October 12, 1990
      medical record noting that the appellant has a history of joint complaints since a
      football injury in 1980, detailing limitations, and recommending that he be separated
      from the Army).
                                                                                       7

      service. Id. An agency therefore violates section 4311(a) if it would not have
      taken the action but for the appellant’s uniformed service. Id.
¶14        The administrative judge noted that the appellant offered no evidence that
      his uniformed service was a substantial or motivating factor in his nonselection.
      See ID at 8.      She found that the appellant’s military service was more than
      20 years prior to his application for the Store Worker position and that the record
      contained nothing to suggest the agency harbored any dislike for the appellant or
      other persons protected by USERRA. ID at 8; see generally IAF, Tab 13 at 18
      (indicating that the appellant’s application was screened out based upon his low
      score, without ever being reviewed by any person); HCD (testimony of R.W.,
      indicating that the appellant was eliminated from further consideration based
      solely on the low score he received from the experience questionnaire and that a
      veteran was hired for each of the vacancies the appellant sought). Accordingly,
      the administrative judge concluded that the appellant’s USERRA claim failed. ID
      at 8. We agree. In the absence of any evidence below or on review that his
      uniformed service was a substantial or motivating factor in his nonselection, the
      appellant has failed to prove a violation of 38 U.S.C. § 4311(a).              See
      Burroughs, 120 M.S.P.R. 392, ¶ 6 (finding that the appellant failed to meet his
      burden of proof under USERRA where he provided speculation, but no evidence,
      that his uniformed service was a substantial or motivating factor in his
      nonselection for a vacancy).

                        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 the United States Court of Appeals for the Federal Circuit to review this
      final decision.    You must submit your request to the court at the following
      address:
                                                                                  8



                          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 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
United States 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
                                                                                9

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.
