       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

        HAROLD ARNALDO HERNANDEZ,
                 Petitioner

                           v.

     MERIT SYSTEMS PROTECTION BOARD,
                   Respondent
             ______________________

                      2016-1933
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. AT-3443-15-0764-I-1.
                ______________________

              Decided: October 14, 2016
               ______________________

   HAROLD ARNALDO HERNANDEZ, Tampa, FL, pro se.

    KATRINA LEDERER, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
                 ______________________

  Before MOORE, WALLACH, and CHEN, Circuit Judges.
PER CURIAM.
2                                      HERNANDEZ   v. MSPB



    Harold Arnaldo Hernandez appeals from a Merit
Systems Protection Board (“Board”) decision dismissing
his appeal for lack of jurisdiction. We affirm the dismis-
sal of Mr. Hernandez’s appeal.
                      BACKGROUND
    Mr. Hernandez entered an excepted service position
as a Special Agent with the Federal Bureau of Investiga-
tion (“agency”) on August 10, 2014. Prior to his agency
employment, he served in the United States Army and in
a volunteer position with the United States Civil Air
Patrol. The agency granted him veteran’s preference,
which required him to complete only one year of proba-
tionary status. On March 19, 2015, the agency terminat-
ed him “for failure to meet the suitability standards.” On
July 24, 2015, he appealed his termination to the Board.
He argued the agency did not use proper procedures when
it removed him from federal service. He also alleged
wrongful termination based on racial discrimination, in
violation of 5 U.S.C. § 2302, and discrimination based on
his prior military service, in violation of the Uniformed
Services Employment and Reemployment Rights Act of
1994 (“USERRA”). 1
    In the Initial Decision, the Administrative Judge
(“AJ”) dismissed Mr. Hernandez’s appeal for lack of
jurisdiction for failing to satisfy the one-year current
continuous          service        requirement        of
5 U.S.C. § 7511(a)(1)(B). Mr. Hernandez petitioned for
review, and the Board affirmed the Initial Decision.
Mr. Hernandez appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(9).



    1   The Administrative Judge docketed and processed
Mr. Hernandez’s USERRA claim as a separate appeal in
Case No. AT-4324-15-0765-I-1 (companion Case No. 16-
1934 in this court).
HERNANDEZ   v. MSPB                                       3



                       DISCUSSION
     Our review of the Board’s decision is limited by stat-
ute. We must affirm a final decision of the Board unless
it is arbitrary, capricious, an abuse of discretion, or oth-
erwise not in accordance with law; obtained without
procedures required by law, rule, or regulation having
been followed; or unsupported by substantial evidence.
5 U.S.C. § 7703(c). The Board’s decision to dismiss for
lack of jurisdiction presents an issue of law that we re-
view de novo. Campion v. Merit Sys. Prot. Bd., 326 F.3d
1210, 1212 (Fed. Cir. 2003). We review the factual find-
ings underlying the Board’s decision for substantial
evidence. Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313,
1316 (Fed. Cir. 1998). Substantial evidence “means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Consol. Edison Co. v.
Nat’l Labor Relations Bd., 305 U.S. 197, 229 (1938).
Mr. Hernandez bears the burden of establishing Board
jurisdiction by a preponderance of the evidence.
5 C.F.R. § 1201.56(b)(2)(i)(A).
    An employee may submit an appeal to the Board from
any action which is appealable to the Board under any
law, rule, or regulation. 5 U.S.C. § 7701(a). Pursuant to
5 U.S.C. § 7511 for the purposes of this case, an “employ-
ee” is a preference eligible in the excepted service who has
completed one year of current continuous service in the
same or similar positions in an Executive agency.
5 U.S.C. §§ 7511(b)(8), (a)(1)(B)(i).
    On appeal, Mr. Hernandez argues the Board has
jurisdiction over his appeal from a termination decision
by the agency because he completed one year of current
continuous service. Hernandez Br. 1, 6. He argues his
military service as an officer in the United States Army
credits toward the completion of his one year of current
continuous service. Id. at 6. The Board affirmed the AJ’s
finding that, based upon Mr. Hernandez’s appeal form
4                                        HERNANDEZ   v. MSPB



and the Standard Form 50, Mr. Hernandez began em-
ployment with the agency in an excepted service position
with veteran’s preference on August 10, 2014. It is un-
disputed that the agency terminated Mr. Hernandez
effective March 19, 2015, approximately seven months
after he began his employment with the agency. The
Board found Mr. Hernandez did not meet the one-year
current      continuous      service    requirement       of
5 U.S.C. § 7511(a)(1)(B) in his role as a Special Agent.
The Board determined that military service cannot be
added to civilian service for the purposes of satisfying the
service requirement of 5 U.S.C. § 7511(a)(1)(B). We see
no error in the Board’s decision and conclude that there is
substantial evidence to support the Board’s finding that
Mr. Hernandez did not complete one year of current
continuous service prior to his termination.
    We have considered Mr. Hernandez’s remaining ar-
guments and find them unpersuasive. A “mixed case
appeal” brought before the Board alleges “an appealable
agency action was effected, in whole or in part, because of
discrimination.” 29 C.F.R. § 1614.302 (emphasis added).
The Board may only adjudicate the discrimination claim if
it has jurisdiction to review the appealable agency action.
5 U.S.C. § 7702; Conforto v. Merit Sys. Prot. Bd., 713 F.3d
1111, 1115 (Fed. Cir. 2013). Since the Board lacked
jurisdiction over Mr. Hernandez’s agency action, it did not
have jurisdiction over his race discrimination claim.
Similarly, 5 C.F.R. § 315.806 provides no relief to Mr.
Hernandez because it only applies to probationary em-
ployees in the competitive service, and Mr. Hernandez
held an excepted service position. Mancha v. Dep’t of
Homeland Sec., 112 M.S.P.R. 216 (M.S.P.B. 2009).
                       CONCLUSION
     For the foregoing reasons, the decision of the Board is
affirmed.
                       AFFIRMED
HERNANDEZ   v. MSPB           5



                      COSTS
   No costs.
