                     NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                      2009-3281


                                 GERALD D. WILSON, JR.,

                                                              Petitioner,

                                          v.

                           DEPARTMENT OF THE ARMY,

                                                              Respondent.


      Gerald D. Wilson, Jr., of Landover, Maryland, pro se.

       Robert C. Bigler, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Deborah A. Bynum, Assistant Director.

Appealed from: Merit Systems Protection Board
                       NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                      2009-3281

                                GERALD D. WILSON, JR.,

                                                            Petitioner,

                                           v.

                               DEPARTMENT OF THE ARMY,

                                                            Respondent.

Petition for review of the Merit Systems Protection Board in DC315H080700-B-1.

                           __________________________

                             DECIDED: January 5, 2010
                           __________________________


Before BRYSON, LINN, and PROST, Circuit Judges.

PER CURIAM.

        Gerald D. Wilson, Jr. (“Wilson”) seeks review of a final decision of the Merit

Systems Protection Board (“Board”) sustaining the decision of the Department of the

Army (“Army”) to terminate Wilson from his position as a probationary employee.

Because Wilson has presented us with no proper grounds on which to overturn the

Board’s decision, we affirm.

        Wilson is a member of the Army National Guard. He was hired as a Legal

Assistant, GS-6, in the Army’s Office of the Staff Judge Advocate, effective June 23,

2008.    The appointment was subject to the completion of a one-year probationary

period. On August 1, 2008, before the probationary period was completed, Wilson was
terminated because he claimed that he was performing National Guard duty when he

was actually on a cruise with his family.

       Wilson appealed his termination to the Board, raising two allegations: improper

removal and a violation of the Uniformed Services and Reemployment Rights Act of

1994 (“USERRA”).         As to the removal claim, the Board concluded that it lacks

jurisdiction over his termination because he was a probationary employee at the time of

his termination and was thus not an “employee” within the meaning of 5 U.S.C.

§ 7511(a)(1) (2006). Wilson v. Dep’t of the Army, DC315H080700-B-1 (M.S.P.B. Sept.

10, 2008) (“Removal Decision”). As to the USERRA claim, the Board held that he had

not shown that his military service was a substantial or motivating factor in the Army’s

decision to terminate his employment. Wilson v. Dep’t of the Army, DC315H080700-B-

1 (M.S.P.B. Jun. 26, 2009) (“USERRA Decision”). This appeal followed. We have

jurisdiction under 28 U.S.C. § 1295(a)(9).

       The scope of our review of Board decisions is defined and limited by statute.

See 5 U.S.C. § 7703(c). 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 procedures required by law, rule or regulation having been followed; or (3)

unsupported by substantial evidence.” Hayes v. Dep’t of the Navy, 727 F.2d 1535,

1537 (Fed. Cir. 1984).

       A probationary employee is not an “employee” as defined in 5 U.S.C.

§ 7511(a)(1), and except in some limited circumstances, is excluded from the statutory

appeals process before the Board. See 5 C.F.R. § 315.806 (2009). Here, Wilson has

not alleged that his removal claim falls within any of the limited circumstances in which a




2009-3281                                    2
probationary employee enjoys a right of appeal. Instead, Wilson appears to argue that

he was no longer a probationary employee at the time of his removal, citing three years

of Federal civilian service in a previous position. “Prior Federal civilian service . . .

counts toward completion of probation when the prior service . . . is followed by no more

than a single break in service that does not exceed 30 calendar days.”         5 C.F.R.

§ 315.802(b). The Board found that Wilson had resigned from his former position on

February 29, 2008, which was more than 30 calendar days before being hired for the

Legal Assistant position. Removal Decision at 4. The Board therefore concluded that

his prior service could not be counted towards the probationary period of his later

appointment. Id. Because Wilson does not dispute that he performed no qualifying

Federal civilian service less than 30 calendar days before being hired for the Legal

Assistant position, we affirm the Board’s dismissal of his removal claim.

      To prevail on his USERRA claim, Wilson must show by a preponderance of the

evidence that his status as a military service member was a “substantial or motivating

factor” in the Army’s decision to terminate his employment. Sheehan v. Dep’t of the

Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001).          During the Board hearing, Wilson

acknowledged that “he had no evidence that the agency’s action was motivated by

discrimination based on military service other than his personal belief that unidentified

agency officials did not like employees being absent.” USERRA Decision at 6. The

Board credited the testimony of the Army’s deciding official that the decision to

terminate Wilson was based solely on his lack of truthfulness regarding his leave. Id. at

7.   Because the Board’s credibility determinations are virtually unreviewable, and

because Wilson has failed to substantiate his personal belief with any evidence that his




2009-3281                                   3
military status was a substantial or motivating factor in his termination, we have no basis

on which to overturn the Board’s denial of his USERRA claim.

       For the foregoing reasons, the decision of the Board is affirmed.

                                         COSTS

       No costs.




2009-3281                                   4
