OPM has sent out guidance to agencies describing the impact of MSPB and court decisions on veterans preference and appeals protections for federal employees.
One MSPB case, Hesse v. Department of the Army, 104 M.S.P.R. 647 (2007), that affects eligibility for veterans’ preference based on a service-connected disability. The Board decided that the term "active duty" may consist entirely of service for training purposes, said OPM.
Thus, it said individuals are entitled to veterans’ preference if they establish that they:
* served on active duty in the armed forces, including for training; and
* were separated from active duty under honorable conditions; and
* either establish the present existence of a service-connected disability, or are receiving compensation, disability retirement benefits, or pension because of a public statute administered by the Veterans Administration or a military department.
Two court cases, dating from 1999 and 2002, and a follow-up MSPB case, Payano v. Dept. of Justice, 100 MSPR 74 (2005), provide procedural and appeal rights to certain individuals serving on a probationary period in the competitive service and on a trial period in the excepted service, OPM said.
OPM said that in light of the rulings, employees protected by adverse action procedures include:
* Competitive service employees currently serving a probationary or trial period when they have completed one year of current continuous service under other than a temporary appointment limited to one year or less, regardless of the position previously held; and
* Excepted service employees (other than preference eligibles) currently serving a probationary or trial period when they have completed two years of current continuous service in the same or similar positions in an executive agency under other than a temporary appointment limited to two years or less.
