`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`JAMES C. FREEMAN,
`Petitioner
`
`v.
`
`DEPARTMENT OF THE ARMY,
`Respondent
`______________________
`
`2019-1940
`______________________
`
`Petition for review of the Merit Systems Protection
`Board in No. AT-0752-19-0119-I-1.
`______________________
`
`Decided: October 4, 2019
`______________________
`
`JAMES C. FREEMAN, Midland, GA, pro se.
`
`
` DANIEL KENNETH GREENE, Commercial Litigation
`Branch, Civil Division, United States Department of Jus-
`tice, Washington, DC, for respondent. Also represented by
`JOSEPH H. HUNT, ROBERT EDWARD KIRSCHMAN, JR.,
`FRANKLIN E. WHITE, JR.
` ______________________
`
`Before LOURIE, CLEVENGER, and DYK, Circuit Judges.
`
`
`
`2
`
`FREEMAN v. ARMY
`
`PER CURIAM
`James C. Freeman petitions for review of the final de-
`cision of the Merit Systems Protection Board (the “Board”)
`affirming the Army’s decision to remove Freeman from his
`position as cook because of his frequent absences from work
`without leave. See Freeman v. Dep’t of the Army, No. AT-
`0752-19-0119-I-1 (M.S.P.B. Mar. 13, 2019); S.A. 1–15. We
`affirm.
`
`BACKGROUND
`Freeman was employed from 2011 to 2018 as a cook
`with the Army. Before that, he served on active duty in the
`Army. Freeman was diagnosed with service-connected
`post-traumatic stress disorder (“PTSD”) in 2013.
`In January 2018, the Army proposed to remove Free-
`man because of his frequent absences from work without
`leave (“AWOL”). Freeman made an oral reply, but the
`Army sustained his removal in June 2018, and Freeman
`then appealed to the Board.
`The administrative judge (“AJ”) found that Freeman
`was absent from work without approval for 682.75 hours
`over a period from January 2017 to January 2018. S.A. 4,
`8–9. Freeman argued that his supervisors approved his
`absences after the fact, but the AJ did not credit this argu-
`ment because Freeman did not call any witnesses to sup-
`port that contention, he had been previously reprimanded
`and received a suspension for AWOL, and his explanation
`was implausible given the sheer number of absences. Free-
`man additionally argued that his service-connected PTSD
`entitled him to leave without pay (“LWOP”), but the AJ de-
`termined that Freeman still had the responsibility to re-
`quest approval for his absences. The AJ also found that
`Freeman’s absences caused hardships in his work section
`and that Freeman had previously been disciplined for his
`absences. Under these circumstances, the AJ found that
`
`
`
`FREEMAN v. ARMY
`
`3
`
`the Army’s refusal to grant LWOP was reasonable. S.A. 9,
`15.1
`The AJ’s decision became the final decision of the
`Board on April 17, 2019. Freeman timely petitioned for re-
`view. We have jurisdiction under 28 U.S.C. § 1295(a)(9).
`DISCUSSION
`We must affirm the Board’s decision unless we find it
`to be “(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.” 5
`U.S.C. § 7703(c). “The court will normally defer to the ad-
`ministrative judgment unless the penalty exceeds the
`range of permissible punishments specified by statute or
`regulation, or unless the penalty is ‘so harsh and uncon-
`scionably disproportionate to the offense that it amounts to
`an abuse of discretion.’” Villela v. Dep’t of the Air Force,
`727 F.2d 1574, 1576 (Fed. Cir. 1984) (quoting Power v.
`United States, 531 F.2d 505, 507 (Ct. Cl. 1976)).
`In his informal brief, Freeman first asserts that he
`should not have been charged with AWOL at all because
`his supervisor approved LWOP. The government responds
`that the Board’s finding to the contrary was well supported
`
`
`
`In April 2018, Freeman submitted an equal em-
`1
`ployment opportunity complaint alleging discrimination
`based on his status as a disabled veteran. Freeman also
`alleged discrimination before the AJ. The Army concluded
`that Freeman was not a victim of discrimination, and the
`AJ held likewise. Freeman indicated that he has aban-
`doned or will not raise his discrimination claim here, and
`his informal brief does not mention discrimination.
`
`
`
`
`4
`
`FREEMAN v. ARMY
`
`and that Freeman’s bare assertion provides no reason to
`overturn it.
`We agree with the government. “Before removing an
`employee, the government must prove by preponderant ev-
`idence that: (1) the charged misconduct occurred, (2) there
`is a nexus between what the employee did and disciplining
`the employee to promote the efficiency of the service, and
`(3) the particular penalty is reasonable.” Hansen v. Dep’t
`of Homeland Sec., 911 F.3d 1362, 1366 (Fed. Cir. 2018).
`However, for a sustained charge of AWOL no separate evi-
`dence of nexus is required because “any sustained charge
`of AWOL is inherently connected to the efficiency of the
`service.” Davis v. Veterans Admin., 792 F.2d 1111, 1113
`(Fed. Cir. 1986).
`There is no dispute that the Board applied the correct
`law; Freeman just asserts that the Board overlooked some
`unspecified facts. The Board considered Freeman’s conten-
`tion that his supervisors approved LWOP and reasonably
`credited evidence to the contrary. For example, Freeman’s
`supervisor testified that he counseled Freeman about the
`need to call in when he could not report for work, and that
`medical documentation was needed to justify his absences.
`S.A. 4. Further, the Board observed that Freeman did not
`call any witness to support his claim that his leave was ap-
`proved, that it was inherently implausible to be given ap-
`proval for such a large quantity of leave, and that Freeman
`had previously been disciplined for AWOL. Freeman
`points to no error in the Board’s finding, nor is one evident
`on the face of its decision. We therefore conclude that sub-
`stantial evidence supports the Board’s finding that Free-
`man’s supervisors did not authorize his 682.75 hours of
`absences over one year.
`Freeman separately argues that a service-connected
`disabled employee may, without more, request LWOP after
`returning to work when the employee was “out seeking
`medical treatment.” Pet’r’s Informal Br. 1. Before the
`
`
`
`FREEMAN v. ARMY
`
`5
`
`Board, Freeman relied on Maneuver Center of Excellence
`Regulation 690-630 § 3-14(c)(1), which provides that “by
`law supervisors should grant LWOP to . . . [d]isabled vet-
`erans seeking medical treatment for a service-connected
`disability.” But Freeman directs us to no evidence that he
`requested leave to seek medical treatment, nor does Free-
`man even allege that he received such treatment during
`any of his unexcused absences. The Board thus did not err
`in denying Freeman carte blanche authority to re-charac-
`terize such absences as LWOP rather than AWOL.
`Ultimately, the Board credited evidence that Freeman
`was absent from his job with the Army for an extensive pe-
`riod without authorization, that the absences caused hard-
`ships in his work section, and that Freeman had previously
`been disciplined for similar practices in earlier periods. In
`light of these circumstances, the Board found that removal
`was warranted. We agree. We thus conclude that the
`Board’s decision was not arbitrary, capricious, an abuse of
`discretion, or otherwise not in accordance with law.
`CONCLUSION
`For the foregoing reasons, we affirm the Board’s deci-
`sion.
`
`AFFIRMED
`COSTS
`
`No costs.
`
`
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