**EMPLOYEE/MANAGEMENT RELATIONS**

**1. REASON FOR ISSUE:** To revise Department of Veterans Affairs (VA)
delegations of authority for title 38 appeals to a Disciplinary Appeals
Board (DAB).

**2. SUMMARY OF CONTENTS/MAJOR CHANGES:** This directive contains VA
policies on employee/management relations. The pages in this directive
replace the corresponding page numbers in VA Directive 5021. These
changes will be incorporated into the electronic version of VA Directive
5021 that is maintained on the Office of Human Resources Management
website at <http://vaww.va.gov/ohrm>. Significant changes include:

a.  Delegates to the Deputy Under Secretary for Health for Operations
    and Management authority to

make the final decision regarding the timeliness of an appeal to a DAB.

b.  Delegates to the Deputy Under Secretary for Health the authority to
    execute decisions and to

reverse, vacate and remand decisions to the DAB for further
consideration.

**3. RESPONSIBLE OFFICE:** The Human Resources Management Programs and
Policies Service (051), Office of the Deputy Assistant Secretary for
Human Resources.

**4. RELATED HANDBOOK:** VA Handbook 5021, "Employee/Management
Relations."

**5. RESCISSIONS:** None.

**CERTIFIED BY: BY DIRECTION OF THE SECRETARY**

**OF VETERANS AFFAIRS:**

/s/Robert N. MacFarland /s/William H. Campbell

Assistant Secretary for Acting Assistant Secretary for Human

Information and Technology Resources and Administration

ELECTRONIC DISTRIBUTION ONLY

SECTION C. APPEALS TO THE DISCIPLINARY APPEALS BOARD

**1. SCOPE, AUTHORITY AND DEFINITIONS.** This section governs appeals of
major adverse actions which arise out of, or which include, a question
of professional conduct or competence in the Department of Veterans
Affairs (VA). Major adverse actions are suspensions (including
indefinite suspensions), transfers, reductions in grade, reductions in
basic pay, and discharges. A question of professional conduct or
competence involves direct patient care and/or clinical competence. The
term clinical competence include issues of professional judgment. This
section applies to VA employees holding a full‑time, permanent
appointment under 38 U.S.C. 7401(l) who have satisfactorily completed
the probationary period required by 38 U.S.C. 7403(b). Included in this
category are: physicians, dentists, podiatrists, optometrists, nurses,
nurse anesthetists, physician assistants and expanded‑function dental
auxiliaries. The (preceding) categories of individuals are included in
the term \"employee(s)\" as used in this section unless otherwise
specified.

**(Authority: 38 U.S.C. 501(a), 7401, 7403(b), 7421, 38 U.S.C.
7461‑7464.)**

**2. REFERENCES**

a\. Section 203 of the Department of Veterans Affairs Health‑Care
Personnel Act of 1991 (Pub. L. 102‑40).

b\. 38 U.S.C. 501(a), 7421, 7461, 7462, 7464.

**3. FILING AN APPEAL TO THE DISCIPLINARY APPEALS BOARD**

a\. **Initiating an Appeal.** An employee subjected to a major adverse
action which is based in whole or in part on a question of professional
conduct or competence, may file a written notice of appeal to the
Disciplinary Appeals Board under the provisions of this section. The
employee may request a hearing before the Board. Any such request must
be submitted in writing and accompany the employee\'s notice of appeal.
The appeal must contain (1) the appellant\'s name, address, telephone
number, designation of representative (if any), (2) a copy of the notice
of action proposed and decision letter, (3) a statement as to whether
the employee is requesting a hearing before the Board, (4) why the
appellant believes the major adverse action taken was in error or should
not have been taken, and (5) a statement describing the expected relief.
The original appeal and the request for hearing, if any, must be
submitted to the Under Secretary for Health or designee so as to be
received within 30 days after the date of service of the written
decision on the employee. Submission of the appeal must be by personal
service, facsimile, or certified mail ‑return receipt requested. A copy
of the appeal must be served on the decision official who took the
action being appealed and any management representative of record.

b\. **Establishing Timeliness of an Appeal.** For purposes of computing
the 30‑day period for filing an appeal, the date of service of the
written decision on the employee will be determined by the date of
receipt by the employee of the personal delivery, the signed receipt of
certified mail, or presumed to be 5 days after depositing the decision
in the U.S. mail if no acknowledged receipt is available. \[The Deputy
Under Secretary for Health for Operations and Management will make a
final decision regarding the determination that an appeal is filed
untimely. The employee will be notified in writing, by letter, of this
final determination. There are no further administrative appeal rights
regarding the issue of timeliness.\]

b\. **Exclusion of Individuals During Proceeding.** Prior to testifying
or, if subject to recall, no witness will be permitted to hear the
testimony being given by another witness unless the witness is the
appellant, or is assisting in the representation of either party. In any
event, the Chairman of the Board will make the final determination on
exclusion of individuals during any phase of the proceeding.

c\. **Oaths.** The Chairman and Secretary of the Board shall have the
authority to administer oaths or affirmations which will be made by all
individuals giving testimony.

d**. Verbatim Record.** A verbatim record shall be maintained of Board
hearings (see subparagraph g below for further details).

e\. **Witnesses.** Both the appellant and management will have the right
to call witnesses. The Chairman will, on his/her own initiative, call
such witnesses on behalf of the Board as the Chairman deems necessary.
The Chairman has the final authority to determine the acceptability of
any witness.

f\. **Scheduling of Hearing.** The hearing will be conducted on official
Government time, and normally, without charge to leave of the
employee(s) concerned.

g\. **Record of Hearing**

\(1\) A verbatim record of the hearing proceedings will be prepared.

\(2\) The employee and/or his/her representative shall be provided a
copy of the transcript of the formal hearing after authentication.

**(Authority: 38 U.S.C. 501(a), 7421, 38 U.S.C. 7461‑7464.)**

**9. DISCIPLINARY APPEALS BOARD DECISIONS**

a\. **Findings.** The Board shall, with respect to each charge appealed,
sustain the charge, dismiss the charge, or sustain the charge in part
and dismiss the charge in part.

b\. **Decision.** The Board has full authority to render a decision on
an appeal. The Board shall reach a decision within 45 calendar days of
completion of the hearing, if a hearing is convened. In any event, a
decision will be made by the Board no later than 120 calendar days after
the appeal is received by the Under Secretary for Health or designee.

\(1\) If any charge is sustained in whole or in part, the Board shall
approve the action as imposed; approve the action with modification,
reduction, or exception; or reverse the action.

\(2\) If none of the charges are sustained in whole or in part, the
Board will reverse the decision.

c\. **Action by the** \[**Deputy**\] **Under Secretary for Health.**
\[The Under Secretary for Health has delegated the authority to execute
decisions made by Disciplinary Appeals Boards to the Deputy Under
Secretary for Health.\] The \[Deputy\] Under Secretary for Health shall
execute the Board\'s decision in a

timely manner, but in no case later than 90 calendar days after the
Board\'s decision is received by the

\[Deputy\] Under Secretary for Health. Pursuant to the Board\'s
decision, the \[Deputy\] Under Secretary for Health may order
reinstatement, award back pay in accordance with the Back Pay Act, and
provide such other remedies as the Board found appropriate relating
directly to the proposed action, including expungement of records
relating to the action.

\(1\) However, if the \[Deputy\] Under Secretary for Health finds a
decision of the Board to be clearly contrary to the evidence or unlawful
the \[Deputy\] Under Secretary for Health may:

\(a\) Reverse the decision of the Board; or

\(b\) Vacate the decision of the Board and remand the matter to the
Board for further consideration.

(2) If the decision, while not clearly contrary to the evidence or
    unlawful, is found to be not

justified by the gravity of the charges, the \[Deputy\] Under Secretary
for Health may mitigate the adverse action imposed.

\(3\) The \[Deputy\] Under Secretary for Health\'s execution of a
Board\'s decision, or the mitigated action if appropriate, shall be the
final administrative action in the case.

d\. **Case Record.** The case record will consist of the notice of
proposed adverse action, appellant\'s reply, if any, all evidence
(documents or testimony) relied upon by the Board in reaching its
decision, notice of decision to appellant, appellant\'s request for a
hearing, \[Deputy\] Under Secretary for Health's or designee's
appointment of Board, Board communications and notices related to the
hearing, any Board rulings or submissions of the parties, verbatim
record of any formal hearing, Board Action (VA Form 10‑2543), \[Deputy\]
Under Secretary for Health's execution of the Board\'s recommendation,
and any Notification of Personnel Action (SF‑50B).

**(Authority: 38 U.S.C. 501(a), 7421, 38 U.S.C. 7461‑7464.)**

**10.** **REVIEW OF RECORDS.** The Chairman of a Board may review
records or information covered by 38 U.S.C. 5701 and 1332 in accordance
with 7464(c)(1) of title 38.

**(Authority: 38 U.S.C. 501(a), 7421,.38 U.S.C. 7461‑7464.)**

**EMPLOYEE/MANAGEMENT RELATIONS**

**1. REASON FOR ISSUE:** To revise Department of Veterans Affairs (VA)
delegations of authority for title 38 appeals to a Disciplinary Appeals
Board (DAB).

**2. SUMMARY OF CONTENTS/MAJOR CHANGES:** This handbook contains
mandatory VA procedures on employee/management relations. The pages in
this handbook replace the corresponding pages in part V, Chapter 1 of VA
Handbook 5021. These changes will be incorporated into the electronic
version of VA Handbook 5021 that is maintained on the Office of Human
Resources Management website at <http://vaww.va.gov/ohrm>. Significant
changes include:

a\. Delegates to the Deputy Under Secretary for Health for Operations
and Management authority to make the final decision regarding the
timeliness of an appeal to a DAB.

b\. Delegates to the Deputy Under Secretary for Health the authority to
execute decisions and to reverse, vacate and remand decisions to the DAB
for further consideration.

**3. RESPONSIBLE OFFICE:** The Human Resources Management Programs and
Policies Service (051), Office of the Deputy Assistant Secretary for
Human Resources.

**4. RELATED DIRECTIVE:** VA Directive 5021, "Employee/Management
Relations."

**5. RESCISSIONS:** None.

**CERTIFIED BY: BY DIRECTION OF THE SECRETARY**

**OF VETERANS AFFAIRS:**

/s/Robert N. MacFarland /s/William H. Campbell

Assistant Secretary for Acting Assistant Secretary for Human

Information and Technology Resources and Administration

ELECTRONIC DISTRIBUTION ONLY

PART V. TITLE 38 APPEALS TO THE DISCIPLINARY APPEALS BOARD

**CHAPTER 1. GENERAL**

**1.** **SCOPE, AUTHORITY AND DEFINITIONS.** This chapter applies to
Department of Veterans Affairs (VA) employees holding a full‑time,
permanent appointment under 38 U.S.C. 7401(l) who have satisfactorily
completed the probationary period required by 38 U.S.C. 7403(b).
Included in this category are: physicians, dentists, podiatrists,
optometrists, nurses, nurse anesthetists, physician assistants and
expanded‑function dental auxiliaries. These categories of individuals
are included in the term \"employee(s)\" as used in this chapter unless
otherwise specified. This chapter governs appeals of major adverse
actions which arise out of, or which include, a question of professional
conduct or competence in VA. Major adverse actions are suspensions
(including indefinite suspensions), transfers, reductions in grade,
reductions in basic pay, and discharges. A question of professional
conduct or competence involves direct patient care and/or clinical
competence. The term clinical competence includes issues of professional
judgment.

**2.** **REPRESENTATION.** An employee of the Department may be
designated by the decision official to represent management in any case
before a Disciplinary Appeals Board. The decision official should direct
requests for legal representation to the General Counsel or Regional
Counsel, as appropriate.

**3.** **FILING AN APPEAL TO THE DISCIPLINARY APPEALS BOARD**

a\. **Initiating an Appeal.** An employee subjected to a major adverse
action, which is based in whole or in part on a question of professional
conduct or competence, may file a written notice of appeal to the
Disciplinary Appeals Board under the provisions of this part. The
employee may request a hearing before the Board. Any such request must
be submitted in writing and accompany the employee\'s notice of appeal.
The appeal must contain (1) the appellant\'s name, address, telephone
number, designation of representative (if any), (2) a copy of the notice
of action proposed and decision letter, (3) a statement as to whether
the employee is requesting a hearing before the Board, (4) why the
appellant believes the major adverse action taken was in error or should
not have been taken, and (5) a statement describing the expected relief.
The original appeal and the request for hearing, if any, must be
submitted to the Under Secretary for Health or designee, through the
Office of Human Resources Management (051), so as to be received within
30 days after the date of service of the written decision on the
employee. Submission of the appeal must be by personal service,
facsimile, or certified mail return receipt requested. A copy of the
appeal must be served on the decision official who took the action being
appealed and any management representative of record at the time of
filing.

b\. **Establishing Timeliness of an Appeal.** For purposes of computing
the 30‑day period for filing an appeal, the date of service of the
written decision on the employee will be determined by the date of
receipt by the employee of the personal delivery, the signed receipt of
certified mail, or presumed to be

5 days after depositing the decision in the U.S. mail if no acknowledged
receipt is available. \[The Deputy Under Secretary for Health for
Operations and Management will make a final decision regarding the
determination that an appeal is filed untimely. The employee will be
notified in writing, by letter, of this final determination. There are
no further administrative appeal rights regarding the issue of
timeliness.\]

c\. **Representation.** The employee may be represented by an attorney
or other person of the employee's choice.

**4.** **APPOINTMENT OF DISCIPLINARY APPEALS BOARDS**

a\. **General.** The Under Secretary for Health or designee shall
appoint Disciplinary Appeals Boards in accordance with this chapter to
hear appeals of major adverse actions involving questions of
professional conduct or competence as defined in part II of this
handbook. Such Boards shall be referred to as Disciplinary Appeals
Boards. Each Board will be comprised of three VA employees, each of whom
shall be of the same grade as, or be senior in grade to, the employee
who is appealing the action. For purposes of this chapter, the term
grade is defined by the provisions of 38 U.S.C. 7404, and the
qualification standards issued pursuant to 38 U.S.C. 7402. (See VA
Directive and Handbook 5005, Staffing.) At least two of the members of
the Board shall be employed in the same category of position as the
employee who is appealing the action. For purposes of this chapter, a
member employed in the same category of position is one who is employed
in the same occupation e.g., physician, nurse, dentist as the appellant
and has sufficient professional knowledge to evaluate the specific
issues of clinical competence and/or direct patient care involved in the
appeal.

\(1\) One of the members of the Board shall be designated to function as
Chairperson and one as Secretary to the Board.

\(2\) A copy of the notice of appointment will be sent to each Board
member and the head of the appellant\'s facility.

b\. **Substitute Members.** To facilitate operations, substitute
member(s) may be authorized by telephone and later confirmed in writing
for inclusion in the record of the Board proceeding.

c\. **Technical Advisors.** Technical advisors are not members of the
Disciplinary Appeals Board but may be relied upon to assist in the
development and review of the case.

d\. **Panel Notice.** Notice of a name being on the list will be
provided at least 30 days prior to the selection of the individual to
serve on a Board.

**5.** **JURISDICTION**

a\. The Disciplinary Appeals Boards appointed under this chapter shall
have exclusive jurisdiction to review any case which arises out of, or
which includes, a question of professional conduct or competence, and in
which a major adverse action was taken under part II of this handbook.

b\. While it may not be possible in all cases for the Board to determine
whether an appeal is properly before it without gathering additional
information in a hearing, every effort should be made to make this
determination prior to convening a hearing.

**6.** **POWERS OF THE CHAIRPERSON OF THE DISCIPLINARY APPEALS BOARD.**
The Chairperson\'s authority includes, but is not limited to:

a\. Taking proper steps to expedite the hearing of evidence, and
speaking and acting for the Board;

b\. Ruling on all questions arising during the proceedings, such as
admissibility of evidence offered during the hearing, calling of
witnesses, order of introduction of witnesses, etc.;

c\. Obtaining further evidence concerning any issue under consideration
by the Board at any stage of the proceedings;

d\. Acting as the presiding officer, directing the regular and proper
conduct of the proceedings, and authenticating, by his or her signature,
instructions and proceedings of the Board;

e\. Ruling on questions of disqualification of any member of the Board.
In cases where the Chairperson is the challenged member, the question
shall be resolved in accordance with paragraph 7e of this chapter;

f\. Scheduling the specific hour and dates of hearings;

g\. Closing the record;

h\. Administering oaths or affirmations made by individuals giving
testimony;

i\. Ruling on motions from the parties; and

j\. Calling witnesses on behalf of the Board.

**7.** **PROCEDURE**

a\. **Determining Jurisdiction.** When a Board is convened to consider
an appeal, the Board shall first determine whether the case is properly
before it prior to considering the merits of the appeal. The Board shall
determine whether the matter appealed is a major adverse action as
defined in part II of this handbook, and whether it arises out of or
includes a question of professional conduct or competence \[ \]. The
determination of jurisdiction will be made as soon as practicable. The
Board will make a record of its determination**.**

\(1\) The record of decision in any mixed case shall include a statement
by the Board of its exclusive jurisdiction, citing 38 U.S.C. 7462(a) as
the authority and the basis for such exclusive jurisdiction. A mixed
case is one that includes both (a) a major adverse action arising out
of, or including, a question of professional conduct or competence, and
(b) a major adverse action which does not arise out of a question of
professional conduct or competence or a disciplinary action.

\(2\) If necessary, the Board may develop the record to establish
jurisdiction.

\(3\) If the Board determines that the appeal is not properly before it,
e.g., that it lacks jurisdiction, the Board shall fully set forth its
reasons, including a statement of the appropriate appeal procedure. The
\[Deputy\] Under Secretary for Health will take appropriate action on
the decision of the Board as described in paragraph 9e of this chapter.

\(e\) Technical advisors are not members of the Board and, therefore, do
not possess any voting power.

c\. **Decision.** The Board has full authority to render a decision on
an appeal. The Board shall reach a decision within 45 calendar days of
completion of the hearing, if a hearing is convened. In any event, a
decision will be made by the Board no later than 120 calendar days after
the appeal is received by the Under Secretary for Health or designee.

\(1\) If any charge is sustained in whole or in part, the Board shall
approve the action as imposed; approve the action with modification,
reduction, or exception; or reverse the action.

\(2\) If none of the charges are sustained in whole or in part, the
Board will reverse the action.

d\. **Preparation of VA Form 10‑2543.** Following deliberation and
voting on the findings and any penalty, VA Form 10‑2543 will be prepared
by the Disciplinary Appeals Board considering the case. The Chairperson
of the Board will forward the complete record, including its findings
and decision, signed and dated by all members of the Board and the
technical advisor, through the Office of Human Resources Management
(051) to the \[Deputy\] Under Secretary for Health for appropriate
action. VA Form 10‑2543 will contain supporting rationale for each of
the findings.

e\. **Action by the Under Secretary for Health.** \[The Under Secretary
for Health has delegated the authority to execute decisions made by
Disciplinary Appeals Boards to the Deputy Under Secretary for Health.\]
The \[Deputy\] Under Secretary for Health shall execute the Board\'s
decision in a timely manner, but in no case later than 90 calendar days
after the Board\'s decision is received by the \[Deputy\] Under
Secretary for Health. Pursuant to the Board\'s decision, the \[Deputy\]
Under Secretary for Health may order reinstatement, award back pay in
accordance with the Back Pay Act, and provide such other remedies as the
Board found appropriate relating directly to the proposed action,
including expungement of records relating to the action.

\(1\) However, if the \[Deputy\] Under Secretary for Health finds a
decision of the Board to be clearly contrary to the evidence or
unlawful, the \[Deputy\] Under Secretary for Health may:

\(a\) reverse the decision of the Board; or

\(b\) vacate the decision of the Board and remand the matter to the
Board for further consideration.

\(2\) If the decision, while not clearly contrary to the evidence or
unlawful, is found to be not justified by the gravity of the charges,
the \[Deputy\] Under Secretary for Health may mitigate the adverse
action imposed.

\(3\) The \[Deputy\] Under Secretary for Health\'s execution of a
Board\'s decision, or the mitigated action, if appropriate, shall be the
final administrative action in the case.

f\. **Remands.** In circumstances where the \[Deputy\] Under Secretary
for Health vacates the Board\'s decision and remands the matter for
further consideration, the Board shall normally render its subsequent
decision within 45 calendar days of the completion of the hearing, if a
hearing was convened after the remand.

\(1\) In any event, the Board\'s decision will be made no later than 90
calendar days after the remand is received by the Board Chairperson.

\(2\) If the remand is related solely to jurisdictional issues, then the
\[Deputy\] Under Secretary for Health may establish a shorter resolution
period.

g\. **Case Record**

\(1\) The case record will consist of the notice of proposed adverse
action, appellant\'s reply, if any, all evidence (documents or
testimony) relied upon by the Board in reaching its decision, notice of
decision to appellant, appellant\'s request for a hearing, \[Deputy\]
Under Secretary for Health's or designee's appointment of Board, Board
communications and notices related to the hearing, any Board rulings or
submissions of the parties, verbatim record of any formal hearing, Board
Action (VA Form 10‑2543), \[Deputy\] Under Secretary for Health's
execution of the Board\'s recommendation, and any Notification of
Personnel Action (SF‑50B).

\(2\) Major adverse action files, which have been involved with an
appeal to the Disciplinary Appeals Board will be maintained by the
Office of Human Resources Management, Human Resources Management
Programs and Policies Service (051). Records are maintained and disposed
of in accordance with the records disposition authorities found in
General Records Schedule 1 and VA Records Control Schedule 10‑1, except
where otherwise required to be retained for a longer period of time.

\(3\) One copy of notice of decision will be provided to the employee,
the employee\'s representative, and the official who decided the adverse
action. Any SF-50B, Notification of Personnel Action, will be filed in
the employee\'s personnel folder.

**10.** **REVIEW OF RECORDS**

a\. The Board Chairperson, upon request of an appellant (or the
appellant\'s designated representative), may, in connection with the
considerations of the Board, review confidential records or information
covered by 38 U.S.C. 5701 and 7332 in accordance with 38 U.S.C.
7464(c)(1).

\(1\) The Board Chairperson may authorize the disclosure of such records
or information to that employee (or representative) to the extent the
Board considers appropriate for purposes of the proceedings of the
Board.

\(2\) Decisions on requests to disclose records or information will be
in writing.

b\. In any such case, the Chairperson may direct that measures be taken
to protect the personal privacy of individuals whose records are
involved. Any person who uses or discloses a record or information under
the provision of 38 U.S.C. 7464(c) for any purpose other than in
connection with the proceedings of the Board is subject to a fine of not
more than \$5,000 in the case of a first offense and not more than
\$20,000 in the case of a subsequent offense.

**11.** **TRAVEL**

a\. **Costs.** Funds to cover the travel and per diem costs of all Board
members will be allotted from VA Central Office directly to the official
facility of the individual Board member and VA employees who are
required to assist the Board as directed by the Under Secretary for
Health, or designee.

b\. **Responsibilities for Expenses.** Travel expenses and subsistence
expenses, or per diem allowance in lieu of subsistence expenses, for the
purpose of attending the hearing will be borne by VA in accordance with
Government Travel Regulations for the members of the Board and VA
employees who are identified to assist the Board or to provide
testimony. VA will not bear any expenses for the appellant or
appellant\'s representative.