**EMPLOYEE/MANAGEMENT RELATIONS**

**1. REASON FOR ISSUE:** To issue Department of Veterans Affairs (VA)
policy regarding employee/management relations.

**2. SUMMARY OF CONTENTS/MAJOR CHANGES:** This directive sets forth
policies previously contained in numerous other issuances. No
substantive changes have been made.

**3. RESPONSIBLE OFFICE:** The Human Resources Management Employee
Relations and Performance Management Service (051), Office of the Deputy
Assistant Secretary for Human Resources and Labor Relations.

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

**5. RESCISSIONS:** Refer to the Transmittal Sheet for VA Directive
5001, "General Introduction and Administration."

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

**OF VETERANS AFFAIRS:**

John A. Gauss Jacob Lozada, Ph.D.

Assistant Secretary for Assistant Secretary for Human

Information and Technology Resources and Administration

EMPLOYEE/MANAGEMENT RELATIONS

**1. PURPOSE.** This directive contains policy on employee relations
programs. This directive should be used in conjunction with VA Handbook
5021, which contains mandatory guidance and procedures.

2\. POLICY

a\. The public interest requires the maintenance of high standards of
employee integrity, conduct, effectiveness, and service to the public.
When such standards are not met, prompt and appropriate disciplinary or
other corrective action will be taken. The policy of VA is to maintain
standards of conduct and efficiency that will promote the best interests
of the service.

b\. It is the policy of VA to identify, prevent, and make reasonable
efforts to resolve employee dissatisfactions. Efforts will be made to
resolve grievances informally. However, the filing of formal grievances
is not to be discouraged or prevented. All individuals involved in
grievance proceedings, whether employees, employee representatives, or
members of management, are expected to be candid and to act in good
faith, not only in following the letter of the grievance procedure, but
in observing the underlying spirit and intent in attempting to resolve
dissatisfactions. Supervisors are expected to give full and fair
consideration to employee complaints and causes of dissatisfaction.

c\. VA will administer the employee relations programs covered by this
directive and VA Handbook 5021 in accordance with applicable laws and
regulations. The appendix to this directive contains program
requirements applicable to certain employees appointed under title 38.
The contents of the appendix were published in the Federal Register,
Vol. 57, No. 21, dated January 31, 1992.

**3. RESPONSIBILITIES.** Statements of responsibility for the various
employee relations programs may be found in each of the separate parts
or chapters of VA Handbook 5021, or the appendix to this directive, as
appropriate.

# APPENDIX A. DISCIPLINARY AND GRIEVANCE PROCEDURES

###### SECTION A. DISCIPLINARY AND MAJOR ADVERSE ACTIONS

**1. SCOPE AND AUTHORITY**

a\. This section governs disciplinary and major adverse actions based on
conduct or performance in the Department of Veterans Affairs (VA). The
provisions of this section apply 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, \[chiropractors,\] nurses, nurse anesthetists, physician
assistants and expanded‑ function dental auxiliaries. Henceforth,
\"employee(s)\" will be the term used to refer to the above categories
in this section, unless otherwise specified.

b\. This chapter does not apply to employees appointed under 38 U.S.C.,
chapters 3, 71 or 78, or to employees appointed under 38 U.S.C. 7306, 38
U.S.C. 7401(3), 38 U.S.C. 7405, or 38 U.S.C. 7406.

**(Authority: 38 U.S.C. 501(a), 7401, 7403(b), 7405, 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\. Section 302 of the Veterans Healthcare, Capital Asset and Business
Improvement Act of 2003 (Pub.L. 108-170).

c\. Section 3 of the Department of Veterans Affairs Health Care
Personnel Act of 2004 (Pub.L. 108-445).

d\. Title 38, United States Code, chapter 74.

**3. DEFINITIONS.** Unless otherwise noted, the following definitions
apply to this appendix only.

a\. **Admonishment.** An official letter of censure to an employee for
minor act(s) of misconduct or deficiency in competence. This letter
normally remains in the employee\'s personnel folder for two years.

b\. **Discharge.** The involuntary separation of an employee from
employment based on conduct or performance.

c\. **Disciplinary Actions.** These are adverse actions, other than
major adverse actions, which include admonishment and reprimand based on
conduct or performance.

d\. **Disciplinary Appeals Board.** The three member board designated to
hear an employee\'s appeal of a major adverse action which is based in
whole or in part on a question of professional conduct or competence.

e\. **Grade.** The established grades for the positions covered by this
chapter will be as defined by 38 U.S.C. 7404, and the qualification
standards issued pursuant to 38 U.S.C. 7402. (See part II of VA Handbook
5005, Staffing.) \[ \]

f\. **Major Adverse Actions.** These are suspension, transfer, reduction
in grade, reduction in basic pay, and discharge based on conduct or
performance. For purposes of this Directive, a reduction in basic pay
includes a reduction in the market pay of a physician or dentist as a
result of an involuntary reassignment or change in assignment taken for
disciplinary reasons, i.e. conduct or performance reasons.

g\. **Mixed Case.** This is a case that includes both (1) a major
adverse action arising out of (or including) a question of professional
conduct or competence, and (2) a major adverse action which does not
arise out of a question of professional conduct or competence, or a
disciplinary action.

h\. **Professional Conduct or Competence.** A question of professional
conduct or competence involves direct patient care and/or clinical
competence. The term clinical competence includes issues of professional
judgment.

i\. **Reduction in Basic Pay.** The involuntary reduction, based on
conduct or performance, of the annual rate of basic pay to which an
employee is entitled under 38 U.S.C. 7404, including above minimum
entrance rates and special salary rates authorized under 38 U.S.C. 7455.
This includes a reduction in the market pay of a physician or dentist as
a result of an involuntary reassignment or change in assignment when
taken for disciplinary reasons. However, this does not apply to
reductions in pay other than basic pay, such as the loss of or reduction
in physician or dentist performance pay, nurse executive special pay,
head nurse differential, other differentials, allowances or premium pay
such as standby, on‑call, shift, overtime, Sunday, holiday, night work,
hazardous duty, and interim geographic adjustment. A reduction in market
pay for a physician or dentist is considered a reduction in basic pay
for purposes of this appendix only when the reduction results from an
involuntary reassignment or change in assignment for conduct or
performance reasons. A change in assignment refers to a permanent change
in official duty station, change in duty basis (i.e. to/from full-time,
part-time or intermittent), change in tier, or a significant change in
the duties of the position as determined by an appropriate management
official.

j\. **Reduction in Grade.** The involuntary assignment to a lower grade
on the same pay schedule based on conduct or performance.

k\. **Reprimand.** An official letter of censure to an employee for an
act of misconduct or deficiency in competence. A reprimand is a more
severe disciplinary action than an admonishment. This letter normally
remains in the employee\'s personnel folder for three years.

l\. **Suspension.** The involuntary placement of an employee, for
disciplinary reasons, in a non‑duty, non‑pay status for a temporary
period of time.

m\. **Transfer.** The involuntary movement of an employee from one VA
facility to another (under separate managerial authority) based on
conduct or performance and without a break in service.

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

**4. RESPONSIBILITIES AND AUTHORITIES.** The Under Secretary for Health
or designee will appoint Disciplinary Appeals Boards to hear appeals of
major adverse actions and will review and take appropriate action on all
decisions rendered by Disciplinary Appeals Boards.

**(Authority: 38 U.S.C. 501(a)**\[**, 7421, 7461, 7462, and
7464**\]**.)**

**5. DISCIPLINARY ACTIONS**

a\. **Types of Disciplinary Actions.** This paragraph applies to adverse
actions, other than major adverse actions, which include admonishment
and reprimand based on conduct or performance (refer to paragraph 3 of
this section for definitions).

b\. **Procedural Entitlements**

\(1\) Prior to taking disciplinary action, employees must be given:

\(a\) Advance written notice of the action proposed. The advance notice
of proposed action must contain the following information:

[1]{.underline}. The nature of the action proposed (e.g., admonishment);

[2]{.underline}. A statement of the specific charges upon which the
proposed action is based, including names, dates, places, and other data
sufficient to enable the employee to fully understand the charges and to
respond to them;

[3]{.underline}. A statement of any specific law, regulation, policy,
procedure, practice or other specific instruction (national, local or
other­wise) that has been violated as it pertains to the charge(s), if
applicable;

\(b\) The right to reply orally or in writing, or both orally and in
writing, and to submit affidavits and other documentary evidence in
support of the reply;

\(c\) The right to a reasonable amount of time to submit the reply or
replies (time limits may vary according to the circumstances but in no
event should be less than five calendar days);

\(d\) The right to review the material relied upon to support the
reasons for the proposed action;

\(e\) Identification of the official who will receive any oral and/or
written replies;

\(2\) The right to a written decision as soon as possible after the
employee's reply has been fully considered or after the expiration of
the time allowed for reply, if the employee does not reply;

\(3\) The right to be represented by an attorney or other representative
of the employee\'s choice at all stages of the case; and

\(4\) The right to grieve the disciplinary action, if any.

c\. **Employee\'s Reply**

\(1\) If the employee requests an opportunity to reply orally, the
decision official or designee will receive the employee\'s reply. Any
official designated to receive the reply must have the authority to
recommend what final decision should be made.

\(2\) A written summary signed by the official hearing the oral reply
must be made part of the record.

d\. **Arriving at a Final Decision**

\(1\) The decision official will give full and impartial consideration
to the employee\'s reply, if any; the recommendation of the designee
hearing an oral reply, if any oral reply was made; and all evidence of
record. If the decision official finds one or more of the charges in the
advance notice sustained, he or she will determine an appropriate
action.

\(2\) A decision adverse to the employee must be based only on the
charges stated in the notice of proposed action. If none of the charges
are sustained, either in whole or in part, no action may be imposed,
regardless of any record of past discipline cited in the notice.

\(3\) The penalty may not be more severe than that proposed in the
notice of proposed action.

\(4\) If the notice of proposed action is determined to be procedurally
defective to the detriment of the employee\'s substantive rights, or if
it is found that additional reasons other than those set forth should be
considered, or that the appropriate action should be more severe than
that proposed, the notice of proposed action will be rescinded and a new
notice of proposed action issued.

\(5\) If it is determined that the appropriate action is a major adverse
action, the procedures outlined in paragraph 6 of this section will
apply.

e\. **Decision.** The decision will be in writing and will contain the
following information:

\(1\) A statement of whether any of the charges sustained arose out of a
question of professional conduct or competence.

\(2\) A statement that consideration has been given to all evidence
developed, including the employee\'s reply(ies).

\(3\) A statement of the decision official\'s determination regarding
which charges, if any, in the advance notice were sustained, and which
charges, if any, were not sustained.

\(4\) If a record of prior disciplinary actions was cited in the advance
notice, the decision will indicate how the past record, as cited in the
advance notice, was taken into consideration in determining the proper
action. (Prior disciplinary actions which have expired or have been
withdrawn may not be cited as a basis for a future action.)

\(5\) A statement concerning the employee\'s rights to file a grievance,
and the time limit within which it must be filed.

f\. **Appeals of Disciplinary Actions**

\(1\) If the disciplinary action involves or includes a question of
professional conduct or competence, the employee may appeal it under the
grievance procedures contained in section B of this appendix.

\(2\) If the disciplinary action does not involve or include a question
of professional conduct or competence, the employee may appeal the
action under the grievance procedure in section B of this appendix.
However, if the employee is covered by a collective bargaining agreement
under 5 U.S.C., chapter 71, and the negotiated grievance procedure
includes disputes over these actions within its scope, the employee may
elect to appeal the action through the negotiated grievance procedure or
the grievance procedure in section B of this appendix, but not both. The
employee shall elect which grievance procedure will be used. The timely
filing of a grievance under either procedure shall constitute an
irrevocable election. Grievances filed under the negotiated grievance
procedure must be filed in

accordance with the provisions of the applicable negotiated grievance
procedure. Reference should be made to the negotiated agreement for the
appropriate steps and time limits.

g\. **Withdrawal of Action**

\(1\) After 2 years, admonishments will be removed from the personnel
folder and destroyed. However, in cases of patient abuse, an
admonishment may be retained in the personnel folder indefinitely. The
employee\'s supervisor may, after 6 months, make a written request to
the Human Resources Management (HRM) Officer that the admonishment,
including patient abuse cases, be withdrawn, if the employee\'s conduct
so warrants.

\(2\) After 3 years, a reprimand will be removed from the personnel
folder and destroyed. However, in cases of patient abuse, the reprimand
may be retained in the personnel folder indefinitely. The employee\'s
supervisor may, after 2 years, make a written request to the HRM Officer
that the reprimand, including patient abuse cases, be withdrawn, if the
employee\'s conduct so warrants.

\(3\) If the request for early withdrawal is initiated by a supervisor
below the level of the official who issued the action, it must be
approved at or above the level of the initial decision official.

\(4\) The employee may, after 6 months, make a written request to the
supervisor that the admonishment be withdrawn. The employee may, after 2
years, make a written request to the supervisor that the reprimand be
withdrawn.

\(5\) Since the admonishment or reprimand may be appealed under the
grievance procedure initially and, except in patient abuse cases, will
automatically be removed from the personnel folder after 2 or 3 years,
respectively, a grievance may not be filed based on a supervisor\'s
decision not to remove it earlier than the expiration date.

**(Authority: 38 U.S.C. 501(a), 7421, 7461, 7463.)**

**6. MAJOR ADVERSE ACTIONS**

a\. **Types of Actions.** This paragraph applies to suspensions,
transfers, reductions in grade, reductions in basic pay \[(including
reductions in physician and dentist market pay resulting from an
involuntary reassignment or change in assignment when taken for conduct
or performance reasons)\] and discharges.

b\. **Burden of Proof.** When taking a major adverse action against an
employee, the Department bears the burden of proving by a preponderance
of evidence the charges that form the basis for the action.

c\. **Procedural Entitlements**

\(1\) Prior to taking a major adverse action, the employee must be
given:

\(a\) 30 calendar days advance written notice of the action proposed.
The advance notice of proposed action must contain the following
information:

[1]{.underline}. The nature of the action proposed;

[2]{.underline}. The specific charges upon which the proposed action is
based, including the details and circumstances (i.e., names, dates,
places, and other data) constituting the basis for action, sufficient to
enable the employee to fully understand the charges and to afford the
employee a fair opportunity to respond to them;

[3]{.underline}. Any specific law, regulation, policy, procedure,
practice, or other specific instruction that has been violated as it
pertains to each charge;

[4]{.underline}. A statement of the employee\'s past disciplinary record
when such record is to be relied upon as evidence or considered as part
of the basis for the proposed action. Specific previous infractions and
penalties will be cited and identified and the employee will be advised
that he or she may reply orally or in writing, or both orally and in
writing, with respect to those previous infractions. The statement will
also advise the employee that he or she may submit supporting evidence,
including affidavits, and may make a statement concerning the use to be
made of the past record in determining proper action. Prior disciplinary
actions which have expired or have been withdrawn may not be cited as
the basis for future action;

\(b\) The right to reply orally or in writing, or both orally and in
writing, and to submit affidavits and other documentary evidence in
support of the reply;

\(c\) The right to a reasonable amount of time to submit the reply(ies).
Time limits may vary according to the particular circumstances in each
case. However, the employee must be allowed a minimum of seven days from
date of receipt of the notice of proposed action, but no more than 30
days from date of the written notice of charges. The proposing/deciding
official may grant extensions beyond 30 days only when good cause is
shown;

\(d\) The right to review the material relied upon to support the
reasons for the proposed action;

\(e\) Identification of the official who will receive any oral or
written replies;

\(f\) Identification of the decision official;

\(2\) The right to representation by an attorney or other representative
of the employee\'s choice at all stages of the case;

\(3\) The right to a written decision within 21 days of receipt of the
employee\'s reply, if any, or of the expiration of the reply period if
no reply is made (see subparagraph g (1) and (2) below); and

\(4\) The right to grieve or appeal, as appropriate, any major adverse
action effected.

d\. **Exceptions to 30‑day Advance Notice.** The requirement for a
30‑day advance notice period may be shortened if there is reasonable
cause to believe the employee has committed a crime for which a sentence
of imprisonment may be imposed (38 U.S.C. 7462(b)(1)(A)). This exception
is concerned solely with shortening the advance notice period. In order
for the \"crime provision" or \"crime exception\" to be invoked, there
must be reasonable cause to believe that the employee has committed a
crime for which the employee may be imprisoned. The employee must still
be afforded a reasonable

amount of time, but not less than 7 days, to reply orally and/or in
writing to a notice of proposed adverse action.

e\. **Employee\'s Reply**

\(1\) If the employee requests an opportunity to reply orally, the
decision official, or designee, will receive the employee\'s reply. Any
official designated to receive the reply must have the authority to
recommend what final decision should be made.

\(2\) A written summary of the oral reply must be made and placed in the
adverse action file.

f\. **Arriving at a Final Decision on the Proposed Action**

\(1\) The decision on a proposed major adverse action will be made by an
official who is in a higher position than the official who proposed the
action, unless the action is proposed by the Secretary.

\(2\) The decision official will give full and impartial consideration
to the employee\'s reply, if any, and all evidence of record. If the
decision official finds that one or more charges in the advance notice
are sustained, he or she will determine the appropriate action. If none
of the charges are sustained, either in whole or in part, no action may
be imposed, regardless of any past record cited in the notice.

\(3\) Any penalty imposed by the decision official may not be more
severe than the action specified in the notice of proposed action.

\(4\) If the notice of proposed action is determined to be procedurally
defective to the detriment of the employee\'s substantive rights, or if
it is found that additional reasons other than those set forth should be
considered, or that the appropriate action should be more severe than
that proposed, the notice of proposed action will be rescinded and a new
notice of proposed action issued.

\(5\) If additional evidence becomes available to further support the
charges in the advance notice, but does not necessarily provide a basis
to alter the charges or the proposed action, the employee will be
afforded the opportunity to respond to the new evidence before a final
decision is made.

g\. **Decision**

\(1\) The deciding official shall render a decision in writing within 21
days of his/her receipt of the employee's reply(ies). The decision will
be delivered to the employee at least five days prior to the effective
date of the action, whenever possible. The five day period does not
apply in cases where there is reasonable cause to believe the employee
has committed a crime for which a sentence of imprisonment may be
imposed (see paragraph 6d of this section).

\(2\) A decision on a proposed major adverse action may be held in
abeyance at the request of the employee and agreement by the deciding
official, in order for the employee to seek counseling or treatment for
a condition covered under the Rehabilitation Act of 1973 (see 29 U.S.C.
Section 701, et seq.). The employee must provide acceptable
documentation for his or her request which, at a minimum, establishes
both a qualifying handicapping condition and a causal connection between
the

handicapping condition and the cited misconduct and/or deficiency in
performance. However, an abeyance of this nature may not exceed one
year.

\(3\) The decision letter must contain the following:

\(a\) A statement of the specific charges that are sustained and those
that are not sustained;

\(b\) When a major adverse action is imposed, a statement as to whether
any of the charges sustained arose out of a question of professional
conduct or competence;

\(c\) A statement that consideration has been given to all evidence
developed, including the employee\'s reply. If the employee replies both
orally and in writing, both must be mentioned;

\(d\) If a record of prior disciplinary actions was cited in the advance
notice, the decision will indicate how the past record, as cited in the
advance notice, was taken into consideration in determining proper
action;

\(e\) A statement of the effective date (not less than 30 days from
receipt of notice of proposed action), if the action imposed is a major
adverse action. If the action is a suspension, the inclusive dates of
the suspension will be stated; and

\(f\) A statement specifying the employee\'s appeal rights, and the time
limits within which any appeal must be filed.

h\. **Appeals of Major Adverse Actions**

\(1\) If the major adverse action does not involve or include a question
of professional conduct or competence, an employee may elect to seek
review of the decision under the grievance procedure described in
section B of this appendix. However, if the employee is covered by a
collective bargaining agreement under 5 U.S.C., chapter 71, and the
negotiated grievance procedure includes disputes over these actions
within its scope, the employee may elect to appeal the action through
the negotiated grievance procedure or the grievance procedure in section
B of this appendix, but not both. The employee shall elect which
grievance procedure will be used. The timely filing of a grievance under
either procedure shall constitute an irrevocable election. Time limits
for filing a grievance under the VA procedure are governed by the
provisions of section B of this appendix. Grievances filed under the
negotiated grievance procedure must be filed in accordance with the
provisions of the applicable negotiated agreement**.**

\(2\) If the major adverse action is based in whole or in part on a
question of professional conduct or competence, the employee may appeal
to the Disciplinary Appeals Board under the provisions in section C of
this appendix.

\(3\) \[Grievances or appeals over decisions to involuntarily reassign
or change the assignment of a physician or dentist for disciplinary
reasons resulting in a reduction in market pay are limited to a review
of the decision to reassign or change the assignment. The decision to
reduce the physician or dentist's market pay or the amount of the
reduction is not subject to review under the grievance or appeal

procedures. However, a physician or dentist may request reconsideration
of the tier determination in accordance with VA Handbook 5007, Part IX,
paragraph 11\].

\(4\) \[If the employee does not request a hearing in the request for an
appeal, the Board may elect to conduct a hearing or make a decision
based on a review of the record\].

\(5\) \[Appeals to the Disciplinary Appeals Board must be submitted to
the Under Secretary for Health or designee so as to be received within
30 days after the date of service of the written decision on the
employee. The 30‑day time limit may not be extended\].

\[(6)\] An issue of whether a matter or question concerns, or arises out
of, professional conduct or competence is not itself subject to any
grievance procedure provided by law, regulation, or collective
bargaining and may not be reviewed by any other agency.

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

**SECTION B. GRIEVANCES**

**1. SCOPE AND AUTHORITY**

a**. General.** This section governs employee grievances under the VA
grievance procedure.

b\. **Employee Coverage**

\(1\) This section applies to all physicians, dentists, podiatrists,
optometrists, \[chiropractors,\] nurses, nurse anesthetists, physician
assistants, and expanded‑function dental auxiliaries who are not on
time-limited appointments.

\(2\) A bargaining unit employee may elect to use the VA grievance
procedure described in this section or the negotiated grievance
procedure, but not both, in the case of a disciplinary or major adverse
action covered under section A of this appendix which does not involve a
question of professional conduct or competence.

c\. **Disciplinary and Adverse Actions Covered.** Disciplinary and major
adverse actions, other than major adverse actions which involve
questions of professional conduct or competence, are covered by the
grievance procedures described in this section.

**(Authority: 38 U.S.C. 501(a), 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\. Section 302 of the Veterans Healthcare, Capital Asset and Business
Improvement Act of 2003 (Pub. L. 108-170)

c\. Section 3 of the Department of Veterans Affairs Health Care
Personnel Act of 2004 (Pub. L. 108-445).

d\. 38 U.S.C. 501(a), 7421, \[ \] 7461‑7464.

**3. RESPONSIBILITIES.** The Under Secretary for Health and other key
management officials are responsible for delegating authority to
appropriate officials to decide grievances. The Under Secretary for
Health and facility directors, as appropriate, will designate such
officials in writing.

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

**4. DEFINITIONS**

a\. **Bargaining Unit Employee.** An employee included in an appropriate
unit, pursuant to 5 U.S.C. 7112 and 7135, for which a labor organization
has been accorded exclusive recognition.

b\. **Decision Official.** An official designated to (1) receive and
attempt to adjust formal grievances; (2) refer formal grievances for
further review and inquiry; and (3) decide formal grievances based on
the results of impartial reviews and recommendations.

**c. Employee.** Any physician, dentist, podiatrist, \[chiropractor,\]
optometrist, nurse, nurse anesthetist, physician assistant, or
expanded‑function dental auxiliary covered in the scope of this section.
Former employees of VA are also included, but only in connection with a
grievance over discharges or actions resulting in loss of pay or
benefits (for example, a former employee charged with 8 hours absence
without leave (AWOL) who has requested that the 8 hours of pay be
restored). Former employees must have filed a timely grievance in
accordance with the provisions of this appendix in order to receive
consideration.

d\. **Grievance.** A request by an employee, or group of employees, for
personal relief in a matter of concern or dissatisfaction relating to
employment which is subject to the control of agency management. Matters
not covered by the grievance procedure may be found in paragraph 14 of
this section.

e\. **Grievance File.** A separate file subject to the Privacy Act which
contains all documents related to the grievance, including, but not
limited to, statements of witnesses, records or copies thereof, the
report of the hearing if one is held, statements made by the parties to
the grievance, and the decision.

f\. **Personal Relief.** A specific remedy directly benefiting the
grievant, but may not include a request for disciplinary or other action
affecting another employee.

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

**5. REPRESENTATION**

a\. **Election of** **Representation.** An employee may present a
grievance with or without representation.

b\. **Designation of Representative.** An employee has the right to be
accompanied, represented, and advised by a representative of his or her
choice at any stage of the procedure. If a grievance is presented under
the formal grievance procedure, designation of a representative, will be
in writing and will be submitted to the decision official. Any change of
representative will be in writing.

c\. **Disallowance of Designated Representative.** An employee\'s
representative who is employed by VA may be disallowed by the facility
Director because of conflict of position, or conflict of interest. The
disallowance of a designated representative may be challenged in
accordance with part IV, chapter 3, paragraph 4 of VA Handbook 5021.

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

**6. TIME LIMITS FOR PROCESSING GRIEVANCE**

a\. **Time Limits.** A decision on a grievance will be issued within the
shortest time frame possible. To ensure timely and orderly processing,
the following time limits are established for each stage of the
grievance procedure:

\(1\) **Informal Procedure**

\(a\) 15 days from the date of the incident or action on which the
grievance is based for employee to initiate grievance. When an employee
is informed of a final decision that has not yet been effected, the
period to present a grievance is counted from the date of notification
of the action.

\(b\) 10 days for the supervisor to complete the action under the
informal procedure.

\(2\) **Formal Procedure**

\(a\) 10 days for employee to file a written grievance under the formal
procedure after completion of the informal procedure, or 15 days from
the date of service of a decision where a grievance originates at the
formal process (see par. 9, this sec.).

\(b\) 10 days for deciding official to adjust, reject, or refer
grievance for inquiry by examiner or for technical review after employee
files formal grievance.

\(c\) 30 days for completion of the inquiry and submission of report
when the examiner is appointed locally.

\(d\) 45 days for completion of the inquiry and submission of report
when an examiner from outside the facility is appointed.

\(e\) 30 days for Central Office to issue technical reviews when
requested to do so by the decision official.

\(f\) 15 days for issuance of the decision after the decision official
receives the examiner\'s report of findings and recommendations or the
Central Office technical review.

b\. **Grievance on Continuing Condition or Practices.** An employee may
present a grievance concerning a continuing practice or condition at any
time. Situations caused by actions which were taken or occurred on a
specific date (e.g., admonishments, reprimands, or shift assignments)
are not considered continuing conditions for these purposes despite any
continuing effects they may have.

c\. **Delays in Processing Grievances.** Management officials will
ensure that grievances are processed promptly. Management delays in any
stage of the grievance procedure beyond the prescribed time limits will
be explained to the employee and the employee\'s representative. Such
delays should be rare. If the employee delays in any stage of the
grievance procedure, management will determine whether there was good
cause and whether the grievance should continue to be processed. Such
delays, explanations, and determinations will be documented for the
record. This includes any delay created by the denial of an employee\'s
representative or by challenge to the denial.

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

**7. INFORMAL GRIEVANCE PROCEDURE**

a\. **Presenting Grievance Under Informal Procedure.** An employee
desiring consideration of a grievance must first seek informal
adjustment of the matter through supervisory channels. This informal
procedure will not be utilized when grieving disciplinary and major
adverse actions, where grievances will be initiated at the formal step
of the grievance procedure (see par. 9 of this sec.). The employee\'s
request for informal adjustment of a grievance should be made as soon as
possible, but not later than 15 days after the date of the incident or
action upon which the grievance is based, or the date upon

which the employee became aware of, or should have become aware of, the
incident or action upon which the grievance is based (see par. 6a of
this sec.).

b\. **Resolving Grievance.** The supervisor to whom a grievance has been
presented for informal adjustment will attempt to resolve it as
expeditiously as possible, seeking the advice and assistance of others
where necessary, and will give the employee a written decision on the
matter within 10 days from the date of the request for informal
consideration. If the relief sought is not granted, the employee shall
be advised of the right to present the grievance under the formal
procedure.

c\. **Mandatory Use of Informal Procedure.** Normally, the employee must
complete processing under the informal procedure before a grievance will
be accepted for processing under the formal procedure. However, when the
authority to resolve the matter is reserved to the Secretary, the
informal procedure will not be used. This informal procedure will not be
utilized when grieving disciplinary and major adverse actions, where
grievances will be initiated at the formal step of the grievance
procedure (see par. 9 of this sec.).

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

**8. FORMAL GRIEVANCE PROCEDURE**

a\. **Presenting Grievance Under Formal Procedure.** If the employee is
not satisfied with the decision at the informal stage, or is grieving a
disciplinary or major adverse action (see par. 9 of this sec.), he/she
may present the grievance under the formal procedure. The formal
grievance must be submitted in writing through the employee\'s immediate
supervisor, within 10 days after completion of the informal procedure,
or 15 days from the date of service of a decision where a grievance
originates at the formal process (see par. 9, this sec.). The immediate
supervisor or other official receiving the employee\'s formal grievance
will refer it promptly through channels to the appropriate decision
official. The time limit may be extended by management when good cause
is shown by the employee.

b\. **Contents of Formal Grievance**

\(1\) A formal grievance will be submitted in writing, will contain
sufficient detail to identify and clarify the basis for the grievance,
and will specify the personal relief requested by the employee. It will
contain the following information:

\(a\) The specific action or incident on which the grievance is based,
the date the action or incident occurred (if known), and the date the
employee first learned of the action or incident (if appropriate).

\(b\) The reason(s) for which the employee believes that the action was
unjustified or that (the employee) was treated unfairly; and/or the
specific policy (department, facility, etc.), written agreement, or
regulation violated and how it affected the employee.

\(c\) The corrective action desired by the employee.

\(2\) If the formal grievance does not contain a statement of the
grievance giving essentially the information specified above, the
decision official will return the grievance to the employee so that the
necessary information may be furnished. If the employee fails to provide
the necessary information

after being provided with an opportunity to do so, the decision official
should cancel the grievance following procedures contained in paragraph
10 of this section.

c\. **Group Grievances.** When a group of employees has an identical
formal grievance, it will be considered in the same manner as an
individual complaint and the decision will be binding on all employees
in the group. The group will select one individual case for processing
under the provisions of the formal grievance procedure.

d\. **Decision Official.** When the facility Director decided the action
being grieved, the grievance examiner and grievance decision official
will be from outside the facility. See further guidance in part IV,
chapter 3, paragraph 3 of VA Handbook 5021.

e\. **Adjustment or Referral of Grievance by Decision Official.** Unless
the decision official rejects or returns the grievance for additional
information, that official will review the employee\'s grievance and the
grievance file and explore the possibility of adjusting the grievance to
the employee\'s satisfaction. If the decision official is unable to
resolve the grievance in a manner acceptable to the employee, the
grievance will be referred for inquiry by an examiner (see par. 12 of
this sec.) or for technical review by an appropriate official (see par.
11 of this sec.) within 10 days of the decision official\'s receipt of
the formal grievance. (Authority: 38 U.S.C. 501(a), 7421, 38 U.S.C.
7461‑7464.)

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

**9. GRIEVANCES OVER DISCIPLINARY AND MAJOR ADVERSE ACTIONS**

a\. Grievances over disciplinary and major adverse actions will be filed
at the formal stage described in paragraph 8 of this section without
first filing under the informal procedure. In cases of a major adverse
action, the employee is entitled to a hearing before a grievance
examiner, if requested.

b\. Grievances initiated under the formal stage must be filed within 15
days from the date of service of the decision letter as indicated by
paragraph 6a of this section.

c\. Except as provided in subparagraphs a and b, all other provisions of
this section apply.

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

**10. REJECTION, RETURN, OR CANCELLATION OF A GRIEVANCE**

a\. **Reasons for Rejection of a Grievance.** The decision official may
reject a grievance only for one or more of the following reasons:

\(1\) The relief sought is not personal to the grievant. Relief in the
form of a request to discipline another employee will not be considered
appropriate;

\(2\) The matter(s) is(are) not covered by the VA grievance procedure
(see par. 14 of this sec.);

\(3\) The grievance was not filed in a timely manner (see par. 6, this
sec., for specific time limits). A grievance may be rejected under the
formal procedure based on a failure to timely file at either the formal
or informal stage.

b\. **Written Notification of Rejection of Formal Grievance.** The
grievant and the grievant\'s representative will be notified in writing
when a formal grievance is rejected, and provided with the specific
reason(s) for the rejection.

c\. **Reasons for Return**

\(1\) Insufficient detail was furnished to clearly identify the matter
being grieved;

\(2\) The personal relief sought is not specified.

d\. **Written Notification of Return of Grievance.** The grievant and
the grievant\'s representative will be notified in writing when a
grievance is returned, and provided with the specific reason(s) for the
return. A reasonable time will be identified for resubmission of the
grievance.

e\. **Reasons for Cancellation of Grievance.** A grievance may be
canceled, either wholly or partially as appropriate, by the decision
official under any of the following conditions:

\(1\) At the employee\'s request;

\(2\) Termination of the employee\'s employment, unless the personal
relief sought by the employee involves monetary issue(s) and can be
granted after termination of employment;

\(3\) Death of the employee, unless the grievance involves a matter
which would have entitled the employee to pay or benefits;

\(4\) Failure of the employee to furnish required information after
being notified in accordance with the procedures contained in paragraph
10d of this section; or

\(5\) Failure of the employee to duly proceed with advancement of the
grievance.

f\. **Written Notification Of Cancellation of Formal Grievance.** The
grievant and the grievant\'s representative will be notified in writing
when a grievance is canceled, and provided with the specific reason(s)
for the cancellation.

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

**11. TECHNICAL REVIEW**

a\. In cases where the facts are not in dispute and the primary issue
involves only the interpretation of regulation or policy, instead of
appointing an examiner, the decision official may forward the grievance
for technical review and recommendations through appropriate channels to
the Office of Human Resources Management \[and Labor Relations\] (051)
in VA Central Office. Situations where \"the facts

are not in dispute\" are those instances where management essentially
agrees with the grievant\'s statement of facts in the formal grievance,
and the primary issue in dispute is regulatory or policy interpretation.
The grievant and the grievant\'s representative will be provided with a
copy of the decision official\'s referral letter to VA Central Office.
Upon receipt of the request, the grievance will be forwarded to the
appropriate organizational element in VA Central Office which has
technical program responsibility in the matter(s) disputed. A technical
review will be conducted and the resulting recommendations transmitted
by an appropriate VA Central Office line official to the decision
official, who will resolve the grievance as indicated in paragraph 13 of
this section. Since the technical review is part of the grievance file,
the employee is entitled to a copy, if requested.

b\. Matters covered under section A of this appendix which are subject
to review under the grievance procedure, may only be resolved through a
technical review if the employee waives the right to a formal review by
a grievance examiner. Such waivers shall be in writing.

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

**12. REVIEW BY GRIEVANCE EXAMINER**

a\. **Appointment of Grievance Examiner**

\(1\) In cases where an examiner is required, the decision official may
appoint a subordinate employee to act as the grievance examiner or
request an examiner be appointed from outside the local area. The
grievance examiner will be fair, impartial, and objective, with
demonstrated analytical and fact-finding skills. The grievance examiner
will not be assigned cases in his or her work unit or service, and must
be an employee who has not been involved in the matter being grieved and
who does not occupy a position subordinate to any official who
recommended, advised, made a decision, or who otherwise is or was
involved in the matter being grieved. The grievant and any designated
representative will be informed of the assignment. The examiner assigned
will promptly review the case and determine the nature and scope of the
inquiry appropriate to the issue(s) involved in the grievance.

\(2\) In cases arising from disciplinary actions involving professional
conduct or competence as covered under section A of this appendix, the
grievance examiner will be selected from the panel of employees
designated to serve on Disciplinary Appeals Boards. Notice of the
grievance examiner\'s name on the panel list must have been provided at
least 30 days prior to his or her selection as an examiner.

\(3\) When the facility Director decided the action being grieved, the
grievance examiner and grievance decision official will be from outside
the facility. See guidance in part IV, chapter 3, paragraph 3 of VA
Handbook 5021.

b\. **Formal Review.** At the examiner\'s discretion, the grievance
inquiry may consist of:

\(1\) The securing of documentary evidence, including the solicitation
of such technical advice as may be needed, or compelling expert VA
testimony;

\(2\) Personal or telephone interviews (statements of witnesses obtained
by the examiner should be under oath or affirmation, without a pledge of
confidentiality);

\(3\) A group meeting;

\(4\) A hearing; or

\(5\) Any combination of the preceding.

c\. **Hearings**

\(1\) Formal hearings should be limited to grievances involving complex
matters or where important factual matters are in dispute. The decision
to schedule a hearing is the prerogative of the examiner, except in
grievances over major adverse actions where the employee has the right
to a hearing, if requested.

\(2\) If a hearing is held, the examiner will determine how the hearing
will be recorded, and will have a verbatim transcript or written summary
of the hearing prepared. The record will include all pertinent documents
submitted and accepted by the examiner. The examiner will make the
transcript a part of the record of the proceedings. When a verbatim
transcript was not made, a summary of pertinent portions of the
testimony will be made by the examiner. The summary will constitute the
report of the hearing and is made a part of the record of the
proceedings.

\(3\) The examiner\'s authority includes but is not limited to taking
proper steps to expedite the hearing of evidence and ruling on all
questions arising during the proceeding, such as admissibility of
evidence and calling of witnesses.

d\. **Administering Oaths or Affirmations.** For purposes of this
section, examiners are authorized to administer oaths or affirmations to
those individuals providing testimony relative to the grievance.

e\. **Preparation of Examiner\'s Report.** The examiner will prepare a
report of findings and recommendations, and submit that report, with the
grievance file, to the decision official. The examiner will also furnish
a copy of the report to the employee and the employee\'s representative.
The examiner\'s report should include the rationale for the findings and
recommendations.

f\. **Time Limits for Examiner\'s Report.** Except in unusual cases, the
time limit for submission of the report and the grievance file to the
decision official is [30 days]{.underline} for local grievance examiners
or [45 days]{.underline} for grievance examiners from outside the
facility, after receipt of written notification of appointment as the
grievance examiner.

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

**13. DECISION ON GRIEVANCE**

a\. **Action by Decision Official ‑ Technical Review.** VA Central
Office technical reviews (par. 11a, this sec.) and the resulting
recommendations will be forwarded to the formal grievance decision
official, and will serve as the basis for the final decision. The
decision official will issue the decision to the employee within 15 days
after the technical review is received from VA Central Office.

b\. **Action by Decision Official** ‑ **Examiner\'s Report.** Upon
receipt of the grievance examiner\'s report of findings and
recommendations, the decision official will accept, modify, or reject
the examiner\'s recommendation(s) and issue a written decision to the
employee within 15 days after the recommendation is received. The
employee\'s representative will also receive a copy of the decision.

\(1\) If the decision official modifies or rejects the examiner\'s
recommendation(s), the written decision will include a specific
statement of the reason(s) for the modification or rejection.
Modification or rejection of recommendations of the grievance examiner
will be limited to the following grounds:

\(a\) The recommendation(s) are contrary to law, regulation, or
published Department policy; and/or

\(b\) The recommendation(s) are not supported by the preponderance of
the evidence.

\(2\) The decision official may elect to grant the relief sought by the
employee without regard to the examiner\'s recommendation(s).

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

**14. MATTERS EXCLUDED FROM COVERAGE UNDER THE GRIEVANCE PROCEDURE.**
The following actions and complaints are excluded from coverage under
the grievance procedure:

a\. Major adverse actions taken under section A of this appendix which
involve a question of professional conduct or competence.

b\. Disputes over whether a matter or question concerns, or arises out
of, professional conduct or competence.

c\. Separation during probationary period.

d\. Complaints arising from failure to receive special advancement.

e\. Complaints arising from failure to receive a promotion or
reassignment.

f\. Complaints arising from dissatisfaction with grade or pay on initial
appointment.

g\. Complaints arising from actions taken due to the individual\'s
physical or mental condition.

h\. Complaints arising from dissatisfaction with proficiency rating.

i\. An action which terminates a temporary promotion within a maximum
period of 2 years and returns the employee to the position from which
the employee was temporarily promoted, or reassigns the employee to a
different position that is not at a lower grade or pay than the position
from which the employee was temporarily promoted.

j\. The content of published VA or VHA regulations and policies. An
employee\'s allegation that locally established policy is in conflict
with existing Department policy or regulation may be handled as
indicated in paragraph 11a of this section.

k\. A decision which is subject to final administrative review by the
Federal Labor Relations Authority (FLRA), or the Office of Workers\'
Compensation Programs (OWCP), under law or regulations of the FLRA or
the OWCP; or any other matter for which final administrative authority
lies outside VA.

l\. Allegations of discrimination on the basis of race, color, religion,
sex, national origin, age (over 40) and/or disability, in connection
with any decision or action. Such allegations may only be pursued as
complaints of discrimination, pursuant to regulations of the Equal
Employment Opportunity Commission. Complaints of discrimination are
excluded from the grievance procedure. However, other disputes related
to the case are not precluded from review under the grievance
procedures. Accordingly, a grievance concerning a matter or matters
about which the employee has filed a complaint of discrimination must be
rejected, either wholly or partially, as appropriate.

m\. A preliminary warning notice of an action which, if effected, would
be covered under a grievance or appeal system or excluded from coverage
by other paragraphs of this section.

n\. Disapproval of a suggestion, disapproval of a discretionary award or
disagreement with the amount of an award.

o\. A matter which includes specified relief that is not personal to the
grievant or is not subject to the control of management.

p\. A matter covered by a negotiated grievance procedure. However, an
employee may elect to use the VA grievance procedure described in this
section or the negotiated, grievance procedure in the case of a
disciplinary or major adverse action covered under section A of this
appendix which does not involve a question of professional conduct or
competence.

q\. A grievance of an individual from outside VA, except as provided in
paragraph 4b of this section.

r\. Grievances concerning the number of positions to be filled, or the
grade level at which positions are filled.

s\. An action taken in accordance with the terms of a formal agreement
voluntarily entered into by an employee.

t\. Matters that are not directly related to the employee\'s conditions
of employment.

u\. Matters involving the methods, means or technology of performing
work.

v\. Determinations and authorizations, including those delegated by the
Secretary, \[regarding the approval, disapproval, or amount of market or
performance pay granted to a physician or dentist in the Veterans Health
Administration. Refer to VA Handbook 5007, part IX, paragraph 11 for
information regarding the right to request reconsideration of a tier
determination\].

w\. \[Determinations and authorizations, including those delegated by
the Secretary, regarding the approval, disapproval, or amount of special
pay granted to a nurse executive in the Veterans Health
Administration\].

x\. \[Designations of employees to serve on the panel from which members
of Disciplinary Appeals Boards are selected and the selection\] of
employees to serve on Disciplinary Appeal Boards, professional standards
boards, compensation panels, or the appointment of a grievance
examiner\].

y\. \[All matters for which review procedures are already established in
VA policy\].

\[z.\] A decision not to remove an admonishment or reprimand from an
employee\'s personnel folder prior to the expiration date.

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

**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 (including reductions in market pay for physicians and
dentists resulting from involuntary reassignments or changes in
assignment when taken for conduct or performance reasons), 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, \[chiropractors,\]
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\. Section 302 of the Veterans Healthcare, Capital Asset and Business
Improvement Act of 2003 (Pub. L. 108-170).

c\. Section 3 of the Department of Veterans Affairs Health Care
Personnel Act of 2004 (Pub. L. 108-445).

d\. 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.

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

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

**4. APPOINTMENT OF DISCIPLINARY APPEALS BOARDS**

a\. **General.** The Under Secretary for Health or designee shall
appoint Disciplinary Appeals Boards in accordance with this section to
hear appeals of major adverse actions involving questions of
professional conduct or competence as defined in section A of this
appendix. 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 section, 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 part II
of VA 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 section, 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.

b\. **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.** The Disciplinary Appeals Boards appointed under
this section 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 section
A of this appendix.

**(Authority: 38 U.S.C. 501(a), 7462, 7463.)**

**6. POWERS OF THE CHAIRMAN OF THE DISCIPLINARY APPEALS BOARD.** The
Chairman\'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 Chairman is the challenged member, the question shall
be resolved in accordance with paragraph 7e of this section;

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. (Authority: 38 U.S.C.
501(a).)

**(Authority: 38 U.S.C. 501(a).)**

**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 section A of this appendix, and whether it arises out of or
includes a question of professional conduct or competence, and was filed
timely. 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
Under Secretary for Health will take appropriate action on the decision
of the Board as described in paragraph 9c of this section.

b\. **Type of Hearing.** The employee has the right to a hearing before
the Board in connection with his/her appeal of an adverse action. If the
employee does not ask for a hearing before the Board, the Board may
elect to conduct a hearing without the appellant or may consider the
evidence of record, including any evidence developed by the Board.
Formal hearings will be conducted in accordance with paragraph 8 of this
section.

c\. **Technical Advisors.** Employees may be designated to serve as
technical advisors to the Board and assist in the development and review
of the case.

d\. **Presence of Board Members.** No Board hearing will proceed unless
all members are present.

e\. **Disqualification.** A Board member will be disqualified for
service if the Chairman rules that the Board member initiated or
participated in the initiation of charges, had direct personal knowledge
of the case or facts giving rise to the action, or if the Board
member\'s relationship with the appellant or officials involved in
recommending or deciding on the disputed action creates a question of
bias. Any party to the case or member of the Board may make a motion to
disqualify a Board member. The Chairman will rule on the
disqualification for service of any member of the Board. In cases where
the Chairman is the challenged member, or if a member of the Board
questions the ruling of the Chairman, the Board will make the ruling as
to disqualification by majority vote in closed session.

f\. **Mental/Physical Condition of Employee.** In the course of the
hearing, if the appellant raises an issue of his/her mental or physical
condition in relation to the charges, the appellant will be given the
opportunity to present evidence relating to the condition. If
appropriate, the Board may refer the matter to a Physical Standards
Board for review so that the Board may determine whether the matter was
appropriately before the Board as a major adverse action taken under
section A of this appendix, or whether it should have been processed
under VA Handbook 5019, Occupational Health Services, for consideration
of physical and/or mental incapacity. If, however, the appellant is
alleging discrimination on the basis of a handicapping condition, he/she
should be referred to the EEO discrimination complaint process, which is
the exclusive procedure for reviewing allegations of discrimination, and
the hearing shall then proceed on the merits of the charges.

g\. **Closing of Record.** At the conclusion of the hearing, the
Chairman will close the record unless he/she authorizes parties to
submit written closing arguments, briefs, or documents identified for
introduction into evidence. Should this be the case, the record will
close on the date set by the Chairman. If the appellant does not request
an oral hearing, the record will close on the date the Board Chairman
sets as the final date for the receipt of submissions.

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

**8. FORMAL HEARINGS**

a\. **Notifications.** The Board Chairman shall notify the appellant,
the head of the facility, and any designated representatives when a
hearing is scheduled. The initial notice from the Chairman shall include
the following:

\(1\) The names of the Board members and technical advisor(s) used;

\(2\) The specific hour and dates of the scheduled hearing;

\(3\) The date by which submissions must be made to the chairman in
connection with motions from the parties, e.g., to request rescheduling
of hearing if good cause can be shown, as well as motions in other
areas; and,

\(4\) The date by which witness lists must be exchanged, which must
include statements as to what testimony each witness is expected to
provide as well as any objections either party may have to the other\'s
witnesses. Service will be by personal delivery or certified mail ‑
return receipt requested.

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.)**

###### SECTION D. DESIGNATION OF PANEL MEMBERS

**1. SCOPE AND AUTHORITY.** This section governs the designation of
employees to serve on the panel from which Disciplinary Appeals Board
members and grievance examiners will be appointed to hear appeals of
major adverse actions and disciplinary actions involving a question of
professional conduct or competence.

**(Authority: 38 U.S.C. 501 (a), 512(a), 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, 7464.

**3. RESPONSIBILITIES.** The Under Secretary for Health or designee will
periodically designate employees to serve on the panel.

**(Authority: 38 U.S.C. 501 (a), 512(a), 7421, 38 U.S.C. 7461‑7464.)**

**4.** **PANEL DESIGNATIONS.** Decisions related to the designation or
termination of the designation of any individual to serve on the panel
are not subject to review under any grievance or appeal procedure.

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

5\. TRAINING. All employees designated for the panel shall receive
training in the functions and duties of Disciplinary Appeals Boards and
grievance procedures.

**(Authority: 38 U.S.C. 501(a), 512(a), 7421, 38 U.S.C. 7461‑7464.)**

**EMPLOYEE/MANAGEMENT RELATIONS**

**1. REASON FOR ISSUE:** To issue Department of Veterans Affairs (VA)
procedures regarding employee/management relations.

**2. SUMMARY OF CONTENTS/MAJOR CHANGES:** This handbook sets forth
mandatory procedures previously contained in numerous other issuances.
No substantive changes have been made.

**3. RESPONSIBLE OFFICE:** The Human Resources Management Employee
Relations and Performance Management Service (051), Office of the Deputy
Assistant Secretary for Human Resources and Labor Relations.

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

**5. RESCISSIONS:** Refer to the Transmittal Sheet for VA Handbook 5001,
"General Introduction and Administration."

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

**OF VETERANS AFFAIRS:**

John A. Gauss Jacob Lozada, Ph.D.

Assistant Secretary for Assistant Secretary for Human

Information and Technology Resources and Administration

**EMPLOYEE/MANAGEMENT RELATIONS**

**CONTENTS**

### **[PART I](#ptI). DISCIPLINARY AND ADVERSE ACTIONS UNDER TITLE 5**

**[PART II](#ptII). DISCIPLINARY PROCEDURES UNDER TITLE 38**

**[PART III](#ptIII). PROBATIONARY PERIOD ACTIONS**

**[PART IV](#ptIV). EMPLOYEE GRIEVANCES AND ADMINISTRATIVE APPEALS**

**[PART V](#part-v.-title-38-appeals-to-the-disciplinary-appeals-board).
TITLE 38 APPEALS TO THE DISCIPLINARY APPEALS BOARD**

**[PART VI](#ptVI). TITLE 38 SEPARATIONS NOT COVERED UNDER PARTS II AND
III**

**EMPLOYEE/MANAGEMENT RELATIONS**

[]{#ptI .anchor}**PART I. DISCIPLINARY AND ADVERSE ACTIONS UNDER TITLE
5**

# CONTENTS

**PARAGRAPH PAGE**

**[CHAPTER 1](#ptIch1). GENERAL**

1\. [SCOPE](#ptIch1par1) I-1

2\. [REFERENCES](#ptIch1par2) I-1

3\. [POLICY](#ptIch1par3) I-1

4\. [DEFINITIONS](#ptIch1par4) I-2

5\. [RESPONSIBILITIES](#ptIch1par5) I-3

6\. [OFFICIAL AUTHORIZED TO PROPOSE AND DECIDE ACTIONS](#ptIch1par6) I-5

7\. [DETERMINING THE FACTS](#ptIch1par7) I-6

8\. [DETERMINING APPROPRIATE ACTION](#ptIch1par8) I-8

**[CHAPTER 2](#ptIch2). DISCIPLINARY ACTIONS**

1\. [ADMONISHMENT](#ptIch2par1) I-15

2\. [REPRIMAND](#ptIch2par2) I-16

3\. [DISCIPLINARY SUSPENSION FOR 14 CALENDAR DAYS OR LESS](#ptIch2par3)
I-17

**[CHAPTER 3](#ptIch3). ADVERSE ACTIONS**

1\. [ACTIONS COVERED](#ptIch3par1) I-23

2\. [EMPLOYEES COVERED](#ptIch3par2) I-23

3\. [EMPLOYEES EXCLUDED](#ptIch3par3) I-23

4\. [ACTIONS EXCLUDED](#ptIch3par4) I-24

5\. [TYPES OF ADVERSE ACTIONS](#ptIch3par5) I-25

6\. [BURDEN OF PROOF DURING APPEAL PROCESS](#ptIch3par6) I-25

7\. [EMPLOYEE ENTITLEMENTS](#ptIch3par7) I-26

8\. [EXCEPTIONS TO 30 DAYS ADVANCE NOTICE](#ptIch3par8) I-27

9\. [NOTICE OF PROPOSED ACTION](#ptIch3par9) I-27

10\. [STATUS OF EMPLOYEE DURING ADVANCE NOTICE PERIOD OF](#ptIch3par10)

[ADVERSE ACTION](#ptIch3par10) I-29

11\. [EMPLOYEE'S REPLY](#ptIch3par11) I-30

12\. [ARRIVING AT FINAL DECISION ON THE PROPOSED ADVERSE
ACTION](#ptIch3par12) I-31

13\. [DECISION NOTICE](#ptIch3par13) I-32

14\. [ADVERSE ACTIONS RELATING TO THE CRIME PROVISION](#ptIch3par14)
I-33

15\. [ADVERSE ACTIONS IN THE SENIOR EXECUTIVE SERVICE](#ptIch3par15)
I-35

16\. [RECORDS](#ptIch3par16) I-35

# 

# CONTENTS - CONTINUED

**PARAGRAPH PAGE**

# APPENDICES

I-A. [TITLE 5 - TABLE OF EXAMPLES OF OFFENSES AND PENALTIES](#AppIA)
I-A-1

I-B. [TITLE 5 - SAMPLE ADMONISHMENT](#AppIB) I-B-1

I-C. [TITLE 5 - SAMPLE REPRIMAND](#AppIC) I-C-1

I-D. [TITLE 5 - SAMPLE NOTICE OF PROPOSED REMOVAL FOR
DISCIPLINARY](#AppID)

[REASONS](#AppID) I-D-1

I-E. [TITLE 5 - SAMPLE DECISION LETTER FOR DISCIPLINARY ACTIONS](#AppIE)
I-E-1

I-F. [TITLE 5 - SAMPLE DECISION LETTER FOR ADVERSE ACTIONS](#AppIF)
I-F-1

I-G. [TITLE 5 - SAMPLE PROPOSED INDEFINITE SUSPENSION](#AppIG) I-G-1

I-H. [TITLE 5 - SAMPLE DECISION NOTICE -- INDEFINITE SUSPENSION](#AppIH)
I-H-1

I-I. [TITLE 5 -- SAMPLE FIRM CHOICE, LAST CHANCE AND ABEYANCE
AGREEMENTS](#AppIi) I-I-1

I-J. [TITLE 5 -- SAMPLE TERMINATION OF NON-COMPETITIVE EXCEPTED](#AppIJ)

[APPOINTMENT (SCHEDULE B)](#AppIJ) I-J-1

I-K. [GRIEVANCE AND APPEAL RIGHTS](#AppIK) I-K-1

I-L. [SAMPLE PROPOSED REMOVAL FOR PERFORMANCE BASED ACTION](#AppIL)
I-L-1

I-M. [SAMPLE DECISION LETTER FOR PERFORMANCE BASED ACTION](#AppIM)

[(NON BARGAINING UNIT)](#AppIM) I-M-1

I-N. [SAMPLE DECISION LETTER FOR PERFORMANCE BASED ACTION](#AppIN)

[(BARGAINING UNIT)](#AppIN) I-N-1

PART I. DISCIPLINARY AND ADVERSE ACTIONS UNDER TITLE 5

[]{#ptIch1 .anchor}CHAPTER 1. GENERAL

**1.** []{#ptIch1par1 .anchor}**SCOPE.** This chapter contains the
policy for taking disciplinary and adverse actions in the Department of
Veterans Affairs (VA). Unless otherwise indicated, the chapter applies
to all VA employees appointed under title 5 U.S.C., and under title 38
U.S.C., sections 7401(3).

**2.** []{#ptIch1par2 .anchor}**REFERENCES.** Title 5 U.S.C., chapters
73 and 75; VA Handbook 5005, Staffing, part IV; 5 CFR, part 752; VA
Handbook 5019; \[ \] 38 U.S.C. 7401(3) \[; and 38 U.S.C. 7403(f)(3)\].

**3.** []{#ptIch1par3 .anchor}**POLICY**

a\. The public interest requires the maintenance of high standards of
employee integrity, conduct, effectiveness, and service to the public.
When such standards are not met, it is essential that prompt and just
corrective action be taken. The policy of VA is to maintain standards of
conduct and efficiency that will promote the best interests of the
service. Disciplinary and adverse actions shall be governed by these
basic principles:

\(1\) An employee shall be informed in writing honestly and specifically
why the action is being brought against him or her.

\(2\) An employee shall be given a reasonable opportunity to present his
or her side of the case.

\(3\) The employee and representative shall have assurance of freedom
from restraint, interference, coercion, discrimination, or reprisal in
discussing, preparing, and presenting a defense.

b\. In taking actions covered by this part, like penalties will
generally be imposed for like offenses (see appendix A of this part, for
further discussion). However, supervisors should give consideration to
several factors when determining what action is appropriate, including
the nature and-gravity of the offense, the existence of either
mitigating or aggravating circumstances, the frequency of the offense,
and the employee\'s position. Adverse actions against employees
(excluding employees in the Senior Executive Service (SES)) will be
taken only for such cause as will promote the efficiency of the service.
Adverse actions against SES employees will be based only on misconduct,
neglect of duty, malfeasance, or failure to accept a directed
reassignment or to accompany a position in a transfer of function.

c\. The adverse action procedures described in this part will be used
for all actions defined as an adverse action in paragraph 4 \[ \] and
covered under 5 CFR, part 752.

d\. An action covered under this part must be in conformance with the
merit system principles in 5 U.S.C. 2301 and must not be based on any of
the prohibited personnel practices listed in 5 U.S.C. 2302. Accordingly,
actions covered under this chapter may not be based on prohibited
discrimination because of race, color, religion, sex, national origin,
age, or disability. Except when required by statute, an action covered
under this chapter must not be taken against an employee because of
marital status or partisan political reasons. Actions covered under this
chapter must not be taken as reprisal for the proper exercise of an
employee\'s legal or administrative appeal rights. The Whistleblower
Protection Act of 1989 (Public Law No. 101-12) specifically affords
protections and entitlements to employees who allege reprisal for having
engaged in whistleblowing activities.

e\. Any applicable provisions of a negotiated labor-management agreement
should be consulted to determine the possible effect on the processing
of disciplinary/adverse actions, notices of such actions, and employee
rights.

f\. Any VA employee may review this part and related material by
contacting the Human Resources Management office.

**4.** []{#ptIch1par4 .anchor}**DEFINITIONS**

a\. \[**Active Duty Status.** Pay status including authorized overtime,
holiday pay, or premium pay\].

b\. \[**Adverse Action.** A removal, separation for disability,
suspension for more than 14 days, furlough for 30 days (22
non-continuous days) or less, or reduction in grade or pay effected by
management for either disciplinary or non-disciplinary reasons, except
for those actions which are excluded by law or regulation (see 5 CFR,
part 752)\].

c\. **Day.** Day means calendar day.

d\. \[**Deciding Official.** The management official designated to make
the final decision on a disciplinary or adverse action\].

e\. **Disciplinary Action.** An action taken to correct misconduct or
other offenses and to enforce prescribed rules of behavior. It includes
admonishments, reprimands, and suspensions of 14 days or less.

f\. \[**Furlough.** The placing of an employee in a temporary status
without duties and pay due

to lack of work or funds, or other non-disciplinary reasons\].

g\. \[**Grade.** A numerical level assigned to a position under a
position classification or job grading system\].

h\. \[**Official Time.** Time granted to an employee to review the
material relied on to support a proposed action, to prepare an answer,
and to secure affidavits, If the employee is otherwise in a duty
status\].

i\. \[**Pay.** The rate of basic pay fixed by law or administrative
action for the position held by an employee\].

j\. \[**Proposing Official.** The management official who issues a
notice of proposed disciplinary or adverse action (i.e., any proposed
suspension, removal, reduction in grade or pay, or furlough for 30 days
or less)\].

k\. **Notice Period.** The period of time that begins the day after the
date an employee receives a written proposal of a disciplinary or
adverse action and which ends on the effective date of the action, if
effected.

l\. **Reduction in Grade.** An employee is moved to a position of lower
grade under the General Schedule or Federal Wage System.

m\. **Reduction in Pay.** An employee\'s rate of basic pay is reduced
involuntarily, that is, not requested by the employee for personal
reasons or benefit. Reduction in pay does [not]{.underline} include the
involuntary loss of any differentials such as standby pay, night work,
overtime, hazardous duty, or holiday pay,

n\. **Suspension.** The placement of an employee, for disciplinary
reasons, in a temporary status without duties and pay,

o\. **Indefinite Suspension.** The placement of an employee in a
non-duty, non-pay status for a temporary period of time pending
investigation, inquiry, or further agency action.

p\. **Removal.** The involuntary separation of a non-probationary
employee for disciplinary or non-disciplinary reasons,

q\. **Individual with a Disability.** One who (1) has a physical or
mental impairment which substantially limits one or more of such
person\'s major life activities, (2) has a record of such impairment, or
(3) is regarded as having such an impairment (29 CFR 1614.203).

r\. **Qualified Individual with a Disability.** With respect to
employment, an individual with a disability who, with or without
reasonable accommodation, can perform the essential functions of the
position in question without endangering the health and safety of the
individual or others and who, depending upon the type of appointing
authority being used, (1) meets the experience and/or education
requirements of the position or (2) meets the criteria for appointment
under one of the special appointing authorities for people with
disabilities.

s\. **Paid Non-Duty Status.** Compensating an employee while not on
duty.

**5.** []{#ptIch1par5 .anchor}**RESPONSIBILITIES**

a\. Administration Heads, Assistant Secretaries, Other Key Officials,
and Deputy Assistant Secretaries, and field facility directors are
responsible for:

\(1\) Administering policy concerning disciplinary and adverse actions
in conformance with requirements of this chapter and any applicable
labor-management agreements; and reviewing existing policies and
recommending appropriate changes.

\(2\) Delegating to supervisors appropriate authority for the direction
and discipline of employees under their jurisdiction and assuring proper
supervisory training.

\(3\) Ensuring that supervisors properly exercise their disciplinary
authority.

\(4\) Ensuring that appropriate mechanisms are in place to inform
employees of VA policy concerning disciplinary and adverse actions and
where this chapter may be reviewed.

b\. The Deputy Assistant Secretary for Human Resources Management \[and
Labor Relations\] is responsible for:

\(1\) Developing departmental disciplinary and adverse action policy.

\(2\) Providing technical advice and guidance to management officials
and field facility human resources officials.

c\. Supervisors are responsible for:

\(1\) Gathering and analyzing the facts concerning each possible
disciplinary or adverse action and documenting these facts.

\(2\) Initiating appropriate and timely disciplinary or adverse actions.

d\. The Human Resources Management Officer is responsible for:

\(1\) Assisting supervisors and management officials at all levels with
disciplinary and adverse action matters; interpreting regulations and
statutes; recommending sound human resources management practices;
reviewing existing policies and procedures and recommending appropriate
changes.

\(2\) Reviewing disciplinary and adverse actions prior to issuance to
ensure compliance with existing laws and regulations and advising the
decision official as necessary.

\(3\) Advising employees and answering their questions regarding their
rights in disciplinary and adverse action matters, and providing
guidance on interpretations of disciplinary and adverse action
procedures, regulations and statutes.

\(4\) Ensuring that all employees are made aware of VA standards of
ethical conduct and related responsibilities as well as other laws,
rules, and regulations governing VA expectations of acceptable conduct.

e\. Employees are responsible for:

\(1\) Meeting standards of conduct as required by laws, rules,
regulations, and policies.

\(2\) Obtaining advice from authoritative agency officials (supervisors,
human resources

management officers, regional counsels, etc.) on any unclear or
questionable rules of conduct before engaging in the conduct.

**6.** []{#ptIch1par6 .anchor}**OFFICIALS AUTHORIZED TO PROPOSE AND
DECIDE ACTIONS**

a\. Administration Heads, Assistant Secretaries, Other Key Officials,
and Deputy Assistant Secretaries, and field facility directors, as
appropriate, are responsible for designating in writing management
officials who may propose and decide actions covered in this part, and
for ensuring that supervisory employees under their jurisdiction are
made aware of such designations.

b\. Officials who may issue admonishments and reprimands, and propose
and decide suspensions of 14 calendar days or less, and adverse actions
will be as follows:

\(1\) **Admonishment.** The official who may issue a letter of
admonishment will normally be the employee\'s immediate supervisor or in
the supervisory line.

\(2\) **Reprimand.** The official who may issue a letter of reprimand to
an employee must be at the division or service chief level in a field
facility, or at the division chief level or above in Central Office.

\(3\) **Suspension of 14 Calendar Days or Less.** The official who may
issue a letter of proposed suspension of 14 calendar days or less to an
employee must be at the division or service chief level or above in a
field facility, or at the division chief level or above in Central
Office. A final decision on a proposed suspension of 14 calendar days or
less will be made by the proposing official, or an official at any level
in the supervisory line above the official who proposed the action. The
Secretary or designee retains the authority to make the final decision
on the suspension of employees occupying positions centralized to the
Secretary.

\(4\) **Furloughs.** VA Handbook 5005, part IV, identifies officials who
may propose and decide furloughs.

\(5\) **Adverse Action**

\(a\) **Proposed Adverse Actions.** The official who may issue a letter
of proposed adverse action to an employee must be at the division or
service chief level or above in a field facility, or at the division
chief level or above in Central Office.

\(b\) **Decisions on Adverse Actions.** The official who may issue a
letter of decision must be at the director level in a field facility or
at the service director level or above in Central Office. The Secretary
or designee retains the authority to make the final decision on adverse
actions involving employees occupying positions centralized to the
Secretary,

c\. Actions resulting from a Central Office investigation, with the
exception of those conducted by the Office of Inspector General (OIG),
will be proposed and decided by officials in Central Office. Such
authority may be delegated on a case by case basis to the field facility
Director. Actions based on OIG investigations may be taken at the field
facility level in coordination with the appropriate organizational
elements in Central Office.

d\. Consistent with the restrictions provided in subparagraphs b and c
above, field facility directors are responsible for designating
officials who may propose and/or decide disciplinary and adverse actions

involving employees in the field occupying non-centralized positions.
Administration Heads, Assistant Secretaries, Other Key Officials, Deputy
Assistant Secretaries, and field facility directors are responsible for
designating officials who may propose and/or decide disciplinary and
adverse actions involving:

\(1\) employees under their jurisdiction occupying positions centralized
to the Secretary (except final decisions on suspensions of 14 calendar
days or less and adverse actions);

\(2\) employees under their jurisdiction occupying positions centralized
to an Administration Head or Assistant Secretary;

\(3\) employees in Central Office under their respective jurisdictions;
and,

\(4\) employees in the field who are not under the supervision of a
field facility director.

**7.** []{#ptIch1par7 .anchor}**DETERMINING THE FACTS**

a\. **Inquiry and Investigation**

\(1\) In cases involving a potential disciplinary or adverse action,
inquiry will be made into the incident or situation as soon as possible
to obtain the facts and determine what action, if any, is warranted.
Except in very rare or unusual circumstances, if the employee desires a
representative, the investigator will wait a reasonable period of time
before proceeding. Ordinarily, a preliminary inquiry will be made by the
appropriate line supervisor. A further investigation may be warranted
depending on the nature and seriousness of the incident. Information
concerning the matter will be sought from the employee who is alleged to
have committed the offense and from any other persons who may have
pertinent information about the case. The resulting information will be
documented. Signed statements, preferably under oath, are the best form
of documentation and should be obtained, when possible, from employees
interviewed. The authority to take sworn statements must be exercised in
accordance with 38 U.S.C. 5711 and its implementing regulations.
However, failure to obtain a statement from the employee involved will
not, in and of itself, serve to void the action, particularly where
sufficient information is otherwise obtained from the employee, or the
nature of the situation makes it

impractical or unnecessary to obtain a written statement. Information
will be developed impartially and an effort will be made to resolve
conflicting statements by developing additional evidence. Material which
cannot be disclosed to the employee or to his or her representative, may
not be used to support a disciplinary or adverse action.

\(2\) All employees are required to provide full and truthful answers
during any inquiry or investigation. Failure to do so may be grounds for
disciplinary or adverse action. The only time employees are entitled to
remain silent is if they may potentially incriminate themselves in a
criminal offense. Employees claiming such a right must state this as
their reason in order for the right to apply. The assistance of the
Regional Counsel or General Counsel, as appropriate, will be obtained in
determining whether immunity from prosecution may be granted. Immunity
and the extent of immunity will be reduced to writing and provided to
the employee. (Also see subparagraph e below.)

b\. **Status of Employee Pending Inquiry or Investigation**

\(1\) **Duty Status.** Ordinarily, the employee will be retained in a
pay and active duty status in his or her position at current grade and
salary during any inquiry or investigation.

\(2\) **Detail, Leave or Paid Non-Duty Status.** In those instances
where it is determined that the employee\'s continued presence at his or
her worksite during an inquiry or investigation might pose a threat to
the employee or others, result in loss of or damage to Government
property, or otherwise jeopardize legitimate Government interests, the
following alternatives may be considered:

\(a\) Detailing the employee to other duties where he or she is no
longer a threat to safety, to VA\'s mission, or to Government property;

\(b\) Allowing the employee to take leave, (annual, sick, leave without
pay), or carrying him or her in an absent without leave status if the
employee has absented himself or herself from the work-site without
requesting leave);

\(c\) As a last resort, placing the employee in a paid non-duty status
pending completion of the inquiry or investigation. Although Civil
Service regulations grant agencies the authority to place employees in a
non-duty status with pay during the advance notice period of a proposed
removal under the limited circumstances described in this paragraph,
these regulations do not address the status of an employee during a
period of inquiry or investigation or during the notice period of a
proposed indefinite suspension. In those instances where management
determines that an employee\'s continued presence at the worksite might
pose a threat to the employee or others, result in loss of, or damage
to, Government property, or be injurious to some other legitimate
Government interest, or when a proposed indefinite suspension is issued
in conjunction with the crime provision, managers may place the employee
in a brief period of non-duty status with pay for the period of time
necessary to conduct an inquiry or investigation and prepare charges,
including the advance notice of a proposed indefinite suspension. Care
should be taken to ensure that this is for the shortest practicable
period.

\(3\) **Indefinite Suspension.** (See par. 8f of this chapter.)

c\. **Evidence File.** If a proposed adverse action is contemplated, an
evidence file must be established before the notice is issued to the
employee. The file must contain all available evidence upon which the
notice of proposed action is based, and which supports the reasons in
that notice (including records of past disciplinary action and related
material, if such a record forms part of the basis for the action
proposed). It must also include any written summary of employee\'s oral
reply and/or employee\'s written reply. Normally the evidence file will
contain an index for easier reference to documents. Additional evidence
acquired after the issuance of a proposed adverse action notice may be
added without necessitating re-issuance of the notice unless the
additional evidence forms the basis for initiating new reasons for
proposing the action. However, the employee must be provided with copies
of any material when it is added to the evidence file. Any use or
disclosure of a record or information must comply with legal
requirements for disclosure.

d\. **VA Beneficiary Records.** The assistance of the Regional Counsel
or General Counsel, as appropriate, should be obtained when questions
arise concerning the use of VA beneficiary records in

taking an action covered under this chapter. Specifically, the use of VA
beneficiary records must be in accordance with the guidelines of
confidentiality provided in 38 U.S.C. 5701, 5705, and 7332; and the
Privacy Act at 5 U.S.C. 552a.

e\. **Official Investigation Reports or Official Inquiries**

\(1\) It is not necessary for a supervisor or other appropriate official
to inquire into an incident in accordance with the above instructions
where sufficient information is available from other official sources.
These sources include, but are not limited to: reports of a Central
Office or Office of the Inspector General investigation, reports of a
field examination conducted by a representative of the Office of
Regional Counsel, or other official investigations conducted under the
authority of MP-I, part l, chapter 2. Where the information appears to
be inadequate, the Human Resources Management Officer should be
consulted concerning the necessity for the development of additional
information. The same principle also applies to official investigations
of other government agencies, whether Federal, state or local, if the
agency allows the use of the investigation, or part of it, or extracts
from it. In cases involving criminal matters, it is the policy of VA to
cooperate with appropriate law enforcement agencies. In obtaining
evidence and/or coordinating such matters, the assistance of the
Regional Counsel or General Counsel, as appropriate, should be obtained.

\(2\) When management relies on facts developed from an official
investigation or other official inquiry to support a proposed adverse
action, only the information relied upon will be included in the
evidence file. When using official information, care must be exercised
to extract only that information which is being relied on to support the
reasons in a proposed adverse action.

\(3\) Title 38 CFR, part 17 defines the VA Medical Quality Assurance
Program, and the Health Services Review Organization (HSRO), and
provides confidentiality for certain quality assurance

records and documents. Documents and records generated through these
programs cannot be used as evidence to support taking a disciplinary or
adverse action. However, information which led to a quality assurance
investigation can also lead to the initiation of a separate, independent
investigation. Evidence developed as a result of such independent
investigation can be used in a disciplinary or adverse action. The
assistance of the Regional Counsel or General Counsel, as appropriate,
should be obtained when questions arise concerning the confidentiality
of Quality Assurance and HSRO documents and whether such documents are
covered by the provisions of 38 CFR, part 17, or can be used as evidence
in a disciplinary or adverse action.

**8.** []{#ptIch1par8 .anchor}**DETERMINING APPROPRIATE ACTION**

a\. **General.** After determining the facts in a case, the responsible
official authorized to initiate action should consult the table of
offenses and penalties contained in appendix A of this part. Any
extenuating or mitigating circumstances or other contributing factors
which may have some bearing on the situation, including past record,
should be considered in determining the action to be taken. The
initiating official will consult with the Human Resources Management
Officer regarding the propriety of the disciplinary or adverse action
being considered.

b\. **Substance Abuse/Medical Considerations**

\(1\) In relating alcoholism and drug abuse problems to disciplinary
policies and practices, it is important to consider non-disciplinary
procedures aimed at rehabilitation. However, if the employee refuses to
accept assistance offered through the program or to otherwise correct
performance, disciplinary measures will be invoked on the basis of the
specific misconduct of the employee.

\(2\) In offering rehabilitative assistance, the employee\'s supervisor
need not confront the employee with the supervisor\'s belief that the
employee has a drinking or drug abuse problem. The supervisor must make
the employee aware in general terms that a problem exists affecting
his/her conduct, and recommend that the employee participate in a
rehabilitation program that is available. Casual suggestions to the
employee that the Department would be willing to assist the employee
with any problems he/she may have are not a sufficient attempt at
counseling to constitute reasonable accommodation. The counseling must
be specific with the supervisor recommending that the employee
participate in a rehabilitation or counseling program. Should the
employee ignore the offer of assistance and the performance or conduct
problem continues, it may be necessary to give the employee a \"firm
choice\", between accepting treatment or facing the consequences. A
sample firm choice letter is contained in appendix I of this part. This
letter should be modified to suit your particular circumstances.

\(3\) Referrals under the Employee Assistance Program (EAP) should be
made in writing and as early as possible when the supervisor has a
conduct or performance related reason to believe the employee has an
alcohol or drug abuse problem which is causing the deficiencies. Written
documentation should be maintained of any meetings between the
supervisor and the employee to show that an offer of assistance was
made. Copies of such documentation should be given to the employee. This
documentation can be included at a later date in the evidence file used
to support an adverse action. If the employee rejects the offer of
assistance, and refuses to acknowledge the problem, action based on
misconduct may be taken, including possible removal, even though the
employee may later attribute the misconduct to an alcohol or drug
problem.

\(4\) There may be situations where a meaningful offer of assistance is
not possible, and appropriate action such as a proposed removal is
required. Examples include situations where an employee is incarcerated
for an extended period of time, or where the act of misconduct is so
egregious (e.g., patient abuse) as to require that the employee be
removed immediately from duty status during the period of an
investigation and any subsequent proposed adverse action. Normally, an
employee will be maintained in a paid duty status during the period
between proposal and decision letters. There are circumstances as
outlined in law or governing government-wide regulations that allow
management to make exception to this provision. In such instances,
management must be prepared to demonstrate before a third party that
accommodating the employee would have imposed an undue hardship upon the
facility where the employee works.

\(5\) Continuing misconduct while an employee is participating in the
program may be dealt with by taking appropriate disciplinary or adverse
action. However, the length of time in the program, the type of
rehabilitation program provided to the employee, and the employee\'s
demonstrable progress in treatment will be considered as possible
mitigating or aggravating factors when deciding on the appropriate
action.

\(6\) When an employee raises the issue of an alcohol or drug related
problem as an affirmative defense at the point when a formal adverse
action has been proposed, management must consider its reasonable
accommodation requirements before acting on the proposal. However, if
the action is effected, management should be prepared to demonstrate (as
appropriate) during any third party review that:

\(a\) The employee has never raised the issue until receipt of the
notice of proposed action, and has failed to prove the existence of a
substance abuse problem;

\(b\) There is no nexus (connection) between the employee\'s alcohol or
drug problem and the specific incident(s) or reasons on which the
proposed action is based;

\(c\) The employee has refused previous offers of rehabilitative
assistance;

\(d\) The employee\'s conduct and/or performance has failed to improve
despite previous participation in the EAP;

\(e\) Efforts to reasonably accommodate the employee would impose an
undue hardship on the operation of the Department; or,

\(f\) The employee does not meet the regulatory criteria of an employee
with a disability.

\(7\) If management has any reason to believe that the employee\'s claim
may be a pretext to delay a proposed adverse action, it may request
documentation to show the presence of an alcohol or drug dependence
problem. The documentation must consist of expert evidence on the
existence of a substance abuse problem at the time of the misconduct,
and may include:

\(a\) Objective clinical findings such as test results and observation
of physical signs;

\(b\) Medical diagnoses based on evaluation; or

\(c\) Evaluation and assessment of a non-medical expert in the field of
alcohol or drug rehabilitation, such as a qualified Employee Assistance
Program Counselor.

\(8\) For further information and discussion on alcohol and drug
problems and the Employee Assistance Program, see VA Handbook 5019,
Occupational Health Services. Because of periodic changes in case law
regarding reasonable accommodation for employees with alcohol and drug
abuse problems, supervisors should consult with the Human Resources
Management office prior to confronting an employee with a suspected
problem.

\(9\) Executive Order 12564 on the Drug-Free Federal Workplace generally
requires agencies to initiate disciplinary or adverse action against any
employee who is found to use illegal drugs.

\(10\) Management may enter into last chance or abeyance agreements with
employees who have an alcohol or drug abuse problem. These agreements
are generally entered into after a disciplinary

suspension or adverse action has been proposed, and offer the employee
an opportunity to participate in a rehabilitation program while the
proposed action or implementation of the decision is held in abeyance.
The final decision on the proposed action is based on whether the
employee\'s participation is successful, and/or whether further
misconduct occurs. A primary benefit of last chance or abeyance
agreements is that the agency\'s reasonable accommodation efforts are
clearly documented for the record, Since case law in this area is
constantly evolving, and there are no set formulas for last chance or
abeyance agreements, officials involved in preparing such agreements
should contact the Regional Counsel or General Counsel, as appropriate,
or the Office of Human Resources Management \[and Labor Relations\]
(051) in VA Central Office, when questions arise. Sample abeyance
agreements are contained in appendix I of this part.

\(a\) There is no set formula for abeyance or last chance agreements:

[1]{.underline}. they are tailored to the individual situation;

[2]{.underline}. they are fair, and provide some potential consideration
or benefit to the employee (generally the agency\'s agreement to
withhold an action which it could take);

[3]{.underline}. they can be imposed unilaterally by the agency, or

[4]{.underline}. negotiated with the employee or his representative, (if
they involve a waiver of rights, the employee must agree);

[5]{.underline}. they can be imposed at several stages of the adverse
action process: after a proposal, after a decision, or even after the
action has been effected; and

[6]{.underline}. if the conditions are not met, the agency can take
immediate action (no need to wait until the end of the period, or to
give a new notice).

\(b\) Abeyance and last chance agreements should contain at least the
following:

[1]{.underline}. a time limit and conditions tailored to the situation;

[2]{.underline}. a clear statement of all the agency\'s requirements of
the employee including satisfactory

participation in a rehabilitation program, and satisfactory conduct;

[3]{.underline}. a description of behaviors that will be considered
evidence of compliance or failure to comply with the requirements; and,

[4]{.underline}. an explanation of what the agency will do if the
employee fails to comply, and what the agency will do if the employee
complies.

\(c\) When an action is taken based on violation of an abeyance
agreement, the following is

recommended:

[1]{.underline}. the violation should not become part of the charges,
but should be used only to show that the employee violated the agreement
and thus triggered the agency\'s action;

[2]{.underline}. the letter to the employee should clearly describe how
the employee violated the provisions of the agreement (MSPB will require
proof of violations); and,

[3]{.underline}. the agency should proceed on the basis of the original
charges only.

c\. **Non-Disciplinary Reasons Resulting in Removal, or Reduction in
Grade or Pay.** (See chapter 3, paragraph 5d of this part.)

d\. **Reductions in Grade or Pay, or Removal Based on a Combination of
Performance and Conduct Related Factors.** (See chapter 3, par. 5e, of
this part.)

e\. **Involuntary Leave.** The authority of agencies to impose
involuntary leave status on employees has been significantly curtailed
by several Merit Systems Protection Board (MSPB) decisions. These
decisions have held that the use of enforced leave as an alternative
when dealing with employees who wish to work but appear to be mentally
or physically unable to do so and who pose a safety threat to themselves
or others in the workplace, constitutes a disciplinary suspension and is
thus an appealable action, if the suspension exceeds 14 calendar days.
Otherwise, the action is grievable. However, when an employee, because
of vicious or intemperate conduct or illness (mental or physical), is
regarded as presenting an immediate threat to Government property or to
the well-being of the employee, fellow workers, or the general public,
several other alternatives may be considered as circumstances require;
detail to other duties, sick or annual leave with the employee\'s
consent, or non-duty paid status for a limited period, any of which may
present some immediate relief to the situation. (See par. 7b(2)above.)

f\. **Indefinite Suspension.** In cases where management foresees a need
for considerable time to complete its inquiries, medical examinations,
or investigation, and make a determination in the case, consideration
may be given to imposing an indefinite suspension. The basis for the
indefinite suspension would be the need to have the employee away from
the worksite pending inquiry, investigation, or the medical examination
process. During the advance notice period of a proposed indefinite
suspension, the employee may be placed in a non-duty paid status, and in
cases involving the commission of a crime, the crime provisions
procedure may be followed. (See chapter 3, par. 14, of this part.) An
indefinite suspension must specify a completion point (e.g., acquisition
of medical documentation sufficient for management to make an informed
decision). The employee may not be suspended without such a completion
point set out in the proposal, and the suspension cannot continue once
the completion point is reached. At the completion of the suspension,
management must either return the employee to his or her position,
detail or reassign the employee to another position, remove the employee
for either disciplinary or non-disciplinary reasons related to inability
to perform, or take other appropriate administrative action. Due to the
changing nature of case law in the area of indefinite suspensions,
officials involved in such actions should consult with the Regional or
General Counsel, as appropriate, or the Office of Human Resources
Management \[and Labor Relations\] (051) in Central Office prior to
initiating action.

g\. **Progressive Discipline.** Using the least severe action which, in
the supervisor\'s judgment, will most likely correct the employee\'s
misconduct is a commonly recognized principle. It is most applicable in
repeated infractions of a minor nature (e.g., brief tardiness). However,
it does not prohibit issuance of a more severe penalty (e.g., suspension
or removal) prior to issuance of each and every lesser penalty. For
example, it is not always appropriate to issue an admonishment and/or a
reprimand prior to issuance of a suspension or removal. Sound
supervisory discretion and judgment must be applied in all cases fully
considering any aggravating and/or mitigating circumstances. The concept
of progressive discipline and the recommended guidance provided by the
Table of Offenses and Penalties (see appendix A of this part) is not
intended to preclude the exercise of discretion in determining
appropriate action, but rather to serve as an aid to maintaining
consistency. The facts of the case, degree of willfulness of the
employee\'s violation of VA conduct rules, and the seriousness of the
misconduct and its resultant impact on VA operations, may be examples of
reasons for necessitating consideration of more severe discipline (e.g.,
suspension without prior admonishment or reprimand).

[]{#ptIch2 .anchor}CHAPTER 2. DISCIPLINARY ACTION

**1.** []{#ptIch2par1 .anchor}**ADMONISHMENT**

a\. **Definition.** An admonishment is a written statement of censure
given to an employee for a minor act of misconduct.

b\. **Procedure.** An admonishment will be in the form of an official
letter to the employee describing the reasons for the action. It will
advise the employee that a copy of the admonishment and any written
explanation or comments regarding the admonishment will be placed on the
left-hand side of the employee\'s personnel folder. The admonishment
will contain a statement advising the employee of the right to appeal
the action under the grievance procedure in part IV, chapter 2, of this
handbook, or the negotiated grievance procedure, as appropriate, and
will also contain a statement informing the employee of the withdrawal
provisions. Before release to the employee, the admonishment will be
forwarded to the Human Resources Management office for review and
concurrence. A sample letter of an admonishment appears in appendix B of
this part.

c\. **Withdrawal of Admonishment.** After 2 years (or whatever time
frame is specified in any applicable labor-management agreement),
admonishments will be removed from the personnel folder and destroyed.
However, in cases of patient abuse, an admonishment may be retained in
the personnel folder for as long as the individual is employed by VA.
The employee\'s supervisor may, after 6 months, make a written request
to the Human Resources Management Officer that the admonishment be
withdrawn, if the employee\'s conduct so warrants. Upon receipt of such
a request, the Human Resources Management Officer will return the
admonishment to the supervisor for destruction. If the request is
initiated by a supervisor below the level of the official who issued the
admonishment, it must be approved at or above the level of the official
who issued it.

\(1\) In determining whether an admonishment should be withdrawn early,
consideration should be given to the fact that it may not be used after
its withdrawal as a past disciplinary record in connection with any
future proposed disciplinary or adverse action. This is especially
important with respect to admonishments for patient abuse.

\(2\) When an admonishment has been withdrawn early and destroyed, the
supervisory official will inform the employee. In order to assure the
employee that no record remains in the personnel folder, the supervisor
may wish to destroy it in the employee\'s presence or give it to the
employee for disposition.

\(3\) Since the admonishment may be appealed under the grievance
procedure initially and, except in patient abuse cases, will
automatically be removed from the personnel folder after 2 years, a
grievance may not be filed based on a supervisor\'s decision not to
remove it earlier than the expiration date.

d\. **Right to File a Grievance.** The employee may appeal an
admonishment under the VA grievance procedure in part IV, chapter 2 of
this handbook, or under the negotiated grievance procedure, as
appropriate. Under the VA grievance procedure, the grievance must be
submitted through supervisory channels not later than 15 days after
receipt of the admonishment. Grievances from bargaining unit employees
must be filed in accordance with the provisions of the applicable
negotiated grievance procedure. Reference should be made to that
procedure for the appropriate steps and time limits.

**2.** []{#ptIch2par2 .anchor}**REPRIMAND**

a\. **Definition.** A reprimand is a written statement of censure given
to an employee for misconduct.

b\. **Procedure.** A reprimand will be in the form of an official letter
to the employee describing the reasons for the action. It will advise
the employee that a copy of the reprimand and any written explanation or
comments regarding the reprimand will be placed on the left-hand side of
the employee\'s personnel folder. The reprimand will contain a statement
of the right to appeal the action under the VA\'s grievance procedure in
part IV, chapter 2 of this handbook, or the negotiated grievance
procedure, as appropriate, and will also contain a statement informing
the employee of the withdrawal provisions. Before release to the
employee, the reprimand will be forwarded to the Human Resources
Management Office for review and concurrence. A sample letter of
reprimand appears as appendix C of this part.

c\. **Withdrawal of Reprimand.** After 3 years (or whatever time frame
is specified in any applicable labor-management agreement), a reprimand
will be removed from the personnel folder and destroyed. However, in
cases of patient abuse, the reprimand may be retained in the personnel
folder for as long as the individual is employed by VA. The employee\'s
supervisor may, after 2 years, make a written request to the Human
Resources Management Officer that the reprimand be withdrawn, if the
employee\'s conduct so warrants. Upon receipt of such a request, the
Human Resources Management Officer will return the reprimand to the
supervisor for destruction. If the request is initiated by a supervisor
below the level of the official who issued the reprimand, it must be
approved at or above the level of the official who issued it.

\(1\) In determining whether a reprimand should be withdrawn early,
consideration should be given the fact that after its withdrawal, it may
not be used as a past disciplinary record in connection with any future
proposed disciplinary or adverse action. This is especially important
with respect to reprimands for patient abuse.

\(2\) When a reprimand has been withdrawn early and destroyed, the
supervisory official will so inform the employee. In order to assure the
employee that no record remains in the personnel folder, the supervisor
may wish to destroy it in the employee\'s presence or give it to the
employee for disposition.

\(3\) Since the reprimand may be appealed under the grievance procedure
initially and, except in patient abuse cases, will automatically be
removed from the personnel folder after 3 years, a grievance may not be
flied based on a supervisor\'s decision not to remove it earlier than
the expiration date.

d\. **Right to File a Grievance.** The employee may appeal the reprimand
under the VA grievance procedure in part IV, chapter 2 of this handbook,
or under the negotiated grievance procedure, as appropriate. Under the
VA grievance procedure, the grievance must be submitted through
supervisory channels not later than 15 calendar days after receipt of
the reprimand. Grievances from bargaining unit employees must be filed
in accordance with the provisions of the applicable negotiated grievance
procedure. Reference should be made to that procedure for the
appropriate steps and time limits.

**3.** []{#ptIch2par3 .anchor}**DISCIPLINARY SUSPENSION OF 14 CALENDAR
DAYS OR LESS**

a\. **Actions Covered.** The provisions of this paragraph apply to
suspensions of 14 calendar days or less.

b\. **Employees Covered.** This paragraph applies to all VA employees
except:

\(1\) Employees in the Veterans Health Administration (VHA) appointed
under 38 U.S.C., chapter 74 covered by a proficiency rating system.
**NOTE:** *Employees appointed under 38 U.S.C. 7401(2) and (3) \[and 38
U.S.C. 7405(a)(1)(B) (i.e., part-time permanent hybrids and part-time or
full-time temporary hybrids serving terms longer than one year)\] are
covered by the provisions of this chapter.*

\(2\) Canteen Service employees appointed under 38 U.S.C. 78 (see
Veterans Canteen Service Procedures, VCS-1);

\(3\) Schedule C employees;

\(4\) An individual appointed by the President;

\(5\) Re-employed annuitants;

\(6\) Members of the Senior Executive Service.

\(7\) Members of the Board of Veterans and Contract Appeals; and,

\(8\) Employees appointed under 38 U.S.C., chapter 3 (e.g. Under
Secretary for Health, Under Secretary for Benefits).

c\. **Employee Entitlements**

\(1\) An advance notice stating the specific reasons for the proposed
suspension;

\(2\) A reasonable time to answer, orally or in writing, or both orally
and in writing, and to furnish affidavits or other documentary evidence
in support of the answer;

\(3\) The right to be represented by an attorney or other
representative;

\(4\) The right to review the evidence relied upon to support the
proposed action (evidence which may not be disclosed to the employee or
the employee\'s designated representative may not be used to support the
reasons in a notice of proposed suspension). The evidence will be
maintained in the Human Resources Management office;

\(5\) A reasonable amount of official time, if otherwise in a duty
status, for reviewing the material relied upon to support the proposed
action, and for preparing and presenting a written and/or oral reply.
This also applies to the employee\'s representative, if a VA employee;

\(6\) The right to reply to either the decision official or to someone
with authority to recommend what the final decision should be;

\(7\) A written decision and the specific reasons supporting the
decision at the earliest practicable date; and,

\(8\) The right to appeal the action under the VA grievance procedure or
under the negotiated grievance procedure, as appropriate. There is no
right of appeal to the Merit Systems Protection Board of a disciplinary
suspension of 14 days or less.

d\. **Procedures**

\(1\) **Preparation.** The appropriate supervisory official, with the
assistance of the Human Resources Management office, will prepare and
issue the advance notice of proposed suspension.

\(2\) **Review.** Before being given to the employee, the notice will be
reviewed by the Human Resources Management Office for compliance with
applicable statutes, regulations, labor management agreements, and VA
policy. The Human Resources Management office should also review the
evidence and, if indicated, make a recommendation to the proposing
official concerning the propriety of the action.

\(3\) **Content of Proposed Notice.** The advance notice of proposed
suspension must contain the following information (see appendix D of
this part):

\(a\) the number of days that it is proposed that the employee be
suspended;

\(b\) a statement of the specific reasons for the proposed action,
including names, dates, places, and other data, sufficient to enable the
employee to fully understand the reasons and to afford the employee a
reasonable opportunity to respond to them;

\(c\) a statement that the employee has the right to be represented by
an attorney or other representative;

\(d\) a statement that the employee has the right to reply orally or in
writing, or both orally and in writing, and to submit affidavits and
other documentary evidence in support of the reply;

\(e\) a statement of the amount of time the employee has to submit the
reply or replies (time limits may vary according to applicable
labor-management agreements, but in no event may be less than 24 hours).

\(f\) a statement informing the employee that the material relied upon
to support the reasons for the proposed suspension will be made
available to the employee and his/her representative upon request;

\(g\) a statement that if the employee has any questions about the
reasons for the proposed suspension, he or she may contact the official
who signed the proposed notice or the Human Resources Management office
for further explanation;

\(h\) a statement identifying the decision official;

\(i\) a statement that the employee\'s written reply should be submitted
through supervisory channels to the decision official and that the
decision official or his or her designee will receive the employee\'s
oral reply;

\(j\) when an employee\'s past disciplinary record is to be considered
as part of the basis for the proposed suspension, a statement will be
included that specifically cites and identifies the previous infractions
and penalties, and advises the employee that he or she may make a
statement concerning the consideration to be given to the past record in
determining a penalty in the present case;

[1]{.underline}. If cited, the previous disciplinary record will not be
set forth as a current reason, but will be stated in a paragraph
separate and apart from the current reasons. In order to be cited in the
post record paragraph, the disciplinary action must meet the following
requirements:

[a]{.underline}. The action must have been in writing;

[b]{.underline}. The action must be a matter of record; and

[c]{.underline}. The employee must have been given an opportunity to
contest the action to a higher authority than the official who imposed
it.

[2]{.underline}. Counselings and charges of \"Absent Without Leave\"
(AWOL) without concurrent disciplinary action are not disciplinary
actions and may not be included in the past record paragraph, However,
counselings may be cited in a separate paragraph and may be considered
in determining appropriate action against an employee. If such
counselings are cited, the counseling must have been in writing and must
be included in the evidence file used to support the proposed action.
Any references to letters or memoranda of counseling in the proposal
letter must be sufficiently clear so as to enable the employee to
comment on the weight to be given to the counseling in determining the
final action.

[3]{.underline}. Suspensions may not be cited in the past record
paragraph unless the suspension has actually been served by the
employee.

\(k\) a statement that full and impartial consideration will be given to
the employee\'s reply, if a reply is made;

\(l\) a statement that the employee will be given a written decision as
soon as possible after his or her reply has been fully considered or
after the expiration of the time allowed for reply, if the employee does
not reply.

\(4\) **Employee\'s Reply**

\(a\) If the employee requests an opportunity to reply orally, the
decision official will receive

the employee\'s reply or will designate a representative to receive it.
The representative designated to receive the reply will be an official
who has authority to recommend what final decision should be made. The
right to reply orally includes the right to be given a reasonable
opportunity to make any plea which the employee believes might sway the
final decision in his or her case. The employee\'s oral reply must not
be restricted to matters dealing solely with the charges against him or
her. The employee must be permitted to plead extenuating circumstances
or make any other argument he or she deems proper.

\(b\) A written summary of the employee\'s oral reply must be made and
placed in the evidence file. If a designee is named to hear the oral
reply, the summary may contain a specific recommendation on the proposed
action.

\(c\) The employee may reply in writing to the notice in addition to
making an oral reply or instead of an oral reply.

\(d\) An employee\'s failure to reply is not to be considered an
admission of the charges. The burden of proof rests with management to
support its reasons for the action.

\(5\) **Arriving at a Final Decision on a Proposed Suspension**

\(a\) The decision official will give full and impartial consideration
to the employee\'s reply, if any, and all evidence of record. If the
decision official finds one or more of the reasons in the advance notice
sustained, he or she will give consideration to the table of examples of
offenses and penalties in appendix A of this part in determining the
appropriate penalty. This appendix also lists several factors to
consider in arriving at a decision.

\(b\) A decision adverse to the employee must be based only on the
reasons stated in the notice of proposed action. If none of the reasons
are sustained, either in whole or in part, no penalty may be imposed,
regardless of any past record cited in the notice.

\(c\) The penalty may not be more severe than that proposed in the
notice of proposed action.

\(d\) If the notice of proposed suspension is determined to be
procedurally defective, or if it is found that additional reasons other
than those set forth should be considered or that the appropriate
penalty should be more severe than that proposed, the notice of proposed
suspension will be rescinded and a new notice of proposed action issued.
The new notice will include a new advance notice period and another
opportunity to reply orally or in writing, or both orally and in
writing.

\(6\) **Decision Notice**

\(a\) The decision letter will be dated and signed by the appropriate
decision official, and will be delivered to the employee prior to the
effective date of the action.

\(b\) Before the decision is released to the employee, it will be
reviewed by the Human Resources Management office for compliance with
applicable statutes, OPM regulations, and VA policies. The Human
Resources Management office will also review the merits of the case and
any mitigating factors and, if indicated, advise the decision official
concerning the propriety of the action.

\(c\) The decision letter will contain the following information (see
appendix E of this part):

[1]{.underline}. A statement that consideration has been given to all
evidence developed, including the employee\'s reply. A written reply
made by a representative on behalf of the employee is considered to be
an employee\'s reply. If the employee replies both orally and in
writing, both replies must be mentioned.

[2]{.underline}. A statement of the decision official\'s determinations
regarding what reasons, if any, in the advance notice were sustained and
what reasons, if any, were not sustained.

[3]{.underline}. If a record of prior disciplinary actions was cited in
the advance notice, the decision will state whether the action takes the
past record, as cited in the advance notice, into consideration in
determining proper action.

[4]{.underline}. A statement of the inclusive dates of the suspension.

[5]{.underline}. A statement concerning the employee\'s rights to file a
grievance, and the time limit within which it must be filed.

[6]{.underline}. A statement advising the employee that a further
explanation of his or her appeal rights may be obtained by consulting
the Human Resources Management office.

\(d\) The guidelines in chapter 3, paragraph 13e of this part concerning
delivery should be followed.

[]{#ptIch3 .anchor}CHAPTER 3. ADVERSE ACTIONS

**1.** []{#ptIch3par1 .anchor}**ACTIONS COVERED.** The provisions of
this chapter apply to suspensions for more than 14 days, removals,
reductions in grade or pay, furloughs of 30 days or less, or other
actions which result in an involuntary separation or reduction in grade
or pay when such actions are not based solely on unacceptable
performance.

**2.** []{#ptIch3par2 .anchor}**EMPLOYEES COVERED**

a\. Among those employees covered by the provisions of this chapter are:

\(1\) Employees in the competitive service who have completed a
probationary or trial period for their current appointment;

\(2\) Employees in the excepted service who are preference eligibles and
who have completed 1 year of current continuous employment in the same
or similar positions;

\(3\) Employees in the excepted service (other than a preference
eligible) who are not serving a probationary or trial period under an
initial appointment pending conversion to the competitive service; and

\(4\) Employees in the excepted service (other than a preference
eligible) who have completed 2 years of current continuous service in
the same or similar positions under other than a temporary appointment
limited to 2 years or less.

\(5\) Employees appointed under 38 U.S.C. 7401(3) (i.e., full-time
permanent hybrids) or 7405(a)(1)(B) (i.e., part-time permanent hybrids
or part-time or full-time temporary hybrids serving terms longer that
one year) who have completed their probationary period.

b\. Most adverse actions will be initiated against employees who meet
the criteria described in the previous subparagraph. However, 5 U.S.C.
7511 and 5 CFR 752.401 (c) provides a comprehensive list of all
employees covered by the adverse action provisions of this chapter and
should be consulted when questions arise concerning employee coverage.

**3.** []{#ptIch3par3 .anchor}**EMPLOYEES EXCLUDED**

a\. Physicians, dentists, nurses, nurse anesthetists, expanded function
dental auxiliaries, physician assistants, podiatrists,
\[chiropractors,\] optometrists, and other health care professionals
appointed under 38 U.S.C. 74 (see part II of this handbook). **NOTE:**
*Employees appointed under 38 U.S.C. 7401(2) and (3)* *and hybrid
employees appointed under 38 U.S.C. 7405(a)(1)(B), who are part-time and
have completed their probationary period or who are part-time or
full-time temporary and have completed more than one year of service on
an appointment not limited to one year or less, are covered by this
chapter.*

b\. Schedule C employees;

c\. An individual appointed by the President; and,

d**.** Members of the Senior Executive Service (except as specifically
covered by this chapter).

**4.** []{#ptIch3par4 .anchor}**ACTIONS EXCLUDED.** The provisions of
this chapter do not apply to the following actions:

a\. Reduction in force;

b\. Reduction in grade of a supervisor or manager who has not completed
the probationary period under 5 U.S.C. 3321 (a)(2) if such reduction is
to the grade held immediately before becoming such supervisor or
manager;

c\. Reduction in grade or removal based solely on unacceptable
performance under 5 CFR, part 432;

d\. Any action taken by the MSPB under the provisions of 5 U.S.C. 1204;

e\. Action which entitles an employee to grade retention under 5 CFR,
part 536 and an action to terminate this entitlement;

f\. Voluntary action initiated by the employee;

g\. Action taken or directed by VA or OPM under 5 CFR, part 731 or part
754;

h\. Involuntary retirement because of disability under 5 CFR, part 831;

i\. Termination of an appointment on the expiration date specified as a
basic condition of employment at the time the appointment was made.

j\. Action which terminates a temporary or term promotion and returns
the employee to the position from which temporarily promoted, or to a
different position of equivalent grade and pay, in accordance with 5
CFR, part 335.

k\. Cancellation of a promotion to a position not classified prior to
the promotion;

l\. Placement of an employee serving on an intermittent, part-time, or
seasonal basis in a non-duty, non-pay status in accordance with
conditions established at the time of appointment;

m\. Reduction of an employee\'s rate of pay from a rate which is
contrary to law or regulation to a rate which is required or permitted
by law or regulation;

n\. Reduction in rank not accompanied by a reduction in grade;

o\. Termination of employees during a probationary or trial period;

p\. Termination of employees serving under Veterans Readjustment
Appointments during the

first year of a 2 year trial period; and,

q\. Any other action excluded under 5 CFR, part 752.

**5.** []{#ptIch3par5 .anchor}**TYPES OF ADVERSE ACTIONS**

a\. **Suspension of More than 14 Calendar Days.** A suspension for more
than 14 calendar days is an enforced temporary non-pay status and
absence from duty. Such action is given for serious misconduct. It may
also be given for continued or repeated acts of misconduct of a less
serious nature.

b\. **Reduction in** **Grade for Disciplinary Reasons.** A reduction in
grade imposed for disciplinary reasons is proper when such an action
would be effective in correcting a situation and thus serve to retain a
valuable and trained employee. For example, a reduction in grade may be
appropriate when the offense indicates unsuitability for supervisory
duties but not for duties of a non-supervisory nature.

c\. **Removal for Disciplinary Reasons.** Removal for disciplinary
reasons is an involuntary separation taken for serious misconduct or for
continued or repeated acts of misconduct of a less serious nature.

d\. **Non-Disciplinary Reasons Resulting in Removal or Reduction in**
**Grade or Pay.** An action may be non-disciplinary, but at the same
time adverse to the employee. For example, the removal of an employee
because of refusal to accompany the activity to a new location is an
adverse action even though no disciplinary element is involved. Demotion
or separation due to the employee\'s failure to meet the physical
requirements of the position is another example of an adverse action
which did not grow out of a disciplinary situation.

e\. **Demotion or Removal Based on Combination of Performance and
Non-Performance Related Factors.** Adverse actions based on a
combination of performance and either misconduct or inability to do the
work of the position because of disability, are processed under this
chapter. (For pure performance based removals under 5 CFR, part 432, see
appendices I-L, I-M and I-N.)

f\. **Furlough for 30 days or Less.** This is a non-disciplinary adverse
action taken on the basis of an emergency situation, lack of work or
funds, or other non-disciplinary reasons. Furloughs are appropriate Only
when motivated by temporary conditions. VA Handbook 5005, Staffing,
contains procedures for identifying employees for furlough and
requesting furlough authority.

\[g. **Health and Human Services Sanctions List.** When an employee is
excluded by the Health and Human Services Office of Inspector General,
they are deemed ineligible for receipt of Federal health care funds for
items or services they provide during the period of their exclusion.
This includes salary, expenses, and fringe benefits associated with
employment. Accordingly, when the name of a VHA employee or non-VHA
employee who is paid with VHA funds, is posted on the Health and Human
Services sanctions listing, the employee will receive a proposed removal
notice immediately and provided rights in accordance with paragraph 7 of
this chapter.\]

**6.** []{#ptIch3par6 .anchor}**BURDEN OF PROOF DURING APPEAL PROCESS**

a\. Prior to initiating an adverse action, officials involved in the
decision making process should consider the burden of proof which must
be met in order to sustain the adverse action on appeal.

b\. When taking an adverse action against an employee, the agency bears
the burden of proof under 5 U.S.C. 7701 (c)(1) on all reasons and issues
that form the basis for the adverse action.

c\. The agency has the burden of proof on the following 3 elements of
its decision on all adverse actions taken under 5 U.S.C. 75:

\(1\) **Proof of Charges.** The agency must prove the factual basis of
the misconduct relied on in taking the action by a \"preponderance of
the evidence.\" Preponderance of the evidence means that degree of
relevant evidence which a reasonable mind, considering the record as a
whole, might accept as sufficient

evidence to support a conclusion that the reasons for taking action are
more likely to be true than not true. This standard of proof is used by
the MSPB and arbitrators in deciding appeals and grievances. In proving
the charges themselves, it may also be necessary to establish a number
of sub-elements. An example would be a case involving charges of absence
without leave (AWOL). In such a case, the agency must prove not only
that the employee was absent on the date(s) in question, but also that
its decision to place the employee in an AWOL status, rather than in an
approved leave status, was reasonable.

\(2\) **Nexus.** Nexus is the element in an adverse action which
requires proof of an adequate relationship between the act of misconduct
and the efficiency of the service.

\(3\) **Appropriateness of Penalty.** The agency must establish that the
penalty selected is within the tolerable limits of reasonableness (see
Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), for a
discussion of the Board\'s authority to review penalties, and appendix A
of this part, which lists the \"Douglas\" factors and contains the Table
of Offenses and Penalties). The sample decision letter in appendix F of
this part, contains suggested language regarding the \"Douglas\" factors
which can be used in the adverse action decision notice.

**7.** []{#ptIch3par7 .anchor}**EMPLOYEE ENTITLEMENTS**

a\. 30 days advance written notice, stating the specific reasons for the
proposed action, except when invoking the crime provision (see paragraph
14 of this chapter), or for furloughs without pay due to unforeseeable
circumstances (see VA Handbook 5005, part IV, for further guidance);

b\. A reasonable time, but not less than 7 days (or whatever time frame
is specified in any applicable labor-management agreement) to answer
orally and/or in writing and to furnish affidavits or other documentary
evidence in support of the answer;

c\. Right to be represented by an attorney or other representative;

d\. Right to review the evidence relied upon to support the proposed
action (material which cannot be disclosed to the employee or to his or
her representative cannot be used to support the reasons in a notice of
proposed adverse action and must not be included in the evidence file).

e\. A reasonable amount of official time, if otherwise in a duty status,
for reviewing the evidence relied upon to support the proposed action,
and for preparing and making a written and oral reply. This also applies
to the employee\'s representative if a VA employee.

f\. A written decision and the specific reasons therefore at the
earliest practicable date;

g\. Right to appeal the action to MSPB or under a negotiated grievance
procedure (NGP), if the NGP covers appeals of adverse actions and the
employee is a member of the bargaining unit, or to file a

discrimination complaint under 29 CFR 1614 of the Equal Employment
Opportunity Commission\'s regulations in those instances where the
employee has raised an allegation of discrimination during the advance
notice period of the adverse action.

**8.** []{#ptIch3par8 .anchor}**EXCEPTIONS TO 30 DAYS ADVANCE NOTICE**

a\. The 30-day advance notice period is not required where there is
reasonable cause to believe the employee has committed a crime for which
a sentence of imprisonment may be imposed. Paragraph 14 of this chapter
contains guidance concerning the crime provision, and the use of
indefinite suspensions in conjunction with the crime provision.

b\. The 30-day advance notice and opportunity to answer are not
necessary for furlough without pay due to unforeseeable circumstances,
such as sudden breakdown in equipment, acts of God (e.g., flood,
tornado, etc,) or sudden emergencies requiring immediate curtailment of
activities (see VA Handbook 5005, part IV, for further guidance).

**9.** []{#ptIch3par9 .anchor}**NOTICE OF PROPOSED ACTION**

a\. Before being released to the employee, the notice of proposed action
will be reviewed, by the Human Resources Management office for
compliance with applicable statutes, regulations, labor-management
agreements, and VA policy. The Human Resources Management office will
also review the evidence and, if indicated, provide guidance concerning
the propriety of the action.

b\. The advance notice of proposed action must contain the following
information (see appendix D of this part):

\(1\) The nature of the action proposed (i.e., removal, length of
suspension, demotion, etc.);

\(2\) A statement of the specific reasons for the proposed action,
including names, dates, places, and other data, sufficient to enable the
employee to fully understand the reasons and to afford the employee a
fair opportunity to respond to them;

\(3\) A statement that the employee may be represented by an attorney or
other representative;

\(4\) A statement that the employee has the right to reply orally or in
writing, or both orally and in writing, and to submit affidavits and
other documentary evidence in support of the reply;

\(5\) A statement of the amount of time the employee has to submit the
reply, or replies. Time limits may vary according to applicable
labor-management agreements, but in no event may it be less than 7 days;

\(6\) A statement that if the employee has any questions about the
reasons for the proposed adverse action, he or she may contact the
official who signed the advance notice or the Human Resources Management
office for further explanation;

\(7\) A statement identifying the decision official;

\(8\) A statement that the employee\'s written reply should be submitted
through supervisory

channels to the decision official and that the decision official, or
designee, will receive the employee\'s

oral reply;

\(9\) When an employee\'s past disciplinary record is to be considered
as part of the basis for the proposed adverse action, a statement should
be included that specifically cites and identifies the previous
infractions and penalties, and advises the employee that he or she may
reply orally or in writing, or both orally and in writing, with respect
to those previous infractions. The statement will also advise the
employee that he or she may submit supporting evidence, including
affidavits, and may make a statement concerning the consideration to be
given to the past record in determining proper action:

\(a\) If cited, the previous disciplinary record will not be set forth
as a current reason, but will be stated in a paragraph separate and
apart from the current reasons. In order to be cited in the past record
paragraph, the disciplinary action must meet the following requirement:

[1]{.underline}. The action must have been in writing;

[2]{.underline}. The action must be a matter of record; and,

[3]{.underline}. The employee must have been given an opportunity to
contest the action to a higher authority than the official who imposed
it.

\(b\) Counselings and charges of AWOL without concurrent disciplinary
action are not disciplinary actions and may not be included in the post
record paragraph. However, counselings may be cited in a separate
paragraph and may be considered in determining appropriate action
against an employee. If such counselings are cited, the counseling must
have been in writing and must be included in the evidence file used to
support the proposed action. Any references to letters or memoranda of
counseling in the proposal letter must be sufficiently clear so as to
enable the employee to comment on the weight to be given to the
counseling in determining the final action.

\(c\) Suspensions may not be cited in the past record paragraph unless
the suspension has actually been served by the employee.

\(10\) A statement that full and impartial consideration will be given
to the employee\'s reply, if a reply is made;

\(11\) A statement that the employee will be given a written decision as
soon as possible after his or her reply has been fully considered or
after the expiration of the time allowed for reply, if the employee does
not reply;

\(12\) A statement advising the employee of the duty and pay status in
which he or she will be carried during the notice period;

\(13\) A statement that if it is decided to take the proposed adverse
action, such action will be effective not less than 30 days from the day
following the date of receipt of the notice;

\(14\) A statement informing the employee where the evidence relied on
to support the reason(s) for the proposed action will be available for
the employee\'s (and/or his or her designated representative\'s)

review. (Generally, the evidence file should be maintained in the Human
Resources Management

office.);

\(15\) A statement that:

\(a\) Informs the employee that he or she will be allowed a specific
number of hours of official time (if otherwise in an active duty status)
for reviewing the notice, for preparing a written and/or oral reply, for
securing affidavits; and

\(b\) Identifies the person with whom the employee should make
arrangements for the use of official time. (The time allowed will depend
on the facts and circumstances of each individual case. In most cases, 8
hours of time may be deemed sufficient. However, for more complex cases,
more than 8 hours may be allowed. Since the time spent by the employee
in reviewing the evidence and preparing the reply may be spread over
several days (i.e., the 7-day reply period), documentation should be
made as to how much official duty time is used each day. If the employee
requests additional official time beyond what was originally approved,
the request may be honored if it is reasonable.)

**10.** []{#ptIch3par10 .anchor}**STATUS OF EMPLOYEE DURING ADVANCE
NOTICE PERIOD OF ADVERSE ACTION**

a\. **Duty Status.** Ordinarily the employee will be retained in a pay
and active duty status in his or her position at current grade and
salary, during the period pending a decision on a proposed action.

b\. **Detail, Leave or Paid Non-Duty Status.** During the advance notice
period of a proposed removal, it may be necessary to remove the employee
from the worksite. In those instances where it is determined that the
employee\'s continued presence at work during the advance notice period
might pose a threat to the employee or others, result in loss of or
damage to Government property, or otherwise jeopardize legitimate
Government interests, the following alternatives can be considered:

\(1\) Detailing the employee to other duties where he or she is no
longer a threat to safety, to the VA\'s mission, or to Government
property;

\(2\) Allowing the employee to take leave (annual, sick, leave without
pay), or carrying him or

her in an absent without leave status if the employee has absented
himself or herself from the worksite without requesting leave;

\(3\) Curtailing the notice period in cases where the agency can invoke
5 CFR, part 752.404(d)(1) (i.e., the \"crime provision\");

\(4\) If none of the above alternatives is available, placing the
employee in a paid, non-duty status (i.e., authorized absence for
timekeeping purposes) during all or part of the advance notice period,.

c\. **Emergency Suspensions.** Agencies are not authorized to effect
emergency suspensions under the Civil Service Reform Act of 1978.

**11.** []{#ptIch3par11 .anchor}**EMPLOYEE\'S REPLY**

a\. If the employee requests an opportunity to reply orally, the
decision official will receive the employee\'s reply, or will designate
a representative to receive it. The representative designated to receive
the reply will be an official who has the authority to recommend what
final decision should be made. The right to reply orally includes the
right to be given reasonable opportunity to make any plea which the
employee believes might influence the final decision in his or her case.
The employee\'s oral reply must not be restricted to matters dealing
solely with the charges against him or her. The employee must be
permitted to plead extenuating circumstances or make any other arguments
he or she deems proper. A written summary of the oral reply must be made
and placed in the adverse action file. If a designee hears the oral
reply, the summary may include a recommendation on the proposed action.

b\. The employee may reply in writing to the notice, in addition to
making an oral reply or instead of an oral reply.

c\. An employee\'s failure to reply is not to be considered an admission
of the charges. The burden of proof rests with management to support its
reasons for the action.

d\. In making a reply, the employee may allege alcohol or drug abuse or
some other disabling medical condition.

\(1\) If the employee alleges that a physical or mental condition or
disability is causing the conduct or performance problems, the decision
official will allow the employee a reasonable opportunity to supply
medical documentation in order to assess the effect of the condition on
the employee\'s performance or conduct. If the documentation is not
sufficient or needs clarification, in limited instances a medical
examination may be offered or ordered under the provisions of VA
Handbook 5019. This documentation will assist in determining whether the
employee has a disability for the purpose of considering reasonable
accommodation. If the employee\'s unacceptable performance or conduct is
unrelated to the nature of the disability, the employee is not a
qualified employee with a disability and reasonable accommodation need
not be considered.

\(2\) Reasonable accommodation will be afforded to the known physical or
mental limitations of a qualified employee with a disability unless it
can be demonstrated that the accommodation would impose an undue
hardship on the operation of the Department. The type of accommodation
will be specific to the individual circumstances. In determining whether
an accommodation would impose an undue hardship on the operation of the
agency, a number of factors should be considered, including but not
limited to, the nature and cost of the accommodation, and the impact
such accommodation would have on the workload of other employees.

\(3\) When an employee with a disabling medical condition cannot be
reasonably accommodated, management may, depending on the circumstances,
wish to change its cause for action against the employee prior to making
a final decision on the proposed adverse action. For example, if an
employee whose removal has been proposed for misconduct, clearly
demonstrates through medical evidence that there is a causal
relationship between the actions on which the proposed removal is based
and his or her medical condition, the notice of proposed removal for
reasons of misconduct should be canceled and a new notice of proposed
separation for disability issued, based on the medical evidence.

**NOTE:** *For further information relating to medical documentation and
medical determinations, see 5 CFR, part 339 and VA Handbook 5019. For
additional information on disability and reasonable accommodation
considerations, see 29 CFR 1614.203.*

\(4\) When the employee raises a drug or alcohol problem, management
will, if appropriate, refer the individual to the Employee Assistance
Program. VA Handbook 5019, Occupational Health Services, and chapter
one, paragraph 8, of part I of this handbook contain guidance on this
program.

\(5\) When an employee raises a medical condition during the advance
notice period but fails to provide supporting evidence, or to submit
medical evidence after being given an opportunity to do so, the decision
official will base the final decision on the reasons in the notice of
proposed adverse action. This is also true when it is determined by VA
medical authorities that, despite medical evidence submitted by the
employee, there is no causal relationship between the employee\'s
medical condition and the reasons for the proposed adverse action.

\(6\) In any case where an employee raises a medical condition and is
eligible for disability retirement, the employee will be counseled
regarding disability retirement application procedures. However, an
employee\'s application need not preclude or delay the final decision on
the proposed action.

**12.** []{#ptIch3par12 .anchor}**ARRIVING AT FINAL DECISION ON THE
PROPOSED ADVERSE ACTION**

a\. The decision on a proposed action should be made by an official who
is in a higher position than the official who proposed the action. In
all cases, it is essential that consideration be given to the
requirement that the employee be given an opportunity to reply and to
have that reply considered before the final decision is made.

b\. The decision official will give full and impartial consideration to
the employee\'s reply(ies), if any, and all evidence of record. If the
decision official sustains one or more reasons in the advance notice, he
or she will give consideration to the table of examples of offenses and
penalties in appendix A of this part in determining the appropriate
penalty. The decision official will also carefully consider those issues
discussed in paragraph 6 of this chapter regarding the burden of proof
which must be met in order to sustain the adverse action on appeal.

c\. In arriving at the decision, the decision official must not consider
any reasons for action other than the reasons stated in the notice of
proposed action. If none of the reasons are sustained, either in whole
or in part, no penalty may be imposed, regardless of any past record
cited in the notice.

d\. The penalty may not be more severe than that proposed in the notice
of proposed action. It can, however, be less severe.

e\. If the notice of proposed adverse action is determined to be
procedurally defective so as to result in harmful error (i.e. error in
the application of these procedures which, in the absence or correction
of the error, might have caused management to reach a conclusion
different than the one reached) or if it is found that additional
reasons other than those set forth should be considered or that the
appropriate penalty should be more severe than that proposed, the notice
of proposed adverse action will be

rescinded and a new notice of proposed action issued. The notice will
include a new advance notice period and another opportunity to reply
orally or in writing, or both orally and in writing. If additional

evidence becomes available to further support the charges in the advance
notice, but does not necessarily provide a basis to alter the charges or
the proposed penalty, the employee will be afforded the opportunity to
respond to the new evidence before a final decision is made.

f\. Officials involved in taking an adverse action against an employee
should be aware of the prohibitions against improper \"ex parte
communications.\" The MSPB has held that agency officials may
communicate with each other during the decision making process. However,
it is improper for an interested party (e.g. supervisor, proposing
official), to pressure the decision official into making an adverse
decision. Such communications are improper, and might support reversal
of the action on appeal.

**13.** []{#ptIch3par13 .anchor}**DECISION NOTICE**

a\. The decision letter will be dated and signed by the appropriate
decision official and will be delivered to the employee prior to the
effective date of the action.

b\. Before being issued to the employee, the notice will be reviewed by
the Human Resources Management Officer, or designee, for compliance with
the procedural requirements of existing statutes, OPM regulations, MSPB
decisions, applicable labor-management agreements and VA policies. Any
comments the Human Resources Management office may have concerning the
merits of the case and any mitigating factors will be presented to the
decision official.

c\. The letter of decision will contain the following information
(appendix F of this part):

\(1\) A statement that consideration has been given to all evidence
developed, including the employee\'s reply. A written reply made by a
representative in behalf of the employee is considered to be an
employee\'s reply. If the employee replies both orally and in writing,
both must be mentioned. The decision official should also make a
statement regarding consideration that was given to the \"Douglas\"
factors (see sample letter in appendix F of this part, for suggested
language).

\(2\) A statement of the decision official\'s determinations regarding
what reasons, If any, in the advance notice were sustained and what
reasons, if any, were not sustained.

\(3\) If a record of prior disciplinary actions was cited in the advance
notice, a statement that the action takes the past record, as cited in
advance notice, into consideration in determining proper action.

\(4\) A statement of the effective date, if the penalty imposed is a
demotion or removal; or the inclusive dates, If the penalty is a
suspension.

\(5\) A statement concerning the employee\'s appeal rights, including
the right to file a complaint of discrimination (if appropriate), a
grievance under the negotiated grievance procedure (if applicable) or an
appeal to the appropriate MSPB Regional Office. Only one of the above
options may be elected. An employee shall be deemed to have made an
election to raise a matter under one of the procedures when the employee
timely files an appeal with the MSPB, files a formal complaint of
discrimination

(29 CFR 1614), or timely files a grievance in writing in accordance with
the provisions of the labor-management agreement.

\(6\) The statement in the decision letter concerning appeal rights must
include the time limit within which an appeal must be filed with MSPB,
and the address of the appropriate MSPB Regional Office. Appeals to MSPB
must be filed within 30 days of the effective date of the adverse
action. Time limits for filing a grievance will be governed by the
applicable negotiated grievance procedure.

\(7\) Indication that a copy of the MSPB regulations and appeal form is
attached.

\(8\) A statement advising the employee that a further explanation of
his or her appeal rights

may be obtained by consulting the Human Resources Management office.

d\. Non-preference eligible employees appointed under the authority of
Schedule A or Schedule B who have completed 1 year, but less than 2
years, of current continuous service must be advised in the decision
letter of the right to appeal an adverse action under the agency
administrative appeal procedure (see chapter 2, part IV of this handbook
and appendix J of this part).

e\. It is best to deliver a decision letter to the employee personally
and to obtain his or her dated, written acknowledgment of receipt so as
to show the date and fact of receipt. If the employee refuses to sign,
this should be so noted on the acknowledgment copy. In those instances
where the decision letter cannot be personally delivered to the
employee, it should be sent by certified mail, return receipt requested,
in order to establish that the letter was received. A copy should also
be sent to the employee\'s last known home address of record by regular
mail in the event the certified mail is not delivered and/or the
employee fails to obtain it from the Postal Service after being notified
to do so.

**14.** []{#ptIch3par14 .anchor}**ADVERSE ACTIONS RELATED TO THE CRIME
PROVISION**

a\. The \"crime provision\" of 5 U.S.C. 7513(b)(1) allows the 30 day
advance written notice period of an adverse action to be shortened so
that expeditious action may be taken when appropriate. This provision is
concerned solely with the duration of the advance notice period and the
opportunity to answer. It does not deal with the employee\'s duty status
during the advance notice period or the merits of the action. All other
procedures except the full 30 day advance notice period of an adverse
action apply.

b\. In order for this provision to be invoked in connection with an
adverse action, there must be reasonable cause to believe that the
employee has committed a crime for which a penalty of imprisonment may
be imposed (see appendix G of this part, for further guidance in this
area).

c\. The crime provision may be used only in conjunction with a proposal
to remove or suspend indefinitely. In those situations in which the
retention of the employee in an active duty status would be
inappropriate, but where management wishes to defer final judgment until
completion of judicial proceedings, or where evidence to substantiate a
removal is not yet available or usable, an indefinite suspension should
be proposed. The prime benefits of the indefinite suspension are the
expeditious removal of the employee from the premises with the retained
option of either reinstating or removing the employee upon completion of
the judicial proceedings or further investigation. Action should be
taken

to propose the employee\'s removal as soon as sufficient information is
available to support charges against the employee concerning the act(s)
of misconduct regardless of any subsequent judicial proceedings. The
Regional Counsel should be consulted to assure that there is appropriate
coordination with the prosecuting office.

d\. Conviction may be cause for removal. However, a subsequent acquittal
of the employee on appeal could invalidate the cause for action. Thus,
the preferred basis for the adverse action is the misconduct which led
to the arrest and conviction. If the cause relied upon is the
employee\'s act(s) of misconduct rather than the arrest and conviction,
the administrative action by VA will not be affected by subsequent court
action on the criminal case.

e\. By invoking the crime provision, the 30-day advance notice period
may be shortened to whatever is reasonable under the circumstances, but
not less than 7 days, to allow the employee to reply orally and/or in
writing to a notice of proposed adverse action. If there is a need for
immediate action and it is in the public interest to keep the employee
off duty, he or she may be placed in a non-duty status with pay during
the advanced notice period of a proposed indefinite suspension or
removal, including any period of investigation. To invoke the crime
provision and process a removal or indefinite suspension with a
curtailed notice period, the following actions should be taken:

\(1\) Notify the employee in writing that he or she is being put
immediately in a non-duty status with pay.

\(2\) Give the employee a notice either of proposed indefinite
suspension pending further investigation or disposition of the criminal
action, or of proposed removal when there is sufficient evidence to
warrant removal. The notice will advise the employee of the reasonable
period to respond orally and/or in writing (not less than 7 days).

\(3\) Issue a decision on the proposed action after the employee has had
the stated opportunity to respond orally and/or in writing, and the
response has been considered.

\(4\) With the exception of the shortened notice period and any enforced
non-duty status, the proposed adverse action and decision notices must
conform in all other aspects to the requirements for initiating and
taking adverse actions.

( 5) Any case involving the crime provision should be discussed with the
Regional or General Counsel, as appropriate. This will prove helpful in
obtaining official information regarding an arrest, the charges,
indictment, arraignment, etc., needed to establish justification for use
of the crime provision,

\(6\) Sample notices for use in connection with the crime provision may
be found in appendices G and H of this part.

**15.** []{#ptIch3par15 .anchor}**ADVERSE ACTIONS IN THE SENIOR
EXECUTIVE SERVICE**

a\. **Actions Covered**

\(1\) The provisions of this paragraph apply only to a removal from the
Civil Service or a suspension for more than 14 days,

\(2\) Adverse actions under this paragraph will be based only on
misconduct, neglect of duty, malfeasance, or failure to accept a
directed reassignment or to accompany a position in a transfer of
function,

b\. **Employees Covered.** The provisions of this paragraph apply to:

\(1\) A career employee who:

\(a\) Has completed the probationary period in the Senior Executive
Service (SES);

\(b\) Is not required to serve a probationary period; or

\(c\) Was covered under adverse action procedures immediately before
appointment to the

SES.

\(2\) A limited term or limited emergency appointee who:

\(a\) Received the limited appointment without a break in service in the
some agency as the one in which the employee held a career or
career-conditional appointment (or an appointment of equivalent tenure
as determined by the Office of Personnel Management) in a permanent
civil service position outside the SES; and

\(b\) Was covered under adverse action procedures immediately before
appointment to the SES.

c\. **Procedures**

\(1\) Since members of the SES are centralized to the Secretary, adverse
actions in the SES will be proposed by an appropriate higher level
official. The Secretary reserves the right to decide adverse actions
against employees in the SES.

\(2\) All procedural requirements for adverse actions discussed in this
chapter must be met.

**16.** []{#ptIch3par16 .anchor}**RECORDS**

a\. The Department shall retain all relevant documentation concerning
disciplinary suspensions and adverse actions in a separate file and make
it available for review by the affected employee or his/her
representative. At a minimum, the agency\'s records shall consist of:

\(1\) A copy of the notice of proposed action.

\(2\) Evidence supporting the action taken including the affidavits of
any witnesses.

\(3\) The reply of the employee when it is in writing, and/or a summary
of any oral reply.

\(4\) The notice of decision and the reasons therefore.

\(5\) Evidence of the dates the employee received the notice of proposed
action and decision.

\(6\) Copies of prior disciplinary and adverse actions (SF 50-B,
Notification of Personnel Action, should be used to document any
previous suspensions).

\(7\) Copies of relevant timecards if the adverse action was based on
absence without leave (AWOL).

b\. Disciplinary suspension and adverse action files should be
maintained and disposed of in accordance with the provisions of VA
Handbook 6300.1.

[]{#AppIA .anchor}APPENDIX A. TITLE 5 - TABLE OF EXAMPLES OF OFFENSES
AND PENALTIES

1\. INSTRUCTIONS FOR USE OF TABLE

a\. The range of penalties indicated in this table is to be used as a
[guide]{.underline} in administering discipline to help assure that like
disciplinary action is taken for like offense.

b\. The suspension penalties listed in the table are applicable to
workdays only.

**(Caution: In title 5, U.S. Code, chapter 75, \"Suspended for More than
14 days\" is interpreted to express calendar days)**

c\. In using this table, consideration will be given to the following:

\(1\) The table is designed to be sufficiently broad to include most
types of offenses, but is not intended to be an exhaustive listing of
all offenses. For other offenses, appropriate penalties may be
prescribed by disciplinary officials for application within their
jurisdiction, consistent with the range of penalties for comparable
offenses listed in the table.

\(2\) This guide does not cover all offenses for which disciplinary
penalties are expressly provided by law or Civil Service regulation.

\(3\) Offenses need not be identical in order to support progressively
more severe disciplinary/ adverse action against an employee. For
example, an employee who has received an admonishment for AWOL can
receive a reprimand for sleeping on duty, and possibly be suspended or
removed for a third offense unrelated to the two previous infractions.

\(4\) When an employee has committed a combination or series of
offenses, a greater penalty

than is listed for a single offense is appropriate.

\(5\) Where appropriate, demotion may be used in place of removal as
provided in this

chapter, except for the offense described in item 27 of the table.

\(6\) Disciplinary penalties will generally fall between the ranges
indicated in the guide, but in unusual circumstances greater or lesser
penalties may be imposed. In determining disciplinary action to be taken
in a specific case, the following factors that will be considered as
cited in [Douglas v.VA, 5M.S.P.R.280 (1981)]{.underline}. Remember that
any of the Douglas factors may be either mitigating or aggravating. Each
relevant factor must be addressed.

\(7\) The following are the twelve (12) Douglas factors:

\(a\) The nature and seriousness of the offense, and its relation to the
employee\'s duties, position and responsibilities, including whether the
offense was intentional or technical or inadvertent, or was committed
maliciously or for gain, or was frequently repeated;

\(b\) The employee\'s job level and type of employment, including
supervisory or fiduciary role, contacts with the public, and prominence
of the position;

\(c\) The employee\'s past disciplinary record;

\(d\) The employee\'s past work record, including length of service,
performance on the job,

ability to get along with fellow workers, and dependability;

\(e\) The effect of the offense upon the employee\'s ability to perform
at a satisfactory level and its effect upon the supervisor\'s confidence
in the employee\'s ability to perform assigned

duties;

\(f\) Consistency of the penalty with those imposed upon other employees
for the same or similar offenses;

\(g\) Consistency of the penalty with any applicable agency table of
penalties;

\(h\) The notoriety of the offense or its impact upon the reputation of
the agency;

\(i\) The clarity with which the employee was on notice of any rules
that were violated in

committing the offense, or had been warned about the conduct in
question;

\(j\) Potential for the employee\'s rehabilitation;

\(k\) Mitigating circumstances surrounding the offense such as unusual
job tension, personality problems, mental impairment, harassment, or bad
faith, malice or provocation on the part of others involved in the
matter; and

\(l\) The adequacy and effectiveness of alternative sanctions to deter
such conduct in the future by the employee or others.

\(7\) Removal action will be taken whenever required by law or
regulation or whenever warranted by the facts in the individual case.
Normally, progressively more severe penalties will be administered
before removal action is initiated, unless the offense is so serious
that it warrants removal action. The severity of the penalty will be
that which is required in order to correct the attitude or conduct of
the employee or to correct the situation.

\(8\) Although oral or written counselings of employees are not
considered disciplinary actions, such counselings may be considered when
assessing the appropriate penalty for a particular offense.

\(9\) The \"Douglas\" factors are not applicable in those instances
where a specific penalty (e.g., 30 day suspension for misuse of a
Government vehicle) is required by statute.

**2. RANGE OF PENALTIES FOR STATED OFFENSES**

**NOTE:** *\'Days\' specified in this table refer to suspension.*

+--------------------------------+-----------+-----------+-----------+
| NATURE OF OFFENSE              | 1ST       | 2ND       | 3RD       |
|                                | OFFENSE   | OFFENSE   | OFFENSE   |
+--------------------------------+-----------+-----------+-----------+
|                                | Minimum/  | Minimum/  | Minimum/  |
|                                |           |           |           |
|                                | Maximum   | Maximum   | Maximum   |
+--------------------------------+-----------+-----------+-----------+
| 1\. Unexcused tardiness.       | Adm       | 5 days    | 5 days    |
|                                | onishment |           |           |
|                                | Reprimand | Reprimand | Removal   |
+--------------------------------+-----------+-----------+-----------+
| 2\. Unexcused or unauthorized  | Adm       | Reprimand | 10 days   |
| absence.                       | onishment |           |           |
|                                | Reprimand | 10 days   | Removal   |
+--------------------------------+-----------+-----------+-----------+
| 3\. Leaving job to which       | Adm       | 5 days    | 10 days   |
| assigned or VA                 | onishment |           |           |
|                                | Reprimand | Reprimand | Removal   |
| premises, during working       |           |           |           |
| hours, without                 |           |           |           |
|                                |           |           |           |
| proper permission              |           |           |           |
+--------------------------------+-----------+-----------+-----------+
| 4\. Loafing, willful idleness, | Adm       | Reprimand | 10 days   |
| or waste of                    | onishment |           |           |
|                                | Reprimand | 10 days   | Removal   |
| time.                          |           |           |           |
+--------------------------------+-----------+-----------+-----------+
| 5\. Careless or negligent      | Adm       | Reprimand | 10 days   |
| workmanship                    | onishment |           |           |
|                                | Reprimand | 10 days   | Removal   |
| resulting in waste or delay.   |           |           |           |
+--------------------------------+-----------+-----------+-----------+
| 6\. Violating traffic          | Adm       | Reprimand | 10 days   |
| regulations or reckless        | onishment |           |           |
|                                |           | Removal   | Removal   |
| driving on VA premises; or     | 10 days   |           |           |
| improper operation             |           |           |           |
|                                |           |           |           |
| of a motor vehicle.            |           |           |           |
+--------------------------------+-----------+-----------+-----------+
| 7\. Failure to observe         | Adm       | Reprimand | 10 days   |
| precaution for                 | onishment |           |           |
|                                |           | Removal   | Removal   |
| personal safety, posted rules, | 10 days   |           |           |
| signs,                         |           |           |           |
|                                |           |           |           |
| written or oral safety         |           |           |           |
| instructions, or to            |           |           |           |
|                                |           |           |           |
| use protective clothing or     |           |           |           |
| equipment.                     |           |           |           |
+--------------------------------+-----------+-----------+-----------+
| 8\. Smoking in unauthorized    | Adm       | Reprimand | 10 days   |
| places or                      | onishment |           |           |
|                                |           | 10 days   | Removal   |
| carrying of matches in         | Reprimand |           |           |
| explosive areas                |           |           |           |
+--------------------------------+-----------+-----------+-----------+
| 9\. Endangering the safety of  | Adm       | 10 days   | Removal   |
| or causing                     | onishment |           |           |
|                                | Removal   | Removal   |           |
| injury to anyone on VA         |           |           |           |
| premises                       |           |           |           |
|                                |           |           |           |
| through carelessness or        |           |           |           |
| negligence.                    |           |           |           |
+--------------------------------+-----------+-----------+-----------+
| 10\. Failure to report         | Adm       | Reprimand | 5 days    |
| personal injury or             | onishment |           |           |
|                                | Reprimand | 10 days   | 15 days   |
| accident.                      |           |           |           |
+--------------------------------+-----------+-----------+-----------+
| 11\. Failure to safeguard      | Adm       | Reprimand | 10 days   |
| confidential                   | onishment |           |           |
|                                | Reprimand | 10 days   | Removal   |
| matter.                        |           |           |           |
+--------------------------------+-----------+-----------+-----------+
| 12\. Deliberate failure or     | Adm       | 3 days    | 10 days   |
| unreasonable                   | onishment |           |           |
|                                | Reprimand | 10 days   | Removal   |
| delay in carrying out          |           |           |           |
| instructions.                  |           |           |           |
+--------------------------------+-----------+-----------+-----------+

+------------------------------+-----------+-------------+------------+
| NATURE OF OFFENSE            | 1ST       | 2ND OFFENSE | 3RD        |
|                              | OFFENSE   |             | OFFENSE    |
+------------------------------+-----------+-------------+------------+
|                              | Minimum/  | Minimum/    | Minimum/   |
|                              |           |             |            |
|                              | Maximum   | Maximum     | Maximum    |
+------------------------------+-----------+-------------+------------+
| 13\. Sleeping on duty.       | Adm       | Reprimand   | 10 days    |
|                              | onishment |             |            |
| a\. Where safety of          | Reprimand | 10 days     | Removal    |
| patients, beneficiaries,     |           |             |            |
| members, employees or        | 5 days    | Removal     |            |
| property is not endangered.  |           |             |            |
|                              | Removal   |             |            |
| b\. Where safety of          |           |             |            |
| patients, beneficiaries,     |           |             |            |
| members, employees, or       |           |             |            |
| property may be endangered.  |           |             |            |
+------------------------------+-----------+-------------+------------+
| 14\. Abuse of patients or    | Reprimand | 10 days     | Removal    |
| beneficiaries                |           |             |            |
|                              | Removal   | Removal     |            |
+------------------------------+-----------+-------------+------------+
| 15\. Fighting, threatening,  | Reprimand | 10 days     | Removal    |
| attempting or                |           |             |            |
|                              | Removal   | Removal     |            |
| inflicting bodily injury to  |           |             |            |
| another;                     |           |             |            |
|                              |           |             |            |
| engaging in dangerous        |           |             |            |
| horseplay.                   |           |             |            |
|                              |           |             |            |
| (Penalty depends on such     |           |             |            |
| factors as provocation,      |           |             |            |
| extent of any injuries, and  |           |             |            |
| whether actions were         |           |             |            |
| defensive or                 |           |             |            |
|                              |           |             |            |
| offensive in nature)         |           |             |            |
+------------------------------+-----------+-------------+------------+
| 16\. Disrespectful conduct,  | Reprimand | 10 days     | Removal    |
| use of insulting, abusive,   |           |             |            |
| or obscene language to or    | Removal   | Removal     |            |
| about                        |           |             |            |
|                              |           |             |            |
| other personnel, patients,   |           |             |            |
| or visitors.                 |           |             |            |
+------------------------------+-----------+-------------+------------+
| 17\. Deliberate refusal to   | Reprimand | 10 days     | Removal    |
| carry out any                | Removal   |             |            |
|                              |           | Removal     |            |
| proper order from, or        |           |             |            |
| insolent, abusive,           |           |             |            |
|                              |           |             |            |
| or obscene language toward   |           |             |            |
| immediate                    |           |             |            |
|                              |           |             |            |
| or other supervisor having   |           |             |            |
| responsibility               |           |             |            |
|                              |           |             |            |
| for the work of the          |           |             |            |
| employee; willful resistance |           |             |            |
| to same                      |           |             |            |
+------------------------------+-----------+-------------+------------+
| 18\. Offenses related to     | Reprimand | 10 days     | 15 days    |
| intoxicants.                 |           |             |            |
|                              | 5 days    | Removal     | Removal    |
| Actions involving these      |           |             |            |
| offenses should              |           |             |            |
|                              |           |             |            |
| be reviewed to ensure the    |           |             |            |
| requirements                 |           |             |            |
|                              |           |             |            |
| of drug and alcohol abuse    |           |             |            |
| program are                  |           |             |            |
|                              |           |             |            |
| met.                         |           |             |            |
|                              |           |             |            |
| a\. Alcohol-related:         |           |             |            |
|                              |           |             |            |
| \(1\) Unauthorized           |           |             |            |
| possession of                |           |             |            |
|                              |           |             |            |
| alcoholic beverages while on |           |             |            |
| VA                           |           |             |            |
|                              |           |             |            |
| premises or in duty status.  |           |             |            |
+------------------------------+-----------+-------------+------------+

+-----------------------------+------------+-------------+------------+
| NATURE OF OFFENSE           | 1ST        | 2ND OFFENSE | 3RD        |
|                             | OFFENSE    |             | OFFENSE    |
+-----------------------------+------------+-------------+------------+
|                             | Minimum/   | Minimum/    | Minimum/   |
|                             |            |             |            |
|                             | Maximum    | Maximum     | Maximum    |
+-----------------------------+------------+-------------+------------+
| 18.a. (Continued)           | Reprimand  | 15 days     | Removal    |
|                             |            |             |            |
| \(2\) Unauthorized use of   | 10 days    | Removal     | Removal    |
| alcoholic                   |            |             |            |
|                             | Reprimand  | 15 days     | Removal    |
| beverages while on VA       |            |             |            |
| premises or in              | 10 days    | Removal     | Removal    |
|                             |            |             |            |
| duty status.                | 10 days    | Removal     | Removal    |
|                             |            |             |            |
| \(3\) Reporting to or being | Removal    | 15 days     |            |
| on duty while under the     |            |             |            |
| influence of alcohol.       | 5 days     | Removal     |            |
|                             |            |             |            |
| \(4\) Sale or transfer of   | 10 days    | 15 days     |            |
| an alcoholic                |            |             |            |
|                             | 10 days    | Removal     |            |
| beverage while on VA        |            |             |            |
| premises or in              | Removal    | Removal     |            |
|                             |            |             |            |
| a duty status or while any  | 15 days    | Removal     |            |
| person                      |            |             |            |
|                             | Removal    | 15 days     |            |
| involved is in a duty       |            |             |            |
| status.                     | 15 days    | Removal     |            |
|                             |            |             |            |
| b\. Drug-related:           | Removal    |             |            |
|                             |            |             |            |
| \(1\) Unauthorized          | Ad         |             |            |
| possession of an            | monishment |             |            |
|                             | Removal    |             |            |
| illegal drug or controlled  |            |             |            |
| substance                   |            |             |            |
|                             |            |             |            |
| while on VA premises or in  |            |             |            |
| a duty                      |            |             |            |
|                             |            |             |            |
| status.                     |            |             |            |
|                             |            |             |            |
| \(2\) Unauthorized use of a |            |             |            |
| drug or                     |            |             |            |
|                             |            |             |            |
| controlled substance while  |            |             |            |
| on VA                       |            |             |            |
|                             |            |             |            |
| premises or in a duty       |            |             |            |
| status.                     |            |             |            |
|                             |            |             |            |
| \(3\) Reporting to or being |            |             |            |
| on duty while under the     |            |             |            |
| influence of a drug or      |            |             |            |
|                             |            |             |            |
| controlled substance.       |            |             |            |
|                             |            |             |            |
| \(4\) Sale or transfer or a |            |             |            |
| drug or con-                |            |             |            |
|                             |            |             |            |
| trolled substance while on  |            |             |            |
| VA premises                 |            |             |            |
|                             |            |             |            |
| or in a duty status or      |            |             |            |
| while any person involved   |            |             |            |
| is in a duty status.        |            |             |            |
|                             |            |             |            |
| \(5\) Refusal to take drug  |            |             |            |
| test, as required           |            |             |            |
+-----------------------------+------------+-------------+------------+

+-------------------------------+------------+------------+------------+
| NATURE OF OFFENSE             | 1ST        | 2ND        | 3RD        |
|                               | OFFENSE    | OFFENSE    | OFFENSE    |
+-------------------------------+------------+------------+------------+
|                               | Minimum/   | Minimum/   | Minimum/   |
|                               |            |            |            |
|                               | Maximum    | Maximum    | Maximum    |
+-------------------------------+------------+------------+------------+
| 19\. Gambling, unlawful       | Reprimand  | 10 days    | Removal    |
| betting; on VA premises.      |            |            |            |
|                               | 10 days    | Removal    |            |
+-------------------------------+------------+------------+------------+
| 20.Promotion of\' gambling on | Reprimand  | 10 days    | Removal    |
| VA premises.                  |            |            |            |
|                               | 10 days    | Removal    |            |
+-------------------------------+------------+------------+------------+
| 21\. Indebtedness-lack of     | Ad         | Ad         | Reprimand  |
| good faith in                 | monishment | monishment |            |
|                               |            |            | Removal    |
| paying just financial         |            | Reprimand  |            |
| obligations; such as          |            |            |            |
|                               |            |            |            |
| failure without good cause to |            |            |            |
| make or live                  |            |            |            |
|                               |            |            |            |
| up to arrangements to pay a   |            |            |            |
| debt that the employee admits |            |            |            |
| he owes or that is            |            |            |            |
|                               |            |            |            |
| supported by court judgment,  |            |            |            |
| or that                       |            |            |            |
|                               |            |            |            |
| represents a tax or other     |            |            |            |
| financial                     |            |            |            |
|                               |            |            |            |
| obligation to the U.S.        |            |            |            |
| Government or to              |            |            |            |
|                               |            |            |            |
| State and local government.   |            |            |            |
+-------------------------------+------------+------------+------------+
| 22\. Actual or attempted      | Reprimand  | 10 days    | Removal    |
| theft of Govern-              |            |            |            |
|                               | Removal    | Removal    |            |
| ment property, or of personal |            |            |            |
| property.                     |            |            |            |
|                               |            |            |            |
| on VA. premises.              |            |            |            |
+-------------------------------+------------+------------+------------+
| 23\. Making false or          | Reprimand  | 10 days    | Removal    |
| unfounded statements, which   |            |            |            |
| are slanderous or defamatory, | Removal    | Removal    |            |
| about                         |            |            |            |
|                               |            |            |            |
| other VA personnel or         |            |            |            |
| officials.                    |            |            |            |
+-------------------------------+------------+------------+------------+
| 24\. Falsifying attendance    | Reprimand  | 10 days    | Removal    |
| record for self               |            |            |            |
|                               | Removal    | Removal    |            |
| or another employee.          |            |            |            |
+-------------------------------+------------+------------+------------+
| 25.Intentional falsification, | Reprimand  | 10 days    | Removal    |
| misstatement, or concealment  |            |            |            |
| of material fact in           | Removal    | Removal    |            |
| connection                    |            |            |            |
|                               |            |            |            |
| with employment or any        |            |            |            |
| investigation,                |            |            |            |
|                               |            |            |            |
| inquiry or proper proceeding; |            |            |            |
| refusal to cooperate in same; |            |            |            |
| or willfully forgoing or      |            |            |            |
| falsifying official           |            |            |            |
| Government records or         |            |            |            |
| documents                     |            |            |            |
+-------------------------------+------------+------------+------------+

+-------------------------------+------------+------------+------------+
| NATURE OF OFFENSE             | 1ST        | 2ND        | 3RD        |
|                               | OFFENSE    | OFFENSE    | OFFENSE    |
+-------------------------------+------------+------------+------------+
|                               | Minimum/   | Minimum/   | Minimum/   |
|                               |            |            |            |
|                               | Maximum    | Maximum    | Maximum    |
+-------------------------------+------------+------------+------------+
| 26\. Loss of, damage to, or   | Ad         | 10 days    | Removal    |
| unauthorized                  | monishment |            |            |
|                               |            | Removal    | Removal    |
| use of Government property:   | 15 days    |            |            |
|                               |            | 10 days    |            |
| a\. Through carelessness or   | Reprimand  |            |            |
| negligence                    |            | Removal    |            |
|                               | Removal    |            |            |
| b\. Through maliciousness or  |            |            |            |
| intent                        |            |            |            |
|                               |            |            |            |
| **NOTE:** *For willful use or |            |            |            |
| authorization*                |            |            |            |
|                               |            |            |            |
| *of the use of any Government |            |            |            |
| vehicle for*                  |            |            |            |
|                               |            |            |            |
| *other than official          |            |            |            |
| purposes, the prescribed      |            |            |            |
| penalty is suspension for not |            |            |            |
| less than 30*                 |            |            |            |
|                               |            |            |            |
| *days or removal (31 U.S.C.   |            |            |            |
| 1349(b); see*                 |            |            |            |
|                               |            |            |            |
| *number 49.*                  |            |            |            |
+-------------------------------+------------+------------+------------+
| 27\. Owning any interest in,  | Removal    |            |            |
| or receiving any wages,       |            |            |            |
| salary dividends, profits,    |            |            |            |
| gratuities,                   |            |            |            |
|                               |            |            |            |
| or services from any          |            |            |            |
| educational institution       |            |            |            |
| operated for profit in which  |            |            |            |
| an eligible                   |            |            |            |
|                               |            |            |            |
| veteran, or person, is        |            |            |            |
| pursuing a course of          |            |            |            |
| education or training under   |            |            |            |
| 38 U.S.C. 34                  |            |            |            |
|                               |            |            |            |
| and 35 where it is determined |            |            |            |
| that detriment                |            |            |            |
|                               |            |            |            |
| will result to the United     |            |            |            |
| States or to eligible         |            |            |            |
|                               |            |            |            |
| veterans, or persons, by      |            |            |            |
| reason or such                |            |            |            |
|                               |            |            |            |
| interest or connection        |            |            |            |
+-------------------------------+------------+------------+------------+
| 28\. Participation in any     | Ad         | 10 days    | Removal    |
| type of outside activities,   | monishment |            |            |
| of relationships with         | Removal    | Removal    |            |
| contractors lenders,          |            |            |            |
| builders, or others engaged   |            |            |            |
| in                            |            |            |            |
|                               |            |            |            |
| business with VA or           |            |            |            |
| relationships with            |            |            |            |
|                               |            |            |            |
| those seeking contracts,      |            |            |            |
| which would be contrary to    |            |            |            |
| the best interests of VA and  |            |            |            |
| the veterans it serves.       |            |            |            |
| Penalty action will be        |            |            |            |
| determined on the basis of    |            |            |            |
| whether the                   |            |            |            |
|                               |            |            |            |
| activities, or relationships, |            |            |            |
| might result in a conflict    |            |            |            |
| between the private interest  |            |            |            |
| of the employee and his/her   |            |            |            |
| duty and obligation to VA, or |            |            |            |
| tend to create in the minds   |            |            |            |
| of others a suspicion of      |            |            |            |
| prejudice or favoritism that  |            |            |            |
|                               |            |            |            |
| would be of embarrassment to  |            |            |            |
| VA.                           |            |            |            |
+-------------------------------+------------+------------+------------+

+-------------------------------+------------+------------+-----------+
| NATURE OF OFFENSE             | 1ST        | 2ND        | 3RD       |
|                               | OFFENSE    | OFFENSE    | OFFENSE   |
+-------------------------------+------------+------------+-----------+
|                               | Minimum/   | Minimum/   | Minimum/  |
|                               |            |            |           |
|                               | Maximum    | Maximum    | Maximum   |
+-------------------------------+------------+------------+-----------+
| 29\. Except as specifically   | Reprimand  | Removal    |           |
| authorized, dis-              |            |            |           |
|                               | Removal    |            |           |
| closing or using directly or  |            |            |           |
| indirectly inform-ation       |            |            |           |
| obtained as a result of       |            |            |           |
| employment in                 |            |            |           |
|                               |            |            |           |
| VA, which is of a             |            |            |           |
| confidential nature or        |            |            |           |
|                               |            |            |           |
| which represents a matter of  |            |            |           |
| trust; or any                 |            |            |           |
|                               |            |            |           |
| other information so obtained |            |            |           |
| of such                       |            |            |           |
|                               |            |            |           |
| character that its disclosure |            |            |           |
| or use would be contrary to   |            |            |           |
| the best interests of the     |            |            |           |
|                               |            |            |           |
| Government, VA, or the        |            |            |           |
| veterans being                |            |            |           |
|                               |            |            |           |
| served by it.                 |            |            |           |
+-------------------------------+------------+------------+-----------+
| 30\. Borrowing from, or       | Reprimand  | Removal    |           |
| lending money to,             |            |            |           |
|                               | Removal    |            |           |
| any beneficiary or claimant   |            |            |           |
| of VA; or                     |            |            |           |
|                               |            |            |           |
| borrowing from, or lending    |            |            |           |
| money to,                     |            |            |           |
|                               |            |            |           |
| another VA employee (or       |            |            |           |
| non-VA                        |            |            |           |
|                               |            |            |           |
| employee) for the purpose of  |            |            |           |
| monetary                      |            |            |           |
|                               |            |            |           |
| gain while on duty or on VA   |            |            |           |
| property.                     |            |            |           |
+-------------------------------+------------+------------+-----------+
| 31\. Soliciting contributions | Reprimand  | 10 days    | Removal   |
| for, or other-                |            |            |           |
|                               | Removal    | Removal    |           |
| wise promoting, on premises   |            |            |           |
| occupied by                   |            |            |           |
|                               |            |            |           |
| VA, any national or local     |            |            |           |
| welfare or other              |            |            |           |
|                               |            |            |           |
| type of campaign which has    |            |            |           |
| not had                       |            |            |           |
|                               |            |            |           |
| appropriate VA endorsement    |            |            |           |
+-------------------------------+------------+------------+-----------+
| 32\. Selling tickets, stocks, | Reprimand  | 10 days    | Removal   |
| articles, or commodities or   |            |            |           |
| services on VA premises.      | Removal    | Removal    |           |
|                               |            |            |           |
| This prohibition is not to be |            |            |           |
| construed as prohibiting      |            |            |           |
| employees from engaging in    |            |            |           |
|                               |            |            |           |
| bonafide activities on        |            |            |           |
| premises occupied             |            |            |           |
|                               |            |            |           |
| by VA or organized employee   |            |            |           |
| union,                        |            |            |           |
|                               |            |            |           |
| group, organization, or       |            |            |           |
| association, as               |            |            |           |
|                               |            |            |           |
| provided in other chapter of  |            |            |           |
| this manual.                  |            |            |           |
+-------------------------------+------------+------------+-----------+
| 33\. Accepting gifts or       | Reprimand  | Removal    |           |
| gratuities (whether in        |            |            |           |
|                               | Removal    |            |           |
| the form of goods, money,     |            |            |           |
| services,                     |            |            |           |
|                               |            |            |           |
| purchases at discount,        |            |            |           |
| entertainment, or             |            |            |           |
|                               |            |            |           |
| similar favors) from          |            |            |           |
| claimants or                  |            |            |           |
|                               |            |            |           |
| beneficiaries of VA, or       |            |            |           |
| individuals or                |            |            |           |
|                               |            |            |           |
| firms doing business with or  |            |            |           |
| having                        |            |            |           |
|                               |            |            |           |
| contractual relations with    |            |            |           |
| VA.                           |            |            |           |
+-------------------------------+------------+------------+-----------+

+-------------------------------+------------+-------------+-----------+
| NATURE OF OFFENSE             | 1ST        | 2ND OFFENSE | 3RD       |
|                               | OFFENSE    |             | OFFENSE   |
+-------------------------------+------------+-------------+-----------+
|                               | Minimum/   | Minimum/    | Minimum/  |
|                               |            |             |           |
|                               | Maximum    | Maximum     | Maximum   |
+-------------------------------+------------+-------------+-----------+
| 34\. Violation of the Privacy | Reprimand  | 10 days     | Removal   |
| Act.                          |            |             |           |
|                               | 10 days    | Removal     |           |
+-------------------------------+------------+-------------+-----------+
| 35\. Prohibited personnel     | Reprimand  | 10 days     | Removal   |
| practice (Reference 5 U.S.C.  |            |             |           |
| 2302.)                        | Removal    | Removal     |           |
+-------------------------------+------------+-------------+-----------+
| 36\. Participating in a       | Reprimand  | Removal     | Removal   |
| strike, work stoppage,        |            |             |           |
| sick-out, slowdown, or other  | Removal    |             |           |
| job action.                   |            |             |           |
+-------------------------------+------------+-------------+-----------+
| 37\. Sexual harassment.       | Reprimand  | 5 days      | 10 days   |
|                               |            |             |           |
|                               | Removal    | Removal     | Removal   |
+-------------------------------+------------+-------------+-----------+
| 38\. Discrimination based on  | Reprimand  | 5 days      | 10 days   |
| race, color,                  |            |             |           |
|                               | Removal    | Removal     | Removal   |
| sex, religion, national       |            |             |           |
| origin, age, marital          |            |             |           |
|                               |            |             |           |
| status, political             |            |             |           |
| affiliation, or disability.   |            |             |           |
+-------------------------------+------------+-------------+-----------+
| 39\. Interference with an     | Reprimand  | 5 days      | Removal   |
| employee\'s                   |            |             |           |
|                               | Removal    | Removal     |           |
| exercise of, or reprisal      |            |             |           |
| against an                    |            |             |           |
|                               |            |             |           |
| employee for exercising, a    |            |             |           |
| right to                      |            |             |           |
|                               |            |             |           |
| grieve, appeal or file a      |            |             |           |
| complaint                     |            |             |           |
|                               |            |             |           |
| through established           |            |             |           |
| procedures.                   |            |             |           |
+-------------------------------+------------+-------------+-----------+
| 40\. Reprisal against an      | 10 days    | Removal     |           |
| employee for                  |            |             |           |
|                               | Removal    |             |           |
| providing information to an   |            |             |           |
| Office of                     |            |             |           |
|                               |            |             |           |
| Inspector General (or         |            |             |           |
| equivalent) or                |            |             |           |
|                               |            |             |           |
| Office of Special Counsel, or |            |             |           |
| to an EEO investigator, or    |            |             |           |
| for testifying in an          |            |             |           |
|                               |            |             |           |
| official proceeding.          |            |             |           |
+-------------------------------+------------+-------------+-----------+
| 41\. Reprisal against an      | Reprimand  | 5 days      | 10 days   |
| employee for                  |            |             |           |
|                               | Removal    | Removal     | Removal   |
| exercising a right provided   |            |             |           |
| under                         |            |             |           |
|                               |            |             |           |
| 5 U.S.C. 71(Federal Labor     |            |             |           |
| Management Relations          |            |             |           |
| Statute).                     |            |             |           |
+-------------------------------+------------+-------------+-----------+
| 42\. Violation of an          | Reprimand  | 5 days      | 10 days   |
| employee\'s                   |            |             |           |
|                               | Removal    | Removal     | Removal   |
| constitutional rights (i.e.,  |            |             |           |
| freedom of                    |            |             |           |
|                               |            |             |           |
| speech, association,          |            |             |           |
| religion).                    |            |             |           |
+-------------------------------+------------+-------------+-----------+

+-------------------------------+------------+-------------+-----------+
| NATURE OF OFFENSE             | 1ST        | 2ND OFFENSE | 3RD       |
|                               | OFFENSE    |             | OFFENSE   |
+-------------------------------+------------+-------------+-----------+
|                               | Minimum/   | Minimum/    | Minimum/  |
|                               |            |             |           |
|                               | Maximum    | Maximum     | Maximum   |
+-------------------------------+------------+-------------+-----------+
| **Offenses Prescribed in      | Reprimand  | Reprimand   | Reprimand |
| Statute:**                    |            |             |           |
|                               | Removal    | Removal     | Removal   |
| 43\. Finding by MSPB of       |            |             |           |
| refusal to comply             |            |             |           |
|                               |            |             |           |
| with MSPB order or of         |            |             |           |
| violation of statute causing  |            |             |           |
| issuance of Special Counsel   |            |             |           |
| com-                          |            |             |           |
|                               |            |             |           |
| plaint ((5 U.S.C. 1204(a)(2)  |            |             |           |
| and 1212(a)). **NOTE:**       |            |             |           |
| *Penalty may need to be*      |            |             |           |
|                               |            |             |           |
| *coordinated with Office of   |            |             |           |
| Special Counsel.*             |            |             |           |
+-------------------------------+------------+-------------+-----------+
| 44\. Directing, expecting, or | Removal    |             |           |
| rendering                     |            |             |           |
|                               |            |             |           |
| services not covered by       |            |             |           |
| appropriations                |            |             |           |
|                               |            |             |           |
| (5 U.S.C. 3103).              |            |             |           |
+-------------------------------+------------+-------------+-----------+
| 45\. Prohibited Political     | Removal    | Removal     |           |
| Activity:\*                   |            |             |           |
|                               | 30 days    |             |           |
| a\. Violation of prohibition  |            |             |           |
| against the solicitation of   | Removal    |             |           |
| political contributions       |            |             |           |
|                               |            |             |           |
| (5 U.S.C. 7323).              |            |             |           |
|                               |            |             |           |
| b\. Violation of prohibition  |            |             |           |
| against                       |            |             |           |
|                               |            |             |           |
| influencing elections (5      |            |             |           |
| U.S.C. 7324).                 |            |             |           |
+-------------------------------+------------+-------------+-----------+
| 46\. Failure to deposit into  | Removal    |             |           |
| the Treasury                  |            |             |           |
|                               |            |             |           |
| money accruing from lapsed    |            |             |           |
| salaries or                   |            |             |           |
|                               |            |             |           |
| from unused appropriations    |            |             |           |
| for salaries (5U.S.C. 5501).  |            |             |           |
+-------------------------------+------------+-------------+-----------+
| 47\. Soliciting contributions | Reprimand  | 10 days     | Removal   |
| for a gift for a superior;    |            |             |           |
| making a donation as a gift   | Removal    | Removal     |           |
| to a superior; accepting a    |            |             |           |
| gift from an employee         |            |             |           |
| receiving less pay (5 U.S.C.  |            |             |           |
| 735 1).                       |            |             |           |
+-------------------------------+------------+-------------+-----------+
| 48\. Action against national  | 30 days    | Removal     |           |
| security                      |            |             |           |
|                               | Removal    |             |           |
| (5 U.S.C. 7532).              |            |             |           |
+-------------------------------+------------+-------------+-----------+
| 49\. Willfully using or       | 30 days    | Removal     |           |
| authorizing the use of a      |            |             |           |
| government passenger motor    | Removal    |             |           |
| vehicle or                    |            |             |           |
|                               |            |             |           |
| aircraft for other than       |            |             |           |
| official purposes             |            |             |           |
|                               |            |             |           |
| (31 U.S.C. 1349(b)).          |            |             |           |
| **NOTE:** *30 days for*       |            |             |           |
|                               |            |             |           |
| *this offense means calendar  |            |             |           |
| days.*                        |            |             |           |
+-------------------------------+------------+-------------+-----------+
| 50\. Mutilating or destroying | Removal    |             |           |
| a public                      |            |             |           |
|                               |            |             |           |
| record (18 U.S.C. 207 1).     |            |             |           |
+-------------------------------+------------+-------------+-----------+

\*Actions based on Hatch Act violations will be initiated by the Office
of Special Counsel.

[]{#AppIB .anchor}**APPENDIX B. TITLE 5 -- SAMPLE ADMONISHMENT**

FOR OFFICIAL USE ONLY

(Name of Employee)

(Organization Element)

(VA Office or Field Facility)

(City, State and Zip Code)

SUBJ: Admonishment

1\. You are admonished because you were absent without leave for 8 hours
on (date). You failed to obtain permission from your supervisor for the
absence as required. Your actions are in violation of (cite specific
law, regulation, or policy which has been violated, i.e., Medical Center
Policy Memorandum Number xx-xx-xx) which requires employees to \....\",
if applicable.

2\. A copy of this admonishment will be placed in your personnel folder.
You may, if you wish, make a written reply in explanation of your
conduct. If you do, it will also be placed in your personnel folder.

  ----------------------------------- -----------------------------------
  3\. This admonishment may remain in *Admonishment for patient abuse
  your folder for 2 years or it may   should read \"may remain in your
  be withdrawn and destroyed after 6  personnel folder for as long as you
  months, depending entirely on your  are employed in VA or it may be
  future behavior and attitude.       withdrawn and destroyed after 6
                                      months, etc.\"*

  ----------------------------------- -----------------------------------

4\. This letter may be used in determining an appropriate penalty if
further infractions occur.

  ----------------------------------- -----------------------------------
  5\. If you believe that this        *Language may vary based on
  admonishment is unjustified, you    provisions of negotiated grievance
  may appeal the action under the (VA procedure. Any applicable
  or negotiated, as appropriate)      provisions of a negotiated
  grievance procedure. Your grievance labor-management agreement should
  must be submitted through your      be consulted to determine the
  supervisor (number of days) after   possible effect on the processing
  you receive this admonishment. For  of disciplinary/adverse actions,
  further information about the       notices of such actions, and
  grievance procedure, you may        employee rights.*
  consult the Human Resources         
  Management Office.                  

  ----------------------------------- -----------------------------------

(Signature of appropriate supervisor)

**FOR OFFICIAL USE ONLY**

[]{#AppIC .anchor}**APPENDIX C. TITLE 5 -- SAMPLE REPRIMAND**

FOR OFFICIAL USE ONLY

(Name of Employee)

(Organization Element)

(VA Office or Field Facility)

(City, State and Zip Code)

SUBJECT: Reprimand

1\. You are reprimanded because you were absent without leave for 8
hours on (date). You failed to obtain permission from your supervisor
for the absence as required. Your actions are in violation of (cite
specific law, regulation, or policy which has been violated, i.e.
Medical Center Policy Memorandum Number xx-xx-xx) which requires
employees to \....\"

  ----------------------------------- -----------------------------------
  2\. This is the second offense of   *Past record may be cited if
  this nature within the past 3       considered appropriate.*
  months. On (date) you were          
  admonished for AWOL.                

  ----------------------------------- -----------------------------------

3\. A copy of this reprimand will be placed in your personnel folder.
You may, if you wish, make a written reply in explanation of your
conduct. If you do, it will also be placed in your personnel folder.

4\. This letter may be used in determining an appropriate penalty if
further infractions occur.

  ----------------------------------- -----------------------------------
  5\. This reprimand may remain in    *A reprimand for patient abuse
  your folder for 3 years or it may   should read \"may remain in your
  be withdrawn and destroyed after 2  folder as long as you are employed
  years, depending entirely on your   by VA or it may be withdrawn and
  future behavior and attitude.       destroyed after 2 years, etc.\"*

  6\. If you believe that this        *Language may vary based on
  reprimand is unjustified, you may   specific provisions of the
  appeal the action under the (VA or  negotiated grievance procedure. Any
  negotiated, as appropriate)         applicable provisions of a
  grievance procedure. Your grievance negotiated labor-management
  must be submitted through your      agreement should be consulted to
  supervisor (number of days) after   determine the possible effect on
  you receive this reprimand. For     the processing of
  further information about the       disciplinary/adverse actions,
  grievance procedure, you may        notices of such actions, and
  consult the Human Resources         employee rights.*
  Management Office.                  
  ----------------------------------- -----------------------------------

(Signature of division or service chief or higher level official)

**FOR OFFICIAL USE ONLY**

[]{#AppID .anchor}**APPENDIX D.**

**TITLE 5 -- SAMPLE NOTICE OF PROPOSED REMOVAL**

**NOTE:** *Applicable for other adverse actions and suspensions of 14
days or less*

FOR OFFICIAL USE ONLY

(Name of Employee)

(Organization Element)

(VA Office or Field Facility)

(City, State and Zip Code)

SUBJECT: Proposed Removal

1\. It is proposed to remove you from employment with VA based on the
following reasons:

+-----------------------------------+-----------------------------------+
| I. On (date), at approximately    | *The practice of grouping reasons |
| (time),you allowed patient J.D.   | under general headings, such as   |
| to bring a bottle of whiskey on   | "Neglect of Duty," or             |
| the hospital premises despite the | "Insubordination," etc., is       |
| fact that it was your duty (under | discouraged.*                     |
| the standing order for guards) to |                                   |
| prevent patients from introducing |                                   |
| alcoholic beverages on the        |                                   |
| hospital premises.                |                                   |
+-----------------------------------+-----------------------------------+
| II\. At 10:00 a.m., approximately | *After each charge, cite specific |
| 1 hour after the incident, you    | law, regulation, or policy which  |
| were ordered by your immediate    | has been violated.*               |
| supervisor, Mr. John Smith, to    |                                   |
| report at once to the Chief,      | *\[See note 1 for employees on    |
| Security Service, and explain     | HHS exclusionary list.\]*         |
| your neglect of duty. However,    |                                   |
| you told Mr. Smith that you       |                                   |
| refused to do so and, although he |                                   |
| repeated the order, you still did |                                   |
| not report to the Chief, Security |                                   |
| Service.                          |                                   |
+-----------------------------------+-----------------------------------+

III\. At 10:00 a.m., immediately following your refusal to carry out the
above-mentioned order, you struck Mr. Smith several times with your
fists and knocked him down on the floor.

+-----------------------------------+-----------------------------------+
| 2\. You have the right to reply   | *Only applies when employee is in |
| to this notice orally, or in      | an active duty status. Must be    |
| writing, or both orally and in    | used in adverse actions. Use "a   |
| writing and to submit affidavits  | reasonable amount of official     |
| in support of your reply, showing | time" for suspension of 14 days   |
| why this notice is inaccurate and | or less.*                         |
| any other reasons why your        |                                   |
| removal should not be effected.   |                                   |
| The evidence on which this notice |                                   |
| of proposed action is based will  |                                   |
| be available for your review in   |                                   |
| the Human Resources office,       |                                   |
| (Room). You will be allowed (give |                                   |
| at least (8) or more hours) of    |                                   |
| official duty time for reviewing  |                                   |
| the evidence relied on to support |                                   |
| the reason(s) in this notice,     |                                   |
| preparing a written reply,        |                                   |
| securing affidavits, and for      |                                   |
| making a personal reply.          |                                   |
| Arrangements for the use of       |                                   |
| official time or requests for     |                                   |
| additional time should be made    |                                   |
| with me. You have the right to be |                                   |
| represented by an attorney or     |                                   |
| other representative.             |                                   |
+-----------------------------------+-----------------------------------+
| 3\. You will be given until the   | *At least 7 calendar days is      |
| close of business (date) to reply | permitted, more if justified by   |
| to these reasons orally or in     | circumstances, or required by the |
| writing, or both orally and in    | negotiated agreement for members  |
| writing. Your written reply       | of the bargaining unit.*          |
| should be submitted to the        |                                   |
| (deciding official). The          |                                   |
| (deciding official) will receive  |                                   |
| your oral reply or will designate |                                   |
| an official or officials to       |                                   |
| receive it. If you do not         |                                   |
| understand the above reason(s)    |                                   |
| why your removal is proposed,     |                                   |
| contact me, or the Human          |                                   |
| Resources Management Office (give |                                   |
| location) for further             |                                   |
| explanation.                      |                                   |
+-----------------------------------+-----------------------------------+
| 4\. On 2 previous occasions you   | *Citation of past record is not   |
| refused to follow orders given to | considered a current reason.      |
| you by your supervisor. After the | Copies of the past record must be |
| first occasion, you were          | included in the evidence file.*   |
| admonished by letter of (date)    |                                   |
| and after the second, you were    | *\[Not applicable for employees   |
| reprimanded by letter of (date).  | on HHS exclusionary list.\]*      |
| This past record will be taken    |                                   |
| into account in determining       |                                   |
| proper disciplinary action, if    |                                   |
| one or more of the above reasons  |                                   |
| is sustained. You may reply       |                                   |
| orally or in writing, or both     |                                   |
| orally and in writing, with       |                                   |
| respect to these previous         |                                   |
| infractions and penalties and you |                                   |
| may submit supporting evidence,   |                                   |
| including affidavits. In this     |                                   |
| regard, you may make a statement  |                                   |
| expressing your views as to the   |                                   |
| consideration to be given such    |                                   |
| past record in determining proper |                                   |
| action.                           |                                   |
+-----------------------------------+-----------------------------------+

5\. The final decision to effect the action proposed has not been made.
The (deciding official), who will make the final decision, will give
full and impartial consideration to your reply(ies), if submitted.

  ----------------------------------- -----------------------------------
  6\. If it is the decision of the    *Not needed for suspensions of 14
  (deciding official) that you be     days or less.*
  removed, your removal will be       
  effective not less than 30 calendar 
  days from the day after the date of 
  receipt of this notice.             

  ----------------------------------- -----------------------------------

7\. You will be given a written decision as soon as possible after your
reply has had full consideration, or after the close of business on
(same date as in par. 3 above), if you do not reply.

8\. You will be retained in an active duty status during the advance
notice period.

\[*Note 1: The Office of Inspector General of the Department of Health
and Human Services (IG/HHS) has made a determination, pursuant to 42
U.S.C. section 1320a-7, to exclude you from participation in Federal
health care programs, effective (date). The Veterans Health
Administration (VHA) is required to give effect to this decision.
Accordingly, VHA is barred from paying you for services furnished on or
after the effective date of the exclusion (42 U.S.C. section
1320a-79(c)(2)(A)). This statutory bar includes salary, expenses and
fringe benefits associated with your employment.\]*

(Signature of appropriate official)

**FOR OFFICIAL USE ONLY**

[]{#AppIE .anchor}**APPENDIX E. TITLE 5 -- SAMPLE DECISION LETTER FOR
DISCIPLINARY ACTIONS**

**(Suspension for 14 Calendar Days or Less For Disciplinary Reasons)**

FOR OFFICIAL USE ONLY

TO: (Name of Employee)

(Organizational Element)

(VA Office or Field Facility)

(City, State and Zip Code)

SUBJECT: Suspension

+-----------------------------------+-----------------------------------+
| 1\. In connection with the letter | *Whenever possible the decision   |
| of (date) in which you were given | should be delivered at least 5    |
| advance notice of your proposed   | days prior to the effective date  |
| suspension for 10 calendar days,  | of an action. In every case, the  |
| a decision has been made to       | date set must provide for receipt |
| suspend you for the period (date) | of decision letter at or prior to |
| through (date), based on the      | the time the action will be       |
| following reason(s):              | effective.*                       |
|                                   |                                   |
| \[CITE THE SUSTAINED REASON(S)\]  |                                   |
+-----------------------------------+-----------------------------------+
| 2\. In reaching this decision,    | *If applicable, also advise the   |
| your oral and written replies     | employee that the decision takes  |
| were carefully considered along   | into consideration his/her past   |
| with all the evidence developed.  | disciplinary record as cited in   |
|                                   | the notice of proposed            |
|                                   | suspension.*                      |
+-----------------------------------+-----------------------------------+
| 3\. You may appeal this action    | *Language may vary based on       |
| under the (VA or negotiated, as   | specific provisions of the        |
| appropriate) grievance procedure. | negotiated agreement.*            |
| Your grievance must be submitted  |                                   |
| through your supervisor not later |                                   |
| than (number of days) after the   |                                   |
| effective date of the suspension. |                                   |
| A further explanation of your     |                                   |
| appeal rights may be obtained by  |                                   |
| consulting the Human Resources    |                                   |
| Management Office.                |                                   |
+-----------------------------------+-----------------------------------+

(Signature of appropriate official)

**FOR OFFICIAL USE ONLY**

[]{#AppIF .anchor}

**APPENDIX F. TITLE 5 -- SAMPLE DECISION LETTER FOR ADVERSE ACTIONS**

**(Removal, demotion, suspension for more than 14 calendar days and
other adverse actions)**

FOR OFFICIAL USE ONLY

TO: (Name of Employee)

(Organization Element)

(VA Office or Field Facility)

(City, State and Zip Code)

SUBJECT: Removal

+-----------------------------------+-----------------------------------+
| 1\. In connection with the letter | *Whenever possible the decision   |
| of (date) in which you were given | should be delivered at least 5    |
| advance notice of your proposed   | days prior to the effective date  |
| removal, a decision has been made | of an adverse action. In every    |
| to remove you from employment     | case the date set must provide    |
| effective(date), based on the     | for receipt of the decision       |
| following reasons:                | letter at or prior to the time    |
|                                   | the action will be effective.*    |
| \[CITE THE SUSTAINED REASON(S)\]  |                                   |
|                                   | *\[For employee on exclusionary   |
|                                   | list, repeat statement from       |
|                                   | proposal letter.\]*               |
+-----------------------------------+-----------------------------------+
| 2\. In reaching this decision,    | *Applicable only if action        |
| your oral and written replies     | considers past record.*           |
| were carefully considered along   |                                   |
| with all the evidence developed.  | *\[Past discipline not applicable |
| This decision also takes into     | for employee on exclusionary      |
| consideration your past           | list.\]*                          |
| disciplinary record as cited in   |                                   |
| your notice of proposed removal.  |                                   |
+-----------------------------------+-----------------------------------+
| 3\. I have also considered other  | *This sample wording pertaining   |
| factors including your years of   | to the decision official\'s       |
| service, your past work record,   | consideration of the \"Douglas\"  |
| the seriousness of the offenses   | factors should be modified        |
| with which you have been charged, | according to the specific factors |
| and whether there are any         | considered and the final decision |
| mitigating or extenuating         | on the action proposed.*          |
| circumstances which would justify |                                   |
| mitigation of the proposed        | *\[Not applicable for employee on |
| penalty. I have concluded that    | exclusionary list.\]*             |
| the sustained charges against you |                                   |
| are of such gravity that          |                                   |
| mitigation of the proposed        |                                   |
| penalty is not warranted, and     |                                   |
| that the penalty of removal is    |                                   |
| appropriate and within the range  |                                   |
| of reasonableness.                |                                   |
+-----------------------------------+-----------------------------------+

4\. (See app. K for sample for wording on employee appeal rights.)

5\. A further explanation of your appeal rights may be obtained by
consulting the Human Resources Management Office.

6\. (Notice of any other matter required by applicable Labor-Management
Relations Agreement should be included.)

(Signature of facility director or comparable or higher level official)

Enclosure

[]{#AppIG .anchor}**APPENDIX G.**

**TITLE 5 -- SAMPLE PROPOSED INDEFINITE SUSPENSION**

**\* (Invoking the \"Crime Provision\")**

**FOR OFFICIAL USE ONLY**

(Name of Employee)

(Organizational Element)

(VA Office of Field Facility)

(City, State and ZIP Code)

SUBJECT: Proposed Indefinite Suspension

1\. It is proposed to suspend you from duty and pay status for an
indefinite period of time pending (cite investigation of probable
criminal conduct on employees). Should this proposal result in an
indefinite suspension and should subsequent administrative determination
so warrant, a proposal may be made to discharge/remove you while you
remain in a suspension status.

2\. This proposed indefinite suspension is based on the following
reason:

(Describe criminal activity and give date, times and place). On
[\_(date)\_]{.underline} you were arrested by ([name of law enforcement
agency]{.underline}) and charged with ([cite criminal
charge).]{.underline} On [date]{.underline} you were bound over for
trial or held for further legal action by ([Name of Court or Grand
Jury]{.underline}). Because of this, there is reasonable cause to
believe that you may be guilty of a crime for which a sentence of
imprisonment may be imposed.

3\. In light of the seriousness of this situation and on the basis that
it is incompatible with your official duties and responsibilities, it is
not in the best interest of VA to retain you in a duty status pending
investigation of this criminal activity.

4\. You have the right to reply to this notice orally or in writing, or
both orally and in writing, and to submit affidavits and other
documentary evidence in support of your reply, showing why this notice
is inaccurate and any other reasons why your proposed indefinite
suspension should not be effected.

5\. You will be given until the close of business [(date ‑ not less than
7 calendar days)]{.underline} to reply and to submit affidavits and
other documentary evidence in support of your reply. Your written reply
should be submitted to the [(deciding official)]{.underline}. The
deciding official will receive your oral reply, or will designate an
official or officials to receive it.

  ----------------------------------- -----------------------------------
  6\. The evidence on which this      *The number of hours of official
  notice of proposed action is based  time to review the evidence would
  will be available for review in the not normally exceed 8 hours. A
  Human Resources Management Service, reasonable amount of time should be
  Room \_\_\_. You will be allowed    granted based on the individual
  \_\_\_ hours of official duty time  circumstances. Only applies when
  for reviewing the evidence relied   employee is in an active duty
  on to support the reasons in this   status.*
  notice, preparing a written reply,  
  securing affidavits, and for making 
  a personal reply. Arrangements for  
  the use of official time or         
  requests for additional time should 
  be made with me.                    

  ----------------------------------- -----------------------------------

7\. You have the right to be represented by an attorney or other
representative of your choice at all stages of this matter. Any
representative must be designated in writing.

8\. The final decision to effect the action proposed has not been made.
The [(deciding official)]{.underline}, who will make the final decision,
will give full and impartial consideration to your reply, if a reply is
submitted.

9\. If it is the decision of the [(deciding official)]{.underline} that
you be suspended indefinitely, your suspension will be effective not
less than 7 calendar days from the date of your receipt of this notice.

10\. You will be given a written decision within 21 calendar days of the
receipt of your reply(ies) or, the close of business on [(same date as
in par. 5)]{.underline} if you do not reply.

11\. You will be retained in a non-duty status with pay during the
period of advance notice.

12\. If you have any questions about the reasons why your indefinite
suspension is proposed, contact me or the Human Resources office [(give
location and phone number)]{.underline} for further explanation.

(Signature of appropriate official)

###### FOR OFFICIAL USE ONLY

**\***Indefinite suspensions may be used without invoking the crime
provision, however, in these cases, the notice must advise the employee
that "if it is the decision of the deciding official that you be
suspended indefinitely, your suspension will be effective not less than
30 calendar days from the day after the date of receipt of this
notice.\" In addition, the reason identified in paragraph 2 will, most
likely be other than criminal activity.

**NOTE:** *According to current case law, the crime provision cannot be
invoked based solely on evidence of the employee's arrest. The arrest
must be accompanied by circumstances sufficient to show reasonable cause
such as an arrest warrant issued by a magistrate or judge, or evidence
that the employee was arrested and held for further legal action by a
magistrate, or was indicted by a grand jury. This would generally
constitute reasonable cause for believing the employee had committed a
crime. Case law in this area has been continuously evolving. Officials
should contact their regional counsel or general counsel as appropriate,
or the Office of Human Resources Management \[and Labor Relations\]
(051) in VA Central Office when questions arise.*

[]{#AppIH .anchor}**APPENDIX H.**

**TITLE 5 -- SAMPLE DECISION NOTICE - INDEFINITE SUSPENSION**

FOR OFFICIAL USE ONLY

TO: (Name of Employee)

(Organization Element)

(VA Office or Field Facility)

(Street Address (when needed)

(City, State, and ZIP Code)

SUBJECT: Indefinite Suspension

1\. In connection with the letter of (date), in which you were given
advance notice of your proposed indefinite suspension, a decision has
been made to suspend you indefinitely pending (investigation of probable
criminal conduct on your part) effective (date). Should subsequent
administrative determination so warrant, a proposal may be made to
remove you while you are in an indefinite suspension status.

2\. This indefinite suspension is based on the following reason(s):

The reason(s) as stated in the notice of proposed indefinite suspension
is (are) sustained.

3\. In reaching this decision, your written reply has been carefully
considered along with all of the evidence developed.

4\. (See app. K for sample wording on employee appeal rights.)

5\. A further explanation of your appeal rights may be obtained by
consulting the Human Resources Management Office.

6\. (Notice of any other matter required by applicable Labor-Management
Relations Agreement should be included.)

(Signature of facility director or comparable or higher level official)

Enclosure

###### FOR OFFICIAL USE ONLY

[]{#AppIi .anchor}**APPENDIX I.**

**TITLE 5 -** **FIRM CHOICE, LAST CHANCE, AND ABEYANCE AGREEMENTS**

1\. This appendix is intended to provide guidance and sample language
for the use and construction of these instruments in certain problem
situations. Although they may be useful in various circumstances, these
instruments are particularly helpful in dealing with situations
requiring reasonable accommodation.

2\. Case law pertaining to \"firm choice,\" \"last chance,\" and
\"abeyance\" agreements is constantly evolving. As of issuance of this
handbook, firm choice letters are not required before proceeding with
disciplinary/adverse actions against an employee with substance abuse
problems. However, management is not prohibited from providing a firm
choice when it is determined to be appropriate. When questions arise in
this area, officials should contact their Regional Counsel or General
Counsel, as appropriate, or the Human Resources Management \[Employee
Relations and Performance Management\] Service (051) in VA Central
Office.

# SAMPLE FIRM CHOICE LETTER

**NOTE:** *The following sample paragraphs are intended as a guide to
assist in the development of a letter tailored to the specific
circumstances of each case. It may be used when an employee has claimed
a substance abuse problem, or in cases when the employee has not claimed
substance dependence, but the supervisor has a conduct‑related or
performance related reason to believe that an employee has a substance
dependence which may be causing an ongoing work related problem, and
prior counselings and offers of assistance have failed to get the
employee\'s attention. Letters of firm choice should be consistent with
the provisions of any applicable collective bargaining agreements.*

(Date)

(Name and Address of Employee)

SUBJECT: Firm Choice Letter

1\. Based on your past conduct (and/or performance), which has already
been discussed with you (see attached letters of counseling), we have
reason to believe that you have a substance abuse problem which warrants
professional help.

2\. For this reason, we are formally referring you to the VA Employee
Assistance Program (EAP), so that an assessment and appropriate referral
can be made for you. This offer of assistance is an opportunity period
for you to address your serious work‑related problems and resolve them.
The VA EAP is a confidential and free resource, and no record of details
of your participation in EAP will be placed in your personnel folder.
Although the referral to EAP and your participation in rehabilitation is
voluntary, you should understand that this is to offer you a \"firm
choice\" ‑ either seek and complete the prescribed treatment for your
problem or accept the consequences of your misconduct. In this regard
you are being given the opportunity to seek, and successfully complete,
[(an inpatient and/or outpatient)]{.underline} substance abuse program.

3\. You have \_\_\_\_ calendar days from receipt of this letter to
enroll yourself in (an inpatient or outpatient) program for this
purpose. Whether or not you elect to use the VA EAP, within this
[(number)]{.underline} day period you must provide documentation
regarding the program prior to entry, including the time which will be
required for participation and any leave which you will request, so that
[(appropriate official)]{.underline} can determine whether the program
can be approved. If [(appropriate official)]{.underline} approves the
program, you will be granted leave (annual, sick, or leave without pay)
provided you have properly requested such leave in advance and the type
of leave requested is available and appropriate.

4\. You must also sign the attached release of information and return it
to [(appropriate official)]{.underline} . A release of information is
needed so that [(appropriate official]{.underline}) can contact your
counselor to discuss your enrollment and continued participation in the
program.

**NOTE TO MANAGER:** *If the employee is uncomfortable with signing a
release, you may stipulate in the release that the only information to
be given the supervisor is that the employee is complying with the
program requirements. Generally, accommodation should not be denied
solely because employee refuses to sign a release form.*

If you require additional information on what programs are available,
you should contact the Employee Assistance Program office at this
facility [(provide name of contact and telephone number)]{.underline} .
Failure to provide the requested documentation or failure to enroll in a
program will be regarded as evidence that you did not successfully
complete a rehabilitation program.

**NOTE TO MANAGER:** *If an action is being held in abeyance, use the
following:*

This will lead us to impose the action being held in abeyance. Should
your misconduct and/or performance problems continue it will result in
your being removed from VA.

*If an action has been issued in conjunction with the firm choice, use
the following:*

Should your misconduct and/or performance problems continue it will
result in your being removed from VA.

5\. During the time you are enrolled in a program, you must furnish
acceptable documentation concerning your progress at regular intervals
[(for example every 2 weeks.)]{.underline} If it is suspected that you
are not maintaining sobriety, or are not participating in the program,
you will be referred to employee health, or your program counselor, as
appropriate, for examination, and the results of this examination will
be furnished to [(appropriate official).]{.underline} Failure to provide
the requested documentation will be regarded as evidence that you did
not successfully complete a rehabilitation program.

**NOTE TO MANAGER:** *If an action is being held in abeyance, use the
following:*

This will lead us to impose the action being held in abeyance. Should
your misconduct and/or performance problems continue it will result in
your being removed from VA.

*If an action has been issued in conjunction with the firm choice, use
the following:*

Should your misconduct and/or performance problems continue it will
result in your being removed from VA.

6\. You must furnish acceptable documentation that you have successfully
completed this program within 10 days of the completion of such program.
Failure to provide the requested documentation will be regarded as
evidence that you did not successfully complete a rehabilitation
program.

**NOTE TO MANAGER:** *If an action is being held in abeyance, use the
following**:***

This will lead us to effect the action being held in abeyance. Should
your misconduct and/or performance problems continue it will result in
your being removed from VA.

*If an action has been issued in conjunction with the firm choice, use
the following:*

Should your misconduct and/or performance problems continue it will
result in your being removed from VA.

**NOTE:** *If employee\'s conduct/performance/leave use has become
completely acceptable, but the employee has failed to complete some
portion of the rehabilitation program requirements, the firm choice
obligation is met. Action should not be taken if based solely on failure
to complete the rehabilitation program.*

**NOTE TO MANAGER**: *If there is a decision to remove the employee
being held in abeyance, use the following paragraphs:*

7\. For a period of 6 months [(time period may vary)]{.underline} after
successful completion of a rehabilitation program, you will be required
to maintain yourself in a manner reflecting credit upon VA. This
includes maintaining satisfactory attendance, performance, and conduct.

**NOTE TO MANAGER**: *If time and attendance problems have been an
issue, use the following:*

In addition, you must support every unscheduled absence by acceptable
documentation establishing an emergency situation as a condition for
considering whether or not to approve leave for the period in question.
Medical documentation must include a complete diagnosis which
establishes that you could not work for the period in question.

Failure to maintain yourself in a manner reflecting credit upon VA will
be regarded as evidence that you did not successfully complete your
rehabilitation program, and will lead us to impose the removal action
being held in abeyance.

8\. Upon successful completion of all the preceding requirements of your
rehabilitation program, the removal action against you being held in
abeyance will be [(reduced/canceled.)]{.underline} You will be expected
to continue to maintain yourself in a manner reflecting credit upon VA.

9\. I appreciate your difficulties and I am not unsympathetic to your
needs. I sincerely hope you will prevail in your rehabilitative efforts.

Signature of Appropriate Official

**NOTE TO MANAGER**: *Wherever possible, firm choice letters should be
mutually agreed upon by management, the employee, and the employee\'s
representative, and signed as memos of understanding or agreements.*

**NOTE TO MANAGER**: If *there is a decision less than removal being
held in abeyance, or an action has been issued in conjunction with* *the
firm choice, use the following paragraphs:*

7\. For a period of 6 months ([time period may vary)]{.underline} after
successful completion of a rehabilitation program, you will be required
to maintain yourself in a manner reflecting credit upon VA. This means
there will be no more instances of problems of any type related to
substance abuse, and includes maintaining satisfactory attendance,
performance, and conduct. Failure to maintain yourself in a manner
reflecting credit upon VA will be regarded as evidence that you did not
successfully complete your attempt at rehabilitation.

**NOTE TO MANAGER**: If *an action is being held in abeyance, use the
following:*

This will lead us to impose the action being held in abeyance. Should
your misconduct and/or performance problems continue it will result in
your being removed from VA.

*If an action has been issued in conjunction with the firm choice, use
the following:*

Should your misconduct and/or performance problems continue it will
result in your being removed from VA.

8\. Upon successful completion of all the preceding requirements of your
rehabilitation program, you will be expected to continue to maintain
yourself in a manner reflecting credit upon VA.

**NOTE TO MANAGER**: If *an action is being held in abeyance, use the
following:*

The (action) against you being held in abeyance will be
reduced/canceled.

9\. I appreciate your difficulties and I am not unsympathetic to your
needs. I sincerely hope you will prevail in your rehabilitative efforts.

Signature of Appropriate Official

**NOTE TO MANAGER**: *Whenever possible, firm choice letters should be
mutually agreed upon by management, the employee, and the employee\'s
representative, and signed as memos of understanding or agreements.*

# LAST CHANCE AND ABEYANCE AGREEMENTS

a\. The following guidance was published by the Office of Personnel
Management regarding \"Last Chance\" and \"Abeyance Agreements\" in
situations requiring reasonable accommodation. Some minor changes have
been made to reflect current case precedent. As a result, numerous
references to the Merit Systems Protection Board (MSPB) will be apparent
in this text since it is based upon decisions made by MSPB. References
to MSPB appeals will generally correlate to appeals to the DAB or an
appeal through the grievance procedure, as appropriate.

b\. Some agencies are finding the use of abeyance or last chance
agreements particularly helpful in dealing with employees with alcohol
or drug abuse problems. We begin a discussion of abeyance instruments by
showing excerpts from some instruments to serve as examples. Then we
will discuss the important characteristics of abeyance and last chance
agreements, and how they affect reasonable accommodation.

c\. **Sample Instruments**

\(1\) **Approach 1.** Agency proposes removal, but makes no decision on
that proposal. Instead, the agency letter informs the employee that it
is holding its decision in abeyance.

\(a\) **Situation.** In response to the proposal to remove, the employee
informed the agency that he was an alcoholic, and that he had just begun
participating in the in‑patient rehabilitation program to which the
agency employee assistance counselors had referred him.

\(b\) **Agreement Provisions.** The abeyance letter read in relevant
part:

[1]{.underline}. \"Management agrees to afford the employee an
opportunity to become a productive and dependable employee.\"

[2]{.underline}. \"Employee must participate fully in the (specific)
alcohol rehabilitation program, including missing no more than one of
the follow‑up meetings. Employee must attend two agency Alcohol
Anonymous meetings per week.\"

[3.]{.underline} \"For a period of 6 months after hospitalization, the
employee will be required to show fully satisfactory attendance and
performance. Every unscheduled absence must be supported by acceptable
documentation establishing an emergency situation. Medical documentation
must include a complete diagnosis, which establishes that the employee
could not work.\"

[4]{.underline}. \"Failure to comply with the preceding will constitute
just cause for proceeding with the proposed action.\"

**NOTE:** *The abeyance letter was signed by the decision official, and
did not require the employee\'s agreement.*

\(c\) **Outcome**: The employee stopped going to the follow‑up
rehabilitation meetings, and the counselors so informed the agency. When
the employee also had two subsequent unscheduled, unsupported absences,
the agency invoked the agreement. Since the action had been held in
abeyance before a decision was made, the agency had to issue a final
decision on the charges in the original proposed action. In its decision
letter, the agency first cited failure to participate in rehabilitation
and the two instances of unsupported, unscheduled absence as violations
of the abeyance agreement. Based on these violations, the agency
explained that it was proceeding with the proposed action. The agency
then assessed the evidence on the original charges, sustained them,
decided to remove, and notified the employee that he would be removed in
1 week.

\(2\) **Approach 2.** Agency issues decision to remove, but holds
implementation of decision in abeyance.

\(a\) **Situation.** Although the agency had referred the employee to
alcohol treatment twice before, it wasn\'t until the employee received a
notice of proposed removal for over 80 hours of AWOL that he admitted
that he was an alcoholic, and requested reasonable accommodation. The
agency\'s decision letter sustained the charges, found removal
warranted, and decided to remove. However, it also said that the agency
had decided to hold the removal action in abeyance under specific
conditions.

\(b\) **Agreement Provisions.** The abeyance letter read in relevant
part:

\"It is my decision that you should be removed from your position, but
that this removal be held in abeyance for 1 year from the date you
receive this letter, subject to the following: you have no further
absences charged to AWOL; you submit documentation of successful
completion of the (agency) Employee Assistance Program and the Kaiser
Alcohol Abuse Program; your sick leave usage remains under the
installation goal; and your performance is at least fully successful. If
all the foregoing criteria are met, the action will be cancelled at the
end of the 1‑year period. Failure to meet any one of these criteria
during the 1‑year period will result in your immediate removal.\"

**NOTE**: *The letter was signed by the decision official and did not
require the agreement of the employee.*

\(c\) **Outcome.** Later, the agency decided that the employee had
violated the terms of the agreement and reinstated the action. The
decision letter described the specific violations: \"On (date) your
reported for work at 9:25. You claimed to have forgotten to set your
alarm clock. You were charged with 1.5 hours of AWOL. On (date) you did
not call in until 12:44. You claimed you could not call earlier because
you had no change. You were charged with 4.25 hours of AWOL.\" (The
agency also knew, but did not state in the letter, that the employee had
stopped regular participation in the alcohol rehabilitation program.)
\"it is my decision that you have violated the terms of our agreement
and, as such, you will be removed, effective (date).\"

\(3\) **Approach 3.** Employee\'s removal has been effected, and the
action is being appealed. The agency and the appellant reached an
agreement to give him one last chance.

\(a\) **Situation.** The employee was removed for being AWOL and being
intoxicated on duty. While preparing for the hearing before MSPB, the
appellant informed the agency that he was successfully participating in
a rehabilitation program and requested one last chance. While clearly
not required to do so, the agency agreed under certain conditions which
the agency believed gave it a [quid pro quo.]{.underline}

\(b\) **Agreement Provisions.** The last chance agreement read in
relevant part: \"in consideration for reinstatement to the position of
(specify position) for a 1 year period, (employee) agrees to the
following:

‑to participate in (specific) alcohol rehabilitation program, and to
maintain satisfactory punctuality, attendance, and good work habits.\"

\"Should (employee) fail to participate in the rehabilitation program,
or should the employee\'s attendance and work habits become
unsatisfactory during the 1‑year period, the removal will be reinstated.
One incident of *AWOL* or of\' being intoxicated on duty will be cause
for reinstating the removal.\"

\"Appeal rights to the MSPB, and grievance‑arbitration procedures are
waived during this 1‑year period on any disciplinary action against
(employee).\"

\"I clearly understand the last chance opportunity agreement, and fully
agree with the terms of the settlement. I know and understand that I
have appeal rights to the MSPB. With this agreement, I waive all appeal
rights regarding my removal, which was effective (date), including MSPB,
grievance, and the EEOC.\"

**NOTE:** *The agreement was signed by the employee, employee
representative, supervisor, and two witnesses.*

\(c\) **Outcome.** Two months later appellant was *AWOL* for 2 days. The
employee\'s supervisors went to the employee\'s home and found the
employee intoxicated. The agency removed the employee the next day. MSPB
ruled that the agreement had been properly invoked, that the appellant
had waived the appeal rights to the MSPB and thus dismissed the case.

d\. **Discussion**

\(1\) As the three examples show, there is no set formula for abeyance
or last chance agreements:

\(a\) They are tailored to the individual situation;

\(b\) They are fair, and provide some potential consideration or benefit
to the employee (generally the agency\'s agreement to withhold an action
which it could take);

\(c\) They can be imposed unilaterally by the agency, or negotiated with
the employee or representative, (if they involve a waiver of rights, the
employee must agree);

\(d\) They can be imposed at several stages of the adverse action
process:

[1]{.underline}. After a proposal,

[2]{.underline}. After a decision, or

[3]{.underline}. Even after the action has been effected.

\(e\) If the conditions are not met, the agency can take immediate
action (no need to wait until the end of the period, or to give a new
notice).

\(2\) Abeyance and last chance agreements should contain at least the
following:

\(a\) A time limit and conditions tailored to the situation;

\(b\) A clear statement of all the agency\'s requirements of the
employee including satisfactory participation in a rehabilitation
program and satisfactory conduct;

\(c\) A description of behaviors that will be considered evidence of
compliance or failure to comply with the requirements; and,

\(d\) An explanation of what the agency will do if the employee fails to
comply, and what the agency will do if the employee complies.

\(3\) When an action is taken based on violation of an abeyance
agreement, the following is recommended:

\(a\) The violation should not become part of the charges, but should be
used only to show that the employee violated the agreement and thus
triggered the agency\'s action;

\(b\) The letter to the employee should clearly describe how the
employee violated the provisions of the agreement; and,

\(c\) The agency should proceed on the basis of the original charges
only.

[]{#AppIJ .anchor}**APPENDIX J.**

**TITLE 5 -- SAMPLE TERMINATION OF NON-COMPETITIVE EXCEPTED APPOINTMENT
(SCHEDULE B)**

**NOTE:** *This is an appointment made under Schedule B, 5 CFR
213.3202(N)*

DATE

FOR OFFICIAL USE ONLY

Employee's Name

Service

SUBJECT: Termination of Non-Competitive Excepted Appointment

1\. On August 29, 1999, you received an Excepted Appointment under
Schedule B, 5CFR 213.3202(N) as a {POSITION TITLE}. During your
employment with us, supervisors are required to study your potential
closely to determine whether you are suited for successful government
work. When it becomes apparent that your conduct, general character
traits or capacity do not meet the requirements for satisfactory
service, your supervisor is required to initiate action to separate you.

2\. The {RECOMMENDING SERVICE} has recommended that you be terminated
from your position for failure to qualify due to:

CITE REASON(S)

3\. The effective date of your termination will be {DATE}. You must
properly clear the facility, turn in any government property and clear
any indebtedness, prior to the release of your final paycheck.

4\. If you feel this termination is based on discrimination because of
race, color, religion, sex, national origin, age, or handicapping
condition, you may appeal this action by contacting the Office of
Resolution Management at 1-888-737-3361 within 45 calendar days of the
date you receive this letter.

5\. If you believe this termination is based on discrimination because
of marital status or partisan political reasons, you may appeal this
action to the Merit Systems Protection Board. Your appeal must be
submitted in writing by certified mail or in person at any time after
you receive this letter, but not later than 30 calendar days after the
discharge has been effected. Copies of the Rules and Regulations of the
Merit Systems Protection Board and Optional Form 283 are enclosed.

6\. If you allege your termination is based on discrimination which
includes reasons in both paragraphs 4 and 5 above, you may appeal to the
Merit Systems Protection Board within 30 days using the same procedure
as set forth in paragraph 5.

7\. If you have any questions concerning the above, please contact
\[insert name and title\] or me at \[insert telephone number and
extension\].

SIGNATURE

[]{#AppIK .anchor}**APPENDIX K. GRIEVANCE AND APPEAL RIGHTS**

1\. This appendix explains the grievance and appeal rights of employees
in VA, under the provisions of this handbook, and parts 752 and 1201 of
the Civil Service regulations in 5 CFR. The language used in this
appendix as well as the sample letters in appendix A should be followed
very closely to assure that employees are informed of their proper
grievance and appeal rights.

2\. This appendix does not explain any grievance rights under a
negotiated grievance procedure. Such information should be obtained from
the pertinent negotiated Labor Management agreement.

**APPEAL RIGHTS, REMOVALS, SUSPENSIONS FOR MORE THAN**

**14 CALENDAR DAYS, REDUCTIONS IN GRADE OR BASIC PAY**

**3. Include:**

+-----------------------------------+-----------------------------------+
| **[If the                         | **[In Notice of Final             |
| employee:]{.underline}**          | Decision:]{.underline}**          |
+-----------------------------------+-----------------------------------+
| Is covered by Section 752.401 of  | Paragraph 3. You are entitled to  |
| the OPM regulations and a         | appeal this action to the Merit   |
| negotiated grievance procedure.   | Systems Protection Board (MSPB),  |
|                                   | or under the negotiated grievance |
|                                   | procedure, but not both. You      |
|                                   | shall be deemed to have exercised |
|                                   | your option to appeal this action |
|                                   | to the MSPB (give address of      |
|                                   | appropriate office), or under the |
|                                   | negotiated grievance procedure at |
|                                   | such time as you timely initiate  |
|                                   | action to appeal to the Board or  |
|                                   | timely file a grievance in        |
|                                   | writing under the negotiated      |
|                                   | grievance procedure. If you elect |
|                                   | to file a grievance under the     |
|                                   | negotiated grievance procedure,   |
|                                   | you will be entitled to union     |
|                                   | representation as provided for in |
|                                   | the negotiated agreement.         |
|                                   |                                   |
|                                   | Paragraph 4. If you appeal to the |
|                                   | MSPB, your appeal must be in      |
|                                   | writing and must be filed with    |
|                                   | the Board no later than 30        |
|                                   | calendar days after the effective |
|                                   | date of this action. Any appeal   |
|                                   | to the Board must be filed either |
|                                   | by mail or in person. Copies of   |
|                                   | the Board\'s appeal form and      |
|                                   | regulations are enclosed. You may |
|                                   | be represented by an attorney or  |
|                                   | other representative of your      |
|                                   | choice.                           |
+-----------------------------------+-----------------------------------+

**REMOVALS, SUSPENSIONS FOR MORE THAN 14 CALENDAR DAYS,**

**REDUCTIONS IN GRADE OR BASIC PAY (Continued)**

+-----------------------------------+-----------------------------------+
| **[If the                         | **[In Notice of Final             |
| employee]{.underline}:**          | Decision:]{.underline}**          |
+-----------------------------------+-----------------------------------+
| Is covered by Section 752.401 of  | Paragraph \*5. If you believe     |
| the OPM Regulations and a         | that this personnel action is     |
| negotiated grievance procedure.   | based on discrimination because   |
|                                   | of your race, color, religion,    |
|                                   | sex, national origin, age, or     |
|                                   | disability, you may file a        |
|                                   | complaint of discrimination with  |
|                                   | VA in accordance with EEO         |
|                                   | discrimination complaint          |
|                                   | procedures, or you may raise the  |
|                                   | issue of discrimination in        |
|                                   | connection with your appeal to    |
|                                   | the Merit Systems Protection      |
|                                   | Board, (or in connection with a   |
|                                   | grievance under the negotiated    |
|                                   | grievance procedure) \*\*, as     |
|                                   | previously described. Whichever   |
|                                   | is filed first (i.e., the         |
|                                   | discrimination complaint, appeal  |
|                                   | to the Board, or grievance) shall |
|                                   | be considered an election by you  |
|                                   | to proceed in that manner.        |
|                                   |                                   |
|                                   | Paragraph \*6. If you believe     |
|                                   | that this personnel action is     |
|                                   | based on discrimination because   |
|                                   | of your race, color, religion,    |
|                                   | sex, national origin, age, or     |
|                                   | disability, you may file a        |
|                                   | complaint of discrimination with  |
|                                   | VA in accordance with Office of   |
|                                   | Resolution Management (ORM)       |
|                                   | discrimination compliant          |
|                                   | procedures. Should you elect to   |
|                                   | do so, you may appeal this action |
|                                   | by contacting ORM at              |
|                                   | 1-888-737-3361 within 45 calendar |
|                                   | days of the date you receive this |
|                                   | letter.                           |
+-----------------------------------+-----------------------------------+

**REMOVALS, SUSPENSIONS FOR MORE THAN 14 CALENDAR DAYS,**

**REDUCTIONS IN GRADE OR BASIC PAY (Continued)**

\*Paragraphs 5 and 6 should only be used If allegations of
discrimination have been raised by the employee.

\*\*This statement should only be included when the negotiated grievance
procedure allows complaint of discrimination to be raised in connection
with a grievance,

+-----------------------------------+-----------------------------------+
| **[If the                         | **[In Notice of Final             |
| employee:]{.underline}**          | Decision:]{.underline}**          |
+-----------------------------------+-----------------------------------+
| Is a non-preference eligible who  | Paragraph 3. You have the right   |
| completed 1 year, but less than 2 | to appeal this action to (cite    |
| years, of current continuous      | the appropriate decision          |
| employment in a position outside  | official. See part IV of this     |
| the competitive service.          | handbook for discussion of        |
|                                   | decision officials.) at any time  |
|                                   | after you receive this decision   |
|                                   | but not later than 15 calendar    |
|                                   | days after the effective date of  |
|                                   | this action. The appeal must be   |
|                                   | in writing and set forth the      |
|                                   | specific reasons, facts, and      |
|                                   | circumstances which make you      |
|                                   | believe that the action taken was |
|                                   | unwarranted.                      |
|                                   |                                   |
|                                   | Paragraph 4. In an appeal, you    |
|                                   | have the right to a hearing       |
|                                   | before an examiner under the      |
|                                   | provisions of part IV of this     |
|                                   | handbook. To obtain a hearing,    |
|                                   | you must request it in writing in |
|                                   | your appeal. If you do not        |
|                                   | indicate in writing that you want |
|                                   | a hearing, your case will be      |
|                                   | decided on the basis of the       |
|                                   | record. At the hearing, if one is |
|                                   | held, you may be represented by a |
|                                   | person of your choice and you may |
|                                   | present evidence and witnesses    |
|                                   | who are willing to testify. The   |
|                                   | VA Human Resources Management     |
|                                   | Office (give location) will, upon |
|                                   | your request, advise you further  |
|                                   | regarding the appointment of an   |
|                                   | examiner and the conduct of the   |
|                                   | hearing.                          |
+-----------------------------------+-----------------------------------+

**GRIEVANCE AND APPEAL RIGHTS**

**SUSPENSIONS FOR 14 CALENDAR DAYS OR LESS**

+-----------------------------------+-----------------------------------+
| **[If the                         | **[In Notice of Final             |
| employee]{.underline}:**          | Decision]{.underline}:**          |
+-----------------------------------+-----------------------------------+
| Is covered by 5 CFR 771.104       | Paragraph 3. You may appeal this  |
| (non-bargaining unit employees),  | action under the (agency or       |
| or a negotiated grievance         | negotiated) grievance. Your       |
| procedure.                        | grievance must be submitted       |
|                                   | through your supervisor not later |
|                                   | than (\*number of days) after the |
|                                   | effective date of the suspension. |
|                                   |                                   |
|                                   | Paragraph 4. A further            |
|                                   | explanation of your appeal rights |
|                                   | may be obtained by consulting the |
|                                   | VA Human Resources Management     |
|                                   | Office (give location).           |
+-----------------------------------+-----------------------------------+

\*For employees covered under the VA administrative grievance procedure
(part IV of this handbook), the grievance must be submitted no later
than 15 days after the effective date of the action. For grievances
under the negotiated grievance procedure, consult the appropriate
negotiated labor-management agreement.

[]{#AppIL .anchor}APPENDIX L. SAMPLE PROPOSED REMOVAL LETTER

FOR PERFORMANCE BASED ACTION

TO: (Name of Employee)

(Organizational Element)

(Department of Veterans Affairs Office or Field Facility)

(Street Address)

(City, State and Zip Code)

# SUBJ: Proposed Removal -- Unacceptable Performance

1\. On July 10, 1991, you were issued a written Warning of Unacceptable
Performance -- Notice of Opportunity to Demonstrate Acceptable
Performance and advised that you must meet the standards of acceptable
performance for the critical element of your position. Since that date,
you have failed to improve and demonstrate an overall acceptable
performance level. Therefore, this is to notify you that it is proposed
to remove you from the Department of Veterans Affairs for the following
reasons:

For the period July 10, 1991 through October 7, 1991, \* you failed to
meet the performance standards of the critical element of your position
entitled "Coding Actions."

2\. Specifically, during the above period your performance, as measured
against the performance standards for the critical element of your
position, has been as follows:

Standard: Codes personnel actions with no more than 5 valid rejects or
error messages as a result of erroneous coding for every 100 actions
processed.

Actual Performance: A review of over 200 personnel actions indicates a
reject or error message rate of 22 per 100 actions. The specific cases
which resulted in rejects or error messages are as listed below:

#### Nature of Action -- Date Coded -- Name of Employee

a\) Life Insurance 7/15/91 John Doe

b\)

c\)

\* The record need only prove unacceptable performance during (and not
prior to) the opportunity to demonstrate acceptable performance in order
to show that the employee's performance is unacceptable.

3\. You have the right to reply to this notice orally or in writing, or
both orally and in writing, and to submit affidavits and other
documentary evidence in support of your reply, showing why this notice
is inaccurate and any other reasons why your proposed removal should not
be effected. The evidence on which this notice of proposed action is
based will be available for your review in the Human Resources Office.
You will be allowed up to 8 hours of official duty time for reviewing
the evidence relied on to support the reasons in this notice, preparing
a written reply, securing affidavits and/or other documentary evidence,
and for making an oral reply. Arrangements for the use of official time
or requests for additional time should be made with me. You may have a
representative of your choice. Please advise me in writing of any
representative designated.

4\. You will be given until (date -- usually 14 calendar days from
receipt of proposal) to reply to these reasons orally or in writing, or
both orally and in writing. Your written reply should be submitted
through me to the (deciding official). The (deciding official) will
receive your oral reply, or will designate an official or officials to
receive it. If you do not understand the above reasons why your removal
is proposed, contact ***[(name & telephone number of Human Resources
Specialist)]{.underline}***, for further explanation.

5\. The final decision to effect the action proposed has not been made.
The (deciding official), who will make the final decision, will give
full and impartial consideration to your reply, if a reply is submitted.

6\. You will be given a written decision as soon as possible, but not
less than 30 calendar days from the day following your receipt of this
notice.

7\. You will be retained in an active duty status during the period of
advance notice.

SIGNATURE OF SERVICE or DIVISION CHIEF

or higher level official

[]{#AppIM .anchor}**APPENDIX M. SAMPLE DECISION LETTER FOR PERFORMANCE
BASED ACTION**

**(NON-BARGAINING UNIT)**

TO: (Name of Employee)

(Organizational Element)

(Department of Veterans Affairs Office or Field Facility)

(Street Address)

(City, State and Zip Code)

SUBJ: Removal -- Unacceptable Performance

1\. In connection with the letter of (date) in which you were given
advance notice of your proposed removal for unacceptable performance, a
decision has been made to remove you from employment in VA, effective
(date), based on the following reason:

The reason given in the letter of (date) is sustained.

2\. In reaching this decision, your reply (replies) has (have) been
carefully considered along with all the evidence developed.

3\. You may appeal this action to the Merit Systems Protection Board.
Your appeal to the Board must be in writing and must be filed with the
Board any time during the period beginning the day after the effective
date, but no later than 30 calendar days after the effective date to
this action. Any appeal to the Board must be filed either by certified
mail to (address) or in person. You may be represented in your appeal by
an attorney or other representatives (copies of the Board's appeal form
and regulations are enclosed).

\*4. If you believe that this action is based on discrimination because
of your race, color, sex, religion, age and national origin or disabling
condition, you may file a complaint of discrimination with the
Department of Veterans Affairs in accordance with equal employment
opportunity discrimination complaint procedures or raise the issue of
discrimination in any appeal to the Merit Systems Protection Board.
Whichever is filed first, an appeal to the Merit Systems Protection
Board or a discrimination complaint, shall be considered an election by
you to proceed in that manner.

\*5. Should you elect to file a complaint of discrimination with VA,
your complaint will be processed in accordance with regulations of the
Equal Employment Opportunity Commission (29 CFR, part 1614). If you
elect to file a complaint of discrimination, you may do so only after
contacting an EEO Counselor. You must contact the Counselor within 45
calendar days of the effective date of this action. A complaint is
deemed filed on the date it is received if delivered to the appropriate
agency official, or on the date postmarked if addressed to an
appropriate agency official designated to receive such complaints.

6\. A further explanation of your appeal rights may be obtained by
consulting the Human Resources Management Officer.

SIGNATURE and Title of

Deciding Official

Enclosures

\*Paragraphs 4 and 5 in this sample decision notice are only required
when the employee has raised the issue of discrimination during the
processing of the adverse action.

[]{#AppIN .anchor}**APPENDIX N. SAMPLE DECISION LETTER FOR PERFORMANCE
BASED ACTION**

**(BARGAINING UNIT)**

TO: (Name of Employee)

(Organizational Element)

(Department of Veterans Affairs Office or Field Facility)

(Street Address)

(City, State and Zip Code)

SUBJ: Removal -- Unacceptable Performance

1\. In connection with the letter of (date) in which you were given
advance notice of your proposed removal for unacceptable performance, a
decision has been made to remove you from employment in VA, effective
(date), based on the following reason:

The reason given in the letter of (date) is sustained.

2\. In reaching this decision, your reply (replies) has (have) been
carefully considered along with all the evidence developed.

3\. You may elect to appeal the action to the Merit Systems Protection
Board or under the negotiated grievance procedure; however, you may not
do both. You shall be deemed to have exercised your option to appeal
this action to the Merit Systems Protection Board, or under the
negotiated grievance procedure, at such time as you timely initiate
action to appeal to the Board or timely file a grievance in writing
under the negotiated grievance procedure, whichever occurs first. If you
appeal under the grievance procedure, your grievance must be in writing
and filed no later than (specify time frame). You may be represented by
a union representative.

4\. If you file a grievance under the negotiated grievance procedure,
you may ask the MSPB to review the final decision of an arbitrator if
you allege that this action was based, in whole or in part, on
prohibited discrimination. Your request for MSPB review must be filed
within 35 days after the date that the arbitrator's decision is issued
or, if you received the decision more than 5 days after the date it was
issued, you must file within 30 days after the date you received the
decision.

5\. If you appeal to the Merit Systems Protection Board, your appeal
must be in writing and must be filed with the Board any time during the
period beginning the day after the effective date, but no later than 30
calendar days after the effective date of this action. Any appeal to the
Board must be filed either certified mail to (address) or in person. You
may be represented in your appeal by an attorney or other
representative. Copies of the Board's appeal form and regulations are
enclosed.

\*6. If you believe that this action is based on discrimination because
of your race, color, sex, religion, age and national origin or disabling
condition, you may file a complaint of discrimination with the
Department of Veterans Affairs in accordance with equal employment
opportunity discrimination complaint procedures or raise the issue of
discrimination in any appeal to the Merit Systems Protection Board, (or
in a grievance under the negotiated grievance procedure as described
above, when the negotiated grievance procedure allows a complaint of
discrimination to be raised in connection with a grievance). Whichever
is filed first, an appeal to the Merit Systems Protection Board, a
grievance under the negotiated procedure, or a discrimination complaint,
shall be considered an election by you to proceed in that manner.

\*7. Should you elect to file a complaint of discrimination with VA,
your complaint will be processed in accordance with regulations of the
Equal Employment Opportunity Commission (29 CFR, part 1614). If you
elect to file a complaint of discrimination, you may do so only after
contacting an EEO Counselor. You must contact the Counselor within 45
calendar days of the effective date of this action. A complaint is
deemed filed on the date it is received if delivered to the appropriate
agency official, or on the date postmarked if addressed to an
appropriate agency official designated to receive such complaints.

8\. A further explanation of your appeal rights may be obtained by
consulting the Human Resources Management Officer.

SIGNATURE and Title of

Deciding Official

Enclosures

\*Paragraphs 6 and 7 in this sample decision notice are only required
when the employee has raised the issue of discrimination during the
processing of the adverse action.

**EMPLOYEE/MANAGEMENT RELATIONS**

[]{#ptII .anchor}**PART II. DISCIPLINARY PROCEDURES UNDER TITLE 38**

# CONTENTS

**PARAGRAPH PAGE**

**[CHAPTER 1](#chapter-1.-disciplinary-and-major-adverse-actions).
DISCIPLINARY AND MAJOR ADVERSE ACTIONS**

1\. [SCOPE](#ptIIch1par1) II-1

2\. [AUTHORITY](#ptIIch1par2) II-1

3\. [POLICY](#ptIIch1par3) II-2

4\. [DEFINITIONS](#ptIIch1par4) II-2

5\. [RESPONSIBILITIES](#ptIIch1par5) II-4

6\. [DETERMINING THE FACTS](#ptIIch1par6) II-6

7\. [DETERMINING APPROPRIATE ACTION](#ptIIch1par7) II-10

8\. [DISCIPLINARY ACTIONS](#ptIIch1par8) II-10

9\. [MAJOR ADVERSE ACTIONS](#ptIIch1par9) II-15

10\. [SERVICE OF DOCUMENTS](#ptIIch1par10) II-23

**[CHAPTER 2](#chapter-2.-delegations). DELEGATIONS**

1\. [SCOPE](#ptIIch2par1) II-25

2\. [AUTHORITY](#ptIIch2par2) II-25

3\. [RESPONSIBILITIES](#ptIIch2par3) II-25

**[CHAPTER 3](#chapter-3.-reports). REPORTS**

1\. [SCOPE](#ptIIch3par1) II-29

2\. [REPORTS](#ptIIch3par2) II-29

# APPENDICES

II-A. [TITLE 38 -- TABLE OF
PENALTIES](#appendix-a.-title-38---table-of-penalties) II-A-1

II-B. [TITLE 38 -- SAMPLE NOTICE OF PROPOSED DISCIPLINARY
ACTION](#AppIIB)

[(NON-PROBATIONARY)](#AppIIB) II-B-1

II-C. [TITLE 38 -- SAMPLE DECISION LETTER FOR DISCIPLINARY
ACTION](#AppIIC)

[(NON-PROBATIONARY)](#AppIIC) II-C-1

II-D. [TITLE 38 -- SAMPLE NOTICE OF PROPOSED MAJOR ADVERSE
ACTION](#appendix-d.-title-38-sample-notice-of-proposed-major-adverse-action)
II-D-1

II-E. [TITLE 38 -- SAMPLE DECISION LETTER FOR MAJOR ADVERSE
ACTIONS](#AppIIE)

[INVOLVING A QUESTION OF PROFESSIONAL CONDUCT OR COMPETENCE](#AppIIE)
II-E-1

II-F. [TITLE 38 -- SAMPLE DECISION LETTER FOR MAJOR ADVERSE ACTIONS NOT
INVOLVING A QUESTION OF PROFESSIONAL CONDUCT OR COMPETENCE](#AppIIF)
II-F-1

II-G. [TITLE 38 -- SAMPLE PROPOSED INDEFINITE SUSPENSION](#AppIIG)
II-G-1

II-H. [TITLE 38 -- SAMPLE DECISION NOTICE -- INDEFINITE
SUSPENSION](#AppIIH) II-H-1

II-I. [TITLE 38 -- SAMPLE FIRM CHOICE, LAST CHANCE AND ABEYANCE
AGREEMENTS](#AppIIi) II-I-1

**PART II. DISCIPLINARY PROCEDURES UNDER TITLE 38**

# CHAPTER 1. DISCIPLINARY AND MAJOR ADVERSE ACTIONS

1\. []{#ptIIch1par1 .anchor}SCOPE

a**.** This part governs disciplinary and major adverse actions based on
conduct or performance in the Department of Veterans Affairs (VA).

\(1\) The provisions of this chapter apply to VA employees holding a
full‑time, permanent appointment under 38 United States Code (U.S.C.)
7401(l) who have satisfactorily completed the probationary period
required by 38 U.S.C. 7403(b). Included are:

\(a\) Physicians,

\(b\) Dentists,

\(c\) Podiatrists,

\(d\) \[Chiropractors\],

\(e\) \[Optometrists\],

\(f\) \[Nurses\],

\(g\) \[Nurse anesthetists\],

\(h\) \[Physician assistants, and

i\. Expanded‑function dental auxiliaries.\]

\(2\) Henceforth, \"employee(s)\" will be the term used to refer to the
covered occupations in this chapter, unless otherwise specified.

\(3\) This part should be used in conjunction with VA Directive 5021.

b\. This chapter does not apply to employees appointed under 38 U.S.C.,
chapters 3, 71 or 78, or to employees appointed under 38 U.S.C. 7306, 38
U.S.C. 7401(3), 38 U.S.C. 7405, or 38 U.S.C. 7406.

**2.** []{#ptIIch1par2 .anchor}**AUTHORITY**

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

b\. \[Section 302 of the Veterans Healthcare, Capital Asset and Business
Improvement Act of 2003 (Pub. L. 108-170)\].

c\. \[38 U.S.C. 501(a), 38 U.S.C. 7421\].

d\. \[Title 38, U.S.C., chapter 74.\]

e\. \[Section 3 of the Department of Veterans Affairs Health Care
Personnel Act of 2004 Public Law (Pub. L.) 108-445\].

f\. \[VA Standards of Conduct\].

\[g. Standards of Ethical Conduct for Employees of the Executive Branch,
5 CFR 2635.\]

**3.** []{#ptIIch1par3 .anchor}**POLICY**

a\. Employees are expected to maintain the highest standards of honesty,
integrity, impartiality, conduct, and effectiveness. Whenever an
employee\'s performance of duty or professional competence is determined
to be unsatisfactory; or when an employee\'s professional or personal
conduct is not satisfactory, prompt and appropriate, disciplinary or
major adverse action, or other corrective action will be taken. The
policy of VA is to maintain standards of conduct and efficiency which
will promote the best interests of VA.

b\. Disciplinary or major adverse actions will be taken when it is
evident that other supervisory techniques have failed to correct a given
problem, or would be inappropriate. Actions taken should be consistent
with the precept of like penalties for like offenses, with due
consideration of any extenuating circumstances.

c\. Employees are entitled to be represented by an attorney or other
representative of the employee\'s choice at all stages of the case.
Employees must identify their chosen representative in writing. A
representative who is employed by VA may be disallowed by the facility
Director because of:

\(1\) Conflict of position, or

\(2\) Conflict of interest.

d\. Actions covered under this part are subject to the prohibited
personnel practices listed in 5 U.S.C. 2302, prohibiting:

\(1\) Discrimination because of race, color, religion, sex, national
origin, age, disabling condition, marital status, or partisan political
reasons; and

\(2\) Reprisal for the proper exercise of an employee\'s legal or
administrative appeal rights.

**4.** []{#ptIIch1par4 .anchor}**DEFINITIONS.** Unless otherwise noted,
the following definitions apply to this part only:

a\. **Admonishment.** An official letter of censure to an employee for
minor act(s) of misconduct or deficiency in competence. This letter
normally remains in the employee\'s personnel folder for 2 years.

b**.** **Discharge.** The involuntary separation of an employee from
employment based on conduct or performance.

c\. \[**Disciplinary Actions.** These are adverse actions, other than
major adverse actions, which include admonishment and reprimand based on
conduct or performance\].

d\. \[**Disciplinary Appeals Board.** The three member Board designated
to hear an employee's appeal of major adverse action which is based in
whole or in part on a question of professional conduct or competence\].

e\. \[**Grade.** The established grades for the positions covered by
this chapter will be as defined by 38 U.S.C. 7404, and the qualification
standards issued pursuant to 38 U.S.C. 7402. (See VA Handbook 5005,
Staffing.)\]

f\. **Indefinite Suspension.** The involuntary placement of an employee
in a non‑duty, non‑pay status for a temporary indefinite period of time
pending investigation, inquiry, or further management action.

g\. \[**Major Adverse Actions.** These are suspension (including
indefinite suspension), transfer, reduction in grade, reduction in basic
pay, and discharge based on conduct or performance. For purposes of this
Handbook, a reduction in basic pay includes a reduction in the market
pay of a physician or dentist as a result of an involuntary reassignment
or change in assignment when taken for disciplinary reasons, i.e.
conduct or performance reasons\].

h**.** \[**Mixed Case.** This is a case that includes both:

\(1\) A major adverse action arising out of, or including, a question of
professional conduct or competence, and

\(2\) A major adverse action which does not arise out of a question of
professional conduct or competence, or a disciplinary action.\]

i\. \[**Official Time.** Time granted to an employee and/or
representative to review the material relied upon to support a proposed
action, to prepare a reply, and to secure affidavits, if the employee is
otherwise in a duty status\].

j\. \[**Professional Conduct or Competence.** A question of professional
conduct or competence involves direct patient care and/or clinical
competence. The term clinical competence includes issues of professional
judgment\].

k\. \[**Reduction in Basic Pay.** The involuntary reduction, based on
conduct or performance, of the annual rate of basic pay to which an
employee is entitled under 38 U.S.C. 7404, including above minimum
entrance rates and special salary rates authorized under 38 U.S.C. 7455.
This includes a reduction in the market pay of a physician or dentist as
a result of an involuntary reassignment or change in assignment when
taken for disciplinary reasons. However, this does not apply to other
reductions in pay, such as the loss or reduction of:

\(1\) Physician and dentist performance pay, and

\(2\) Physician and dentist market pay, unless the reduction in market
pay is the result of an involuntary reassignment or change in assignment
taken for disciplinary reasons, i.e. conduct or performance reasons
(Note: Reductions in market pay that are not the result of an
involuntary reassignment or change in assignment for conduct or
performance reasons are not covered by this chapter.),

\(3\) Head nurse differential,

\(4\) Nurse Executive Special Pay,

\(5\) Other differentials,

\(6\) Allowances, or

\(7\) Premium pay such as:

\(a\) Standby,

\(b\) On‑call,

\(c\) Shift,

\(d\) Overtime,

\(e\) Sunday,

\(f\) Holiday,

\(g\) Night work,

\(h\) Hazardous duty, and

\(i\) Interim geographic adjustment.\]

**Reduction in Grade.** The involuntary assignment to a lower grade on
the same pay schedule based on conduct or performance\].

m\. \[**Reprimand.** An official letter of censure to an employee for an
act of misconduct or deficiency in competence. A reprimand is a more
severe disciplinary action than an admonishment. This letter normally
remains in the employee\'s personnel folder for 3 years.\]

\[ \]

n\. \[**Suspension.** The involuntary placement of an employee, for
disciplinary reasons, in a non‑duty, non‑pay status for a temporary
period of time\]

o\. \[**Transfer.** The involuntary movement of an employee from one VA
facility to another (under separate managerial authority) based on
conduct or performance and without a break in service\].

5\. []{#ptIIch1par5 .anchor}RESPONSIBILITIES

a\. The Under Secretary for Health, Deputy Under Secretary for Health,
Assistant Deputy Under Secretary for Health, other officials in the
Office of the Under Secretary (38 U.S.C. 7306(a)), network directors,
other key Veterans Health Administration (VHA) officials and field
facility directors are responsible for:

\(1\) Administering policy concerning disciplinary and major adverse
actions in conformance with requirements of statute and this chapter,
and reviewing existing policies and recommending appropriate changes.

\(2\) Delegating to supervisors authority for the direction and
discipline of employees under their jurisdiction, as appropriate, and
assuring proper supervisory training.

\(3\) Ensuring that supervisors properly exercise their disciplinary and
major adverse action authorities.

\(4\) Ensuring that appropriate mechanisms are in place to inform
employees of VA policy governing disciplinary and major adverse actions,
and that this policy and related materials are available for review in
the Human Resources Management office.

\(5\) Ensuring that appropriate mechanisms are in place to inform
employees of VA standards of ethical conduct and related
responsibilities as well as other laws, rules and regulations governing
VA expectations of acceptable conduct.

b\. The Deputy Assistant Secretary for Human Resources Management \[and
Labor Relations\] is responsible for:

\(1\) Developing Department policy on disciplinary and major adverse
actions.

\(2\) Providing technical advice and guidance to management officials
and field facility Human Resources Management officials.

\(3\) Ensuring that all necessary and required training is accomplished.

c\. Supervisors are responsible for:

\(1\) Informing all employees of the requirements for acceptable conduct
(e.g., standards of ethical conduct).

\(2\) Gathering, analyzing, and developing the facts concerning each
situation where a disciplinary or major adverse action may be
appropriate.

\(3\) Initiating appropriate and timely actions.

d\. Human Resources Managers are responsible for:

\(1\) Ensuring that all employees are made aware of VA policy concerning
disciplinary and major adverse actions, and that this policy and related
materials are available for review in Human Resources Management office.

\(2\) Ensuring that all employees are made aware of VA standards of
ethical conduct and related responsibilities as well as other laws,
rules, and regulations governing VA expectations of acceptable conduct.

\(3\) Assisting supervisors and management officials at all levels with:

\(a\) Disciplinary and major adverse action matters;

\(b\) Applying and providing guidance on interpretations of regulations
and statutes;

\(c\) Recommending sound human resources management practices;

\(d\) Reviewing existing policies and procedures, and recommending
appropriate changes.

\(4\) Reviewing disciplinary and major adverse actions prior to issuance
to ensure compliance with VA policy and advising the decision official
as necessary.

\(5\) Assisting management in informing employees of the rules for
acceptable conduct and for clarifying such rules.

\(6\) Advising employees and answering their questions regarding their
rights in disciplinary and major adverse action matters.

(7*)* Providing guidance on interpretations of disciplinary and major
adverse action procedures, policies, regulations, and statutes.

e\. Employees are responsible for:

\(1\) Meeting standards of conduct as required by VA policy, and other
laws, rules, and regulations.

\(2\) Obtaining advice from authoritative VA officials (supervisors,
human resources management officials, Regional Counsels, ethics
counselors, etc.) on any unclear or questionable rules of conduct prior
to engaging in the conduct.

\(3\) Maintaining an acceptable level of professional competence.

\(4\) Providing full and truthful answers during any inquiry or
investigation.

6\. []{#ptIIch1par6 .anchor}DETERMINING THE FACTS

a\. **Inquiry and Investigation**

\(1\) When an incident occurs which may result in a potential
disciplinary or major adverse action, inquiry will be made into the
incident or situation as soon as possible to obtain the facts and
determine what action, if any, is warranted.

\(a\) Ordinarily, a preliminary inquiry will be made by the appropriate
line supervisor. (See also paragraph 6a(3)(a), below.) As appropriate,
it may be necessary for other management officials to make the
preliminary inquiry.

\(b\) A further investigation may be warranted depending on the nature
and seriousness of the incident (e.g., administrative investigation).
Investigating officials will seek information concerning the matter from
the employee(s) who is alleged to have committed the offense and from
any other persons who may have pertinent information about the
incident(s).

\(c\) The resulting information will be documented. Signed statements,
preferably under oath, are the best form of documentation, and should be
obtained, whenever possible, from employees interviewed. (The authority
to take sworn statements must be exercised in accordance with 38 U.S.C.
5711 and its

implementing regulations.) Failure to obtain a signed statement from the
employee involved will not, in and of itself, serve to preclude taking
the action, particularly where sufficient information is otherwise
obtained from the employee, or the nature of the situation makes it
impractical or unnecessary to obtain a written statement.

\(d\) Evidence will be developed impartially and an effort will be made
to resolve any conflicting statements by developing additional evidence.
Material which cannot be disclosed to the employee or to the employee\'s
representative may not be used to support a disciplinary or major
adverse action.

\(2\) All employees are required to provide full and truthful answers
during any inquiry or investigation. Failure to do so may be grounds for
disciplinary or adverse action. The only time employees are entitled to
remain silent, without threat of disciplinary or adverse action, is if
they may potentially incriminate themselves in a criminal offense.
Employees claiming such a right must state this as their reason in order
for the right to apply. The assistance of the Regional Counsel or
General Counsel, as appropriate, will be obtained in determining whether
immunity from prosecution may be granted.

\(3\) **Official Investigation Reports or Official Inquiries**

\(a\) It is not necessary for a supervisor to inquire into an incident
in accordance with the instructions identified in paragraph 6a(1),
above, where sufficient information is available from other official
sources.

[1]{.underline}. These sources include, but are not limited to reports
of:

[a]{.underline}. A VA Central Office or Office of Inspector General
investigation,

[b]{.underline}. A field examination conducted by a representative of
the Office of Regional Counsel, or

[c]{.underline}. Other official investigations.

[2]{.underline}. Where the information appears to be inadequate, the
Human Resources Manager should be consulted concerning the necessity for
the development of additional information.

\(b\) The same principle applies to official investigations of other
government agencies, whether Federal, State, or local, if the agency
which conducted the investigation allows the use of the investigatory
material, or part of it:

[1]{.underline}. In cases involving criminal matters, it is the policy
of VA to cooperate with appropriate law enforcement agencies.

[2]{.underline}. In obtaining evidence and/or coordinating such matters,
the assistance of the Regional Counsel or General Counsel, and Office of
Inspector General, as appropriate, should be obtained.

\(c\) When management relies on facts developed from an official
investigation or other official inquiry to support a proposed
disciplinary or major adverse action, only the information relied upon
will

be included in the evidence file. When using official information, care
must be exercised to extract only that information which is being relied
on to support the proposed action.

\(d\) Confidentiality for certain quality assurance records and
documents is provided for in 38 CFR, part 17.

[1]{.underline}. Certain restrictions may apply regarding the use of
these records and documents as evidence to support taking a disciplinary
or major adverse action.

[2]{.underline}. It may be necessary to initiate an independent
investigation to develop evidence which can be used in a disciplinary or
major adverse action.

[3]{.underline}. The assistance of the Regional Counsel or General
Counsel, as appropriate, should be obtained. when questions arise
concerning confidentiality and coverage by the provisions of 38 CFR.
part 17.

b\. **Status of Employee Pending Inquiry or Investigation**

\(1\) **Continue in Current Duty Status.** Ordinarily, the employee will
be retained in a pay and active duty status in the employee\'s current
position, grade, and salary level during any inquiry or investigation.

\(2\) **Detail, Leave or Paid Non‑Duty Status.** In those instances
where it is determined that the employee\'s continued presence at the
employee\'s worksite during an inquiry or investigation might pose a
threat to the employee or others, result in loss of or damage to
Government property, or otherwise jeopardize legitimate Government
interests, the following alternatives may be considered:

\(a\) Detailing the employee to other duties to eliminate any threat to
safety, to VA\'s mission, or to Government property (VA Handbook 5005,
Staffing, part III);

\(b\) Granting the employee leave (annual, sick, or leave without pay).
In certain circumstances when the employee has failed to request leave
or report for duty, or it is determined that granting the requested
leave is inappropriate, a charge of absence without leave may be used
(VA Handbook 5011, Hours of Duty and Leave);

\(c\) As a last resort, placing the employee in a paid non‑duty status
pending completion of the inquiry or investigation, preparation of the
charges, and/or during the notice period of a discharge or a proposed
indefinite suspension, may be appropriate. Care should be taken to
ensure that this is for the shortest practicable period. This is an
option in those unusual instances where management determines that a
detail or granting leave may not be possible or is impractical.

\(3\) **Indefinite Suspension**

\(a\) In cases where management foresees a need for considerable time to
complete its inquiry or investigation, and subsequently make a
determination in a case; and when the potential of a threatening
situation exits, consideration may be given to imposing an indefinite
suspension.

[1]{.underline}. The primary benefits of the indefinite suspension are
the expeditious removal of the employee from the premises with the
retained option of either reinstating or discharging the employee upon
completion of the judicial proceedings or further investigation.

[2]{.underline}. Action should be taken to propose the employee's
discharge as soon as sufficient information is available to support
charges against the employee concerning the act(s) of misconduct
regardless of any subsequent judicial proceedings.

[3]{.underline}. The Office of Inspector General, Regional Counsel, or
Office of General Counsel should be consulted to ensure that there is
appropriate coordination with the prosecuting office.

\(b\) Any indefinite suspension must be based on the need to have the
employee away from the worksite pending inquiry, investigation, or the
medical examination process. During the advance notice period of a
proposed indefinite suspension, the employee may be placed in a non‑duty
paid status, if necessary. Further, in cases involving the commission of
a crime, the \"crime provision\" procedure may be appropriate (see
paragraph 9e of this chapter).

\(c\) An indefinite suspension must specify the condition(s) or event(s)
that will end the suspension (e.g., completion of the investigation of
probable criminal conduct and the taking of any administrative action
that may be warranted).

[1]{.underline}. The employee may not be suspended without such a
completion point set out in the proposal, and the suspension cannot
continue once the conditions for completion have been met.

[2]{.underline}. At the completion of the suspension, management must
either return the employee to the employee\'s position, detail, or
reassign the employee to another position, discharge the employee or
take other appropriate administrative action.

c\. **Evidence File**

\(1\) If a proposed disciplinary or major adverse action is
contemplated, the evidence file must be assembled before the proposed
notice is issued to the employee. The file must contain the evidence
upon which the notice of proposed action is based, and which supports
the charges in that notice (including notices of past disciplinary
and/or major adverse action, if such action forms part of the basis for
the penalty proposed).

\(2\) Additional evidence acquired after the issuance of a notice of
proposed action may be added without necessitating reissuance of the
notice except when the additional evidence forms the basis for
initiating new reasons for proposing the action, or it is determined
that a different action should be proposed. If an employee requests and
is provided with a copy of the evidence file, copies of any material
added to the evidence file must also be provided. Any use or disclosure
of a record or information must comply with legal requirements for
disclosure.

d\. **VA Beneficiary Records.** The assistance of the Regional Counsel
or General Counsel, as appropriate, should be obtained where questions
arise concerning the use of VA beneficiary records in taking an action
covered under this chapter. Specifically, the use of VA beneficiary
records must be in

accordance with the requirements of confidentiality provided in 38
U.S.C. 5701, 5705, and 7332; and the Privacy Act at 5 U.S.C. 552a.

**7.** []{#ptIIch1par7 .anchor}**DETERMINING APPROPRIATE ACTION**

a\. **General.** After determining the facts in a case, the responsible
official authorized to initiate action should consider the Table of
Penalties contained in appendix A of this part. Any extenuating or
mitigating circumstances or the contributing factors which may have some
bearing on the situation, including past record, should be considered in
determining the action to be taken. The initiating official will consult
with the Human Resources Management office regarding the propriety of
the disciplinary or major adverse action being considered.

b\. **Progressive Discipline**

\(1\) The level or type of discipline which, in the supervisor\'s
judgment**,** is commensurate with the employee\'s misconduct and will
most likely correct the misconduct, is a commonly applied principle.

\(a\) It is most applicable in repeated infractions of a minor nature
(e.g., brief tardiness). It does not prohibit issuance of a more severe
penalty (e.g., suspension or discharge) prior to issuance of each and
every lesser penalty.

\(b\) For example, it is not always appropriate to issue an admonishment
and/or a reprimand prior to issuance of a suspension or discharge.

\(c\) Sound supervisory discretion and judgment must be applied in all
cases when fully considering the nature of the offense and any
aggravating and/or mitigating circumstances.

\(d\) The concept of progressive discipline and the recommended guidance
provided by the Table of Penalties (see appendix A of this part) are not
intended to preclude the exercise of discretion in determining
appropriate action, but rather to serve as aids to maintaining
consistency.

\(2\) Examples of reasons that may warrant considering a more severe
disciplinary action (e.g., suspension without prior reprimand) are:

\(a\) The facts of the case,

\(b\) Degree of willfulness of the employee\'s violation of VA conduct
rules,

\(c\) The seriousness of the misconduct or deficiency in competence, and

\(d\) The resultant impact on VA operations.

**8.** []{#ptIIch1par8 .anchor}**DISCIPLINARY ACTIONS**

a\. **Types of Disciplinary Actions.** This paragraph applies to
admonishments and reprimands, based on conduct or performance (refer to
paragraph 4 of this chapter for definitions).

b\. **Notice of Proposed Action**

\(1\) Before being released to the employee, a notice of proposed action
will be reviewed by the Human Resources Management office for compliance
with statutes, regulations, VA policies and other applicable
requirements. Human Resources Management officials will review the
evidence and, as appropriate, provide guidance concerning the propriety
of the action.

\(2\) The advance notice of proposed action must contain the following
information:

\(a\) The nature of the action proposed (e.g., admonishment);

\(b\) A statement of the specific charges upon which the proposed action
is based, including names, dates, places, and other data sufficient to
enable the employee to fully understand the charges and to respond to
them;

\(c\) A statement of any specific law, regulation, policy, procedure,
practice, or other specific instruction (national, local or otherwise)
that has been violated as it pertains to the charge(s) (if applicable);

\(d\) A statement that the employee has the right to reply orally or in
writing, or both orally and in writing, and to submit affidavits and
other documentary evidence in support of the reply;

\(e\) A statement of the amount of time the employee has to submit the
reply or replies (time limits may vary according to the circumstances,
but in no event should be less than 5 calendar days);

\(f\) A statement that the material relied upon to support the reasons
for the proposed action will be made available to the employee and the
employee\'s representative upon request;

\(g\) A statement advising the employee of the official who will receive
any oral and/or written replies;

\(h\) A statement that the employee will be given a written decision as
soon as possible after the employee\'s reply has been fully considered,
or after the expiration of the time allowed for reply, if the employee
does not reply; and,

\(i\) A statement that the employee is entitled to be represented by an
attorney or other representative of the employee\'s choice at all stages
of the case (see paragraph 3c of this chapter). The employee\'s
designation of a representative must be made in writing.

c\. **Employee\'s Oral Reply**

\(1\) If the employee requests an opportunity to reply orally, the
decision official, or designee, will receive the employee\'s reply.

\(a\) Any official designated to receive the reply must have the
authority to recommend what final decision should be made.

\(b\) The right to reply orally includes the right to be given a
reasonable opportunity to make any plea which the employee believes
might influence the final decision in the employee\'s case.

\(c\) The employee must be permitted to plead extenuating circumstances
or make any other argument the employee deems proper.

\(2\) A written summary signed by the official hearing the oral reply
must be made part of the record.

d\. **Arriving at a Final Decision**

\(1\) The decision official will give full and impartial consideration
to:

\(a\) The employee\'s written reply, if any;

\(b\) The recommendation of the designee to hear an oral reply, if any
oral reply was made; and

\(c\) All evidence of record.

\(2\) If the decision official finds one or more of the charges in the
advance notice sustained, the decision official will determine an
appropriate action.

**NOTE:** *The Table of Penalties for examples of offenses and penalties
(see appendix A of this part) will be considered in determining an
appropriate penalty.*

\(3\) A decision adverse to the employee must be based only on the
charges stated in the notice of proposed action. If none of the charges
are sustained, either in whole or in part, no action may be imposed,
regardless of any record of past discipline cited in the notice.

\(4\) The penalty may not be more severe than that proposed in the
notice of proposed action.

\(5\) An employee\'s failure to reply may be considered, but by itself
may not be considered an admission of the charges. The burden of proof
rests with management to support its reasons for the action.

\(6\) If the notice of proposed action is determined to be procedurally
defective to the detriment of the employee\'s substantive rights, or if
it is found that additional reasons other than those set forth should be
considered, or that the appropriate action should be more severe than
that proposed, the notice of proposed action will be rescinded and a new
notice of proposed action issued.

\(a\) The new notice will include a new advance notice period and
another opportunity to reply orally and/or in writing.

\(b\) A procedural defect is detrimental to the employee\'s substantive
rights when it is likely to have caused the agency to reach a conclusion
different from the one it would have reached in the absence or cure of
the error.

\(7\) If it is determined that the appropriate penalty is a major
adverse action, the procedures outlined in paragraph 9 of this chapter
will apply.

e\. **Decision**

\(1\) Before the decision is released to the employee, it will be
reviewed by Human Resources Management Service for compliance with the
statutes, regulations, VA policies, and other applicable requirements.
Any comments the Human Resources Management Service may have concerning
technical aspects of the case will be presented to the decision
official.

\(2\) The decision letter will be dated and signed by the appropriate
decision official.

\(3\) The decision letter will be in writing and contain the following
information:

\(a\) A statement of whether any of the charges sustained arose out of a
question of professional conduct or competence.

\(b\) A statement that consideration has been given to all evidence
developed, including the employee\'s reply(ies).

[1]{.underline}. A written reply made by a representative on behalf of
the employee is considered to be an employee\'s reply.

[2]{.underline}. If the employee replies both orally and in writing,
both replies must be mentioned.

\(c\) A statement of the decision official\'s determination regarding
which charges, if any, in the advance notice were sustained, and which
charges, if any, were not sustained.

\(d\) If a record of prior disciplinary actions was cited in the advance
notice, the decision will indicate how the past record, as cited in the
advance notice, was taken into consideration in determining the proper
action. Prior disciplinary actions which have expired or have been
withdrawn may not be cited as a basis for the action.

\(e\) A statement concerning the employee\'s rights to file a grievance
and the time limit within which it must be filed.

\(f\) A statement informing the employee of the length of time the
action will be retained in the employee\'s personnel folder.

\(g\) A statement advising the employee that a further explanation of
the employee\'s appeal rights may be obtained by consulting the Human
Resources Management office.

f\. **Appeals of Disciplinary Actions**

\(1\) If the disciplinary action involves or includes a question of
professional conduct or competence, the employee may appeal it under the
grievance procedures contained in part IV, chapter 3 of this handbook.

\(2\) If the disciplinary action does not involve or include a question
of professional conduct or competence, the employee may appeal the
action under the grievance procedure in part IV, chapter 3 of this
handbook. If the employee is covered by a collective bargaining
agreement under 5 U.S.C., chapter 71, and the negotiated grievance
procedure includes disputes over these actions within its scope, the
employee may elect to appeal the action through the negotiated grievance
procedure or the grievance procedure in part IV, chapter 3 of this
handbook, but not both.

\(a\) The employee shall elect which grievance procedure will be used.

\(b\) The timely filing of a grievance under either procedure shall
constitute an irrevocable election. Grievances filed under the
negotiated grievance procedure must be filed in accordance with the
provisions of the applicable negotiated grievance procedure.

\(c\) Reference should be made to the negotiated agreement for the
appropriate steps and time limits.

g\. **Withdrawal of Action**

**NOTE:** *Duration and withdrawal time frames may vary based on
provisions in applicable negotiated agreements.*

\(1\) After 2 years, admonishments will be removed from the personnel
folder and destroyed. However, in cases of patient abuse, an
admonishment may be retained in the personnel folder indefinitely. The
employee\'s supervisor may, after 6 months, make a written request to
the Human Resources Management office that the admonishment, including
patient abuse cases, be withdrawn, if the employee\'s conduct so
warrants.

\(2\) After 3 years, a reprimand will be removed from the personnel
folder and destroyed. However, in cases of patient abuse, the reprimand
may be retained in the personnel folder indefinitely. The employee\'s
supervisor may, after 2 years, make a written request to the Human
Resources Management office that the reprimand, including patient abuse
cases, be withdrawn, if the employee\'s conduct so warrants.

\(3\) Upon expiration of the specified time frame or receipt of a valid
request for early withdrawal (i.e., after 6 months for an admonishment)
of a disciplinary action, the Human Resources Management office will
return the action to the supervisor for destruction. If the request for
early withdrawal is initiated by a supervisor below the level of the
official who issued the action, it must be approved at or above the
level of the initial decision official.

\(4\) The employee may, after 6 months, make a written request to the
supervisor that the admonishment be withdrawn. The employee may, after 2
years, make a written request to the supervisor that the reprimand be
withdrawn.

\(5\) Once an admonishment or reprimand is withdrawn, it may not be used
as a past disciplinary record in connection with any future proposed
disciplinary or major adverse action. This should be considered in
determining whether a disciplinary action should be withdrawn early,
particularly with respect to actions which were based on patient abuse.

\(6\) When a disciplinary action has expired or has been withdrawn early
and destroyed, the supervisory official will so inform the employee. In
order to assure the employee that no record remains in the personnel
folder, the supervisor may wish to destroy it in the employee\'s
presence or give it to the employee for disposition.

\(7\) Since the admonishment or reprimand may be appealed under the
grievance procedure initially and, except in patient abuse cases, will
automatically be removed from the personnel folder after 2 or 3 years,
respectively, a grievance may not be filed based on a supervisor\'s
decision not to remove it earlier than the expiration date.

**9.** []{#ptIIch1par9 .anchor}**MAJOR ADVERSE ACTIONS**

a\. **Types of Actions.** This paragraph applies to suspensions,
transfers, reductions in grade, reductions in basic pay \[(including
reduction in physician and dentist market pay as a result of involuntary
reassignment or change in assignment when taken for conduct or
performance reasons)\] and discharges.

b\. **Burden of Proof and Appropriateness of Penalty**

\(1\) Prior to initiating a major adverse action, officials involved in
the decision making process must consider the burden of proof which must
be met in order to sustain the action on appeal. When taking a major
adverse action against an employee, the Department bears the burden of
proving by a preponderance of evidence the charges that form the basis
for the action.

\(2\) The Department must establish that the penalty chosen is within
the tolerable limits of reasonableness.

c\. **Notice of Proposed Action**

\(1\) Prior to taking a major adverse action, the employee must be given
30 calendar days advance written notice of the action proposed.

\(2\) Before being released to the employee, a notice of proposed action
will be reviewed by the Human Resources Management office for compliance
with statutes, regulations, VA policies and other applicable
requirements. Human resources management officials will review the
evidence and, as appropriate, provide guidance concerning the propriety
of the action.

\(3\) The advance notice of proposed action must contain the following
information:

\(a\) The nature of the action proposed.

\(b\) The specific charges upon which the proposed action is based,
including the details and circumstances (i.e., names, dates, places, and
other data) constituting the basis for action, sufficient to enable the
employee to fully understand the charges and to afford the employee a
fair opportunity to respond to them.

\(c\) Any specific law, regulation, policy, procedure, practice, or
other specific instruction (national, local or otherwise) that has been
violated as it pertains to each charge.

\(d\) The right to reply orally or in writing, or both orally and in
writing to the deciding official, or designee, and to submit affidavits
and other documentary evidence in support of the reply by a specified
date. Time limits may vary according to the particular circumstances in
each case. The employee must be allowed a minimum of 7 days from date of
receipt of the notice of proposed action, but no more than 30 days from
date of the written notice of charges. The proposing or deciding
official may grant extensions beyond 30 days only when good cause is
shown.

\(e\) A statement of the employee's past disciplinary record when such
record is to be relied upon as evidence or considered as part of the
basis for the proposed action.

[1]{.underline}. Specific previous infractions and penalties will be
cited and identified and the employee will be advised that the employee
may reply orally or in writing, or both orally and in writing, with
respect to those previous infractions.

[2]{.underline}. The statement will advise the employee that the
employee may submit supporting evidence, including affidavits, and may
make a statement concerning the use to be made of the past record in
determining proper action (see paragraph 9d of this chapter).

\(f\) A statement that the employee has the right to representation by
an attorney or other representative of the employee\'s choice at all
stages of the case, and that the designation of a representative must be
in writing. The representative may be disallowed if the individual\'s
activities as a representative would cause a conflict of position or
conflict of interest.

\(g\) A statement that if the employee has any questions about the
reasons for the proposed action, the employee may contact the official
who signed the advance notice or the Human Resources Management office
for further explanation.

\(h\) Identification of the decision official.

\(i\) A statement that any written reply must be submitted through
supervisory channels to the decision official and that the decision
official, or designee, will receive the employee\'s oral reply.

\(j\) A statement that full and impartial consideration will be given to
the employee\'s reply(ies), if a reply(ies) is made.

\(k\) A statement that the employee will be given a written decision
within 21 days of receipt of the employee\'s reply, if any, or of the
expiration of the reply period if no reply is made.

\(l\) A statement advising the employee of the duty and pay status in
which the employee will be carried during the notice period.

\(m\) A statement that if it is decided to take the proposed action,
such action will be effective not less than 30 days from the day
following the date the employee receives the notice, except when
invoking the crime provision (see paragraph 9e of this chapter).

\(n\) A statement informing the employee where the material relied upon
to support the reason(s) for the proposed action will be available for
review by the employee and or the employee\'s designated
repre-sentative. Generally, the evidence file should be maintained in
the Human Resources Management office.

\(o\) A statement that informs the employee that:

\[(p) For physicians and dentists, if the proposed action will result in
a reduction in market pay, a statement that their market pay may be
reduced should this proposed action be made effective.\]

[1]{.underline}. The employee will be allowed a specific number of hours
of official duty time (if otherwise in an active duty status) for:

[a]{.underline}. Reviewing the notice;

[b]{.underline}. Preparing a written and/or oral reply; and

[c]{.underline}. Securing affidavits.

[2]{.underline}. Identifies the person with whom the employee should
make arrangements for the use of official time.

\(4\) Policies relating to notice requirements regarding reductions and
revocations of privileges, reporting to the State Licensing Boards and
National Practitioners Data Bank (NPDB), should be reviewed to determine
their applicability to specific cases. Statements regarding such should
be included, as appropriate.

d\. **Past Discipline.** Management should consider the recency of any
past disciplinary actions that form part of the basis for the proposed
action. Consideration should be given to the use of any actions which
are more than 3 years old, even if they have remained in the personnel
folder. They should be examined closely to ensure their relevance to the
proposed action before they are used to support such action:

\(1\) If cited, the previous disciplinary record will not be set forth
as a current charge(s), but will be stated in a paragraph separate from
the current charge(s).

\(2\) Counselings and charges of Absence Without Leave (AWOL) without
concurrent disciplinary action are not disciplinary actions and may not
be included in the past record paragraph.

\(a\) Counselings may be cited in a separate paragraph and may be
considered in determining appropriate action against an employee. If
such counselings are cited, the counseling must have been in writing and
must be included in the evidence file used to support the proposed
action.

\(b\) Any reference to letters or memoranda of counseling in the
proposal letter must be sufficiently clear so as to enable the employee
to comment on the consideration that should be given to the counseling
in determining the final action.

e\. **Exceptions to 30‑day Advance Notice.** The requirement for a
30‑day advance notice period may be shortened if there is reasonable
cause to believe the employee has committed a crime for which a sentence
of imprisonment may be imposed (38 U.S.C. 7462(b)(1)(A)). This exception
is concerned solely with shortening the advance notice period. In order
for the \"crime provision\" or \"crime exception\" to be invoked, there
must be reasonable cause to believe that the employee has committed a
crime for which the employee may be imprisoned. The employee must still
be afforded a reasonable amount of time, but not less than 7 days, to
reply orally and/or in writing to a notice of proposed action.

\(1\) Normally, this provision would be used in conjunction with a
proposal to remove or suspend indefinitely while awaiting a final
disposition of a case. In those situations in which the retention of the
employee in an active duty status would be inappropriate, but where
management wishes to defer final judgment until completion of judicial
proceedings, or where usable evidence to substantiate a discharge is not
yet available, an indefinite suspension should be proposed (see
paragraph 6(b)3 of this chapter).

\(2\) To invoke the crime provision and process a discharge or
indefinite suspension with a curtailed notice period, the following
actions should be taken:

\(a\) If not otherwise in a previously approved leave status, notify the
employee in writing that the employee is being put immediately in a
non‑duty status with pay.

\(b\) Give the employee a notice either of proposed indefinite
suspension pending further investigation or pending disposition of the
criminal action, or of proposed discharge when there is sufficient
evidence to warrant discharge. The notice will advise the employee of a
reasonable period to respond orally and/or in writing (not less than 7
days).

\(c\) Issue a decision on the proposed action after the employee has had
the stated opportunity to respond orally and/or in writing, and the
response, if any, has been considered.

\(d\) With the exception of the shortened notice period and any enforced
non‑duty status, the proposed adverse action and decision notices must
conform in all other aspects to the requirements for initiating and
taking major adverse actions.

\(e\) Any case involving the crime provision should be discussed with
the Regional Counsel or General Counsel\'s office, as appropriate. This
will prove helpful in obtaining official information regarding an
arrest, the charges, indictment, arraignment, etc., needed to establish
justification for use of the \"crime provision.\"

f\. **Status of Employee During Advance Notice Period**

\(1\) Ordinarily, the employee will be retained in a pay and active duty
status in the employee\'s current position, grade, and salary level,
during the period pending a decision on a proposed action.

\(2\) During the advance notice period of a proposed action, it may be
necessary to remove the employee from the worksite. In those instances
where it is determined that the employee\'s continued presence at work
during the advance notice period might pose a threat to the employee or
others, result in loss of or damage to Government property, or otherwise
jeopardize legitimate Government interests, the following alternatives
can be considered:

\(a\) Detailing the employee to other duties to eliminate any threat to
safety, to VA\'s mission, or to Government property;

\(b\) Granting the employee leave (annual, sick, leave without pay). In
certain circumstances, when the employee has failed to request leave,
failed to report for duty, or it is determined that granting the
requested leave is inappropriate, a charge of AWOL may be used;

\(c\) Curtailing the notice period when the Department can invoke the
\"crime provision"; or

\(d\) Placing the employee in a paid non‑duty status (i.e., authorized
absence for timekeeping purposes) during all or part of the advance
notice period, if none of these other alternatives are available.

g\. **Employee\'s Reply and Official Time**

\(1\) If the employee requests an opportunity to reply orally, the
decision official, or designee, will receive the employee\'s reply. Any
official designated to receive the reply must have the authority to
recommend what final decision should be made.

\(a\) The right to reply orally includes the right to a reasonable
opportunity to make any plea which the employee believes might influence
the final decision in the employee\'s case.

\(b\) The employee must be permitted to plead extenuating circumstances
or make any other arguments the employee deems proper.

\(2\) A written summary of the oral reply must be made and placed in the
adverse action file.

\(3\) The official time allowed for the employee to reply will depend on
the facts and circumstances of each individual case.

\(a\) In most cases, up to 8 hours of official time may be deemed
sufficient.

\(b\) For more complex cases, more than 8 hours may be allowed.

\(c\) Since the time spent by the employee in reviewing the evidence and
preparing the reply may be spread over several days (e.g., 7‑day reply
period), documentation should be kept as to how much official duty time
is used each day.

\(d\) If the employee requests additional official time beyond what was
originally approved, the request may be honored if it is reasonable.

h\. **Arriving at Final Decision on the Proposed Action**

\(1\) The decision on a proposed major adverse action will be made by an
official who is in a higher position than the official who proposed the
action, unless the action is proposed by the Secretary.

\(2\) The decision official will give full and impartial consideration
to the employee\'s reply, if any, and all evidence of record. If the
decision official finds that one or more of the charges in the advance
notice are sustained, the decision official will determine the
appropriate action. The Table of Penalties for examples of offenses and
penalties in appendix A of this part, will be considered in determining
the appropriate penalty.

\(3\) In arriving at the decision, the decision official must not
consider any reasons for action other than the reasons stated in the
notice of proposed action. If none of the charges are sustained, either
in whole or in part, no action may be imposed, regardless of any past
record cited in the notice.

\(4\) Any penalty imposed by the decision official may not be more
severe than the penalty specified in the notice of proposed action.

\(5\) An employee\'s failure to reply may be considered, but by itself
may not be considered an admission of the charges. The burden of proof
rests with management to support the charges upon which the action is
based.

\(6\) If the notice of proposed adverse action is determined to be
procedurally defective to the detriment of the employee\'s substantive
rights, or if it is found that additional reasons other than those
originally set forth should be considered, or that the appropriate
action should be more severe than that proposed, the notice of proposed
action will be rescinded and a new notice of proposed action issued.

\(a\) The reissued notice will provide a new advance notice period and
another opportunity to reply both orally and/or in writing.

\(b\) A procedural defect is detrimental to the employee\'s substantive
rights when it is likely to have caused the agency to reach a conclusion
different from the one it would have reached in the absence or cure of
the error.

\(7\) If additional evidence becomes available to further support the
charges in the advance notice, but does not necessarily provide a basis
to alter the charges or the proposed action, the employee will be
afforded the opportunity to respond to the new evidence before a final
decision is made.

\(8\) Officials involved in taking a major adverse action against an
employee must observe the prohibitions against improper \"ex parte\"
communications. Department officials may communicate with each other
during the decision‑making process; however, it is improper for an
interested party (e.g., supervisor, proposing official), to pressure the
decision official into making a particular decision. Such communications
may support reversal of the action upon appeal.

i\. **Decision.** The deciding official shall render a decision in
writing within 21 days of the deciding official\'s receipt of the
employee\'s reply(ies) or close of business following the date
identified to reply if the employee does not reply. The decision will be
delivered to the employee at least 5 days prior to the effective date of
the action, whenever possible. The 5 day period does not apply in cases
where there is reasonable cause to believe the employee has committed a
crime for which a sentence of imprisonment may be imposed (see paragraph
9e of this chapter).

\(1\) Before the decision is released to the employee, it will be
reviewed by Human Resources Management Service for compliance with
statutes, regulations, VA policies, and other applicable requirements.
Any comments the Human Resources Management office may have concerning
technical aspects of the case will be presented to the deciding
official.

\(2\) A decision on a proposed major adverse action may be held in
abeyance at the ‑request of the employee and agreement by the deciding
official, in order for the employee to seek counseling or treatment for
a condition covered under the Rehabilitation Act of 1973 (see 29 U.S.C.
Section 701, et seq.).

\(a\) The employee must provide acceptable documentation for this
request which, at a minimum, establishes both a qualifying disabling
condition and a causal connection between the disabling condition and
the cited misconduct and/or deficiency in performance.

\(b\) An abeyance of this nature may not exceed 1 year.

\(3\) The decision letter must contain the following:

\(a\) A statement of the specific charges that are sustained and those
that are not sustained.

\(b\) A statement, when a major adverse action is imposed, as to whether
any of the charges sustained arose out of a question of professional
conduct or competence.

\(c\) A statement that consideration has been given to all evidence
developed, including the employee\'s reply:

[1]{.underline}. If the employee replies both orally and in writing,
both must be mentioned.

[2]{.underline}. A written reply made by an authorized representative on
behalf of the employee is considered to be an employee\'s reply.

[3]{.underline}. It is good practice for a statement to be made
regarding consideration that was given to any aggravating or mitigating
factors.

\(d\) If a record of prior disciplinary actions was cited in the advance
notice, the decision will indicate how the past record, as cited in the
advance notice, was taken into consideration in determining the proper
action.

\(e\) A statement of the effective date (not less than 30 days from
receipt of notice of proposed action), if the action imposed is a major
adverse action. In the case of a suspension, the inclusive dates of the
suspension will be stated. In the case of an indefinite suspension, the
ending date is determined by the completion of specified conditions
and/or events.

\(f\) A statement specifying the employee\'s appeal rights, and the time
limits within which any appeal must be filed.

\(g\) A statement advising the employee that a further explanation of
the employee\'s appeal rights may be obtained by consulting the Human
Resources Management office.

j\. **Appeals of Major Adverse Actions**

\(1\) The filing of an appeal under a grievance procedure or to the
Disciplinary Appeals Board will not affect the implementation of the
major adverse action. The action should be effected on the date
specified in the decision letter regardless of whether an appeal is
filed.

\(2\) If the \[action involves an involuntary reassignment or change in
assignment of a physician or dentist based on conduct or performance and
which results in a reduction in market pay, only the involuntary
reassignment or change in assignment is subject to grievance or appeal.
Neither the decision to reduce market pay as a result of an involuntary
reassignment nor the amount of such reduction is subject to grievance or
appeal under this chapter or Part V of this handbook. Refer to VA
Handbook 5007, Part IX, paragraph 11, for more information regarding the
right to request reconsideration of a tier determination\].

\[ \]

\(3\) If the major adverse action \[does not involve or include a
question of professional conduct or competence, an employee may elect to
seek review of the decision under the grievance procedure described in
part IV, chapter 3 of this handbook. However, if the employee is covered
by a collective bargaining agreement under 5 U.S.C., chapter 71 and the
negotiated grievance procedure includes disputes over these actions
within its scope, the employee may elect to appeal the action through
the negotiated grievance procedure or the grievance procedure in part
IV, chapter 3 of this handbook, but not both\].

\(a\) \[The employee shall elect which grievance procedure will be
used\].

\(b\) \[The timely filing of a grievance under either procedure shall
constitute an irrevocable election. Time limits for filing a grievance
under the VA procedure are governed by the provisions of part IV,
chapter 3 of this handbook. Grievances filed under the negotiated
grievance procedure must be filed in accordance with the provisions of
the applicable negotiated agreement\].

\(c\) \[The employee must be advised of the right to request a hearing
in connection with a grievance, and, advised that the request for a
hearing must be submitted with the grievance\].

\[(4) If the major adverse action is based in whole, or in part on a
question of professional conduct or competence, the employee may appeal
to the Disciplinary Appeals Board under the provisions in appendix A of
VA Directive 5021 and part V, chapter 1 of this handbook\].

\(a\) An employee must be advised of the right to request a hearing
before the Board, and advised that the request for a hearing must be
submitted with the notice of appeal. If the employee does not request a
hearing in the request for an appeal, the Board may elect to conduct a
hearing or make a decision based on a review of the record.

\(b\) The employee must be provided with a copy of part V, chapter 1 of
this handbook which specifies the content requirements of an appeal.

\(c\) Appeals to the Disciplinary Appeals Board 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.
The 30‑day time limit may not be extended.

\(d\) An issue of whether a matter or question concerns, or arises out
of, professional conduct or competence is not itself subject to any
grievance procedure provided by law, regulation, or collective
bargaining and may not be reviewed by any other agency.

**10.** []{#ptIIch1par10 .anchor}**SERVICE OF DOCUMENTS.** It is best
for a supervisor to deliver a notice to the employee personally and to
obtain the employee\'s dated, written acknowledgment of receipt so as to
show the date and fact of receipt. Supervisors may wish to have a
witness present in order to corroborate delivery of the notice.

a\. If the employee refuses to sign, the supervisor should so note this
on the acknowledgment copy.

b\. In those instances where the letter cannot be personally delivered
to the employee, it should be sent by certified mail‑return receipt
requested, in order to establish that the letter was received. A copy
should also be sent by regular mail in the event the certified mail is
not delivered and/or the employee fails to obtain it from the Postal
Service after being notified to do so. In these instances, date of
service will be presumed to be 5 days after posting the letter.

###### CHAPTER 2. DELEGATIONS

**1.** []{#ptIIch2par1 .anchor}**SCOPE.** This chapter contains the
authorities as delegated by the Under Secretary for Health for proposing
and deciding on disciplinary and major adverse actions. The Under
Secretary for Health retains the authority to appoint individuals as
members of the Disciplinary Appeals Board Panel.

**2.** []{#ptIIch2par2 .anchor}**AUTHORITY**

a\. Title 38, U.S.C., chapter 74.

b\. 38 U.S.C. 7304\[, 38 U.S.C. 7421\]

c\. VA Directive 5021.

**3.** []{#ptIIch2par3 .anchor}**RESPONSIBILITIES**

a\. **Delegations of Proposing and Decision Authorities for Disciplinary
Actions (Admonishments and Reprimands).**

\(1\) **Field Employees**

\(a\) Non‑centralized positions:

[1]{.underline}. Proposing Official: Immediate supervisor.

[2]{.underline}. Decision Official: Service Chief or equivalent or
senior medical officer.

\(b\) Service Chiefs and equivalent positions below the level of Chief
of Staff or senior medical officer:

[1]{.underline}. Proposing Official: Chief of Staff or senior medical
officer.

[2]{.underline}. Decision Official: Facility Director.

\(c\) Chiefs of Staff or senior medical officer:

[1]{.underline}. Proposing Official: Facility Director.

[2]{.underline}. Deciding Official: Network Director.

**NOTE:** Facility directors may issue supplemental delegations of
authority to propose and decide disciplinary actions involving employees
in non-centralized positions under their jurisdiction. However, the
authority to propose disciplinary action may not be delegated to an
official at a lower level than the immediate supervisor, and the
authority to decide disciplinary action may not be delegated to an
official at a lower level than the service chief or equivalent or senior
medical officer. Delegations must be in writing and may be issued as the
Director deems appropriate. In exercising supplement delegation
authority, directors must ensure that delegations are consistent with
the statutory requirement that the decision official in a major adverse
action must be at a higher level than the proposing official.

\(2\) **Title 38 Medical Center Directors**

\(a\) Proposing Official: Network Director.

\(b\) Decision Official: \[ \] Deputy Under Secretary for Health \[for
Operations and Management\].

\(3\) **Title 38 Employees in the Office of the Network Director**

\(a\) All employees except VISN chiefs of staff or senior medical
officer:

[1]{.underline}. Proposing Official: VISN Chief of Staff or senior
medical officer or VISN Associate Director, as appropriate.

[2]{.underline}. Decision Official: Network Director.

\(b\) VISN Chiefs of Staff:

[1]{.underline}. Proposing Official: Network Director.

[2]{.underline}. Decision Official: \[ \] Deputy Under Secretary for
Health \[for Operations and Management\].

\(4\) **Title 38 Employees in VA Central Office**

\(a\) Proposing Official: Immediate supervisor.

\(b\) Decision Official: Next higher level official.

b\. **Delegations of Proposing and Decision Authorities for Major
Adverse Actions Involving Reduction in Grade, Reduction in Pay**
\[**(including reduction in physician and dentist market pay as defined
in Chapter 1, paragraph 4 of this Handbook)**\] **Suspension, or
Discharge.**

\(1\) **Field Employees**

\(a\) Non‑centralized positions:

[1]{.underline}. Proposing Official: Service chief or equivalent.

[2]{.underline}. Decision Official: Facility Director (except that
transfers will require the concurrence of the \[ \] Deputy Under
Secretary for Health \[for Operations and Management\]).

\(b\) Service Chiefs and equivalent positions below the level of Chief
of Staff or senior medical officer:

[1]{.underline}. Proposing Official: Chief of Staff or senior medical
officer.

[2]{.underline}. Decision Official: Facility Director.

\(c\) Chiefs of Staff or senior medical officer:

[1]{.underline}. Proposing Official : Field Facility Director .

[2]{.underline}. Decision Official: Network Director.

\[**NOTE:** Facility directors may issue supplemental delegations of
authority to propose and decide major adverse actions involving
employees in non-centralized positions under their jurisdiction.
However, the authority to propose major adverse actions may not be
delegated to an official at a lower level than the service chief or
equivalent, and the authority to decide major adverse action may not be
delegated to an official at a lower level than the facility director.
Delegations must be in writing and may be issued as the Director deems
appropriate. In exercising supplement delegation authority, directors
must ensure that delegations are consistent with the statutory
requirement that the decision official in a major adverse action must be
at a higher level than the proposing official.\]

\(2\) **Title 38 Medical Center Directors**

\(a\) Proposing Official: \[ \] Deputy Under Secretary for Health \[for
Operations and Management\].

\(b\) Decision Official: Under Secretary for Health.

\(3\) **Title 38 Employees in the Office of the Network Director**

\(a\) Non‑centralized positions:

[1]{.underline}. Proposing Official: VISN Chief of Staff or senior
medical officer or VISN Associate Director, as appropriate.

[2]{.underline}. Decision Official: Network Director.

\(b\) Centralized positions (to include VISN chiefs of staff or senior
medical officer):

[1]{.underline}. Proposing Official: \[ \] Deputy Under Secretary for
Health for \[Operations and Management\].

[2]{.underline}. Decision Official: Deputy Under Secretary for Health.

\(4\) **Title 38 Employees in VA Central Office**

\(a\) Proposing Official: Service director level or above.

\(b\) Decision Official: Under Secretary for Health, or designee.

c\. **Supplemental Delegations.** Facility directors may issue
supplemental delegations of authority to propose and/or decide actions
involving employees in non‑centralized positions under their
jurisdiction. However, such authority may not be delegated to officials
at lower levels than those authorized to propose and/or decide the
action in paragraphs 3a and 3b \[ \].

\(1\) Delegations must be in writing and may be issued as the Director
deems appropriate.

\(2\) In exercising this authority, directors must ensure that
delegations are consistent with the statutory requirement that the
decision official in a major adverse action must be at a higher level
than the proposing official.

###### CHAPTER 3. REPORTS

**1.** []{#ptIIch3par1 .anchor}**SCOPE.** This chapter describes
information which may periodically be required by the Office Of Human
Resources Management \[and Labor Relations\].

**2.** []{#ptIIch3par2 .anchor}**REPORTS.** The Deputy Assistant
Secretary for Human Resources Management \[and Labor Relations\], may
periodically require field facilities to provide information regarding
disciplinary and adverse actions.

a\. Field facilities will be notified, as needed.

b\. This information will include, but not be limited to:

\(1\) Occupation (to include specialty),

\(2\) Basis of action,

\(3\) Action proposed, and

\(4\) Final decision.

c\. If the action was appealed or grieved, the information should
include:

\(1\) Identification of the procedure used, and

\(2\) The disposition of any such appeal or grievance.

###### APPENDIX A. TITLE 38 - TABLE OF PENALTIES

**1. INSTRUCTIONS FOR USE OF TABLE**

a\. **General.** This appendix will be used as a [guide]{.underline} in
the administration of disciplinary and major adverse actions to help
ensure that like actions are taken for like offenses. The table is
designed to be sufficiently broad to include most types of offenses, but
is not intended to be an exhaustive listing of all offenses. For other
offenses, appropriate penalties may be prescribed by decision officials
for application within their jurisdiction, consistent with the range of
penalties for comparable offenses listed in the table. Disciplinary
penalties will generally fall between the ranges indicated in the guide,
but in unusual circumstances greater or lesser penalties may be imposed.
In determining action to be taken in a specific case, mitigating and
aggravating factors should be considered such as length of service, past
employment record, the potential for improved behavior, etc.

b\. **Application of Table**

\(1\) **Progressive Discipline.** Offenses need not be identical in
order to support progressively more severe adverse action against an
employee. For example, an employee who has received an admonishment for
being absent without leave (AWOL) can receive a reprimand for sleeping
on duty, and possibly be suspended or discharged for a third offense
unrelated to the two previous infractions.

\(2\) **Combination of Offenses.** When an employee has committed a
combination or series of offenses, a greater penalty than is listed for
a single offense may be appropriate.

\(3\) This guide does not cover all offenses for which adverse penalties
are expressly provided by law or Civil Service regulation. A further
listing of penalties prescribed by statute, regulation, or Executive
Order is contained in 5 CFR, part 735.

\(4\) Where appropriate, alternate penalties may be used in place of
discharge as provided in this chapter, except as noted for the offense
described in item 28 of the table. Alternate penalties include reduction
in grade, reduction in basic pay, and transfer.

\(5\) Discharge action will be taken whenever required by law or
regulation or whenever warranted by the facts in the individual case.
Usually progressively more severe penalties will be administered before
discharge action is initiated, unless the offense is so serious that it
warrants discharge action.

**NOTE:** *Although oral or written counselings of employees are not
considered disciplinary actions, such counselings may be considered when
assessing the appropriate penalty for a particular offense.*

**2. RANGE OF PENALTIES FOR STATED OFFENSES**

**NOTE:** *\"Days\" specified in this table refer to suspension and
represent work days. The following abbreviations* will *be used
throughout this appendix: Admonishment ‑ Adm.; Reprimand ‑ Repr.;
Discharge ‑ Disch.; Minimum ‑ Min.; Maximum ‑ Max.; Department of
Veterans Affairs ‑ VA; Equal Employment Opportunity ‑ EEO; and United
States Code ‑ U.S.C.*

**Nature of Offense 1st Offense 2nd Offense 3rd Offense**

**Min. Max. Min. Max. Min. Max.**

1\. Unexcused tardiness. Adm.‑Repr. Repr.‑5 days 5 days‑Disch.

2\. Unexcused or Adm.‑Repr. Repr.‑10 days 10 days‑Disch.

unauthorized absence.

3\. Leaving job, VA Adm.‑Repr. Repr.‑5 days 10 days‑Disch.

premises, or job to

which assigned during

working hours, without

proper permission.

4\. Loafing, willful Adm.‑Repr. Repr‑10 days 10 days‑Disch.

idleness, or waste of

time.

5\. Carelessness or Adm.‑Repr. Repr.‑10 days 10 days‑Disch.

negligence resulting

in waste or delay.

6\. Violating traffic Adm.‑10 days Repr.‑Disch. 10 days‑Disch.

regulations, reckless

driving on VA premises,

or improper operation

of motor vehicle.

7\. Failure to observe Adm.‑10 days Repr.‑Disch. 10 days‑Disch.

precaution for personal

safety, posted rules,

signs, written or oral

safety instructions, or

to use protective

clothing or equipment.

**Nature of Offense 1st Offense 2nd Offense 3rd Offense**

**Min. Max. Min. Max. Min. Max.**

8\. Smoking in unauthorized Adm.‑Repr. Repr.‑10 days 10 days‑Disch.

places or carrying of

flammables, e.g., matches,

in explosive areas.

9\. Endangering the Adm.‑Disch. 10 days‑Disch. Discharge

safety of or causing

injury to personnel

through carelessness

or negligence.

10\. Failure to report Adm.‑Repr. Repr.‑10 days 5 days‑15 days

personal injury or accident.

11\. Failure to Adm.‑Repr. Repr.‑10 days 10 days‑Disch.

safeguard confidential

matter.

12\. Deliberate failure Adm.‑Repr. 3 days‑10 days 10 days‑Disch.

or unreasonable delay

in carrying out

instructions.

13\. Sleeping on duty:

a\. Where safety of Adm.-Repr. Repr.-Disch. 10 days- Disch.

patients, beneficiaries,

members of the public,

employees, or property

is not endangered.

b\. Where safety of 5 days-Disch. Discharge

patients, beneficiaries,

members of the public,

employees, or property

is endangered.

14\. Abuse of patients Repr.‑Disch. 10 days-Disch. Discharge

or beneficiaries.

**Nature of Offense 1st Offense 2nd Offense 3rd Offense**

**Min. Max. Min. Max. Min. Max.**

15. Fighting, threatening, Repr.-Disch 10 days-Disch. Discharge

attempting, or inflicting

bodily injury to another;

engaging in dangerous

horseplay. (Penalty depends

on such factors as

provocation, extent of any

injuries, and whether

actions were defensive or

offensive in nature.)

16\. Disrespectful Repr.‑Disch. 10 days‑Disch. Discharge

conduct, use of

insulting abusive

or obscene language

to or about other

personnel.

17. Insubordination. i.e., Repr.‑Disch. 10 days-Disch. Discharge

deliberate refusal to

carry out any proper

order from, or insolent,

abusive or obscene language

toward, immediate or other

supervisor having

responsibility for the work

of the employee; willful

resistance to same.

18. Offenses related to

intoxicants. Actions

involving these offenses

should be reviewed to

ensure the requirements of

Drug and Alcohol Abuse

Program are met.

**Nature of Offense 1st Offense 2nd Offense 3rd Offense**

**Min. Max. Min. Max. Min. Max.**

a\. Alcohol‑related:

\(1\) Unauthorized Repr.- 5 days 10 days - Disch. 15 days-Disch.

possession of

alcoholic beverages

while on VA premises

or in duty status.

\(2\) Unauthorized Repr. - 10 days 15 days- Disch. Discharge

use of alcoholic

beverages while on

VA premises or

in duty status.

\(3\) Reporting to Repr. 10 days 15 days - Disch. Discharge

or being on duty

while under the

influence of alcohol.

\(4\) Sale or transfer 10 days- Disch. Discharge

of an alcoholic

beverage while on

VA premises or in a

duty status, or while

any person involved is

in a duty status.

b\. Drug‑related:

\(1\) Unauthorized 5 - 10 days 15 days-Disch. Discharge

possession of a drug

or controlled substance

while on VA premises

or in a duty status.

**Nature of Offense 1st Offense 2nd Offense 3rd Offense**

**Min. Max. Min. Max. Min. Max.**

\(2\) Unauthorized use 10 days‑Disch. 15 days‑Disch. Discharge

of a drug or controlled

substance while on VA

premises or in a duty

status.

\(3\) Reporting to or 15 days- Disch. Discharge

being on duty while

under the influence

of a drug or controlled

substance.

\(4\) Sale or transfer 15 days - Disch. Discharge

of a drug or controlled

substance while on VA

premises or in a duty

status, or while any

person involved is in a

duty status.

\(5\) Refusal to take Adm. Disch. 15 days- Disch. Discharge

drug test, as required.

19\. Sexual harassment Repr.‑Disch. 5 days‑Disch. 10 days‑Disch.

20\. Gambling, unlawful Repr.‑10 days 10 days‑Disch. Discharge

betting on VA premises.

21\. Promotion of Repr.‑Disch. 15 days‑Disch. Discharge

gambling on VA premises.

22\. Indebtedness‑lack Admonishment Adm. - Repr. 5 days - Disch.

of good faith in paying

just financial obligations;

such as failure without

good cause to make or live

up to arrangements to pay a

debt that the employee admits

is owed or that is supported

**Nature of Offense 1st Offense 2nd Offense 3rd Offense**

**Min. Max. Min. Max. Min. Max.**

by court judgment, or that

represents a tax or other

financial obligation to the

United States (U.S.)

Government or to State and

local government.

23\. Theft of Government Repr.‑Disch. 10 days‑Disch. Discharge

property.

24. Making false or Repr. -Disch. 10 days - Disch. Discharge

unfounded statements,

which are slanderous

or defamatory, about

other VA personnel or

officials.

25. Falsifying attendance Repr. - Disch. 10 days - Disch. Discharge

record for self or another

employee.

26. Intentional Repr. - Disc 10 days - Disch. Discharge

falsification, misstatement,

or concealment of material

fact in connection with

employment or any

investigation, inquiry or

other proper proceeding;

or willfully forging or

falsifying official

Government records or

documents.

**Nature of Offense 1st Offense 2nd Offense 3rd Offense**

**Min. Max. Min. Max. Min. Max.**

27. Loss of, damage to,

or unauthorized use of

Government properly

a\. Through carelessness Adm.‑15 days 10 days - Disch. Discharge

b\. Through maliciousness Repr. - Disch. 10 days- Disch. Discharge

or intent.

**NOTE:** *For willful use or authorization of the use of any Government
vehicle for other than official purposes, the prescribed penalty is
suspension for not less than 30 days or removal (31 U.S.C. 1349(b); see
item number 39g).*

28. Owing any interest Discharge

in, or receiving any, wages,

salary, dividends, profits,

gratuities, or services from

any educational institution

operated for profit in which

an eligible veteran, or

person is pursuing a course

of education or training

under 38 U.S.C. 34, 35 and 36,

where it is determined that

detriment will result to the U.S.

or to eligible veterans, or persons

by reason of such interest or

29. Participation in any Adm.-Discharge 10 days-Discharge

type of outside activities,

or relationships with

contractors, lenders, or others

engaged in business with

VA or relationships with

those seeking contracts, which

would be contrary to the best

interests of VA and the veterans

it serves. Penalty action will be

determined on the basis of whether

the activities, or relationships,

**Nature of Offense 1st Offense 2nd Offense 3rd Offense**

**Min. Max. Min. Max. Min. Max.**

might result in a conflict

between the private interest

of the employee and the

employee\'s duty and obligation

to VA, or tend to create in the

minds of others a suspicion of

prejudice or favoritism that

would be of embarrassment

to VA.

30\. Except as specifically Repr.-Disch. Discharge

authorized to do so,

disclosing or using

directly or indirectly

information obtained

as a result of employment

in VA, which is of a

confidential nature or

which represents a matter

of trust, or any other

information so obtained

of such character that

its disclosure or use

would be contrary to the

best interests of the

Government, VA, or the

veterans it serves.

31\. Borrowing from, or Repr.- Disch. Discharge

lending money to, any

beneficiary or claimant

of VA; or borrowing

32\. Soliciting Repr.‑Disch.

contributions for, or

otherwise promoting,

on premises occupied

by VA, any national or

local welfare or other

type of campaign which

has not had appropriate

VA endorsement.

**Nature of Offense 1st Offense 2nd Offense 3rd Offense**

**Min. Max. Min. Max. Min. Max.**

33. Selling tickets, stocks, Repr.-Disch. 10 days-Disch. Discharge

articles, commodities, or

services on VA premises.

This prohibition is not to

be construed as prohibiting

employees from engaging in

bona fide activities on premises

occupied by VA, of a recognized

employee union, group, organization,

or association, as provided or in

other applicable Department policies.

34. Accepting gifts or Repr.-Disch. Discharge

gratuities (whether in

the form of goods, money,

services, purchases at

discount, entertainment,

or similar favors) from

claimants or beneficiaries

of VA, or individuals

or firms doing business

with or having contractual

relations with VA, except as

authorized by conduct regulations.

35\. Violation of Privacy Act. Repr.-Disch. 10-days-Disch. Discharge

36. Prohibited personnel Repr.-Disch. 10-days-Disch. Discharge

practice (Reference:

5 U.S.C. 2302).

37\. Participating in a Discharge

strike, work stoppage,

sick-out, slowdown, or

other job action.

**Nature of Offense 1st Offense 2nd Offense 3rd Offense**

**Min. Max. Min. Max. Min. Max.**

38\. Offenses Related to

Supervisory/Managerial

Observance of Employee

Rights:

a\. Discrimination Repr.-Disch. 5 days-Disch. 10 days-Disch.

based on race, color,

sex, religion,

national origin,

age, marital status,

political affiliation,

or disability.

b\. Interference Repr.-Disch. 5 days-Disch Discharge

with an employee\'s

exercise of, or

reprisal against an

employee for exercising

a right to grieve,

appeal or file a

complaint through

established procedures.

c\. Reprisal against 10 days-Disch. Discharge

an employee for

providing information

to the Office of

Inspector General,

Office of Special

Counsel, an EEO

investigator, or for

testifying in an

official proceeding.

**NOTE:** *Penalty may require*

*coordination with the*

*Office of Special Counsel.*

**Nature of Offense 1st Offense 2nd Offense 3rd Offense**

**Min. Max. Min. Max. Min. Max.**

d\. Reprisal Repr.-Disch. 5 days-Disch. 10 days-Disch.

against an employee

for exercising a

right provided under

5 U.S.C. 71 (Federal

Labor‑Management

Relations Statute).

e\. Violation of an Repr.‑Disch. 5 days-Disch. 10 days-Disch.

employee\'s constitutional

rights (i.e. freedom

of speech and/or

association and/or religion).

39\. Offenses Prescribed in Statute:

a\. Finding by the Repr.-Disch. Discharge

Merit Systems Protection

Board (MSPB) of refusal

to comply with MSPB

order or of violation

of statute causing issuance

of Special Counsel complaint

(5 U.S.C. 1215).

**NOTE:** *Penalty may need*

*to be coordinated with*

*Office of Special Counsel.*

b\. Directing Discharge

or rendering

services not covered

by appropriations

(5 U.S.C. 3103).

c\. Prohibited Political Activity:

\(1\) Violation of Discharge

prohibition against

Political contributions

(5 U.S.C. 7323).

**Nature of Offense 1st Offense 2nd Offense 3rd Offense**

**Min. Max. Min. Max. Min. Max.**

\(2\) Violation of 30 days-Disch. Discharge

prohibition against

campaigning or

influencing elections

(5 U.S.C. 7324 and 7325).

**NOTE:** *Actions based on*

*Hatch Act violations will*

*be initiated by the*

*Office of Special Counsel.*

d\. Failure to deposit Discharge

into the Treasury money

accruing from lapsed

salaries or from unused

appropriations for

salaries (5 U.S.C. 5501).

e\. Soliciting Repr.-Disch. 10 days-Disch. Discharge

contributions for a

gift for a superior;

making a donation as

gift to a superior;

accepting a gift from an

employee receiving less pay

(5 U.S.C. 7351).

f\. Action against 30 days- Disch. Discharge

national security

(5 U.S.C. 7532).

g\. Willfully 30 days - Disch. Discharge

using or authorizing

the use of a government

passenger motor vehicle

or aircraft for other

than official purposes

(31 U.S.C. 1349(b)).

**NOTE:** *30‑days for this*

*offense means calendar*

*days.*

**Nature of Offense 1st Offense 2nd Offense 3rd Offense**

**Min. Max. Min. Max. Min. Max.**

h\. Willfully mutilating Discharge

or destroying a public

record (18 U.S.C. 2071).

[]{#AppIIB .anchor}**APPENDIX B.**

**TITLE 38 -- SAMPLE NOTICE OF PROPOSED DISCIPLINARY ACTION**

**(NON-PROBATIONARY)**

## **FOR OFFICIAL USE ONLY**

(Name of Employee)

(Organizational Element)

(VA Office or Field Facility)

(City, State and Zip Code)

SUBJECT: Proposed Reprimand (or Admonishment)

1\. It is proposed to reprimand you based on the following reason:

+-----------------------------------+-----------------------------------+
| On (date), you were absent        | *The practice of grouping*        |
| without leave for 8 hours. You    | *reasons under general headings,  |
| failed to obtain permission from  | such as "Neglect of Duty" and     |
| your supervisor for the absence   | "Insubordination" is              |
| as required. Your action violated | discouraged.*                     |
| (cite specific section of the     |                                   |
| Code of Federal Regulations (CFR) | *After each charge, cite specific |
| which has been violated.)         | section of CFR which has been     |
|                                   | violated (e.g., your actions, as  |
|                                   | described above, violated 38 CFR  |
|                                   | 0.735‑10(a), etc.).*              |
+-----------------------------------+-----------------------------------+

2\. You have the right to reply to this notice orally, or in writing, or
both orally and in writing, and to submit affidavits and other
documentary evidence in support of your reply, showing why the charge(s)

is(are) unfounded and any other reasons why you should not be
reprimanded.

  ----------------------------------- -----------------------------------
  You will be given until the close   *At least 5 calendar days are
  of*.* business (date) to reply to   required*
  these reasons orally or in writing, 
  or both orally and in writing, and  
  to submit any affidavits or other   
  documentary evidence. Your written  
  reply should be submitted to the    
  (deciding official). The (deciding  
  official) will receive your oral    
  reply or will designate an official 
  or officials to receive it.         

  ----------------------------------- -----------------------------------

3\. The evidence upon which this notice of proposed action is based will
be available for your review in the Human Resources office, Room
\_\_\_\_.

4\. You may be represented by an attorney or other representative of
your choice at all stages of this matter. Any representative must be
designated in writing.

  ----------------------------------- -----------------------------------
  5\. On a previous occasion you were *For use only if past record will
  admonished for 8 hours absence      be considered. Citation of past
  without leave (AWOL). This past     record is not considered a current
  record will be taken into account   reason. Copies of the past record
  in determining proper disciplinary  must be included in the evidence
  action, if one or more of the above file, if used.*
  reasons is sustained. You may reply 
  orally or in writing, or both       
  orally and in writing, with respect 
  to these previous infractions and   
  penalties and you may submit        
  supporting evidence, including      
  affidavits. In this regard, you may 
  make a statement expressing your    
  views as to the consideration to be 
  given such past record in           
  determining proper action.          

  ----------------------------------- -----------------------------------

6\. The final decision to effect the action proposed has not been made.
The (title of deciding official), who will make the final decision, will
give full and impartial consideration to any replies, if submitted. You
will be informed in writing of the final decision as soon as possible
after your reply has been considered or (date ‑ 5 calendar days) if you
do not reply.

(Signature of appropriate official)

###### FOR OFFICIAL USE ONLY

[]{#AppIIC .anchor}**APPENDIX C.**

**TITLE 38 -- SAMPLE DECISION LETTER FOR DISCIPLINARY ACTION**

**(NON-PROBATIONARY)**

FOR OFFICIAL USE ONLY

(Name of Employee)

(Organizational Element)

(VA Office or Field Facility)

(City, State and Zip Code)

SUBJECT: Reprimand (or Admonishment)

1\. In connection with the notice of proposed reprimand dated
\_\_\_\_\_\_\_\_\_\_\_\_\_, a decision has been made to reprimand you
based on the following reason(s):

Reason number one as stated in the notice of *\[CITE THE SUSTAINED
REASON(S)\]*

proposed reprimand is sustained.

2\. In reaching this decision, your (written/oral) reply(ies) has(have)
been carefully considered along with all of the evidence developed.

  ----------------------------------- -----------------------------------
  3\. This decision also takes into   *Past record may be cited if
  account that this is the second     considered appropriate.*
  offense of this nature within the   
  past 3 months. On (date) you were   
  admonished for AWOL.                

  ----------------------------------- -----------------------------------

  ----------------------------------- -----------------------------------
  4\. A copy of this reprimand will   *A reprimand for patient* a*buse
  be placed in your personnel folder. should read "may remain in your
  This reprimand may remain in your   folder as* *long as you are
  folder for 3 years or it may be     employed by VA or it may be
  withdrawn and destroyed after 2     withdrawn and* *destroyed after 2
  years depending entirely on your    years...", etc*. *An admonishment
  future behavior and attitude.       for patient abuse should read "may
                                      remain in folder as long as you are
                                      employed by VA or it may be
                                      withdrawn and destroyed after 6
                                      months."*

  ----------------------------------- -----------------------------------

5\. This letter may be used in determining an appropriate penalty if
further infractions occur.

+-----------------------------------+----------------------------------+
| 6\. The sustained reason does not | *Negotiated grievance procedure  |
| involve a question of             | is an option only when the       |
| professional conduct or           | action does not involve a        |
| competence. Therefore, if you     | question of professional conduct |
| believe that this reprimand is    | or competence. Language may vary |
| unjustified, you may appeal the   | based on specific provisions of  |
| action under the VA grievance     | the negotiated grievance         |
| procedure or the negotiated       | procedure.*                      |
| grievance procedure, but not      |                                  |
| both. You shall be deemed to have |                                  |
| exercised your option to appeal   |                                  |
| this action at such time as you   |                                  |
| timely file a grievance under     |                                  |
| either procedure. Your grievance  |                                  |
| must be submitted to (decision    |                                  |
| official) within (number of days) |                                  |
| after you receive this reprimand. |                                  |
| For further information about the |                                  |
| grievance procedure, you may      |                                  |
| consult the Human Resources       |                                  |
| office;                           |                                  |
|                                   |                                  |
| or                                |                                  |
+-----------------------------------+----------------------------------+

7\. The sustained reason involves a question of professional conduct or
competence. Therefore, if you believe that this action is unjustified,
you may appeal the action under the VA grievance procedure. Your
grievance must be submitted through me to (decision official) within 15
days after you receive this reprimand.

(Signature of appropriate official)

###### FOR OFFICIAL USE ONLY

###### APPENDIX D. TITLE 38 -- SAMPLE NOTICE OF PROPOSED MAJOR ADVERSE ACTION

**NOTE:** *This letter is applicable for suspensions, transfers,
reductions in grade, reductions in basic pay* \[*(including reductions
in physician and dentist market pay when resulting from involuntary
reassignments or changes in assignment for conduct or performance
reasons)*\] *and discharges based on conduct or performance.*

**FOR OFFICIAL USE ONLY**

(Name of Employee)

(Organizational Element)

(VA Office or Field Facility)

(City, State and Zip Code)

SUBJECT: Proposed Discharge

1\. It is proposed to discharge you from employment with VA based on the
following reasons:

+-----------------------------------+-----------------------------------+
| I. On (date), at approximately    | *The practice of grouping*        |
| 9:00 a.m. you allowed patient     | *reasons under general headings,  |
| John Doe to bring a bottle of     | such as "Neglect of Duty,"        |
| whiskey on the hospital premises  | "Insubordination," etc.* *is      |
| despite the fact that it was your | discouraged.*                     |
| duty to prevent patients from     |                                   |
| introducing alcoholic beverages   |                                   |
| on the hospital premises. Your    |                                   |
| action violated (cite specific    |                                   |
| section of CFR which has been     |                                   |
| violated).                        |                                   |
+-----------------------------------+-----------------------------------+
| II\. At 10:00 a.m., approximately | *If applicable, cite a specific   |
| one hour after the incident, you  | law, regulation or policy that    |
| were ordered by your immediate    | was violated (e.g., your actions, |
| supervisor Mr. John Smith, to     | as described above, violated 38   |
| report at once to the Chief,      | CFR 0.735-10(a)).*                |
| Security Service, and explain     |                                   |
| your neglect of duty. However,    | #                                 |
| you told Mr. Smith that you       |                                   |
| refused to do so. Although he     |                                   |
| repeated the order, you still did |                                   |
| not report to the Chief.          |                                   |
+-----------------------------------+-----------------------------------+

III\. At 10:00 a.m., immediately following your refusal to carry out the
above-mentioned order, you struck Mr. Smith several times with your
fists and knocked him down onto the floor. Your action violated (if
applicable)

  ----------------------------------- -----------------------------------
  2\. You have the right to reply to  *At least 7 calendar days is
  this notice orally, or in writing,  required, but no more than 30,
  or both orally and in writing, and  unless good cause is shown.*
  to submit affidavits and other      
  documentary evidence in support of  
  your reply, showing why the         
  charge(s) is (are) unfounded and    
  any other reasons why your          
  discharge should not be effected.   
  You will be given until the close   
  of business (date) to reply to      
  these reasons orally or in writing, 
  or both orally and in writing, and  
  to submit any affidavits or other   
  documentary evidence. Your written  
  reply should be submitted to the    
  (deciding official). The (deciding  
  official) will receive your oral    
  reply or will designate an official 
  or officials to receive it.         

  3\. The evidence on which this      *Only applies when employee is in
  notice of proposed action is based  an active duty status. The number
  will be available for your review   of hours of official time to review
  in the Human Resources office,      the evidence would not normally
  Room\_\_\_\_ . You will be allowed  exceed 8 hours. A reasonable amount
  \_\_\_ hours of official duty time  of time should be granted based on
  for reviewing the evidence relied   the individual circumstance.*
  on to support the reason(s) in this 
  notice, preparing a written reply,  
  securing affidavits, and for making 
  a personal reply. Arrangements for  
  the use of official time or         
  requests for additional time should 
  be made with me.                    

  4\. On two previous occasions you   *Citation of past record is not
  refused to follow orders given to   considered a current reason.
  you by your supervisor. After the   Copies* *of the past record must be
  first occasion you were admonished  included in the evidence file, if
  by letter of [(date)]{.underline}   used.*
  and after the second you were       
  reprimanded by letter of            
  [(date)]{.underline} . This past    
  record will be taken into account   
  in determining proper disciplinary  
  action, if one or more of the above 
  reasons is sustained. You may reply 
  orally or in writing, or both       
  orally and in writing, with respect 
  to these previous infractions and   
  penalties and you may submit        
  supporting evidence, including      
  affidavits. In this regard, you may 
  make a statement expressing your    
  views as to the consideration to be 
  given such past record in           
  determining proper action.          
  ----------------------------------- -----------------------------------

5\. You may be represented by an attorney or other representative of
your choice at all stages of this matter. Any representative must be
designated in writing.

6\. The final decision to effect the action proposed has not been made.
The (deciding official), who will make the final decision, will give
full and impartial consideration to your reply(ies), if submitted.

7\. If it is the decision of the (deciding official) that you be
discharged, your discharge will be effective not less than 30 calendar
days from the day after the date of receipt of this notice.

8\. You will be given a written decision within 21 days of the receipt
of your reply(ies) or, the close of business on (same date as in
paragraph 2), if you do not reply.

+-----------------------------------+-----------------------------------+
| 9\. Consistent with the mandate   | *This paragraph is to be used     |
| in the Department of Veterans     | only in a proposed discharge.*    |
| Affairs Health‑Care Amendments    |                                   |
| Act of 1985 (Pub. L. 99‑166), it  | \[*This paragraph is to be used   |
| is the‑policy of VA to report to  | only for physicians and dentists  |
| the State licensing boards those  | when the action being proposed is |
| terminated (voluntarily or        | an involuntary reassignment or    |
| otherwise) health‑care            | change in assignment and where it |
| professionals whose professional  | has been determined by a          |
| clinical practice appears to have | compensation panel that a         |
| so significantly failed to        | reduction in market pay will be   |
| conform to generally accepted     | warranted.*\]                     |
| standards of clinical             |                                   |
| professional practice as to raise |                                   |
| reasonable concerns for the       |                                   |
| safety of patients. Please be     |                                   |
| advised that, in the event you    |                                   |
| are found not to meet standards   |                                   |
| of care, consideration will be    |                                   |
| given whether, under these        |                                   |
| criteria, you should be reported  |                                   |
| to the State licensing board(s).  |                                   |
|                                   |                                   |
| 10\. \[Based on a review and      |                                   |
| determination by the appropriate  |                                   |
| compensation panel, your market   |                                   |
| pay may be reduced should this    |                                   |
| proposed action be made           |                                   |
| effective\]                       |                                   |
+-----------------------------------+-----------------------------------+

\[11.\] You will be retained in an active duty status during the advance
notice period (indicate duty status, i.e., leave, non‑pay, or other
status as appropriate).\]

**\***\[12.\] If you have any questions about the reasons why your
discharge is proposed, contact me or the Human Resources office (give
location) for further explanation.

(Signature of appropriate official)

###### FOR OFFICIAL USE ONLY

**\***In cases of proposed discharges or suspensions involving issues of
professional conduct or competence, the following paragraph should be
included, (renumber paragraph 11, as appropriate):

\[12.\] Should a decision be made to discharge you (or suspend you for
more than 30 days) on the basis of professional conduct or competence,
the discharge may be concurrent with the revocation (or suspension) of
your clinical privileges. This information may be reported through the
State Licensing board(s) to the National Practitioner Data Bank (NPDB).

[]{#AppIIE .anchor}**APPENDIX E.**

**TITLE 38 -- SAMPLE DECISION LETTER FOR MAJOR ADVERSE ACTIONS**

**INVOLVING A QUESTION OF PROFESSIONAL CONDUCT OR COMPETENCE**

# FOR OFFICIAL USE ONLY

TO: (Name of Employee)

(Organizational Element)

(VA Office or Field Facility)

(City, State and Zip Code)

### SUBJECT: Discharge

+-----------------------------------+-----------------------------------+
| 1\. In connection with the notice | *Whenever possible the decision   |
| of proposed discharge dated       | should be* *delivered at least 5  |
| \_\_\_\_\_\_\_, a decision has    | days prior to the effective date  |
| been made to discharge you from   | of a major adverse action. In     |
| employment with VA, effective     | every case, the* *date set must   |
| (date), based on the following    | provide for receipt of the        |
| reasons:                          | decision letter at or prior to    |
|                                   | the time the action will be       |
| Reason number one as stated in    | effective*.                       |
| the notice of proposed discharge  |                                   |
| is sustained.                     | *CITE THE SUSTAINED REASON(S)*    |
+-----------------------------------+-----------------------------------+
| 2\. In reaching this decision,    | *Applicable only if action*       |
| your oral and written replies     | *considers past record.*          |
| were carefully considered along   |                                   |
| with all the evidence developed.  |                                   |
| This decision also takes into     |                                   |
| consideration your past           |                                   |
| disciplinary record as cited in   |                                   |
| your notice of proposed           |                                   |
| discharge. Your previous record   |                                   |
| was an aggravating factor in      |                                   |
| determining an appropriate        |                                   |
| penalty.                          |                                   |
+-----------------------------------+-----------------------------------+
| 3\. I have also considered other  | *This sample wording pertaining   |
| factors including your years of   | to the decision official's        |
| service, your past work record,   | consideration of mitigating and   |
| the seriousness of the offense(s) | aggravating factors should be     |
| with which you have been charged, | modified according to the         |
| and whether there are any         | specific factors considered, and  |
| mitigating or extenuating         | the final decision on the action  |
| circumstances which would justify | proposed*.                        |
| mitigation of the proposed        |                                   |
| penalty. I have concluded that    | \[*For involuntary reassignment   |
| the sustained charge(s) against   | or changes in assignment          |
| you is(are) of such gravity that  | resulting in the reduction in     |
| mitigation of the proposed        | market pay of a physician or      |
| penalty is not warranted, and     | dentist, this paragraph should    |
| that the penalty of discharge is  | address the factors considered in |
| appropriate and within the range  | making the decision to effect the |
| of reasonableness.                | reassignment or change in         |
|                                   | assignment.*\]                    |
+-----------------------------------+-----------------------------------+
| 4\. Since reason number one as    | *Even though only one of the      |
| stated in the notice of proposed  | reasons sustained provides the    |
| discharge involves a question of  | right to appeal this decision to  |
| professional conduct or           | a Disciplinary Appeals Board, all |
| competence, you have the right to | sustained reasons will be         |
| appeal this decision to the       | considered by the Board.*         |
| Disciplinary Appeals Board and to |                                   |
| request a formal hearing before   | \[*This paragraph is to be used   |
| the Board. Your request for a     | only with involuntary             |
| formal hearing must be submitted  | reassignments or changes in       |
| in writing in conjunction with    | assignment for physicians and     |
| your appeal. The appeal must be   | dentists when the action will     |
| submitted through the Office of   | result in a reduction in market   |
| Human Resources Management and    | pay, as determined by a           |
| Labor Relations, Human Resources  | compensation panel review and     |
| Management Employee Relations and | approved by the appropriate       |
| Performance Management Service    | official.*\]                      |
| (051) to the Under Secretary for  |                                   |
| Health, (address), so as to be    |                                   |
| received no later than 30         |                                   |
| calendar days after your receipt  |                                   |
| of this decision. The Office of   |                                   |
| Human Resources Management and    |                                   |
| Labor Relations (051) may be      |                                   |
| contacted via phone               |                                   |
| (202-273-\[9827\]) or fax         |                                   |
| (202-273-9776 or 202-273-7607).   |                                   |
|                                   |                                   |
| \[ \]5. \[Your right to appeal to |                                   |
| the Disciplinary Appeals Board    |                                   |
| includes only the right to appeal |                                   |
| the decision to involuntarily     |                                   |
| reassign you (or change your      |                                   |
| duties). The decision to reduce   |                                   |
| your market pay or the amount of  |                                   |
| the reduction is not appealable.  |                                   |
| However, you may request that I   |                                   |
| reconsider the tier determination |                                   |
| made by the compensation panel.   |                                   |
| This request for reconsideration  |                                   |
| of the tier determination must be |                                   |
| submitted in writing to me within |                                   |
| 30 days of the end of the pay     |                                   |
| period in which your reduction in |                                   |
| pay is made effective. Your       |                                   |
| request must cite specific facts  |                                   |
| and circumstances that support    |                                   |
| your belief that the tier         |                                   |
| determination is inappropriate.\] |                                   |
+-----------------------------------+-----------------------------------+

\[**\***\]6. If you believe that this personnel action is based on
discrimination because of your race, color, religion, sex, national
origin, age, or handicap, you may file a complaint of discrimination
with VA in accordance with Office of Resolution Management (ORM)
discrimination complaint procedures. Should you elect to do so, you may
appeal this action by contacting ORM at 1-888-737-3361 within 45
calendar days of the date you receive this letter.

\[7\] A copy of VA Directive 5021, part V, chapter 1 is enclosed to
provide you with necessary information regarding an appeal to the
Disciplinary Appeals Board. A further explanation of your appeal rights
may be obtained by consulting the Human Resources office.

(Signature of appropriate official)

Enclosure

###### FOR OFFICIAL USE ONLY

**\***Paragraph \[6\] should only be used if allegations of
discrimination have been raised by the employee.

[]{#AppIIF .anchor}**APPENDIX F.**

**TITLE 38 -- SAMPLE DECISION LETTER FOR MAJOR ADVERSE ACTIONS**

**[NOT INVOLVING]{.underline} A QUESTION OF PROFESSIONAL CONDUCT OR
COMPETENCE**

# FOR OFFICIAL USE ONLY

TO: (Name of Employee)

(Organizational Element)

(VA Office or Field Facility)

(City, State and Zip Code)

### SUBJECT: Discharge

+-----------------------------------+-----------------------------------+
| 1\. In connection with the notice | *Whenever possible the decision   |
| of proposed discharge dated       | should be delivered at least 5    |
| \_\_\_\_\_\_\_\_\_, a decision    | days prior to the effective date  |
| has been made to discharge you    | of a major adverse action. In     |
| from employment with VA,          | every case, the date set must     |
| effective(date), based on the     | provide for receipt of* *the      |
| following reason(s):              | decision letter at or prior to    |
|                                   | the time the action will be       |
| Reasons number one and two as     | effective.*                       |
| stated in the notice of proposed  |                                   |
| discharge are sustained.          | *CITE THE SUSTAINED REASON(S)*    |
+-----------------------------------+-----------------------------------+
| 2\. In reaching this decision,    | *Applicable only if action        |
| your oral and written replies     | considers past record.*           |
| were carefully considered along   |                                   |
| with all the evidence developed.  |                                   |
| This decision also takes into     |                                   |
| consideration your past           |                                   |
| disciplinary record as, cited in  |                                   |
| your notice of proposed           |                                   |
| discharge. Your previous record   |                                   |
| was an aggravating factor in      |                                   |
| determining an appropriate        |                                   |
| penalty.                          |                                   |
+-----------------------------------+-----------------------------------+
| 3\. I have also considered other  | *This sample wording pertaining   |
| factors including your years of   | to the decision official's        |
| service, your past work record,   | consideration of mitigating and   |
| the seriousness of the offenses   | aggravating factors should be     |
| with which you have been charged, | modified according to the         |
| and whether there are any         | specific factors considered, and  |
| mitigating or extenuating         | the* *final decision on the       |
| circumstances which would justify | action proposed.*                 |
| mitigation of the proposed        |                                   |
| penalty. I have concluded that    | \[*For involuntary reassignment   |
| the sustained charges against you | or change in assignment resulting |
| are of such gravity that          | in a reduction in market pay,     |
| mitigation of the proposed        | this paragraph should be limited  |
| penalty is not warranted, and     | to a general statement as to the  |
| that the penalty of discharge is  | factors considered in making the  |
| appropriate and within the range  | decision to take the action.*\]   |
| of reasonableness.                |                                   |
+-----------------------------------+-----------------------------------+
| 4\. Since reasons number one and  | *The grievance procedure is an    |
| number two as stated in the       | option only when the action does  |
| notice of proposed discharge do   | not involve a question* *of       |
| not involve a question of         | professional conduct or           |
| professional conduct or           | competence. Language may vary     |
| competence, you may appeal this   | based on specific provisions of   |
| action under the VA grievance     | the negotiated grievance          |
| procedure or the negotiated       | procedure*. *If the employee has  |
| grievance procedure, but not      | option to appeal under either a   |
| both. You shall be deemed to have | negotiated grievance procedure or |
| exercised your option to appeal   | the VA grievance procedure,       |
| this action at such time as you   | include time frames for           |
| timely file a grievance under     | submission for both procedures.*  |
| either procedure. Your grievance  |                                   |
| must be submitted to (decision    | \[*This paragraph is to be used   |
| official) no later than (number   | only with involuntary             |
| of days) after you receive this   | reassignment or change in         |
| letter. If you elect to file a    | assignment for physicians and     |
| grievance through the VA          | dentists when the action will     |
| grievance procedure in connection | result in a reduction in market   |
| with this action, you have the    | pay, as determined by a           |
| right to request a hearing. Any   | compensation panel review and     |
| request for a hearing must be     | approved by the appropriate       |
| submitted in your grievance. For  | official.*\]                      |
| further information about the     |                                   |
| grievance procedure, you may      |                                   |
| consult the Human Resources       |                                   |
| Management Service.               |                                   |
|                                   |                                   |
| \[ \]5. \[Your right to file a    |                                   |
| grievance includes only the right |                                   |
| to grieve the decision to         |                                   |
| involuntarily reassign you (or    |                                   |
| change your duties). The decision |                                   |
| to reduce your market pay or the  |                                   |
| amount of the reductions is not   |                                   |
| grievable. However, you may       |                                   |
| request that I reconsider the     |                                   |
| tier determination made by the    |                                   |
| compensation panel. This request  |                                   |
| for reconsideration of the tier   |                                   |
| determination must be submitted   |                                   |
| in writing to me within 30 days   |                                   |
| of the end of the end of the pay  |                                   |
| period in which your reduction in |                                   |
| pay is made effective. Your       |                                   |
| request must cite specific facts  |                                   |
| and circumstances that support    |                                   |
| your belief that the tier         |                                   |
| determination is inappropriate.\] |                                   |
+-----------------------------------+-----------------------------------+

\[**\***\]6. If you believe that this personnel action is based on
discrimination because of your race, color, religion, sex, national
origin, age, or handicap, you may file a complaint of discrimination
with VA in accordance with Office of Resolution Management (ORM)
discrimination complaint procedures. Should you elect to do so, you may
appeal this action by contacting ORM at 1-888-737-3361 within 45
calendar days of the date you receive this letter.

(Signature of appropriate official)

###### FOR OFFICIAL USE ONLY

\*Paragraph \[6\] should only be used if allegations of discrimination
have been raised by the employee.

[]{#AppIIG .anchor}**APPENDIX G.**

**TITLE 38 -- SAMPLE PROPOSED INDEFINITE SUSPENSION**

**\* (Invoking the \"Crime Provision\")**

**FOR OFFICIAL USE ONLY**

(Name of Employee)

(Organizational Element)

(VA Office of Field Facility)

(City, State and ZIP Code)

SUBJECT: Proposed Indefinite Suspension

1\. It is proposed to suspend you from duty and pay status for an
indefinite period of time pending (cite investigation of probable
criminal conduct on employees). Should this proposal result in an
indefinite suspension and should subsequent administrative determination
so warrant, a proposal may be made to discharge/remove you while you
remain in a suspension status.

2\. This proposed indefinite suspension is based on the following
reason:

(Describe criminal activity and give date, times and place). On
[\_(date)\_]{.underline} you were arrested by ([name of law enforcement
agency]{.underline}) and charged with ([cite criminal
charge).]{.underline} On d[ate]{.underline} you were bound over for
trial or held for further legal action by ([Name of Court or Grand
Jury]{.underline}). Because of this, there is reasonable cause to
believe that you may be guilty of a crime for which a sentence of
imprisonment may be imposed.

3\. In light of the seriousness of this situation and on the basis that
it is incompatible with your official duties and responsibilities, it is
not in the best interest of VA to retain you in a duty status pending
investigation of this criminal activity.

4\. You have the right to reply to this notice orally or in writing, or
both orally and in writing, and to submit affidavits and other
documentary evidence in support of your reply, showing why this notice
is inaccurate and any other reasons why your proposed indefinite
suspension should not be effected.

5\. You will be given until the close of business [(date ‑ not less than
7 calendar days)]{.underline} to reply and to submit affidavits and
other documentary evidence in support of your reply. Your written reply
should be submitted to the (deciding official). The deciding official
will receive your oral reply, or will designate an official or officials
to receive it.

  ----------------------------------- -----------------------------------
  6\. The evidence on which this      *The number of hours of official
  notice of proposed action is based  time to review the evidence would
  will be available for review in the not normally exceed 8 hours. A
  Human Resources Management Service, reasonable amount of time should be
  Room \_\_\_. You will be allowed    granted based on the individual
  \_\_\_ hours of official duty time  circumstances. Only applies when
  for reviewing the evidence relied   employee is in an active duty
  on to support the reasons in this   status.*
  notice, preparing a written reply,  
  securing affidavits, and for making 
  a personal reply. Arrangements for  
  the use of official time or         
  requests for additional time should 
  be made with me.                    

  ----------------------------------- -----------------------------------

7\. You have the right to be represented by an attorney or other
representative of your choice at all stages of this matter. Any
representative must be designated in writing.

8\. The final decision to effect the action proposed has not been made.
The (deciding official), who will make the final decision, will give
full and impartial consideration to your reply, if a reply is submitted.

9\. If it is the decision of the (deciding official) that you be
suspended indefinitely, your suspension will be effective not less than
7 calendar days from the date of your receipt of this notice.

10\. You will be given a written decision within 21 calendar days of the
receipt of your reply(ies) or, the close of business on [(same date as
in par. 5)]{.underline} if you do not reply.

11\. You will be retained in a non-duty status with pay during the
period of advance notice.

12\. If you have any questions about the reasons why your indefinite
suspension is proposed, contact me or the Human Resources office (give
location and phone number) for further explanation.

(Signature of appropriate official)

###### FOR OFFICIAL USE ONLY

**\***Indefinite suspensions may be used without invoking the crime
provision, however, in these cases, the notice must advise the employee
that "if it is the decision of the deciding official that you be
suspended indefinitely, your suspension will be effective not less than
30 calendar days from the day after the date of receipt of this
notice.\" In addition, the reason identified in paragraph 2 will, most
likely be other than criminal activity.

**NOTE:** *According to current case law, the crime provision cannot be
invoked based solely on evidence*

*of the employee's arrest. The arrest must be accompanied by
circumstances sufficient to show reasonable cause such as an arrest
warrant issued by a magistrate or judge, or evidence that the employee
was arrested and held for further legal action by a magistrate, or was
indicted by a grand jury. This would generally constitute reasonable
cause for believing the employee had committed a crime. Case law in this
area has been continuously evolving. Officials should contact their
regional counsel or general counsel as appropriate, or the Office of
Human Resources Management \[and Labor Relations\] (051) in VA Central
Office when questions arise.*

[]{#AppIIH .anchor}**APPENDIX H.**

**TITLE 38 --SAMPLE DECISION NOTICE -- INDEFINITE SUSPENSION**

**NOTE:** *This letter is for use only in conjunction with the \"Crime
Provision.\"*

**FOR OFFICIAL USE ONLY**

TO: (Name of Employee)

(Organizational Element)

(VA Office or Field Facility)

(Street Address (when needed)

(City, State, and ZIP Code)

### SUBJECT: Indefinite Suspension

1\. In connection with the notice of proposed indefinite suspension
dated [(date)]{.underline} , a decision has been made to suspend you
indefinitely pending (investigation of probable criminal conduct on your
part effective [(date)]{.underline} . Should subsequent administrative
determination so warrant, a proposal may be made to discharge you while
you are in an indefinite suspension status.

2\. This indefinite suspension is based on the following reasons:

The reason(s) as stated in the notice of proposed indefinite suspension
is (are) sustained.

3\. In reaching this decision, your (written and oral) reply(ies) has
(have) been carefully considered along with all of the evidence
developed.

4\. (See sample decision letters for major adverse actions, appendices
I-E and I-F, for sample wording on employee appeal rights).

5\. A further explanation of your appeal rights may be obtained by
consulting the Human Resources office.

(Signature of appropriate official)

Enclosure

**FOR OFFICIAL USE ONLY**

[]{#AppIIi .anchor}**APPENDIX I.**

**TITLE 38 -** **FIRM CHOICE, LAST CHANCE, AND ABEYANCE AGREEMENTS**

1\. This appendix is intended to provide guidance and sample language
for the use and construction of these instruments in certain problem
situations. Although they may be useful in various circumstances, these
instruments are particularly helpful in dealing with situations
requiring reasonable accommodation.

2\. Case law pertaining to \"firm choice,\" \"last chance,\" and
\"abeyance\" agreements is constantly evolving. As of issuance of this
handbook, firm choice letters are not required before proceeding with
disciplinary/adverse actions against an employee with substance abuse
problems. However, management is not prohibited from providing a firm
choice when it is determined to be appropriate. When questions arise in
this area, officials should contact their Regional Counsel or General
Counsel, as appropriate, or the Human Resources Management \[Employee
Relations and Performance Management\] Service (051) in VA Central
Office.

# SAMPLE FIRM CHOICE LETTER

**NOTE:** *The following sample paragraphs are intended as a guide to
assist in the development of a letter tailored to the specific
circumstances of each case. It may be used when an employee has claimed
a substance abuse problem, or in cases when the employee has not claimed
substance dependence, but the supervisor has a conduct‑related or
performance related reason to believe that an employee has a substance
dependence which may be causing an ongoing work related problem, and
prior counselings and offers of assistance have been ineffective.
Letters of firm choice should be consistent with the provisions of any
applicable collective bargaining agreements.*

(Date)

(Name and Address of Employee)

SUBJECT: Firm Choice Letter

1\. Based on your past conduct (and/or performance), which has already
been discussed with you (see attached letters of counseling), we have
reason to believe that you have a substance abuse problem which warrants
professional help.

2\. For this reason, we are formally referring you to the VA Employee
Assistance Program (EAP), so that an assessment and appropriate referral
can be made for you. This offer of assistance is an opportunity period
for you to address your serious work‑related problems and resolve them.
The VA EAP is a confidential and free resource, and no record of details
of your participation in EAP will be placed in your personnel folder.
Although the referral to EAP and your participation in rehabilitation is
voluntary, you should understand that this is to offer you a \"firm
choice\" ‑ either seek and complete the prescribed treatment for your
problem or accept the consequences of your misconduct. In this regard
you are being given the opportunity to seek, and successfully complete,
[(an inpatient and/or outpatient)]{.underline} substance abuse program.

3\. You have \_\_\_\_ calendar days from receipt of this letter to
enroll yourself in (an inpatient or outpatient) program for this
purpose. Whether or not you elect to use the VA EAP, within this
[(number)]{.underline} day period you must provide documentation
regarding the program prior to entry, including the time which will be
required for participation and any leave which you will request, so that
[(appropriate official)]{.underline} can determine whether the program
can be approved. If [(appropriate official)]{.underline} approves the
program, you will be granted leave (annual, sick, or leave without pay)
provided you have properly requested such leave in advance and the type
of leave requested is available and appropriate.

4\. You must also sign the attached release of information and return it
to [(appropriate official)]{.underline} . A release of information is
needed so that [(appropriate official]{.underline}) can contact your
counselor to discuss your enrollment and continued participation in the
program.

**NOTE TO MANAGER:** *If the employee is uncomfortable with signing a
release, you may stipulate in the release that the only information to
be given the supervisor is that the employee is complying with the
program requirements. Generally, accommodation should not be denied
solely because employee refuses to sign a release form.*

If you require additional information on what programs are available,
you should contact the Employee Assistance Program office at this
facility [(provide name of contact and telephone number)]{.underline} .
Failure to provide the requested documentation or failure to enroll in a
program will be regarded as evidence that you did not successfully
complete a rehabilitation program.

**NOTE TO MANAGER:** *If an action is being held in abeyance, use the
following:*

This will lead us to impose the action being held in abeyance. Should
your misconduct and/or performance problems continue it will result in
your being removed from VA.

*If an action has been issued in conjunction with the firm choice, use
the following:*

Should your misconduct and/or performance problems continue it will
result in your being removed from VA.

5\. During the time you are enrolled in a program, you must furnish
acceptable documentation concerning your progress at regular intervals
[(for example every 2 weeks.)]{.underline} If it is suspected that you
are not maintaining sobriety, or are not participating in the program,
you will be referred to employee health, or your program counselor, as
appropriate, for examination, and the results of this examination will
be furnished to [(appropriate official).]{.underline} Failure to provide
the requested documentation will be regarded as evidence that you did
not successfully complete a rehabilitation program.

**NOTE TO MANAGER:** *If an action is being held in abeyance, use the
following:*

This will lead us to impose the action being held in abeyance. Should
your misconduct and/or performance problems continue it will result in
your being removed from VA.

*If an action has been issued in conjunction with the firm choice, use
the following:*

Should your misconduct and/or performance problems continue it will
result in your being removed from VA.

6\. You must furnish acceptable documentation that you have successfully
completed this program within 10 days of the completion of such program.
Failure to provide the requested documentation will be regarded as
evidence that you did not successfully complete a rehabilitation
program.

**NOTE TO MANAGER:** *If an action is being held in abeyance, use the
following**:***

This will lead us to impose the action being held in abeyance. Should
your misconduct and/or performance problems continue it will result in
your being removed from VA.

*If an action has been issued in conjunction with the firm choice, use
the following:*

Should your misconduct and/or performance problems continue it will
result in your being removed from VA.

**NOTE:** *If employee\'s conduct/performance/leave use has become
completely acceptable, but the employee has failed to complete some
portion of the rehabilitation program requirements, the firm choice
obligation is met. Action should not be taken if based solely on failure
to complete the rehabilitation program.*

**NOTE TO MANAGER**: *If there is a decision to remove the employee
being held in abeyance, use the following paragraphs:*

7\. For a period of 6 months [(time period may vary)]{.underline} after
successful completion of a rehabilitation program, you will be required
to maintain yourself in a manner reflecting credit upon VA. This
includes maintaining satisfactory attendance, performance, and conduct.

**NOTE TO MANAGER**: *If time and attendance problems have been an
issue, use the following:*

In addition, you must support every unscheduled absence by acceptable
documentation establishing an emergency situation as a condition for
considering whether or not to approve leave for the period in question.
Medical documentation must include a complete diagnosis which
establishes that you could not work for the period in question.

Failure to maintain yourself in a manner reflecting credit upon VA will
be regarded as evidence that you did not successfully complete your
rehabilitation program, and will lead us to impose the removal action
being held in abeyance.

8\. Upon successful completion of all the preceding requirements of your
rehabilitation program, the removal action against you being held in
abeyance will be [(reduced/canceled.)]{.underline} You will be expected
to continue to maintain yourself in a manner reflecting credit upon VA.

9\. I appreciate your difficulties and I am not unsympathetic to your
needs. I sincerely hope you will prevail in your rehabilitative efforts.

Signature of Appropriate Official

**NOTE TO MANAGER**: *Wherever possible, firm choice letters should be
mutually agreed upon by management, the employee, and the employee\'s
representative, and signed as memos of understanding or agreements.*

**NOTE TO MANAGER**: *If there is a decision less than removal being
held in abeyance, or an action has been issued in conjunction with* *the
firm choice, use the following paragraphs:*

7\. For a period of 6 months ([time period may vary)]{.underline} after
successful completion of a rehabilitation program, you will be required
to maintain yourself in a manner reflecting credit upon VA. This means
there will be no more instances of problems of any type related to
substance abuse, and includes maintaining satisfactory attendance,
performance, and conduct. Failure to maintain yourself in a manner
reflecting credit upon VA will be regarded as evidence that you did not
successfully complete your attempt at rehabilitation.

**NOTE TO MANAGER**: *If* *a removal action is being held in abeyance,
use the following:*

This will lead us to impose the action being held in abeyance. Should
your misconduct and/or performance problems continue it will result in
your being removed from VA.

*If an action has been issued in conjunction with the firm choice, use
the following:*

Should your misconduct and/or performance problems continue it will
result in your being removed from VA.

8\. Upon successful completion of all the preceding requirements of your
rehabilitation program, you will be expected to continue to maintain
yourself in a manner reflecting credit upon VA.

**NOTE TO MANAGER**: *If* *an action is being held in abeyance, use the
following:*

The (action) against you being held in abeyance will be
reduced/canceled.

9\. I appreciate your difficulties and I am not unsympathetic to your
needs. I sincerely hope you will prevail in your rehabilitative efforts.

Signature of Appropriate Official

**NOTE TO MANAGER**: *Whenever possible, firm choice letters should be
mutually agreed upon by management, the employee, and the employee\'s
representative, and signed as memos of understanding or agreements.*

# LAST CHANCE AND ABEYANCE AGREEMENTS

a\. The following guidance was published by the Office of Personnel
Management regarding \"Last Chance\" and \"Abeyance Agreements\" in
situations requiring reasonable accommodation. Some minor changes have
been made to reflect current case precedent. As a result, numerous
references to the Merit Systems Protection Board (MSPB) will be apparent
in this text since it is based upon decisions made by MSPB. References
to MSPB appeals will generally correlate to appeals to the DAB or an
appeal through the grievance procedure, as appropriate.

b\. Some agencies are finding the use of abeyance or last chance
agreements particularly helpful in dealing with employees with alcohol
or drug abuse problems. We begin a discussion of abeyance instruments by
showing excerpts from some instruments to serve as examples. Then we
will discuss the important characteristics of abeyance and last chance
agreements, and how they affect reasonable accommodation.

c\. **Sample Instruments**

\(1\) **Approach 1.** Agency proposes removal, but makes no decision on
that proposal. Instead, the agency letter informs the employee that it
is holding its decision in abeyance.

\(a\) **Situation.** In response to the proposal to remove, the employee
informed the agency that he was an alcoholic, and that he had just begun
participating in the in‑patient rehabilitation program to which the
agency employee assistance counselors had referred him.

\(b\) **Agreement Provisions.** The abeyance letter read in relevant
part:

[1]{.underline}. \"Management agrees to afford the employee an
opportunity to become a productive and dependable employee.\"

[2]{.underline}. \"Employee must participate fully in the (specific)
alcohol rehabilitation program, including missing no more than one of
the follow‑up meetings. Employee must attend two agency Alcohol
Anonymous meetings per week.\"

[3.]{.underline} \"For a period of 6 months after hospitalization, the
employee will be required to show fully satisfactory attendance and
performance. Every unscheduled absence must be supported by acceptable
documentation establishing an emergency situation. Medical documentation
must include a complete diagnosis, which establishes that the employee
could not work.\"

[4]{.underline}. \"Failure to comply with the preceding will constitute
just cause for proceeding with the proposed action.\"

**NOTE:** *The abeyance letter was signed by the decision official, and
did not require the employee\'s agreement.*

\(c\) **Outcome**: The employee stopped going to the follow‑up
rehabilitation meetings, and the counselors so informed the agency. When
the employee also had two subsequent unscheduled, unsupported absences,
the agency invoked the agreement. Since the action had been held in
abeyance before a decision was made, the agency had to issue a final
decision on the charges in the original proposed action. In its decision
letter, the agency first cited failure to participate in rehabilitation
and the two instances of unsupported, unscheduled absence as violations
of the abeyance agreement. Based on these violations, the agency
explained that it was proceeding with the proposed action. The agency
then assessed the evidence on the original charges, sustained them,
decided to remove, and notified the employee that he would be removed in
1 week.

\(2\) **Approach 2.** Agency issues decision to remove, but holds
implementation of decision in abeyance.

\(a\) **Situation.** Although the agency had referred the employee to
alcohol treatment twice before, it wasn\'t until the employee received a
notice of proposed removal for over 80 hours of AWOL that he admitted
that he was an alcoholic, and requested reasonable accommodation. The
agency\'s decision letter sustained the charges, found removal
warranted, and decided to remove. However, it also said that the agency
had decided to hold the removal action in abeyance under specific
conditions.

\(b\) **Agreement Provisions.** The abeyance letter read in relevant
part:

\"It is my decision that you should be removed from your position, but
that this removal be held in abeyance for 1 year from the date you
receive this letter, subject to the following: you have no further
absences charged to AWOL; you submit documentation of successful
completion of the (agency) Employee Assistance Program and the Kaiser
Alcohol Abuse Program; your sick leave usage remains under the
installation goal; and your performance is at least fully successful. If
all the foregoing criteria are met, the action will be cancelled at the
end of the 1‑year period. Failure to meet any one of these criteria
during the 1‑year period will result in your immediate removal.\"

**NOTE**: *The letter was signed by the decision official and did not
require the agreement of the employee.*

\(c\) **Outcome.** Later, the agency decided that the employee had
violated the terms of the agreement and reinstated the action. The
decision letter described the specific violations: \"On (date) your
reported for work at 9:25. You claimed to have forgotten to set your
alarm clock. You were charged with 1.5 hours of AWOL. On (date) you did
not call in until 12:44. You claimed you could not call earlier because
you had no change. You were charged with 4.25 hours of AWOL.\" (The
agency also knew, but did not state in the letter, that the employee had
stopped regular participation in the alcohol rehabilitation program.)
\"it is my decision that you have violated the terms of our agreement
and, as such, you will be removed, effective (date).\"

\(3\) **Approach 3.** Employee\'s removal has been effected, and the
action is being appealed. The agency and the appellant reached an
agreement to give him one last chance.

\(a\) **Situation.** The employee was removed for being AWOL and being
intoxicated on duty. While preparing for the hearing before MSPB, the
appellant informed the agency that he was successfully participating in
a rehabilitation program and requested one last chance. While clearly
not required to do so, the agency agreed under certain conditions which
the agency believed gave it a [quid pro quo.]{.underline}

\(b\) **Agreement Provisions.** The last chance agreement read in
relevant part: \"in consideration for reinstatement to the position of
(specify position) for a 1 year period, (employee) agrees to the
following:

‑to participate in (specific) alcohol rehabilitation program, and to
maintain satisfactory punctuality, attendance, and good work habits.\"

\"Should (employee) fail to participate in the rehabilitation program,
or should the employee\'s attendance and work habits become
unsatisfactory during the 1‑year period, the removal will be reinstated.
One incident of *AWOL* or of\' being intoxicated on duty will be cause
for reinstating the removal.\"

\"Appeal rights to the MSPB, and grievance‑arbitration procedures are
waived during this 1‑year period on any disciplinary action against
(employee).\"

\"I clearly understand the last chance opportunity agreement, and fully
agree with the terms of the settlement. I know and understand that I
have appeal rights to the MSPB. With this agreement, I waive all appeal
rights regarding my removal, which was effective (date), including MSPB,
grievance, and the EEOC.\"

**NOTE:** *The agreement was signed by the employee, employee
representative, supervisor, and two witnesses.*

\(c\) **Outcome.** Two months later appellant was *AWOL* for 2 days. The
employee\'s supervisors went to the employee\'s home and found the
employee intoxicated. The agency removed the employee the next day. MSPB
ruled that the agreement had been properly invoked, that the appellant
had waived the appeal rights to the MSPB and thus dismissed the case.

d\. **Discussion**

\(1\) As the three examples show, there is no set formula for abeyance
or last chance agreements:

\(a\) They are tailored to the individual situation;

\(b\) They are fair, and provide some potential consideration or benefit
to the employee (generally the agency\'s agreement to withhold an action
which it could take);

\(c\) They can be imposed unilaterally by the agency, or negotiated with
the employee or representative, (if they involve a waiver of rights, the
employee must agree);

\(d\) They can be imposed at several stages of the adverse action
process:

[1]{.underline}. After a proposal,

[2]{.underline}. After a decision, or

[3]{.underline}. Even after the action has been effected.

\(e\) If the conditions are not met, the agency can take immediate
action (no need to wait until the end of the period, or to give a new
notice).

\(2\) Abeyance and last chance agreements should contain at least the
following:

\(a\) A time limit and conditions tailored to the situation;

\(b\) A clear statement of all the agency\'s requirements of the
employee including satisfactory participation in a rehabilitation
program and satisfactory conduct;

\(c\) A description of behaviors that will be considered evidence of
compliance or failure to comply with the requirements; and,

\(d\) An explanation of what the agency will do if the employee fails to
comply, and what the agency will do if the employee complies.

\(3\) When an action is taken based on violation of an abeyance
agreement, the following is recommended:

\(a\) The violation should not become part of the charges, but should be
used only to show that the employee violated the agreement and thus
triggered the agency\'s action;

\(b\) The letter to the employee should clearly describe how the
employee violated the provisions of the agreement; and,

\(c\) The agency should proceed on the basis of the original charges
only.

**EMPLOYEE/MANAGEMENT RELATIONS**

[]{#ptIII .anchor}**PART III. PROBATIONARY PERIOD ACTIONS**

# CONTENTS

**PARAGRAPH PAGE**

# [CHAPTER 1](#chapter-1.-title-38-probationary-employees-1). TITLE 38 PROBATIONARY EMPLOYEES

1\. [SCOPE](#ptIIIch1par1) III-1

2\. [RESPONSIBILITIES](#ptIIIch1par2) III-1

3\. [SUMMARY BOARD REVIEWS](#ptIIIch1par3) III-2

4\. [OTHER APPROPRIATE PENALTY ACTIONS](#ptIIIch1par4) III-7

5\. [EMPLOYEE STATUS](#ptIIIch1par5) III-7

6\. [ABEYANCE AND FIRM CHOICE AGREEMENTS](#ptIIIch1par6) III-8

# [CHAPTER 2](#chapter-2.-title-5-probationarytrial-period-employees-1). TITLE 5 PROBATIONARY/TRIAL PERIOD EMPLOYEES

1\. [SCOPE](#ptIIIch2par1) III-9

2\. [RESPONSIBILITIES](#ptIIIch2par2) III-9

3\. \[[EXCLUSIONS](#ptIIIch2par3)\] III-9

4\. \[[TERMINATION OF PROBATIONERS FOR UNSATISFACTORY PERFORMANCE
OR](#ptIIIch2par4)

[CONDUCT](#ptIIIch2par4)\] III-10

5\. \[[APPEAL RIGHTS TO THE MERIT SYSTEMS PROTECTION
BOARD](#ptIIIch2par5)\] III-10

\[6. [SEPARATION OF PERSONS WHO FAIL TO REGISTER UNDER SELECTIVE
SERVICE](#ptIIIch2par6)

[LAW](#ptIIIch2par6)\] III-10

# APPENDICES

III-A. [TITLE 5 -- TERMINATION DURING PROBATIONARY PERIOD](#AppIIIA)
III-A-1

III-B. [SAMPLE NOTICE OF SUMMARY REVIEW](#AppIIIB) III-B-1

III-C. [SAMPLE LETTER OF
REPRIMAND](#appendix-c.-sample-letter-of-reprimand) III-C-1

III-D. [SAMPLE LETTER OF
ADMONISHMENT](#appendix-d.-sample-letter-of-admonishment) III-D-1

###### PART III. PROBATIONARY PERIOD ACTIONS

####### **CHAPTER 1. TITLE 38 PROBATIONARY EMPLOYEES**

1\. []{#ptIIIch1par1 .anchor}SCOPE. This chapter contains the policy and
procedures needed for taking actions against title 38 employees serving
on a probationary period under 38 United States Code (U.S.C.) 7403(b) in
the Department of Veterans Affairs (VA). This includes employees
appointed under 38 U.S.C. 7401(1), i.e., physicians, dentists,
podiatrists, \[chiropractors,\] optometrists, nurses, nurse
anesthetists, physician assistants, and expanded-function dental
auxiliaries. The Under Secretary for Health\'s designee refers to a
designee in VA Central Office. This chapter does not apply to employees
appointed under 38 U.S.C., chapter 3, 38 U.S.C. 7306, 38 U.S.C. 7401(3),
38 U.S.C. 7405 or 38 U.S.C. 7406.

2\. []{#ptIIIch1par2 .anchor}RESPONSIBILITIES

a\. **VA Central Office Assignments**

\(1\) **Authorizing Official.** Appropriate service director and
equivalent positions or above

\(2\) **Review Board.** Appropriate Central Office Professional
Standards Board (PSB)

b\. **Facility Director**

###  (1) **Authorizing Official.** Network Director

\(2\) **Review Board.** Appropriate Central Office PSB

c\. **Chief of Staff**

\(1\) **Authorizing Official.** Facility Director

\(2\) **Review Board.** Appropriate Central Office Board

d\. **Facility Employees, except Assistant/Associate Chiefs, Nursing
Service**

\(1\) **Authorizing Official.** Appropriate Service Chief (or
equivalent)

\(2\) **Review Board.** Local PSB

e\. **Assistant/Associate Chiefs, Nursing Service**

\(1\) **Authorizing Official.** Chief, Nursing Service

\(2\) **Review Board.** VISN Nurse PSB

**NOTE:** *For dentists and expanded-function dental auxiliaries,
reviews will be conducted by the PSBs listed in VA Handbook 5005.*

**NOTE:** *If a facility director believes a local PSB meeting the
requirements of this chapter cannot be properly constituted, the
appropriate VISN board will be asked to complete the probationary
review. If there are no VISN boards for the occupation, another facility
director may be asked to establish a PSB for this purpose.*

**NOTE:** *For podiatrists \[ \] optometrists, \[and chiropractors,\]
the appropriate service chief is the authorizing official; however, the
review will be conducted by the VA Central Office Professional Standards
Board.*

f\. **Professional Standards Boards.** Professional Standards Boards
will review the work records of each employee serving a probationary
period in accordance with the provisions of this chapter. The
establishment, membership and composition of Professional Standards
Boards, as prescribed in VA Handbook 5005, part II, chapter 3, will be
applicable to probationary reviews. Members from facilities other than
the employee\'s may be designated to serve on the Board when it is
determined to be appropriate or necessary.

g\. **Supervisors.** Supervisors will continually review the services of
employees serving in a probationary status. Supervisors must assure by
active measures that the work records of unsatisfactory employees or of
those whose services are merely borderline are promptly referred to
appropriate officials for action.

h\. **Chief, Human Resources Management, or Designee.** The Chief, Human
Resources Management, or designee, is responsible for:

\(1\) Assisting management officials with probationary procedures.

\(2\) Reviewing proposed probationary actions for conformance with
Department and VHA policies and procedures.

\(3\) Advising employees about probationary procedures and rights.

\(4\) Serving as technical advisor to Boards. This includes advising
Board members on policies and procedures related to conducting
probationary reviews.

\(5\) Ensuring that copies of permanent records relating to periodic and
summary reviews are included in the Health Care Provider Credentialing
and Privileging Records of personnel with clinical privileges.

3\. []{#ptIIIch1par3 .anchor}SUMMARY BOARD REVIEWS

a\. **Purpose.** Summary reviews are limited to situations where summary
separation from Federal service may be justified. Officials identified
in paragraph 2a-2e \[ \] are responsible for deciding whether to conduct
a summary review of an employee\'s services. Supervisors may initiate
requests for summary reviews at any time during the probationary period.

b\. **Review Boards.** Summary reviews will be conducted by the
Professional Standards Boards listed in paragraph 2 above. Persons in a
position to prejudice the action of a Board, such as an employee \' s
immediate or second level supervisor, may not serve on the Board.

c\. **Special Proficiency Report.** A special Proficiency Report may be
initiated at any time. If an employee to be reviewed under this
paragraph has not received a Proficiency Report within the three months
prior to the summary review, a special Proficiency Report should be
completed in accordance with VA Handbook 5013, Performance Management
Systems.

d\. **Employee Rights.** Employees subject to summary Board review have
the right to:

\(1\) Advance written notice of the Board review.

\(2\) Review documents relied upon by officials in initiating or
recommending a summary Board review, subject to applicable disclosure
restrictions.

\(3\) Impartial review by the Board.

\(4\) Reply orally and/or in writing to the Board concerning the reasons
for the review.

\(5\) Be represented by an individual of the employee\'s choice,
provided the choice would not create a conflict of interest. A summary
review is not an adversarial procedure. The representative\'s role is
limited to assisting the employee in exercising the right to reply
orally and/or in writing to the reasons for the review. Any responses to
requests for information by the Board during the review process are
considered part of the employee\'s reply. Accordingly, the employee\'s
representative may assist in such matters. **NOTE:** *Because summary
reviews deal with issues related to professional competence or conduct
and peer review, a union representative is not entitled to be present at
a summary review except when serving as the employee's personal
representative.*

e\. **Notice to Employee of Board Review.** Normally, the employee will
be given 10 to 14 calendar days notice that a summary review is being
conducted. The notice, which will be in writing and signed by the
Chairperson of the Board, will inform the employee of the following:

\(1\) The time, date, and place of the proposed review;

\(2\) The reasons why the summary board is being done with sufficient
detail for the employee to clearly understand why he or she may not be
fully qualified and satisfactory; and

\(3\) The fact that while conducting the review, the Board will use
available records and information furnished by the employee and others
who may be called by the Board. The Board will issue findings and
recommend the employee\'s retention or separation.

\(4\) The employee\'s rights in the review process.

\(5\) A date, normally no less than 3 workdays before the Board review
date, by which the employee must submit any written reply and/or notify
the Chairperson of the Board whether the employee will

appear personally before the Board and whether the employee will be
accompanied by a representative. The employee will be asked to furnish
the name, address, and occupation of any representative.

\(6\) That the Chief, Human Resources, or designee, is available to
advise the employee about probationary review policies and procedures.

\(7\) That the employee will be notified of the outcome of the review.

**NOTE:** *Additional evidence that forms the basis for new reasons upon
which to base the summary review acquired after the notice of summary
review has been issued will not be considered in the summary review
unless the notice of summary review has been reissued. The employee or
employee\'s representative shall be provided with copies of any reissued
notice of summary review.*

f\. **Conduct of Board Review**

\(1\) The primary purpose of the Board in conducting a summary review is
to obtain the available facts and determine whether the employee is
fully qualified and satisfactory. Interviews with the employee,
supervisors, or others should be conducted in an informal manner.

\(2\) Oaths or affirmations are not required in connection with the
Board review.

\(3\) When the employee attends the review, the Chairperson will remind
the employee of the reasons and the legal authority for the review,
which were included in the notice to the employee.

\(4\) All members of the Board will be present throughout the entire
review.

\(5\) A verbatim recording of the review will not be made unless the
Chairperson deems it necessary. If however, a verbatim recording is
made, it will be appended to the final board action upon completion.

\(6\) The Chief, Human Resources, or designee, will serve as a technical
adviser to the Board. The Chairperson may also obtain technical or legal
assistance from other VA employees. Persons who will advise or assist
the Board cannot serve on the Board.

\(7\) To obtain essential facts, the Chairperson may call persons before
the Board to answer questions that may assist the Board in its review.
This includes persons who are believed to possess pertinent information
about the employee or the circumstances which led to the review.

\(8\) Ordinarily, VA patients are not to be called upon for information
or otherwise be involved in Board reviews. Patients, with their consent,
may be witnesses when information from them is considered essential and
there has been a medical determination that the patient has the capacity
to testify and that appearance as a witness will not be detrimental to
the patient\'s health or welfare.

\(9\) Only Board members are entitled to be present when an individual
is being interviewed, except that an employee \' s representative may be
present while the employee is being interviewed. Employees or others who
may be called upon to furnish information will not be subject to
cross-examination, and the Chairperson of the Board will ensure that
this does not occur.

\(10\) If an allegation of discrimination based on race, color,
religion, sex, age, disability, or national origin is raised at any
stage of a review by a Board, the employees will be informed that the
matter may be brought to the attention of an Office of Resolution
Management counselor. After such notification, the probationary review
will be completed. If the decision is to separate the probationer, the
separation will not be delayed because of a discrimination complaint.

g\. **Findings and Recommendations of Board.** Upon completion of the
review, the Board will meet in closed session to discuss its findings
and make its recommendations. The Board may recommend separation or
retention of the employee. Findings and recommendations of the Board
will be recorded on VA Form 10-2543, Board Action. The Board Action form
will be prepared in triplicate to include a brief, but concise summary
of information obtained through interviews and records that the Board
determines to be directly relevant to the service or conduct of the
employee, a copy of any recorded transcript of the proceeding, and other
pertinent documents or exhibits. The employee, on request, will be
furnished a copy of the summary report of the Board proceedings, along
with a transcript of any verbatim recording.

h\. **Action on Board Recommendations**

NOTE: *The administrative review and action on Board recommendations
specified in this paragraph does not apply to VHA facilities in
Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South
Dakota. The recommendations of Summary Review Boards conducted at
facilities in these states are governed by the Board. While notification
to the employee of any decision of the Summary Review Board should be
signed by an appropriate official, such notification should reflect that
the decision was made by the Board.*

\(1\) **Employees Other Than Chiefs of Staff, Facility Directors, and
Other Key VHA employees**

\(a\) The completed Board action and all related documents will be sent
to the Chief of Staff (or Nurse Executive, as appropriate) for review.
(This includes summary reviews completed by VISN or Regional
Professional Standards Boards, and summary reviews conducted at other VA
facilities, including VA Central Office.) The Chief of Staff (or Nurse
Executive) will comment on the Board recommendations and send these
comments, the Board Action, and related documents to the facility
Director.

\(b\) The facility Director, or designee, may approve, disapprove, or
modify the Board\'s

recommendation on the Board Action. In making this decision, the
facility Director may seek additional advice and information, if needed.

\(2\) **Chiefs of Staff**

\(a\) The Central Office Board will forward the board action containing
their recommendations, along with all related documents, to the Network
Director for a final decision.

\(b\) The Network Director may approve, disapprove, or modify the
Board's recommendation on the Board Action form. In making this
decision, the Network Director may seek additional advice and
information.

\(3\) **Facility Directors.** The Board Action and all related documents
will be forwarded to the Under Secretary for Health for review. The
Under Secretary for Health shall, in consultation with appropriate VHA
officials, comment on the Board recommendation and send these comments,
the Board Action, and related documents through the Deputy Assistant
Secretary for Human Resources Management to the Secretary for action.
The Secretary may accept, reject, or modify the recommendation.

\(4\) **VA Central Office Employees.** The Board Action and all related
documents will be forwarded through channels to the Office of Management
Support (10A2). The Office of Management Support will forward the
recommendation to the Under Secretary for Health who may approve,
disapprove, or modify the recommendation.

\(5\) **Separations Requiring VHA Approval/Review.** All field facility
recommendations for separation during probation requiring VHA summary
review or approval (e.g., actions related to facility directors and
requests for summary reviews for podiatrists\[,\] optometrists\[,
chiropractors\]) are to be sent through the appropriate Network
(10N/051). The material forwarded will include the Director's
recommendation (where appropriate) and any other applicable comments; VA
Form 10-2543, Board Action, (in duplicate); one copy of all related
documents, including one copy of all Proficiency Reports prepared during
the probationary period; and the employee's personnel folder.

i\. **Action by Approving Authority.** The designated official will
indicate final approval or disapproval of a Board finding or
recommendation for retention by completing items 14, 15, and 16, except
at VHA facilities in Arkansas, Iowa, Minnesota, Missouri, Nebraska,
North Dakota, and South Dakota, where recommendations of Summary Review
Boards are approved by the Board and so noted on the board action form.
If the recommendation made by the Board is modified by the designated
official, the Board's recommendation will be disapproved, with the
annotation that a memorandum regarding the modification is attached.

j\. **Effecting Approved Recommendations**

\(1\) **Separation.** Separations under these procedures must be
effected before completion of the probationary period. The employee will
normally be given 15 calendar days notice, but the notice period may be
shortened if necessary to effect the separation before completion of the
probationary period.

\(2\) **Retention.** The employee will be notified if retention in VHA
has been approved. A recommendation for retention does not preclude
subsequent initiation of a summary review prior to completion of the
probationary period.

k\. **Reporting Separated Licensed Appointees to State
Licensing/Registration Boards or License Monitoring Entities.**
Approving officials are responsible for determining whether to report an
individual who is separated as a result of the review, or resigns, or
retires prior to the completion of the review process, to appropriate
licensing/registration boards or license monitoring entities. In making
such determinations, approving officials are responsible for ensuring
adherence to the required procedures and time standards for VA-initiated
reporting, prescribed in VHA Handbook 1100.19.

l\. **Records.** All summary review board actions and associated
proficiency reports are to be filed in the professional standards board
folder whether or not the employee is separated or retained.

4\. []{#ptIIIch1par4 .anchor}OTHER APPROPRIATE PENALTY ACTIONS

a\. **General.** While the provisions of part II, this handbook,
Disciplinary Procedures Under title 38, are not applicable to employees
who have not completed the probationary period, in certain cases
imposing a penalty action may be appropriate.

\(1\) These actions may be imposed during the probationary period to
correct conduct deficiencies which are not serious enough to justify
separation of an employee from the service.

\(2\) Penalty actions may be imposed as the result of a Professional
Standards Board review of an employee\'s services or by supervisory
officials independent of Board action if the employee\'s action(s) do
not warrant peer review. Such actions may include Admonishments and
Reprimands (see samples in appendix). Such actions may be issued without
proposal letters.

b\. **Approvals**

\(1\) The facility Director may designate supervisory officials at or
above the service chief level to approve actions for probationary
employees.

\(2\) The appropriate Network Director approves admonishments and
reprimands for network employees, chiefs of staff and facility directors
in their probationary periods. Appropriate officials at or above the
service director level may approve admonishments and reprimands for VA
Central Office employees in their probationary periods.

5\. []{#ptIIIch1par5 .anchor}EMPLOYEE STATUS

a\. **Status During Review.** In cases involving reviews under the
provisions of this chapter, employees will be retained in a pay and
active duty status in their current assignment. However, in those
instances where it is determined that the employee\'s continued presence
at the work site might pose a threat to employees or others, result in
loss of or damage to Government property or otherwise jeopardize
legitimate Government interests, the following alternatives may be
considered:

\(1\) Detail the employee to another assignment;

\(2\) Allow the employee to take leave, or carry the employee as absent
without leave if the employee has absented himself or herself from the
work site without requesting leave;

\(3\) As a last resort, the employee may be placed in a paid non-duty
status for a brief period pending a decision on whether a summary review
is appropriate.

b\. **Clinical Privileges.** At the initiation of a Summary Review
board, careful consideration should be taken to determine whether a
review of the employee\'s clinical privileges is also appropriate.

**6.** []{#ptIIIch1par6 .anchor}**ABEYANCE AND FIRM CHOICE AGREEMENTS.**
A probationary separation may be held in abeyance if, at the request of
the employee, the official authorized to approve the probationary
separation approves an opportunity for the employee to participate in
counseling or treatment. In affording the opportunity for rehabilitation
of a disabling condition, applicable provisions of VA human resources
and local policies will be followed. In such cases a firm choice or
abeyance agreement may be entered into which provides that the employee
shall seek counseling or treatment for a condition covered under the
Rehabilitation Act of 1973. An employee must complete counseling or
treatment in sufficient time to provide an opportunity to review the
employee\'s performance prior to the end of the probationary period.

###### CHAPTER 2. TITLE 5 PROBATIONARY/TRIAL PERIOD EMPLOYEES

**1.** []{#ptIIIch2par1 .anchor}**SCOPE.** This chapter contains the
policy and procedure needed for taking actions against title 5 employees
serving on a probationary \[or trial\] period under title 5 Code of
Federal Regulations (CFR) Parts 315 or 307 in the Department of Veterans
Affairs (VA). This includes employees appointed under 38 U.S.C. 7401(3),
i.e., permanent full-time hybrids, and employees appointed under 38
U.S.C. 7405(a)(1)(B), i.e. part-time hybrids and part-time or full-time
temporary hybrids serving on an appointment not limited to one year
less, who have not completed a probationary period. General information
regarding title 5 probationary periods is contained in VA Handbook 5005,
part II, chapter 2, section A, paragraph 9. Information regarding
probationary periods for permanent part-time and

full-time hybrid employees is contained in VA Handbook 5005, part II,
chapter 3, section F, paragraph 4 and VA Handbook 5005, part II, chapter
2, paragraph 9a. Information concerning supervisory and Senior Executive
Service probationary periods may be found in VA Handbooks 5005, part
III, Staffing, and 5027, part III, Senior Executive Service,
respectively.

**2.** []{#ptIIIch2par2 .anchor}**RESPONSIBILITIES**

a\. Managers/Supervisors will continually review the services of
employees serving in a probationary status. Supervisors must assure by
active measures that the work records of unsatisfactory employees or of
those whose services are merely borderline are promptly referred to
appropriate officials for action.

b\. The Chief, Human Resources Management, or designee, is responsible
for:

\(1\) Assisting management officials with probationary procedures.

\(2\) Reviewing proposed probationary actions for conformance with
policies and procedures.

\(3\) Advising employees about probationary procedures and rights.

[]{#ptIIIch2par3 .anchor}**3.** \[**EXCLUSIONS**

a\. Any individual who meets [one or more]{.underline} of the following
definitions will not be covered by this chapter:

\(1\) An individual in the competitive service who is not serving a
probationary or trial period under an initial appointment;

\(2\) An individual in the competitive service who has completed one (1)
year of current continuous service under an appointment that was not a
temporary appointment limited to one (1) year or less;

\(3\) A preference eligible in the excepted service who has completed
one (1) year of current continuous service in the same or similar
positions in an Executive agency, the United States Postal Service, or
the Postal Rate Commission;

\(4\) An individual in the excepted service (other than a preference
eligible) who is not serving a probationary or trial period under an
initial appointment pending conversion to the competitive service;

\(5\) An individual in the excepted service (other than a preference
eligible) who has completed two (2) years of current continuous service
in the same or similar position in an Executive agency under an
appointment that was not a temporary appointment limited to one (1) year
or less.

b\. Use the procedures outlined in VA Handbook 5021, Part I, for
employees who are not covered by this chapter.\]

[]{#ptIIIch2par4 .anchor}**4.** \[**TERMINATION OF PROBATIONERS FOR
UNSATISFACTORY PERFORMANCE OR CONDUCT**\]

a\. \[VA may terminate an employee serving on a probationary or trial
period because his/her work performance or conduct fails to demonstrate
fitness or qualifications for continued employment. Employment is to be
terminated by notifying employees in writing as to why they are being
separated and the effective date of the action. The information in the
notice as to why an employee is being terminated shall, as a minimum,
consist of the conclusions as to the inadequacies of his performance or
conduct\].

b\. \[VA may also terminate an employee serving on a probationary period
for reasons based in whole or in part on conditions arising before the
employee's appointment. Use procedures outlined in 5 CFR 315.805 for
probationary pre-employment actions.

c\. Probation ends when the employee completes his or her scheduled tour
of duty on the day before the anniversary date of the employee\'s
appointment. For example, when the last workday is a Friday and the
anniversary date is the following Monday, the probationer must be
separated before the end of the tour of duty on Friday since Friday
would be the last day the employee actually has to demonstrate fitness
for further employment.\]

[]{#ptIIIch2par5 .anchor}**5.** \[**APPEAL RIGHTS TO THE MERIT SYSTEMS
PROTECTION BOARD.** Probationary employees may appeal to the Merit
Systems Protection Board in writing the decision to terminate them for
unsatisfactory performance or conduct based upon the following\]:

a\. \[**Discrimination.** An employee may appeal to the Board under this
chapter a termination not required by statute which the employee alleges
was based on partisan political reasons or marital status.\]

b\. \[**Improper Procedure.** A probationer may appeal on the grounds
that the termination was not effected in accordance with the procedural
requirements of 5 CFR 315.805.\]

\[ \]

[]{#ptIIIch2par6 .anchor}\[**6. SEPARATION OF PERSONS WHO FAIL TO
REGISTER UNDER SELECTIVE SERVICE LAW.** An individual who is serving
under a probationary appointment made on or after November 8, 1985, and
is not exempt from registration, will be terminated under 5 CFR, part
300, subpart G if he has not registered as required, unless:

a\. The individual registers for the Selective Service and submits a new
statement of Selective Service registration status, including his date
of birth, to VA; or,

b\. The individual is age twenty-six (26) or older and OPM determines
that his failure to register was neither knowing nor willful, after the
individual submits a written request for a determination by OPM and an
explanation of why he failed to register.\]

[]{#AppIIIA .anchor}**APPENDIX A.**

**TITLE 5 - TERMINATION DURING PROBATIONARY/TRIAL PERIOD**

DATE

FOR OFFICIAL USE ONLY

Employee's Name

Service

SUBJECT: Termination During Probationary/Trial Period

1\. At the time of your Career-Conditional/Veterans Readjustment
Appointment on {DATE}, as a {POSITION TITLE}, you were informed that
your first year of employment would be subject to a probationary/trial
period. During this time, supervisors are required to study their
employees' potential closely to determine whether they are qualified for
satisfactory government service. When it becomes apparent that an
employee's conduct, general character traits or capacity do not meet the
requirements for satisfactory service, the supervisor is required to
initiate action to separate the employee.

2\. The {RECOMMENDING OFFICIAL/SERVICE), has recommended that you be
terminated from your position for failure to qualify during your
probationary/trial period. Your discharge is due to {INSERT REASON,
E.G., UNACCEPTABLE ATTENDANCE}.

CITE REASON(S)

3\. The effective date of your discharge will be {DATE}. You must
properly clear the facility, turn in any government property and clear
any indebtedness, prior to the release of your final paycheck.

4\. If you feel this action is based on discrimination because of race,
color, religion, sex, national origin, age or disabling condition, you
may appeal this action by contacting the Office of Resolution Management
(ORM) at 1-888-737-3361 within 45 calendar days of the date you receive
this letter.

5\. If you believe this termination is based on discrimination because
of marital status or partisan political reasons, you may appeal this
action to the Merit Systems Protection Board. Your appeal must be
submitted in writing by certified mail or in person at any time after
you receive this letter, but not later than 30 calendar days after the
discharge has been effected. Copies of the Rules and Regulations of the
Merit Systems Protection Board and Optional Form 283 are enclosed.

6\. If you allege your termination is based on discrimination which
includes reasons in both paragraphs 4 and 5 above, you may appeal to the
Merit Systems Protection Board within 30 days, using the same procedure
as set forth in paragraph 5.

7\. If you have any questions concerning the above, please contact the
{RECOMMENDING OFFICIAL/CHIEF HRMS}.

SIGNATURE

[]{#AppIIIB .anchor}APPENDIX B. SAMPLE NOTICE OF SUMMARY REVIEW

FOR OFFICIAL USE ONLY

(Employee Name)

(Service)

VA Medical Center

(City), (State) (Zip)

SUBJECT: Summary Probationary Review and Convening of [(type of
Board)]{.underline} PSB

(Professional Standards Board)

1\. This is to notify you that a PSB will be held on
[(Date)]{.underline} at [(Time)]{.underline} in [(Place)]{.underline} to
conduct a summary review of your performance during your probationary
period and make recommendations concerning your retention in or
separation from the Veterans Health Administration. The review is being
held pursuant to 38 U.S.C. (United States Code) section 7403(b), and
will be based upon available records and information furnished by you
and others who may be called by the PSB.

2\. The PSB is to review the following alleged deficiencies in your
performance (and/or conduct, if appropriate): (Insert reasons for the
review. The statement of reasons should be brief, but in sufficient
detail for the employee to clearly understand why he or she may not be
considered fully qualified and satisfactory.)

3\. You are entitled to:

a\. Review documents relied upon in initiating or recommending this
summary Board review, subject to applicable disclosure restrictions;

b\. An impartial review by the PSB;

c\. Respond orally and/or in writing to the PSB concerning the reasons
for the review; and

d\. Be represented by an individual of your choice, provided the choice
would not create a conflict of interest. This is not an adversarial
proceeding, so your representative's role will be limited to assisting
you in exercising your right to respond orally and/or in writing to the
reasons for the review. However, any response to a request for
information from the PSB during its review is considered a part of your
reply. Accordingly, your representative may assist you in these matters.

4\. Please notify me by (insert date normally no less than 3 workdays
before the Board review date) whether you will attend the PSB meeting in
person, submit a written statement, or both. Please include in your
notice the name, address, and occupation of your representative, should
you choose to have one. If you wish to submit a written statement to the
Board, it is also to be submitted to me by the above date.

5\. After review, the PSB will forward its recommendations to the
{INSERT APPROPRIATE APPROVING OFFICIAL} for final decision. If the PSB
finds you not to be fully qualified and satisfactory, your separation
will be recommended. You will be advised of the results of this review
in writing.

6\. Additional information about these procedures may be obtained by
contracting (insert name of the appropriate human resources manager), at
extension \_\_\_\_\_\_\_.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

(Signature)

Name (of Chairperson)

Chairperson,

Professional Standards Board

**NOTE:** A*pproving officials are responsible for ensuring adherence to
the required procedures and time standards for VA initiated reporting of
separated licensed healthcare employees to license monitoring entities
as prescribed in VHA Manual M-2, Part I, Chapter 34.*

## **APPENDIX C. SAMPLE LETTER OF REPRIMAND**

FOR OFFICIAL USE ONLY

(Employee Name)

(Service)

VA Medical Center

(City), (State) (Zip)

SUBJECT: Reprimand

1\. You are hereby reprimanded for (example: being absent without leave
for 8 hours on date and 8 hours on date. Your absence on both of these
occasions was not authorized by your supervisor as required.)

2\. A copy of this reprimand and any written reply that you may wish to
make will be filed in your personnel folder. This reprimand may remain
in your folder from 2 to 3 years, depending on your future conduct. It
will be destroyed when it is withdrawn. (For reprimands for patient
abuse, substitute "\...may remain in your folder as long as you are with
the Veterans Health Administration, or it may be withdrawn and destroyed
at any time after 3 years, depending on your future conduct.")

**NOTE:** *Use the following paragraph for [all]{.underline} penalty
actions related to professional conduct or competence, and penalty
actions for reasons other than professional conduct or competence if the
employee is not covered by a negotiated grievance procedure.*

3\. If you believe that this reprimand is unjustified, you may appeal
the action under the VA grievance procedure. Your formal grievance must
be submitted through your supervisor within 15 calendar days after you
receive this reprimand. For further information about the VA grievance
procedure, you may consult the Chief, Human Resources Management.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

(Signature and title of appropriate official)

## **APPENDIX D. SAMPLE LETTER OF ADMONISHMENT**

FOR OFFICIAL USE ONLY

(Employee Name)

(Service)

VA Medical Center

(City), (State) (Zip)

SUBJECT: Admonishment

1\. You are hereby admonished for (example: being absent without leave
for 8 hours on date without the required authorization by your
supervisor.)

2\. A copy of this admonishment and any written reply that you wish to
make will be filed in your personnel folder. This admonishment may
remain in your folder from 6 months to 2 years, depending on your future
conduct. It will be destroyed when it is withdrawn. (For admonishments
of patient abuse, substitute "\...may remain in your folder as long as
you are with the Department of Veterans Affairs, or it may be withdrawn
and destroyed at any time after 2 years, depending on your future
conduct.")

**NOTE:** *Use the following paragraph for all penalty actions related
to professional conduct or competence, and penalty actions for reasons
other than professional conduct or competence if the employee is not
covered by a negotiated grievance procedure.*

3\. If you believe that this admonishment is unjustified, you may appeal
the action under the VA grievance procedure. Your formal grievance must
be submitted through your supervisor within 15 calendar days after you
receive this admonishment. For further information about the VA
grievance procedure, you may consult the Chief, Human Resources
Management.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

(Signature and Title of appropriate official)

**EMPLOYEE/MANAGEMENT RELATIONS**

[]{#ptIV .anchor}**PART IV. EMPLOYEE GRIEVANCES AND ADMINISTRATIVE
APPEALS**

**CONTENTS**

######## PARAGRAPH PAGE

# [CHAPTER 1](#ptIVch1). GENERAL

1\. [POLICY](#ptIVch1par1) IV-1

2\. [RESPONSIBILITIES](#ptIVch1par2) IV-2

## **[CHAPTER 2](#chapter-2.-title-5-and-hybrid-title-38-employees). TITLE 5, TITLE 38 (HYBRID) EMPLOYEES APPOINTED UNDER**

## **38 U.S.C. 7401(3)** \[**or 7405(a)(1)(B)**\]

1\. [SCOPE](#ptIVch2par1) IV-3

2\. [DEFINITIONS](#ptIVch2par2) IV-3

3\. [OFFICIALS AUTHORIZED TO SETTLE GRIEVANCES](#ptIVch2par3) IV-4

4\. [REPRESENTATION](#ptIVch2par4) IV-5

5\. [TIME LIMITS FOR PROCESSING GRIEVANCE](#ptIVch2par5) IV-5

6\. [INFORMAL GRIEVANCE PROCEDURE](#ptIVch2par6) IV-6

7\. [FORMAL GRIEVANCE PROCEDURE](#ptIVch2par7) IV-7

8\. [REJECTION OR CANCELLATION OF A GRIEVANCE](#ptIVch2par8) IV-9

9\. [ROUTING FORMAL GRIEVANCES](#ptIVch2par9) IV-10

10\. [DECISION ON GRIEVANCES](#ptIVch2par10) IV-12

11\. [ADMINISTRATIVE APPEALS](#ptIVch2par11) IV-13

12\. [TRAVEL EXPENSES](#ptIVch2par12) IV-13

13\. [INFORMING EMPLOYEES](#ptIVch2par13) IV-13

14\. [MATTERS EXCLUDED FROM COVERAGE](#ptIVch2par14) IV-13

## **[CHAPTER 3](#ptIVch3). TITLE 38 GRIEVANCES**

1\. [SCOPE AND AUTHORITY](#ptIVch3par1) IV-17

2\. [REFERENCES](#ptIVch3par2) IV-17

3\. [OFFICIALS AUTHORIZED TO SETTLE GRIEVANCES](#ptIVch3par3) IV-17

4\. [REPRESENTATION](#ptIVch3par4) IV-18

5\. [TIME LIMITS FOR PROCESSING A GRIEVANCE](#ptIVch3par5) IV-19

6\. [INFORMAL GRIEVANCE PROCEDURE](#ptIVch3par6) IV-20

7\. [FORMAL GRIEVANCE PROCEDURE](#ptIVch3par7) IV-20

8\. [GRIEVANCES OVER DISCIPLINARY AND ADVERSE ACTIONS](#ptIVch3par8)
IV-21

9\. [GRIEVANCE FILE](#ptIVch3par9) IV-22

10\. [REJECTION, RETURN, OR CANCELLATION OF A GRIEVANCE](#ptIVch3par10)
IV-23

11\. [TECHNICAL REVIEW](#ptIVch3par11) IV-24

12\. [REVIEW BY GRIEVANCE EXAMINER](#ptIVch3par12) IV-24

13\. [DECISION ON GRIEVANCE](#ptIVch3par13) IV-26

**CONTENTS-CONTINUED**

**PARAGRAPH PAGE**

## **[CHAPTER 3](#ptIVch3). TITLE 38 GRIEVANCES - Continued**

14\. [TRAVEL EXPENSES](#ptIVch3par14) IV-27

15\. [INFORMING EMPLOYEES](#ptIVch3par15) IV-27

16\. [MATTERS EXCLUDED FROM COVERAGE UNDER THE AGENCY\
GRIEVANCE PROCEDURE](#ptIVch3par16) IV-27

# APPENDICES

IV-A. [SAMPLE GRIEVANCE FORMAT](#appendix-a.-sample-grievance-format)
IV-A-1

IV-B. [GRIEVANCE EXAMINER'S
REPORT](#appendix-b.-grievance-examiners-report) IV-B-1

IV-C. [ADMINISTRATION OF OATHS -- TITLE
38](#appendix-c.-administration-of-oaths---title-38) IV-C-1

### 

### **PART IV. EMPLOYEE GRIEVANCES AND ADMINISTRATIVE APPEALS**

[]{#ptIVch1 .anchor}**CHAPTER 1. GENERAL**

**1.** []{#ptIVch1par1 .anchor}**POLICY**

a\. **General**

\(1\) It is the policy of VA to identify, prevent, and make reasonable
efforts to resolve employee dissatisfactions. Efforts will be made to
resolve grievances informally. However, the filing of formal grievances
is not to be discouraged or prevented.

\(2\) All individuals involved in grievance proceedings, whether
employees, employee representatives, or members of management, are
expected to be candid and to act in good faith, not only in following
the letter of the grievance procedure, but in observing the underlying
spirit and intent in attempting to resolve dissatisfactions. Supervisors
are expected to give full and fair consideration to employee complaints
and causes of dissatisfaction.

\(3\) Objective consideration of complaints or criticism affords a means
of focusing attention on conditions which may require corrective action.
It also provides a means within the organization of initiating and
effecting desirable changes as well as taking preventive action.

\(4\) Fairness and promptness in handling grievances help to create a
healthy climate for management‑employee relationships and to provide
effective services to veterans and beneficiaries.

b\. **Freedom from Reprisal.** No employee will take or threaten to take
any act of reprisal against another employee because the employee has
exercised or expressed an intention to exercise rights provided by this
part. Furthermore, no employee or employee representative will at any
time be restrained, coerced, interfered with, discriminated against, or
in any way treated prejudicially in connection with the exercising of
rights under this grievance procedure.

c\. **Consultation in Presenting Grievances.** An employee is entitled
to communicate with and seek technical or procedural advice from any
appropriate official including, but not limited to Human Resources
Management staff, immediate and higher level supervisors, and Equal
Employment Opportunity (EEO) Counselors.

d\. **Official Time.** Grievants and their VA‑employed representatives
will have a reasonable amount of official time to present grievances if
otherwise in a duty status.

e\. **Informal Resolutions.** Nothing in these procedures shall prohibit
reasonable attempts to resolve, at any time, a grievance that is being
processed. Informal resolutions are encouraged at any stage of the
grievance process. Management should explore alternative solutions to
resolve employee grievances at the earliest stage possible since
informal resolutions often avoid unnecessary costs related to lost
productivity, poor morale, and diminished services.

f\. **Nonconformity with Procedure.** Every effort will be made by both
management and employees to conform to the prescribed grievance policy
and procedure. However, minor technical violations, whether made by
management or the employee, which do not affect the general equity with
which a case is presented or handled, will not preclude proceeding with
a grievance, nor invalidate any action or decision taken in connection
with the grievance.

**2.** []{#ptIVch1par2 .anchor}**RESPONSIBILITIES**

a\. **The Under Secretary for Health and Other Key Management
Officials.** The Under Secretary for Health and other key management
officials are responsible for delegating authority to appropriate
officials to decide grievances. The Under Secretary for Health and
facility directors, as appropriate, will designate such officials in
writing. (For title 38 employees only.)

b\. **Management.** Management officials will be responsible for
administering the VA grievance procedure and for bringing it to the
attention of employees.

c\. **Supervisors.** Supervisors are responsible for listening to
employee complaints and attempting to clarify and make reasonable
adjustments to address problems that arise in daily relationships with
employees.

d\. **Human Resources Officers.** Human Resources Officers and their
staffs will provide guidance and technical advice to management and
employees regarding the administration of the grievance procedure.

e\. **Grievance Examiner.** Grievance examiners are responsible for
making an impartial and objective inquiry regarding the merits of a
grievance and for providing a report of findings and recommendations to
the decision official as well as to all parties involved.

### 

### **CHAPTER 2. TITLE 5 AND HYBRID TITLE 38 EMPLOYEES** 

1\. []{#ptIVch2par1 .anchor}SCOPE

a\. **General.** This chapter establishes policies, principles, and
procedures for the presentation and consideration of employee
grievances.

b\. **Employee Coverage.** This grievance procedure covers all VA
employees, **[except]{.underline}** for those listed in subparagraph c
\[ \].

c\. **Exclusions.** The following employees are excluded from coverage:

\(1\) A noncitizen appointed under Civil Service Rule VIII, section 8.3
of title 5, Code of Federal Regulations;

\(2\) An alien appointed under section 1471(5) of title 22, United
States Code;

\(3\) A VA physician, dentist, nurse, or other employee appointed under
chapter 73 or 74 of title 38, United States Code. **This exclusion does
not apply to full-time permanent** \[**employees**\] **appointed under
38 U.S.C. 7401(3)** \[, **permanent part-time employees appointed under
38 U.S.C. 7405(a)(1)(B), or temporary part-time or full-time employees
appointed under 7405(a)(1)(B) serving on appointments not limited to one
year or less**\];

\(4\) An individual paid from funds as defined in section 2105(c) of
title 5 (not applicable to the VA) or section 4202(5) of title 38,
United States Code i.e., Excepted Service Veterans Canteen employees.

**2.** []{#ptIVch2par2 .anchor}**DEFINITIONS**

a\. **Grievance.** A request by an employee, or by a group of employees
acting as individuals, for personal relief in a matter of concern or
dissatisfaction relating to employment which is subject to the control
of agency management. Matters not covered by the grievance procedure are
listed in paragraph 14 of this chapter.

b\. **Employee.** May include a former employee of VA for whom a
specific remedy can still be appropriately provided. For example, a
former employee charged with 8 hours absence without leave (AWOL) who
has requested that the 8 hours of pay be restored. Former employees must
have filed a timely grievance in accordance with the provisions of this
chapter in order to receive consideration.

c\. **Bargaining Unit Employee.** An employee included in an appropriate
unit as determined by the Federal Labor Relations Authority, for which a
labor organization has been accorded exclusive recognition.

d\. **Personal Relief.** A specific remedy directly benefiting the
grievant, but may not include a request for disciplinary or other action
affecting another employee.

e\. **Grievance File.** A separate file subject to the Privacy Act which
contains all documents related to the grievance. This file will include,
but is not limited to, statements of witnesses, records or copies
thereof, the report of the hearing when one is held, statements made by
the parties to the grievance, and the decision.

f\. **Decision Official.** An official designated to (1) receive and
attempt to adjust formal grievances; (2) refer formal grievances for
further review and inquiry; and (3) decide formal grievances based on
the results of impartial reviews and recommendations.

g\. **Days.** Calendar days.

**3.** []{#ptIVch2par3 .anchor}**OFFICIALS AUTHORIZED TO SETTLE
GRIEVANCES**

a\. **Informal Grievance Procedure.** Responses required at the informal
stage of the grievance will be made by the immediate supervisor or
official with authority to settle the issue.

b\. **Formal Grievance Procedure.** Authority to make a decision when
the formal stage of the grievance procedure is reached will be exercised
as follows:

\(1\) **Grievances of Facility Employees.** The facility Director will
be the decision official on a grievance from an employee under his/her
jurisdiction provided the matter to be resolved comes under the
Director\'s authority. The Administration Head, Deputy Under Secretary,
or Staff Office Director is responsible for designating an appropriate
official on a case-by-case basis who may decide the formal grievance of
an employee occupying a field position which is centralized to the
Secretary or to a Administration Head, Deputy Under Secretary or Staff
Office Director. The individual designated to decide the formal
grievances of occupants of centralized positions should be the lowest
official in the supervisory line who has authority to settle the
grievance.

\(2\) **Grievances of Central Office Employees and Facility Employees
Not Under the Jurisdiction of the Facility Director.** The Secretary,
Under Secretary, Deputy Under Secretary, or Administration Head or Staff
Office Director, as appropriate, is responsible for designating an
appropriate official on a case-by-case basis who may decide the formal
grievance of an employee in Central Office or an employee in the field
who is not under the jurisdiction of a facility director.

\(3\) **Exceptions**

\(a\) The normal decision official, as designated in subparagraph (1)
and (2) above, will not decide the grievance when:

[1]{.underline}. The decision official is the official with whom the
employee would take up the initial grievance in the informal stage;

[2]{.underline}. The decision official does not have the authority to
make a determination on the grievance issues; or

[3]{.underline}. The decision official made the decision or took the
action on which the employee\'s grievance is based.

\(b\) In these instances, the decision official will refer the grievance
through channels, and another official will be designated to make the
grievance decision.

**4.** []{#ptIVch2par4 .anchor}**REPRESENTATION**

a\. **Election of Representation.** An employee may present a grievance
with or without representation.

b\. **Designation of Representative.** An employee has the right to
choose to be accompanied, represented, and advised by a representative
of choice at any stage of the procedure. If a grievance is presented
under the formal grievance procedure, designation of a representative
will be in writing and will be submitted to the decision official. Any
change of representative will be in writing.

c\. **Disallowance of Designated Representative.** A representative may
be disallowed by a line official because of priority needs of the
service; unreasonable cost to the Government; conflict of position; or
conflict of interest. The disallowance of a representative will be in
writing, and will be issued within 5 days of receipt of the employee\'s
designation of representative. The notice of disallowance will inform
the employee of the basis on which the determination to disallow is made
and the right of the employee to challenge the disallowance.

d\. **Challenge of Disallowance of Designated Representative.** If
informed that a designated representative has been disallowed, an
employee may, within 5 days, challenge the disallowance in writing to
the decision official. A challenge should state the reason for
disagreeing with the disallowance and whether the employee wishes to
proceed with the grievance or wait for a decision on the challenge. A
final decision on a challenge of disallowance of a representative will
be made no later than 10 days after receipt of the challenge by the
appropriate official.

e\. **Change of Designated Representative.** In the event that an
employee changes representatives during the proceeding, any disallowance
of representative or challenge regarding a disallowance will be resolved
in the above manner.

**5.** []{#ptIVch2par5 .anchor}**TIME LIMITS FOR PROCESSING GRIEVANCES**

a\. **Time Limits.** A decision on a grievance will be issued within the
shortest time frame possible. To ensure timely and orderly processing,
the following time limits are established for each stage of the
grievance procedure:

\(1\) 15 days from the date of the incident or action on which the
grievance is based for the employee to initiate grievance.

\(2\) 10 days for completion of action under the informal procedure.

\(3\) 10 days for the employee to file a written grievance under the
formal procedure after completion of action under the informal
procedure.

\(4\) 10 days for the deciding official to adjust or refer a grievance
for inquiry by an examiner or for technical review after an employee
files a formal grievance.

\(5\) 30 days for completion of the inquiry when the examiner is
appointed locally.

\(6\) 45 days for completion of the inquiry when the examiner is
appointed by Central Office.

\(7\) 30 days for Central Office to issue technical reviews when
requested to do so by the decision official.

\(8\) 15 days for issuance of the decision after the decision official
receives the examiner\'s report of findings and recommendations or the
Central Office technical review, unless the decision official takes
exception to the findings and recommendations of an examiner.

b\. **Delays in Processing Grievances.** Management officials should
ensure that grievances are processed promptly. Management delays in any
stage of the grievance procedure beyond the prescribed time limits will
be explained to the employee and the employee\'s representative and will
be documented for the record. Such delays should be rare and held to a
minimum. If the employee delays in any stage of the grievance procedure,
management will determine whether there was good cause and whether the
grievance should continue to be processed. Such delays and explanations
will be documented for the record. This includes any delay created by
the denial of an employee\'s representative or by challenge to the
denial.

**6.** []{#ptIVch2par6 .anchor}**INFORMAL GRIEVANCE PROCEDURE**

a\. **Presenting a Grievance** **Under the Informal Procedure.** An
employee desiring consideration of a grievance must first seek informal
adjustment of the matter through supervisory channels. The employee\'s
request for informal adjustment of a grievance should be made as soon as
possible, but not later than 15 days after the date of the incident or
action upon which the grievance is based, or the date upon which the
employee became aware of, or should have become aware of, the incident
or action upon which the grievance is based. The initial presentation,
which may be oral or written, is normally made to the immediate
supervisor. Subsequent presentations must be in writing. If the
grievance is presented orally, the employee must make clear that a
grievance is being presented, in order to distinguish grievances from
mere inquiries. Supervisors who receive oral grievances will prepare a
written summary of the oral presentation and will notify the grievant of
the decision in writing.

b\. **Grievance on Continuing Condition or Practices.** An employee may
present a grievance concerning a continuing practice or condition at any
time. Situations caused by actions which were taken or were identified
as of a given date (e.g., admonishments, reprimands, reassignments,
shift or duty assignments,) are not considered continuing conditions for
these purposes despite any continuing effects they may have.

c\. **Resolving a Grievance.** The supervisor to whom a grievance has
been presented for informal adjustment will attempt to resolve it as
expeditiously as possible, seeking the advice and assistance of others
where necessary, and will give the employee a written decision on the
matter within 10 days from the date of the request for informal
consideration. If the relief sought is not granted, the employee should
be advised of the right to present the grievance under the formal
procedure.

d\. **Mandatory Use of the Informal Procedure.** The employee must
complete processing under the informal procedure before a grievance
concerning the same matter will be accepted for processing under the
formal procedure.

**7.** []{#ptIVch2par7 .anchor}**FORMAL GRIEVANCE PROCEDURE**

a\. **Presenting a Grievance Under the Formal Procedure.** If the
employee is not satisfied with the informal answer, he/she may present
the grievance in writing under the formal procedure. The formal
grievance must be filed through supervisory channels within 10 days
after receipt of the answer under the informal procedure. The time limit
may be extended by management when good cause is shown by the employee.
Normally, the formal grievance should be submitted through the
employee\'s immediate supervisor.

b\. **Contents of a Formal Grievance**

\(1\) The formal grievance will be in writing, will contain sufficient
detail to identify and clarify the basis for the grievance, and will
specify the personal relief requested by the employee. It will contain
the following information:

\(a\) The specific action or incident on which the grievance is based;
the date the action or incident occurred (if known), and the date the
employee first learned of the action (if appropriate).

\(b\) The reasons for which the employee believes that the action was
unjustified or that he/she was treated unfairly; and/or the specific
policy (agency, facility, etc.), written agreement, or provision
violated and how it affected the employee.

\(c\) The corrective action desired by the employee.

\(2\) A sample format for an employee\'s formal grievance is contained
in appendix IV-A to this handbook.

\(3\) If the formal grievance does not contain a statement of the
grievance giving essentially the information specified above, the
decision official will return the grievance to the employee so that the
necessary information may be furnished. If the employee fails to provide
necessary information after being provided with an opportunity to do so,
the decision official should reject the grievance following procedures
contained in paragraph 8 of this chapter.

c\. **Group Grievances.** When a group of employees has an identical
formal grievance, it will be considered in the same manner as an
individual complaint and the decision will be binding on all members

of the group. The group will select one individual case for processing
under the provisions of the formal grievance procedure.

d\. **Routing Formal Grievances** The immediate supervisor or other
official receiving the employee\'s formal grievance will refer it
promptly through channels to the appropriate decision official.

e\. **Grievance File**

\(1\) When a formal grievance is submitted, the Human Resources Officer
will be notified promptly by the appropriate decision official.

\(a\) The Human Resources Officer will establish a grievance file,
separate from the employee\'s personnel folder, which will contain:

1.  The employee\'s grievance and designation of representative;

2.  Notices;

3.  Written replies;

4.  Material or evidence used to support administrative action (e.g., if
    the grievance is based on a disciplinary or other administrative
    order);

5.  Copies of relevant policies; and

6.  Any other information considered appropriate for review in making a
    decision on the grievance.

\(b\) The grievance file will be expanded as more information is
developed. If an examiner is appointed to inquire into a grievance,
he/she will add appropriate information to the file based on any inquiry
made.

\(c\) When grievances are filed by SES employees, the Deputy Assistant
Secretary for Human Resources Management will perform the same functions
as the Human Resources Officer.

\(2\) The grievance file must not contain any document that is not
available to the employee or the employee\'s representative for review.
Medical records which cannot be disclosed to the employee in accordance
with 5 CFR 297.204(c) of OPM regulations or MP-1, part II, chapter 21,
paragraph 1b cannot be included in the file. Information made available
to the examiner which cannot be provided to the employee in the same
form in which it was received, must be included in the file in a form
which the employee can review or must not be used. In this regard, the
file will not contain unsanitized, confidential, or personal records of
employees other than the person filing the grievance (for example,
appraisals of performance and personal qualifications).

f\. **Nonconformity with Procedure**

\(1\) When an employee, either orally or in writing, presents a
grievance to a supervisory or administrative official without following
the provisions of the grievance procedure, such official will make

certain that the employee is fully informed of the correct procedure and
will inform the employee that VA requires that the grievance procedure
be followed in the interest of prompt, orderly, and systematic handling
of all cases.

\(2\) It is contemplated that every effort will be made by both
management and employees to conform to the prescribed grievance policy
and procedure. However, minor and unintentional technical violations,
whether by management or the employee, which do not affect the general
equity with which a case is presented or handled, will not in themselves
preclude proceeding with a grievance, nor invalidate any action or
decision taken in connection with the grievance.

g\. **Grievance Based on an Administrative Decision.** Where an
administrative decision or action affecting an employee forms the basis
of the employee\'s grievance, the right to file a grievance will not be
available to the employee until the effective date of the action on
which the grievance is based. The grievance procedure itself will not
delay the implementation of an administrative decision.

h\. **Adjustment or Referral of a Grievance by Decision Official.**
Unless the decision official rejects or returns the grievance for
additional information, that official will review the employee\'s
grievance and the grievance file and explore the possibility of
adjusting the grievance to the employee\'s satisfaction. If the decision
official is unable to resolve the grievance in a manner acceptable to
the employee, the grievance will be referred for inquiry by an examiner
or for technical review by an appropriate official within 10 days of the
decision official\'s receipt of the formal grievance.

**8.** []{#ptIVch2par8 .anchor}**REJECTION OR CANCELLATION OF A
GRIEVANCE**

a\. **Reasons for Rejection of a Grievance.** The decision official may
reject a grievance for any of the following reasons:

\(1\) Does not furnish sufficient detail to clearly identify the matter
being grieved;

\(2\) Does not specify the personal relief sought, or the specific
relief is not personal to the grievant;

\(3\) Consists of a matter or matters that are not covered by the VA
grievance procedure (see paragraph 14 of this chapter);

\(4\) Is not timely (see par. 5 for specific time limits).

b\. **Written Notification of Rejection of a Formal Grievance.** The
grievant and his or her representative will be notified in writing when
a formal grievance is rejected and provided with the specific reasons
for the rejection.

c\. **Grievance May Not Be Rejected in the Informal Procedure.** A
grievance may not be rejected in the informal procedure for any reason.
If the grievance is not timely or does not meet criteria for processing
under the grievance procedure, the employee should be so advised.
However, the employee will be allowed to submit the grievance under the
formal procedure if he/she so desires.

d\. **Reasons for Cancellation of Grievance.** A grievance may be
canceled, either wholly or partially, as appropriate, by the decision
official under any of the following conditions:

\(1\) At the employee\'s request;

\(2\) Upon termination of the employee\'s employment, unless the
personal relief sought by the employee can be granted after termination
of employment;

\(3\) Upon the death of the employee, unless the grievance involves a
question of pay;

\(4\) For failure of the employee to furnish required information; or

\(5\) For failure of the employee to duly proceed with advancement of
the grievance.

e\. **Written Notification of Cancellation of a Formal Grievance.** The
grievant and his or her representative will be notified in writing when
a grievance is canceled and provided with specific reasons for the
cancellation.

**9.** []{#ptIVch2par9 .anchor}**ROUTING FORMAL GRIEVANCES**

a\. **Technical Review.** In cases where the facts are not in dispute
and the primary issue involves only the interpretation of regulation or
policy, instead of appointing an examiner, the decision official may
forward the grievance for technical review and recommendations through
appropriate channels to the Office of Human Resources Management \[and
Labor Relations\] (051). Situations where "the facts are not in dispute"
are those instances where management essentially agrees with the
grievant's statement of facts in the formal grievance, and the primary
issue in dispute is regulatory or policy interpretation. The grievant
and his or her representative will be provided with a copy of the
decision official's letter to Central Office. Upon receipt of the
request, the grievance will be forwarded to the appropriate
organizational element in Central Office which has technical program
responsibility in the matters disputed. A technical review will be
conducted and resulting recommendations transmitted by an appropriate
Central Office line official to the decision official who will resolve
the grievance as indicated in paragraph 10 this chapter.

b\. **Appointment of a Facility Grievance Examiner.** In cases where it
is determined that an examiner is required, the decision official may
appoint a subordinate employee to act as the grievance examiner. The
grievance examiner will be fair, impartial, and objective, with
demonstrated analytical and fact-finding skills. The grievance examiner
will not be assigned cases in his or her service, division, or
organizational component, and must be an employee who has not been
involved in the matter being grieved and who does not occupy a position
subordinate to any official who recommended, advised, made a decision,
or who otherwise is or was involved in the matter being grieved. The
grievant and any designated representative will be informed of the
assignment. The examiner assigned will promptly review the case and
determine the nature and scope of the inquiry appropriate to the
issue(s) involved in the grievance.

c\. **Appointment of a Grievance Examiner From Outside VA Facility.**
Decision officials should make every effort to appoint a local examiner
to investigate an employee grievance. However, there may be instances
where this is not practicable due to the nature of the grievance and/or
the unavailability of an appropriate individual to act as the grievance
examiner. Such grievances should be forwarded to the next higher
organizational level for assignment of a grievance examiner. Referral of
such requests should be minimized and must provide justifications as to
why the grievance could not be handled by a grievance examiner appointed
at the local level. Two copies of the grievance file will be included
with the grievance. A copy of the grievance file will be maintained by
the decision official. The grievant and his or her representative will
be given a copy of the letter requesting appointment of a grievance
examiner. An examiner will be appointed within 5 days after the request
and required files are received. Grievance examiners will be authorized
to visit the grievant\'s facility, if appropriate.

d\. **Grievance Inquiry.** At the examiner\'s discretion, the grievance
inquiry may consist of:

\(1\) The securing of documentary evidence, including such technical
advice as may be needed;

\(2\) Personal or telephone interview (statements of witnesses obtained
by the examiner should be under oath or affirmation, without a pledge of
confidence);

\(3\) A group meeting;

\(4\) Hearing;

\(5\) Any combination of the above.

e\. **Hearings**

\(1\) Formal hearings should be limited to grievances involving complex
matters or where important factual matters are in dispute. The decision
to schedule a hearing is the prerogative of the examiner.

\(2\) If a hearing is held, the examiner will determine how the hearing
will be recorded and will have a verbatim transcript or written summary
of the hearing prepared, including all pertinent documents submitted and
accepted by him or her. When the hearing is recorded verbatim, the
facility Director where the hearing is being held will provide the
hearing room and services for recording the transcript and will ensure
that the transcript reaches the examiner within 10 days after the
hearing is held. The examiner will make the transcript a part of the
record of the proceedings. When the hearing is not recorded verbatim, a
summary of pertinent portions of the testimony will be made by the
examiner. In cases where the examiner travels to a different facility,
the examiner may use the services of the grievant\'s facility or his or
her own facility to record the summary, whichever the examiner deems
appropriate. The summary will constitute the report of the hearing and
is made a part of the record of the proceedings.

f\. **Administering Oaths or Affirmations.** Examiners are authorized to
administer oaths or affirmations for purposes of this part. (See
appendix IV-C.)

g\. **Grievance File.** The examiner will ensure that the grievance file
contains all documents related to the grievance, including evidence
collected, statements of witnesses, notices and replies pertinent to the
case, and the report of hearing when a hearing is held. On completion of
the inquiry, the examiner will make the grievance file available to the
employee and the employee\'s representative for review and comments.
Their comments, if any, are due within 5 days after receipt of the
grievance file and will be included in the file.

h\. **Preparation of Examiner\'s Report.** After the employee and the
employee\'s representative have been given an opportunity to review the
grievance file, the examiner will prepare a report of findings and
recommendations, and submit that report, with the grievance file, to the
decision official. The examiner will also furnish the employee and the
employee\'s representative with a copy of the report. Guidelines for the
report are contained in appendix IV-B of this handbook, which should be
provided to individuals assigned as examiners.

i\. **Time Limits for Examiner\'s Report and Central Office Technical
Reviews.** The examiner will submit the report and the grievance file to
the decision official within 30 days for grievance examiners appointed
locally or 45 days for grievance examiners appointed by a higher
organizational level, after receipt of written notification of
appointment as the grievance examiner. Central Office will issue a
technical review within 30 days of receipt of such a request from the
decision official.

**10.** []{#ptIVch2par10 .anchor}**DECISION ON GRIEVANCES**

a\. **Action by Decision Official - Examiner\'s Report.** Upon receipt
of the grievance examiner\'s report of findings and recommendations, the
decision official will:

\(1\) Accept the examiner\'s recommendation and issue a written decision
to the employee within 15 days after the recommendation is received. The
employee\'s representative will also receive a copy of the decision;

\(2\) Grant the relief sought by the employee, issuing the decision
without regard to the examiner\'s recommendation; or,

\(3\) If the decision official determines that the examiner\'s
recommendations are unacceptable, he or she will forward the examiner\'s
recommendations and a specific statement of the basis for objection,
with the grievance file, to the next higher supervisory level above the
decision official. The decision official will also furnish the employee
and the employee\'s representative with a copy of the statement on which
the referral is based. The higher level review official will consult
with the Office of Human Resources Management \[and Labor Relations\]
(051) and will render a final decision on the employee\'s grievance.
Objections to the recommendations of the grievance examiner will be
limited to the following grounds:

\(a\) The recommendations are contrary to law, regulation, or agency
policy;

\(b\) The recommendations are not supported by the evidence; or,

\(c\) The recommendations would establish a precedent that would have a
detrimental impact upon the efficient operation of VA.

b\. **Higher Level Review.** In matters of judgment where the issues
could have been decided more than one way, higher level review officials
will not substitute their judgment for that of the grievance examiner,
unless the examiner\'s recommendations fall into any of the three
categories contained in subparagraph a(3) above.

c\. **Action by Decision Official - Technical Review.** Central Office
technical reviews and the resulting recommendations will be forwarded to
the formal grievance decision official, and will serve as the basis for
the final decision. The decision official will issue the decision to the
employee within 15 days after the technical review is received from
Central Office.

**11.** []{#ptIVch2par11 .anchor}**ADMINISTRATIVE APPEALS**

a\. **Agency Appeal.** When separated for cause, including performance
deficiencies, employees without veterans preference appointed under
authority of Schedule A or Schedule B who have completed 1 year of
current continuous service in the same or similar positions are entitled
to appeal the separation action to a higher level authority. In the
decision letter on the separation, the employee will be informed of his
or her appeal right to the appropriate Administration Head, Assistant
Secretary or Staff Office Director, and of the right to a hearing prior
to a final decision on the employee\'s appeal. Sample language, and
other provisions of part I of this handbook, as appropriate, apply in
taking such separation actions. An appeal may be submitted at any time
after receipt of the decision, but not later than 15 days after the
effective date of the action. Evidence files will be established when
taking action to separate an employee covered by the provisions of this
paragraph. The evidence file and the employee\'s personnel folder will
be sent through channels to the Office of Human Resources Management
\[and Labor Relations\] when the employee has requested a hearing. The
examiner assigned to conduct the hearing will do so in accordance with
the provisions in paragraph 9e and will submit a report of findings and
recommendations to the appropriate decision official within 30 days
after completion of the hearing. The Administration Head, Assistant
Secretary or Staff Office Director, or designee, will render a decision
on the appeal within 20 days after receipt of the examiner\'s report.
The decision will be final with no further right of administrative
review of appeal.

b\. **Appeals to Merit Systems Protection Board.** Employees with
veterans preference who have completed 1 year of current continuous
employment in a position outside the competitive service can appeal a
separation to the Merit Systems Protection Board. The provisions of part
I of this handbook, as appropriate, apply in taking such separation
actions.

**12.** []{#ptIVch2par12 .anchor}**TRAVEL EXPENSES.** Authorized travel
expenses for grievance examiners assigned by VA Central Office will be
borne by VA in accordance with Government travel regulations. Travel
expenses of grievants and witnesses will be paid by VA where it is
determined by a VA official or the grievance examiner that travel in
connection with a grievance is necessary.

**13.** []{#ptIVch2par13 .anchor}**INFORMING EMPLOYEES.** Information in
this part should be brought to the attention of all employees. The text
of this handbook is available electronically.

**14.** []{#ptIVch2par14 .anchor}**MATTERS EXCLUDED FROM COVERAGE.** The
following actions and complaints are excluded from coverage under the
grievance procedure:

a\. The content of published agency regulations and policy. An
employee\'s allegation that locally established policy is in conflict
with existing agency policy or regulations may be handled as indicated
in paragraph 9a of this chapter;

b\. A decision which is appealable to the MSPB (Merit Systems Protection
Board) or subject to final administrative review by the OPM (Office of
Personnel Management), the FLRA (Federal Labor Relations Authority), or
the OWCP (Office of Workers\' Compensation Programs) under law or
regulations of the OPM, FLRA, or the OWCP; or any other matter for which
final administrative authority lies outside VA;

c\. Allegations of discrimination on the basis of race, color, religion,
sex, national origin, age over 40 and/or disabling condition, in
connection with any decision or action. Such allegations may only be
pursued as complaints of discrimination, pursuant to regulations of the
Equal Employment Opportunity Commission.

d\. Nonselection for promotion from a group of properly ranked and
certified candidates or failure to receive a non-competitive promotion;

e\. A preliminary warning notice of an action which, if effected, would
be covered under a grievance or appeal system or excluded from coverage
by paragraph b above;

f\. A return of a SES (Senior Executive Service) career appointee to the
General Schedule or another pay system during the 1-year period of
probation for less than fully successful executive performance;

g\. Reassignment of an SES appointee;

h\. An action which terminates a temporary promotion within a maximum
period of 2 years and returns the employee to the position from which
the employee was temporarily promoted, or reassigns or demotes the
employee to a different position that is not at a lower grade and pay
than the position from which the employee was temporarily promoted;

i\. An action which terminates a term promotion at the completion of the
project or specified period, or at the end of a rotational assignment,
and returns the employee to the position from which promoted or to a
different position of equivalent grade and pay in accordance with 5 CFR
335.102 (f);

j\. The content of the critical elements and performance standards of an
employee\'s position;

k\. Nonadoption of a suggestion or disapproval of a quality step
increase, performance award, or other kind of discretionary award,
including SES performance awards and Presidential Rank awards for
members of the SES;

l\. Termination of an employee serving a probationary or trial period
after initial appointment for unsatisfactory performance or conduct;

m\. Termination of an SES career appointee during probation for
unsatisfactory performance;

n\. Evaluation of performance for a member of the Senior Executive
Service;

o\. Return of any employee from an initial appointment as a supervisor
or manager to a nonsupervisory or nonmanagerial position for failure to
satisfactorily complete the probationary period;

p\. Relief specified that is not personal to the grievant or is not
subject to the control of management;

q\. A grievance over a matter covered by a negotiated grievance
procedure;

r\. A grievance of an individual from outside VA;

s\. Grievances concerning the number of positions to be filled, or the
grade level at which positions are advertised or filled;

t\. An action taken in accordance with the terms of a formal agreement
voluntarily entered into by an employee which: (a) assigns the employee
from one geographical location to another or (b) returns an employee
from an overseas assignment;

u\. Separation of employees with less than 1 year of current continuous
employment appointed under authority of Schedule A or Schedule B;

v\. A performance appraisal or overall rating assigned under the
performance evaluation system (requests for review of these should be
processed in accordance with provisions contained in VA Directive and
Handbook 5013, Performance Management Systems);

w\. Terminations of tempoccrary appointments.[]{#ptIVch3 .anchor}

**CHAPTER 3. TITLE 38 GRIEVANCES**

**1.** []{#ptIVch3par1 .anchor}**SCOPE AND AUTHORITY**

a\. **General.** This chapter governs employee grievances under the VA
grievance procedure.

b\. **Employee Coverage**

\(1\) This chapter applies to all permanent and probationary physicians,
dentists, podiatrists, \[chiropractors,\] optometrists, nurses, nurse
anesthetists, physician assistants, and expanded‑function dental
auxiliaries.

\(2\) A bargaining unit employee may elect to use the VA grievance
procedure described in this chapter or the negotiated grievance
procedure, but not both, in the case of a disciplinary or adverse action
covered under part II of this handbook which does not involve a question
of professional conduct or competence.

c\. **Disciplinary and Adverse Actions Covered.** Disciplinary and \[ \]
adverse actions\[,\] other than title 38 \[ \] adverse actions which
involve questions of professional conduct or competence, are covered by
the grievance procedures described in this chapter.

**2.** []{#ptIVch3par2 .anchor}**REFERENCES**

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

b\. Section 302 of the Veterans Healthcare, Capital Asset and Business
Improvement Act of 2003 (Pub. L. 108-170).

c\. Section 3 of the Department of Veterans Affairs Health Care
Personnel Act of 2004 Public Law (Pub. L.) 108-445.

d\. 38 U.S.C. 501(a), 512(a), 7421, 38 U.S.C. 7461-7464.

**3.** []{#ptIVch3par3 .anchor}**OFFICIALS AUTHORIZED TO SETTLE
GRIEVANCES**

a\. **Informal Grievance Procedure.** The official who will make a
decision on grievances filed at the informal stage will be the immediate
supervisor, or lowest level official with authority to settle the issue.

b\. **Formal Grievance Procedure.** Authority to make a decision when
the formal stage of the grievance procedure is reached will be exercised
as follows:

\(1\) **Grievances of Facility Employees.** The facility Director will
be the decision official on a grievance from an employee under the
facility Director\'s jurisdiction provided the matter to be resolved is
one which is under the Director\'s authority. In grievances where one of
the exceptions identified in subparagraph (3) of this paragraph exist,
the grievance will be decided by the next higher level official with the
authority to resolve the issue.

\(2\) **Grievances of VA Central Office Employees.** The Under Secretary
for Health, or designee, will decide the formal grievance of VA Central
Office employees unless one of the exceptions in subparagraph (3) of
this paragraph applies. (VA Central Office employees include those
individuals whose names appear on VA Central Office employment listings,
but may be physically located in a different geographic location.) In
those cases, where exceptions exist, the Secretary is responsible for
designating an appropriate official who may decide the formal grievance.

\(3\) **Exceptions.** The normal decision official, as designated in
paragraph 3b, will not decide the grievance when that official:

\(a\) Is the official with whom the employee would take up the initial
grievance at the informal stage;

\(b\) Does not have the authority to make a determination on the
grievance issues; or

\(c\) Made the decision or took the action on which the employee\'s
grievance is based.

**4.** []{#ptIVch3par4 .anchor}**REPRESENTATION**

a\. **Election of Representation.** An employee may present a grievance
with or without representation.

b\. **Designation of a Representative.** An employee has the right to be
accompanied, represented, and advised by a representative of choice at
any stage of the procedure. If a grievance is presented under the formal
grievance procedure, designation of a representative will be in writing
and will be submitted to the decision official. Any change of
representative will be in writing.

c\. **Disallowance of a Designated Representative**

\(1\) **Conflict of Position or Conflict of Interest.** An employee\'s
representative who is employed by VA may be disallowed by the decision
official because of conflict of position or conflict of interest. The
disallowance of a representative will be in writing, and will be issued
within 5 days of receipt of the employee\'s written designation of
representative. The notice of disallowance will inform the employee of
the basis on which the determination to disallow is made, and the right
of the employee to challenge the determination.

\(2\) **Challenge of Disallowance of Designated Representative.** If
informed that a designated representative has been disallowed, an
employee may, within 5 days, challenge the disallowance in writing to
the decision official. A challenge should state the reason for
disagreeing with the disallowance, and whether the employee wishes to
proceed with the grievance or wait for a decision on the challenge. The
grievance decision official will make a final decision on a challenge of
disallowance of a representative no later than 10 days after receipt of
the challenge.

d\. **Change of Designated Representative.** In the event that an
employee changes representatives during the proceeding, any disallowance
of representative or challenge regarding a disallowance will be resolved
in the manner identified in paragraph 4c.

**5.** []{#ptIVch3par5 .anchor}**TIME LIMITS FOR PROCESSING A
GRIEVANCE**

a\. **Time Limits.** A decision on a grievance will be issued within the
shortest time frame possible. To ensure timely and orderly processing,
the following time limits are established for each stage of the
grievance procedure:

\(1\) **Informal Procedure**

\(a\) 15 days from the date of the incident or action on which the
grievance is based for employee to initiate grievance. When an employee
is informed of a final decision that has not yet been effected, the
period to present a grievance is counted from the date of notification
of the action.

\(b\) 10 days for the supervisor to complete the action under the
informal procedure.

\(2\) **Formal Procedure**

\(a\) 10 days for employee to file a written grievance under the formal
procedure after completion of the informal procedure, or 15 days from
the date of service of a decision where a grievance originates at the
formal process (see par. 8, this chapter).

\(b\) 10 days for deciding official to adjust, reject, or refer
grievance for inquiry by examiner or for technical review after employee
files formal grievance.

\(c\) 30 days for completion of the inquiry and submission of report
when the examiner is appointed locally.

\(d\) 45 days for completion of the inquiry and submission of report
when an examiner from outside the facility is appointed.

\(e\) 30 days for Central Office to issue technical reviews when
requested to do so by the decision official.

\(f\) 15 days for issuance of the decision after the decision official
receives the examiner\'s report of findings and recommendations or the
Central office technical review.

b\. **Grievance on Continuing Condition or Practices.** An employee may
present a grievance concerning a continuing practice or condition at any
time. Situations caused by actions which were taken or occurred on a
specific date (e.g., admonishments, reprimands, or shift assignments)
are not considered continuing conditions for these purposes despite any
continuing effects they may have.

c\. **Delays in Processing Grievances.** Management officials will
ensure that grievances are processed promptly. Management delays in any
stage of the grievance procedure beyond the prescribed time limits will
be explained to the employee and the employee\'s representative. Such
delays should be rare. If the employee delays in any stage of the
grievance procedure, management will determine whether there was good
cause and whether the grievance should continue to be processed. Such
delays,

explanations, and determinations will be documented for the record. This
includes any delay created by the denial of an employee\'s
representative or by challenge to the denial.

**6.** []{#ptIVch3par6 .anchor}**INFORMAL GRIEVANCE PROCEDURE**

a\. **Presenting a Grievance Under Informal Procedure.** An employee
desiring consideration of a grievance must first seek informal
adjustment of the matter through supervisory channels. This informal
procedure will not be utilized when grieving disciplinary and adverse
actions, where grievances will be initiated at the formal step of the
grievance procedure. The employee\'s request for informal adjustment of
a grievance should be made as soon as possible, but not later than 15
days after the date of the incident or action upon which the grievance
is based, or the date upon which the employee became aware of, or should
have become aware of, the incident or action upon which the grievance is
based. The initial presentation at the informal level may be oral or
written and is normally made to the immediate supervisor. If the
grievance is presented orally, the employee must make clear that a
grievance is being presented, in order to distinguish grievances from
mere inquiries. Supervisors who receive oral grievances will prepare a
written summary of the oral presentation.

b\. **Resolving a Grievance.** The supervisor to whom a grievance has
been presented for informal adjustment will attempt to resolve it as
expeditiously as possible, seeking the advice and assistance of others
where necessary, and will give the employee a written decision on the
matter within 10 days from the date of the request for informal
consideration. If the relief sought is not granted, the employee shall
be advised of the right to present the grievance under the formal
procedure.

c\. **Mandatory Use of the Informal Procedure.** Normally, the employee
must complete processing under the informal procedure before a grievance
will be accepted for processing under the formal procedure. However,
when the authority to resolve the matter is reserved to the Secretary,
the informal procedure will not be used. This informal procedure will
not be utilized when grieving disciplinary and adverse actions, where
grievances will be initiated at the formal step of the grievance
procedure (see par. 8 of this chapter).

d\. **Mandatory Acceptance of an Informal Grievance.** A grievance may
not be rejected in the informal stage for any reason. If the grievance
is not timely or does not meet criteria for processing under the
grievance procedure, the employee should be so advised. However, the
employee will still be permitted to submit the grievance under the
formal procedure. Reasons for rejection of a grievance during the formal
procedure are discussed in paragraph 10.

**7.** []{#ptIVch3par7 .anchor}**FORMAL GRIEVANCE PROCEDURE**

a\. **Presenting Grievance Under Formal Procedure.** If the employee is
not satisfied with the decision at the informal stage, or is grieving a
disciplinary or adverse action (see par. 8 of this chapter), the
employee may present the grievance under the formal procedure. The
formal grievance must be submitted in writing through the employee\'s
immediate supervisor, within 10 days after completion of the informal
procedure, or 15 days from the date of service of a decision where a
grievance originates at the formal process (see par. 8, this chapter).
The immediate supervisor or other official receiving the employee\'s
formal grievance will refer it promptly through channels to the
appropriate decision official. The time limit may be extended by
management when good cause is shown by the employee.

b\. **Contents of Formal Grievance**

\(1\) A formal grievance will be submitted in writing, will contain
sufficient detail to identify and clarify the basis for the grievance,
and will specify the personal relief requested by the employee. It will
contain the following information:

\(a\) The specific action or incident on which the grievance is based,
the date the action or incident occurred (if known), and the date the
employee first learned of the action or incident (if appropriate).

\(b\) The reason(s) for which the employee believes that the action was
unjustified or that the employee was treated unfairly; and/or the
specific policy (department, facility, etc.), written agreement, or
regulation violated and how it affected the employee.

\(c\) The corrective action desired by the employee.

\(2\) If the formal grievance does not contain a statement of the
grievance giving essentially the information specified above, the
decision official will return the grievance to the employee so that the
necessary information may be furnished. If the employee fails to provide
the necessary information after being provided with an opportunity to do
so, the decision official should cancel the grievance following
procedures contained in paragraph 10 of this chapter.

c\. **Group Grievances.** When a group of employees has an identical
formal grievance, it will be considered in the same manner as an
individual complaint and the decision will be binding on all members of
the group. The group will select one individual case for processing
under the provisions of the formal grievance procedure.

d\. **Decision Official.** The normal decision official will not decide
the grievance when that official made the decision or took the action on
which the employee's grievance is based. The grievance examiner and
grievance decision official will be from outside the facility. See
further guidance in paragraph 3, this chapter.

e\. **Adjustment or Referral of Grievance by Decision Official.** Unless
the decision official rejects or returns the grievance for additional
information, that official will review the employee\'s grievance and the
grievance file and explore the possibility of adjusting the grievance to
the employee\'s satisfaction. If the decision official is unable to
resolve the grievance in a manner acceptable to the employee, the
grievance will be referred for inquiry by an examiner (see par. 12, of
this chapter) or for technical review by an appropriate official (see
par. 11 of this chapter) within 10 days of the decision official\'s
receipt of the formal grievance.

**8.** []{#ptIVch3par8 .anchor}**GRIEVANCES OVER DISCIPLINARY AND
ADVERSE ACTIONS**

a\. Grievances over disciplinary and adverse actions will be filed at
the formal stage described in paragraph 7 of this chapter without first
filing under the informal procedure. In cases of an adverse action, the
employee is entitled to a hearing before a grievance examiner, if
requested.

b\. Grievances initiated under the formal stage must be filed within 15
days from the date of service of the decision letter as indicated by
paragraph 5a of this chapter.

c\. Except as provided in subparagraphs a and b above, all other
provisions of this chapter apply.

**9.** []{#ptIVch3par9 .anchor}**GRIEVANCE FILE**

a\. When a formal grievance is submitted, Human Resources Management
Service will be promptly notified by the appropriate decision official.

\(1\) Human Resources Management Service will establish a grievance file
separate from the employee\'s personnel folder, which will contain:

\(a\) The employee\'s grievance and designation of representative (if
applicable);

\(b\) Notices;

\(c\) Written replies;

\(d\) Material or evidence used to support administrative action (e.g.,
if the grievance is based on a disciplinary or other administrative
action);

\(e\) Copies of relevant policies; and

\(f\) Any other information considered appropriate for review in making
a decision on the grievance.

\(2\) The grievance file will be expanded as more information is
developed. If an examiner is appointed to inquire into a grievance, the
examiner will add appropriate information to the file based on any
inquiry made.

\(3\) The examiner will ensure that the grievance file contains all
documents related to the grievance, including evidence collected,
statements of witnesses, notices and replies pertinent to the case, and
the report of hearing when a hearing is held.

b\. The grievance file must not contain any document that may not be
reviewed by the employee or the employee\'s representative. Information
added to the file by the examiner must be included in a form which the
employee can review or such information cannot be used.

\(1\) Any use or disclosure of a record or information must comply with
legal requirements for disclosure.

\(2\) A complete copy of the grievance file will be provided to the
employee, upon request.

**10.** []{#ptIVch3par10 .anchor}**REJECTION, RETURN, OR CANCELLATION OF
A GRIEVANCE**

a\. **Reasons for Rejection of a Grievance.** The decision official may
reject a grievance only for one or more of the following reasons:

\(1\) The relief sought is not personal to the grievant. Relief in the
form of a request to discipline another employee will not be considered
appropriate;

\(2\) The matter(s) is(are) not covered by the VA grievance procedure
(see par 16 of this chapter);

\(3\) The grievance was not filed in a timely manner (see par. 5, this
chapter, for specific time limits). A grievance may be rejected under
the formal procedure based on a failure to timely file at either the
formal or informal stage.

b\. **Written Notification of Rejection of Formal Grievance.** The
grievant and the grievant\'s representative will be notified in writing
when a formal grievance is rejected, and provided with the specific
reason(s) for the rejection.

c\. **Reasons for Return**

\(1\) Insufficient detail was furnished to clearly identify the matter
being grieved;

\(2\) The personal relief sought is not specified.

d\. **Written Notification of Return of Grievance.** The grievant and
the grievant\'s representative will be notified in writing when a
grievance is returned, and provided with the specific reason(s) for the
return. A reasonable time will be identified for resubmission of the
grievance.

e\. **Reasons for Cancellation of Grievance.** A grievance may be
canceled, either wholly or partially as appropriate, by the decision
official under any of the following conditions:

\(1\) At the employee\'s request;

\(2\) Termination of the employee\'s employment, unless the personal
relief sought by the employee involves monetary issue(s) and can be
granted after termination of employment;

\(3\) Death of the employee, unless the grievance involves a matter
which would have entitled the employee to pay or benefits;

\(4\) Failure of the employee to furnish required information after
being notified in accordance with the procedures contained in paragraph
10d. of this chapter; or

\(5\) Failure of the employee to duly proceed with advancement of the
grievance.

f\. **Written Notification Of Cancellation of Formal Grievance.** The
grievant and the grievant\'s representative will be notified in writing
when a grievance is canceled, and provided with the specific reason(s)
for the cancellation.

**11.** []{#ptIVch3par11 .anchor}**TECHNICAL REVIEW**

a\. In cases where the facts are not in dispute and the primary issue
involves only the interpretation of regulation or policy, instead of
appointing an examiner, the decision official may forward the grievance
for technical review and recommendations through appropriate channels to
the Office of Human Resources Management \[and Labor Relations\] (051)
in VA Central Office. Situations where \"the facts are not in dispute\"
are those instances where management essentially agrees with the
grievant\'s statement of facts in the formal grievance and the primary
issue in dispute is regulatory or policy interpretation. The grievant
and the grievant\'s representative will be provided with a copy of the
decision official\'s referral letter to VA Central Office. Upon receipt
of the request, the grievance will be forwarded to the appropriate
organizational element in VA Central Office which has technical program
responsibility in the matter(s) disputed. A technical review will be
conducted and the resulting recommendations transmitted by an
appropriate VA line official to the decision official, who will resolve
the grievance as indicated in paragraph 13 of this chapter. Since the
technical review is part of the grievance file, the employee is entitled
to a copy, if requested.

b\. Matters covered under part II of this handbook which are subject to
review under the grievance procedure, may only be resolved through a
technical review if the employee waives the right to a formal review by
a grievance examiner. Such waivers shall be in writing.

**12.** []{#ptIVch3par12 .anchor}**REVIEW BY GRIEVANCE EXAMINER**

a\. **Appointment of Grievance Examiner**

\(1\) In cases where an examiner is required, the decision official may
appoint a subordinate employee to act as the grievance examiner or
request an examiner be appointed from outside the local area.

\(2\) Decision officials should make every effort to appoint a local
examiner to investigate an employee grievance. There may be instances
where this is not practicable due to the nature of the grievance and/or
the unavailability of an appropriate individual to act as the grievance
examiner.

\(a\) Such grievances will be forwarded to the Network Director for
assignment of a grievance examiner.

\(b\) Referral of grievances to the Network Director should be minimized
and must provide an explanation as to why the grievance could not be
handled by a grievance examiner appointed at the local level.

\(c\) Two copies of the grievance file will be included with the
grievance. A copy of the grievance file will be retained by the decision
official.

\(d\) The grievant and the grievant\'s representative will be given a
copy of the letter to the Network Director requesting appointment of a
grievance examiner.

\(e\) An examiner will be appointed within 5 days after the request and
required files are received.

\(f\) Grievance examiners appointed by the Network Director will be
authorized to visit the grievant\'s facility, if appropriate.

\(3\) The grievance examiner will be fair, impartial, and objective,
with demonstrated analytical and fact-finding skills. The grievance
examiner will not be assigned cases in his or her work unit or service,
and must be an employee who has not been involved in the matter being
grieved and who does not occupy a position subordinate to any official
who recommended, advised, made a decision, or who otherwise is or was
involved in the matter being grieved. The grievant and any designated
representative will be informed of the assignment. The examiner assigned
will promptly review the case and determine the nature and scope of the
inquiry appropriate to the issue(s) involved in the grievance.

\(4\) In cases arising from disciplinary actions involving professional
conduct or competence as covered under part II of this handbook the
grievance examiner will be selected from the panel of employees
designated to serve on Disciplinary Appeals Boards. Notice of the
grievance examiner\'s name on the panel list must have been provided at
least 30 days prior to his or her selection as an examiner.

\(5\) The normal decision official will not decide the grievance when
that official made the decision or took the action on which the
employee's grievance is based. The grievance examiner and grievance
decision official will be from outside the facility. See guidance in
paragraph 3, this chapter.

b\. **Formal Review.** At the examiner\'s discretion, the grievance
inquiry may consist of:

\(1\) The securing of documentary evidence, including the solicitation
of such technical advice as may be needed, or compelling expert VA
testimony;

\(2\) Personal or telephone interviews (statements of witnesses obtained
by the examiner should be under oath or affirmation, without a pledge of
confidentiality);

\(3\) A group meeting;

\(4\) A hearing; or

\(5\) Any combination of the preceding.

c\. **Hearings**

\(1\) Formal hearings should be limited to grievances involving complex
matters or where important factual matters are in dispute. The decision
to schedule a hearing is the prerogative of the examiner, except in
grievances over adverse actions where the employee has the right to a
hearing, if requested.

\(2\) If a hearing is held, the examiner will determine how the hearing
will be recorded, and will have a verbatim transcript or written summary
of the hearing prepared. The record will include all pertinent documents
submitted and accepted by the examiner. The examiner will make the
transcript a part of the record of the proceedings. When a verbatim
transcript was not made, a summary of pertinent portions of the
testimony will be made by the examiner. The summary will constitute the
report of the hearing and is made a part of the record of the
proceedings.

\(3\) The examiner\'s authority includes but is not limited to taking
proper steps to expedite the hearing of evidence and ruling on all
questions arising during the proceeding, such as admissibility of
evidence and calling of witnesses.

\(4\) When the examiner determines that a verbatim transcript is
required, the facility Director where the hearing is being held will
provide the hearing room and services for preparing the transcript and
will ensure that the transcript reaches the examiner within 10 days
after the hearing is held.

\(5\) In cases where the examiner travels to a different facility, the
examiner may use the services of the grievant\'s facility, the
examiner\'s own facility, or both to prepare the summary, whichever the
examiner deems appropriate.

d\. **Administering Oaths or Affirmations.** For purposes of this part,
examiners are authorized to administer oaths or affirmations to those
individuals providing testimony relative to the grievance. (See appendix
IV-C.)

e\. **Preparation of Examiner\'s Report.** The examiner will prepare a
report of findings and recommendations and submit that report with the
grievance file to the decision official. The examiner will also furnish
a copy of the report to the employee and the employee\'s representative.
The examiner\'s report should include the rationale for the findings and
recommendations.

f\. **Time Limits for Examiner\'s Report.** Except in unusual cases, the
time limit for submission of the report and the grievance file to the
decision official is 30 days for local grievance examiners or 45 days
for grievance examiners from outside the facility, after receipt of
written notification of appointment as the grievance examiner.

13\. []{#ptIVch3par13 .anchor}DECISION ON A GRIEVANCE

a\. **Action by Decision Official ‑ Technical Review.** VA Central
office technical reviews (paragraph 11a of this chapter) and the
resulting recommendations will be forwarded to the formal grievance
decision official, and will serve as the basis for the final decision.
The decision official will issue the decision to the employee within 15
days after the technical review is received from VA Central office.

b\. **Action by Decision Official** ‑ **Examiner\'s Report.** Upon
receipt of the grievance examiner\'s report of findings and
recommendations, the decision official will accept, modify, or reject
the examiner\'s recommendation(s) and issue a written decision to the
employee within 15 days after the recommendation is received. The
employee\'s representative will also receive a copy of the decision.

\(1\) If the decision official modifies or rejects the examiner\'s
recommendation(s), the written decision will include a specific
statement of the reason(s) for the modification or rejection.
Modification or rejection of recommendations of the grievance examiner
will be limited to the following grounds:

\(a\) The recommendation(s) are contrary to law, regulation, or
published Department policy; and/or

\(b\) The recommendation(s) are not supported by the preponderance of
the evidence.

\(2\) The decision official may elect to grant the relief sought by the
employee without regard to the examiner\'s recommendation(s).

**14.** []{#ptIVch3par14 .anchor}**TRAVEL EXPENSES.** Authorized travel
expenses for grievance examiners will be borne by the VA facility
employing the grievant in accordance with Government travel regulations.
Travel expenses of grievants and witnesses will be paid by VA where it
is determined by a VA official or the grievance examiner that travel in
connection with a grievance is necessary.

**15.** []{#ptIVch3par15 .anchor}**INFORMING EMPLOYEES.** The
information contained in this chapter will be brought to the attention
of all employees. The text of this chapter is available electronically
to all employees or hard copies may be reviewed in the Human Resources
Management office.

**16.** []{#ptIVch3par16 .anchor}**MATTERS EXCLUDED FROM COVERAGE UNDER
THE AGENCY GRIEVANCE PROCEDURE.** The following actions and complaints
are excluded from coverage under the grievance procedure:

a\. Adverse actions taken under part II of this handbook which involve a
question of professional conduct or competence.

b\. Disputes over whether a matter or question concerns, or arises out
of, professional conduct or competence.

c\. Separation during probationary period.

d\. Complaints arising from failure to receive special advancement.

e\. Complaints arising from failure to receive a promotion or
reassignment.

f\. Complaints arising from dissatisfaction with grade or pay on initial
appointment.

g\. Complaints arising from actions taken due to the individual\'s
physical or mental condition.

h\. Complaints arising from dissatisfaction with proficiency rating.

i\. An action which terminates a temporary promotion within a maximum
period of 2 years and returns the employee to the position from which
the employee was temporarily promoted, or reassigns the employee to a
different position that is not at a lower grade or pay than the position
from which the employee was temporarily promoted.

j\. The content of published VA or VHA regulations and policies. An
employee\'s allegation that locally established policy is in conflict
with existing Department policy or regulation may be handled as
indicated in paragraph 11a of this chapter.

k\. A decision which is subject to final administrative review by the
Federal Labor Relations Authority (FLRA), or the Office of Workers\'
Compensation Programs (OWCP), under law or regulations of the FLRA or
the OWCP; or any other matter for which final administrative authority
lies outside VA.

l\. Allegations of discrimination on the basis of race, color, religion,
sex, national origin, age (over 40) and/or disability, in connection
with any decision or action. Such allegations may only be pursued as
complaints of discrimination, pursuant to regulations of the Equal
Employment Opportunity Commission. Complaints of discrimination are
excluded from the grievance procedure. However, other disputes related
to the case are not precluded from review under the grievance
procedures. Accordingly, a grievance concerning a matter or matters
about which the employee has filed a complaint of discrimination must be
rejected, either wholly or partially, as appropriate.

m\. A preliminary warning notice of an action which, if effected, would
be covered under a grievance or appeal system or ex­cluded from coverage
by other paragraphs of this chapter.

n\. Disapproval of a suggestion, disapproval of a discretionary award or
disagreement with the amount of an award.

o\. A matter which includes specified relief that is not personal to the
grievant or is not subject to the control of management.

p\. A matter covered by a negotiated grievance procedure. However, an
employee may elect to use the VA grievance procedure described in this
part or the negotiated grievance procedure in the case of a disciplinary
or adverse action covered under part II of this handbook which does not
involve a question of professional conduct or competence.

q\. A grievance of an individual from outside VA, except as provided in
paragraph 2b of chapter 2 of this part.

r\. Grievances concerning the number of positions to be filled, or the
grade level at which positions are filled.

s\. An action taken in accordance with the terms of a formal agreement
voluntarily entered into by an employee.

t\. Matters that are not directly related to the employee\'s conditions
of employment.

u\. Matters involving the methods, means or technology of performing
work.

v\. \[Determinations and authorizations, including those delegated by
the Secretary, regarding the approval, disapproval, or amount of market
or performance pay granted to a physician or dentist in the Veterans
Health Administration. Refer to VA Handbook 5007, part IX, paragraph 11
for information regarding the right to request reconsideration of a tier
determination\].

w\. \[Determinations and authorizations, including those delegated by
the Secretary, regarding the approval, disapproval, or amount of special
pay granted to a nurse executive in the Veterans Health Administration\]

x\. \[Designations of employees to serve on the panel from which members
of Disciplinary Appeals Boards are selected and the selection of
employees to serve on Disciplinary Appeal Boards, professional standards
boards, compensation panels, or the appointment of a grievance
examiner\].

y\. \[All matters for which review procedures are already established in
VA policy\].

\[z.\]. A decision not to remove an admonishment or reprimand from an
employee\'s personnel folder prior to the expiration date.

### **APPENDIX A. SAMPLE GRIEVANCE FORMAT**

TO: (Name, title, and mailing address)

SUBJ: Grievance

1\. This is a (formal or informal) grievance under the VA grievance
procedure.

2\. The matter on which this grievance is based occurred on (give date)
and is described in detail as follows: (Furnish sufficient detail to
clearly identify the matter being grieved. Appropriate documents related
to your grievance should be attached.)

3\. The personal relief (i.e., corrective action) I seek is: (Specify
clearly.)

**NOTE:** *\"Personal relief\" means a specific remedy directly
benefiting the grievant and may not include a request for disciplinary
or other action affecting another employee. Failure on the part of the
grievant to provide sufficient information relating to the grievance or
to clearly specify the personal relief requested will result in
rejection of the grievance. It is preferable that the grievant
personally deliver the grievance when practicable. When mailing is used,
the postmark usually determines the filing date of the grievance.*

Signature Date

Attachments: (All attachments should be identified)

### **APPENDIX B. GRIEVANCE EXAMINER\'S REPORT**

Grievance examiners should consider the following factors in preparing a
Report of Findings and Recommendations to respond to the decision
official:

1\. After completion of the inquiry, the examiner must prepare and
provide to the decision official a Report of Findings and
Recommendations. The report must show a determination of the factual
issues in the grievance, based on analysis of evidence secured through
the inquiry, and review of the grievance file. For each relevant and
timely issue, the examiner must analyze and weigh the evidence.

2\. If the examiner finds that the employee has a reasonable basis for
the grievance, the examiner must then consider whether the adjustment
the employee has requested is reasonable and should be recommended.

3\. The examiner\'s findings for each relevant and timely issue may be
organized along the following lines:

\(a\) Identification of the issue,

\(b\) Analysis and weighing of evidence pertinent to the issue,

\(c\) Statement of whether the employee\'s grievance is valid, and

\(d\) Whether the requested adjustment is appropriate.

\(e\) Reasons should be provided in regard to determinations made by the
grievance examiner pertaining to any adjustments.

4\. If the examiner excludes any matter raised in the grievance because
the matter is not covered under the grievance system, the report should
contain an explanation as to why it is not covered.

5\. For grievance examiners appointed locally, the grievance file and
the recommendations must be submitted to the decision official within 30
days of receipt of written notification of appointment as grievance
examiner. For grievance examiners from outside the facility, the due
date for submission is 45 days from receipt of the written notification
of appointment.

6\. The examiner must limit the findings and recommendations to those
issues raised in the grievance.

7\. The examiner will indicate in the report that the decision official
must notify the grievant of the final decision within 15 calendar days
after receipt of the report.

### **APPENDIX C. ADMINISTRATION OF OATHS - TITLE 38**

The Chairperson and Secretary of the Disciplinary Appeals Board, as well
as Grievance Examiners, are authorized to administer oaths during a
hearing. The form of oath generally used is as follows:

\"Do you solemnly swear that the testimony you are about to give in the
case will be the truth, the whole truth, and nothing but the truth, so
help you God?\"

If the witness elects to affirm rather than to swear, the following may
be used in lieu of the oath:

\"Do you solemnly affirm, under the pains and penalties of perjury, that
the testimony you are about to give in the case will be the truth, the
whole truth, and nothing but the truth?\"

**EMPLOYEE/MANAGEMENT RELATIONS**

## **PART V. TITLE 38 APPEALS TO THE DISCIPLINARY APPEALS BOARD**

**CONTENTS**

######## PARAGRAPH PAGE

## **[CHAPTER 1](#ptVch1). GENERAL**

1\. [SCOPE, AUTHORITY AND DEFINITIONS](#ptVch1par1) V-1

2\. [REPRESENTATION](#ptVch1par2) V-1

3\. [FILING AN APPEAL TO THE DISCIPLINARY APPEALS BOARD](#ptVch1par3)
V-1

4 [APPOINTMENT OF DISCIPLINARY APPEALS BOARDS](#ptVch1par4) V-2

5\. [JURISDICTION](#ptVch1par5) V-2

6\. [POWERS OF THE CHAIRPERSON OF THE DISCIPLINARY APPEALS
BOARD](#ptVch1par6) V-2

7\. [PROCEDURE](#ptVch1par7) V-3

8\. [FORMAL HEARINGS](#ptVch1par8) V-4

9\. [DISCIPLINARY APPEALS BOARD DECISIONS](#ptVch1par9) V-7

10\. [REVIEW OF RECORDS](#ptVch1par10) V-9

11\. [TRAVEL](#ptVch1par11) V-10

## **[CHAPTER 2](#chapter-2.-designation-of-panel-members-1). DESIGNATION OF PANEL MEMBERS**

1\. [SCOPE](#ptVch2par1) V-11

2\. [RESPONSIBILITIES](#ptVch2par2) V-11

3\. [QUALIFICATION OF PANEL MEMBERS](#ptVch2par3) V-11

4\. [AVAILABILITY OF ROSTER](#ptVch2par4) V-11

5\. [PANEL DESIGNATIONS](#ptVch2par5) V-11

6\. [TRAINING](#ptVch2par6) V-11

**PART V. TITLE 38 APPEALS TO THE DISCIPLINARY APPEALS BOARD**

[]{#ptVch1 .anchor}**CHAPTER 1. GENERAL**

**1.** []{#ptVch1par1 .anchor}**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, \[chiropractors,\] 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
(including reductions in market pay for physicians and dentists
resulting from involuntary reassignments or changes in assignments when
taken for conduct and performance reasons) 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.** []{#ptVch1par2 .anchor}**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.** []{#ptVch1par3 .anchor}**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 and Labor Relations (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.** []{#ptVch1par4 .anchor}**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.** []{#ptVch1par5 .anchor}**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.** []{#ptVch1par6 .anchor}**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.** []{#ptVch1par7 .anchor}**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.

b\. **Type of Hearing.** The employee has the right to a hearing before
the Board in connection with the appeal of a major adverse action. If
the employee does not ask for a hearing before the Board, the Board may
elect to conduct a hearing without the appellant or may consider the
evidence of record, including any evidence developed by the Board.
Formal hearings will be conducted in accordance with paragraph 8 of this
chapter.

c\. **Technical Advisors.** Employees may be designated to serve as
technical advisors to the Board and assist in the development and review
of the case.

d\. **Presence of Board Members.** No Board hearing will proceed unless
all members are present.

e\. **Disqualification.** A Board member will be disqualified for
service if the Chairperson rules that the Board member initiated or
participated in the initiation of charges, had direct personal knowledge
of the case or facts giving rise to the action, or if the Board
member\'s relationship with the appellant or officials involved in
recommending or deciding on the disputed action creates a question of
bias. Any party to the case or member of the Board may make a motion to
disqualify a Board member. The Chairperson will rule on the
disqualification for service of any member of the Board. In cases where
the Chairperson is the challenged member, or if a member of the Board
questions the ruling of the Chairperson, the Board will make the ruling
as to disqualification by majority vote in closed session.

f\. **Mental/Physical Condition of Employee.** In the course of the
hearing, if the appellant raises an issue of mental or physical
condition in relation to the charges, the appellant will be given the
opportunity to present evidence relating to the condition. If
appropriate, the Board may refer the matter to a Physical Standards
Board for review so that the Board may determine whether the matter was
appropriately before the Board as an action under part II of this
handbook, or whether it should have been processed under VA Directive
and Handbook 5019, Occupational Health Services, for consideration of
physical and/or mental incapacity. If, however, the appellant is
alleging discrimination on the basis of a disabling condition, the
employee should be referred to the EEO discrimination complaint process,
which is the exclusive procedure for reviewing allegations of
discrimination, and the hearing shall then proceed on the merits of the
charges.

g\. **Closing of Record.** At the conclusion of the hearing, the
Chairperson will close the record unless he/she authorizes parties to
submit written closing arguments, briefs, or documents identified for
introduction into evidence. Should this be the case, the record will
close on the date set by the Chairperson. If the appellant does not
request an oral hearing, the record will close on the date the Board
Chairperson sets as the final date for the receipt of submissions.

**8.** []{#ptVch1par8 .anchor}**FORMAL HEARINGS**

a\. **Notifications**

\(1\) The Board Chairperson shall notify the appellant, the head of the
facility, and any designated representatives when a hearing is
scheduled. The initial notice from the Chairperson shall include the
following:

\(a\) The names of the Board members and technical advisor(s) used;

\(b\) The specific hour and dates of the scheduled hearing;

\(c\) The date by which submissions must be made to the chairperson in
connection with motions from the parties (e.g., to request rescheduling
of hearing if good cause can be shown, as well as motions in other
areas); and,

\(d\) The date by which witness lists must be exchanged, which must
include statements as to what testimony each witness is expected to
provide as well as any objections either party may have to the other\'s
witnesses. Service will be by personal delivery or certified mail ‑
return receipt requested.

\(2\) In addition to the above, the initial notices from the Chairperson
should also inform the facility head of:

\(a\) The requirements to ensure that suitable hearing space is
available and to arrange for a court reporter and any other
administrative necessities;

\(b\) The date by which the appellant\'s (if applicable) and facility\'s
representatives must be designated; and

\(c\) The requirement that within 15 days of receipt of the notice from
the Chairperson, the facility must provide a complete tabbed and indexed
evidence file to:

[1]{.underline}. The Chairperson;

[2]{.underline}. Each member of the Disciplinary Appeals Board;

[3]{.underline}. The technical advisor;

[4]{.underline}. The appellant; and

[5]{.underline}. The Human Resources Management \[Employee Relations and
Performance Management\] Service (051).

b\. **Scheduling the Hearing.** The hours and dates of the hearing are
determined solely by the Chairperson. The hearing will be conducted on
official Government time, and normally, without charge to leave of the
employee(s) concerned.

c\. **Location of Hearing.** The hearing will usually be held at the
facility of the appellant.

d\. **Public Hearing.** Disciplinary Appeals Board hearings are public;
however, the appellant may request that the hearing be closed to protect
the right to privacy. VA has the responsibility to protect the privacy
of its beneficiaries and employees and confidential information
concerning them. In such cases, the Chairperson may close a portion of
the hearing to the public in order to protect the best interests of the
appellant, a witness, the public, or any other person affected by the
hearing. The Chairperson should obtain the advice of legal counsel on
such issues.

e\. **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 Chairperson of the Board will make the final determination on
exclusion of individuals during any phase of the proceeding.

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

g\. **Questioning of Witnesses.** The Chairperson will permit the
parties to the case to ask questions of witnesses in order to ascertain
all pertinent facts and is authorized to exclude irrelevant and/or
unduly repetitious evidence. Both sides will have an opportunity to
properly present and support their respective positions upon any
question or matter presented to the Board for decision.

h\. **Patients as Witnesses.** A patient, with the patient\'s consent,
may be a witness provided there has been a medical determination that
the patient has the capacity to testify and that the patient\'s
appearance as a witness will not be detrimental to the patient\'s health
and welfare.

i\. **Oaths.** The Chairperson and Secretary of the Board shall have the
authority to administer oaths or affirmations which will be made by all
individuals giving testimony. (See appendix IV-C.)

j\. **Record of Hearing**

\(1\) A verbatim record of the hearing proceedings will be prepared from
written notes or mechanical recording and shall be maintained.

\(a\) Costs of transcription services will be borne by the facility
where the appellant is or was employed. Contracts for transcription
services will identify completion dates to ensure expeditious
processing.

\(b\) The overnight receipt of transcripts is encouraged.

\(c\) If it would result in an undue burden or is otherwise impractical,
the contract should provide for receipt within 2 weeks from the date on
which the testimony occurred.

\(2\) The transcript will constitute part of the record.

\(a\) The record will be assembled by the Secretary of the Board, under
the direction of the Chairperson, but the Board as a whole will be
responsible for it.

\(b\) The record will be authenticated on VA Form 10‑2543, Board Action,
by the signature of all Board members and the technical advisor.

\(3\) The employee and/or his/her representative shall be provided a
copy of the transcript of the formal hearing after authentication.

k\. **Convening the Board.** The Chairperson will convene the Board,
announce the name of the appellant (who will introduce his/her
representative, if any), and announce the name of the Board members and
technical advisor(s) present.

l\. **Introduction of Evidence**

\(1\) In the opening statement, the Chairperson will give a brief
summary of the issues set forth in the notice of proposed adverse
action. The Chairperson will allow the introduction of evidence and call
witnesses to testify in such order as the Chairperson sees fit.

\(2\) Any evidence file need not be formally introduced because it is
already part of the record.

m\. **Executive Sessions.** The Board will go into executive session for
deliberation of questioned rulings of the Chairperson, Board findings,
and Board recommendations. The Chairperson will announce such sessions.
During executive sessions, only the Board members and such other
individuals whose technical or professional advice or assistance is
required by the Board, will be present. Executive sessions will be
conducted off the record; however, the Chairperson will make the results
a part of the record.

**9.** []{#ptVch1par9 .anchor}**DISCIPLINARY APPEALS BOARD DECISIONS**

a\. **General.** After closing the record, but prior to returning to
their duty facilities, the Board shall convene in closed session to
attempt to reach a decision on the findings and penalty. If the Board
determines that, due to the complexity of the issues or other compelling
reasons, it is not feasible to reach a decision before returning to
their duty facilities, the Board Chairperson shall ensure the Board\'s
decision is rendered without any undue delay in order to meet
established time frames.

b\. **Findings**

\(1\) **Basis of Findings.** The findings of a Disciplinary Appeals
Board will be based on the evidence presented, including evidence
developed by the Board. 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.

\(2\) **Deliberation and Voting on Findings.** Deliberation and voting
on the findings will be held in closed sessions or through the use of
teleconferences if face‑to‑face communication is not practical.

\(a\) The order in which the charges and specifications are to be voted
upon will be determined by the Chairperson.

\(b\) Each member of the Board will indicate the member\'s individual
finding on each charge.

\(c\) The majority opinion will rule.

\(d\) Minority opinions, if any, may be included on VA Form 10‑2543.

\(e\) 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
\[and Labor Relations\] (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 \[and Labor Relations\] Human Resources
Management \[Employee Relations and Performance Management\] 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.** []{#ptVch1par10 .anchor}**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.** []{#ptVch1par11 .anchor}**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.

### **CHAPTER 2. DESIGNATION OF PANEL MEMBERS**

**1.** []{#ptVch2par1 .anchor}**SCOPE.** This chapter governs to the
designation of employees to serve on the panel from which Disciplinary
Appeals Board members and grievance examiners, as appropriate, will be
appointed to hear appeals of major adverse actions and disciplinary
actions involving a question of professional conduct or competence.

**2.** []{#ptVch2par2 .anchor}**RESPONSIBILITIES.** The Under Secretary
for Health or designee will periodically designate employees to serve on
the panel.

**3.** []{#ptVch2par3 .anchor}**QUALIFICATIONS OF PANEL MEMBERS.**
Individuals designated to serve on the panel must possess sufficient
professional knowledge which would enable them to analyze, interpret,
and evaluate written evidence and testimony and to make an impartial,
objective, and well‑reasoned decision.

**4.** []{#ptVch2par4 .anchor}**AVAILABILITY OF ROSTER**

a\. VA shall announce, at least annually, the availability of a roster
of employees on the panel. This announcement shall be made at all VHA
field facilities and through publication in the Federal Register.

\(1\) A list of the names of employees on the panel shall be provided
without charge upon written request by any person.

\(2\) The request should be forwarded to the Human Resources Management
\[and Labor Relations Employee Relations and Performance Management\]
Service (051) in VA Central Office.

b\. Employees, employee organizations, and other interested parties may
submit comments to the Under Secretary for Health concerning the
suitability for service on the panel of any employee whose name appears
on the list.

**5.** []{#ptVch2par5 .anchor}**PANEL DESIGNATIONS.** Decisions related
to the designation or termination of the designation of any individual
to serve on the panel are not subject to review under any grievance or
appeal procedure.

**6.** []{#ptVch2par6 .anchor}**TRAINING.** All employees designated for
the panel shall receive training in the functions and duties of
Disciplinary Appeals Boards and grievance procedures.

**EMPLOYEE/MANAGEMENT RELATIONS**

[]{#ptVI .anchor}**PART VI. TITLE 38 SEPARATIONS NOT COVERED BY**

**PARTS II OR III OF THIS HANDBOOK**

# CONTENTS

**PARAGRAPH PAGE**

1\.
[SCOPE](#scope.-this-part-contains-procedures-for-the-separation-of-individuals-appointed-under-authority-of-38-u.s.c.-7306-74011-7405a1a-and-7406.-separations-of-probationary-employees-because-they-are-not-fully-qualified-and-satisfactory-are-covered-in-part-iii-chapter-1-of-this-handbook.-discharges-for-disciplinary-reasons-of-employees-with-permanent-status-appointed-under-section-74011-are-covered-under-part-ii-of-this-handbook-and-the-term-involuntary-separations-as-used-in-this-part-does-not-include-such-discharges.-as-used-in-this-part-the-term-designee-refers-to-a-designee-in-central-office.-the-term-employee-includes-all-employees-covered-by-this-part.-this-part-does-not-apply-in-any-way-to-employees-appointed-under-38-u.s.c.-74013-or-38-u.s.c.-7405a1b.-these-employees-are-covered-by-applicable-provisions-of-title-5-u.s.c.)
VI-1

2\. [POLICY](#ptVIpar2) VI-1

3\. [REGULATIONS AND PROCEDURES](#ptVIpar3) VI-1

4\. [REFERENCES](#ptVIpar4) VI-1

5\. [AUTHORITY AND RESPONSIBILITY](#ptVIpar5) VI-1

6\. [GENERAL](#ptVIpar6) VI-2

7\. [RESIGNATION](#ptVIpar7) VI-2

8\. [RETIREMENT](#ptVIpar8) VI-3

9\. [SEPARATION FOR DISABILITY](#ptVIpar9) VI-3

10\. [FAILURE TO MEET STATUTORY OR REGULATORY REQUIREMENTS](#ptVIpar10)
VI-4

11\. [PRE-EMPLOYMENT SUITABILITY SEPARATIONS](#ptVIpar11) \[VI-4a\]

12\. [ABANDONMENT OF POSITION](#ptVIpar12) VI-6

13\. [FAILURE TO ACCEPT REASSIGNMENT](#ptVIpar13) VI-7

14\. [SEPARATION FOR MILITARY SERVICE](#ptVIpar14) VI-7

15\. [INVOLUNTARY SEPARATION OF EMPLOYEES SERVING UNDER](#ptVIpar15)

[38 U.S.C. 7405(a)(1)(A)](#ptVIpar15) VI-7

16\. [TERMINATION OF APPOINTMENTS MADE UNDER 38 U.S.C. 7306](#ptVIpar16)
VI-8

17\. [TERMINATION OF APPOINTMENTS OF CONSULTANTS,
ATTENDINGS,](#ptVIpar17)

[AND FEE-BASIS PERSONNEL](#ptVIpar17) VI-8

18\. [SEPARATION OF MEDICAL AND DENTAL RESIDENTS APPOINTED
UNDER](#ptVIpar18)

[38 U.S.C. 7406](#ptVIpar18) VI-8

###### PART VI. TITLE 38 SEPARATIONS NOT COVERED BY

**PARTS II OR III OF THIS HANDBOOK**

# 1. SCOPE. This part contains procedures for the separation of individuals appointed under authority of 38 U.S.C. 7306, 7401(1), 7405\[(a)(1)(A),\] and 7406. Separations of probationary employees because they are not fully qualified and satisfactory are covered in part III, chapter 1 of this handbook. Discharges for disciplinary reasons of employees with permanent status appointed under section 7401(1) are covered under part II of this handbook, and the term involuntary separations as used in this part does not include such discharges. As used in this part, the term designee refers to a designee in Central Office. The term employee includes all employees covered by this part. This part does not apply in any way to employees appointed under 38 U.S.C. 7401(3) \[or 38 U.S.C. 7405(a)(1)(B)\]. These employees are covered by applicable provisions of title 5, U.S.C.

2\. []{#ptVIpar2 .anchor}POLICY

a\. Separations and other actions under this part will be effected
uniformly and fairly in accordance with management needs, the rights of
the affected employees, and the requirements of applicable laws and
regulations.

b\. There will be no discrimination because of race, color, religion,
national origin, sex or sexual orientation, lawful political
affiliation, membership or nonmembership in a labor organization,
marital status, nondisqualifying disability, age, or other irrelevant
factors in any separation or other action under this part.

c\. Appointments or designations under authority of 38 U.S.C. 7306
terminate on completion of the approved term of service unless sooner
terminated for such cause as will promote the efficiency of the service.
Normally employees whose appointments will terminate on the completion
date should be informed at least 30 calendar days in advance as to
whether their appointments will be terminated, extended, renewed, or
converted, as appropriate.

d\. The Secretary is the approving authority for involuntary separations
under this part of employees in positions centralized to the Secretary.

3\. []{#ptVIpar3 .anchor}REGULATIONS AND PROCEDURES. The Under Secretary
for Health shall promulgate regulations and the Under Secretary for
Health and designees shall establish procedures for the following
actions under this part: separations because of resignation, retirement,
disability, disqualification, abandonment of position, failure to accept
reassignment, military service, and pre-employment suitability.

4\. []{#ptVIpar4 .anchor}REFERENCES. 38 U.S.C., chapter 73 and 74.

5\. []{#ptVIpar5 .anchor}AUTHORITY AND RESPONSIBILITY

a\. **Secretary.** Approves involuntary separations of employees
appointed under authority 38 U.S.C. 7306.

b\. **Under Secretary for Health or Designees.** Except as indicated
above, approves all involuntary separations of Central Office employees
and Distinguished Physicians.

c\. **Directors of Health Care Facilities.** Approve separations of
employees, other than those listed in subparagraphs a and b above, and
all voluntary separations of employees except for resignations and
retirements.

d\. **Human Resources Management Officers.** Determine that separations
and other actions comply with applicable regulations and procedures,
assist management officials with these actions, and advise employees
about separations and review rights.

6\. []{#ptVIpar6 .anchor}GENERAL

a\. Effective dates are discussed under the paragraphs covering each of
the various types of separation actions. The Office of Personnel
Management (OPM) Operating Manual "Guide to Processing Personnel
Actions" provides further instructions regarding establishment of
effective dates, nature of actions, and amendment and cancellation of
separation actions.

b\. All employees should be informed of the rights and benefits to which
they may be entitled upon leaving VA.

c\. Exit interviews with employees who are voluntarily separated should
be conducted by human resources officials. Supervisors may also
interview employees to determine if the reasons for leaving relate to
dissatisfaction with working conditions or personnel practices. This
information may be used to identify possible problems which may impede
the effective and efficient management of the unit and adversely affect
employee retention.

7\. []{#ptVIpar7 .anchor}RESIGNATION

a\. Employee will be neither requested nor advised to resign.

b\. Employees have the right to resign and may be advised of this right.
An employee whose services are being reviewed for possible involuntary
separation may resign at any time, and the resignation may not be
delayed by administrative action.

c\. Resignations may not be conditional.

d\. The provisions of VHA Handbook 1100.18, regarding reporting to State
licensing boards and license monitoring entities, must be followed in
all instances after an employee whose standards of clinical practice are
in questions resigns. Also, in accordance with VHA Handbook 1100.18, VA
officials may not enter into any written or oral agreement which would
prohibit or restrict the release of information to a State licensing
board or license monitoring entity.

e\. Resignations are processed according to instructions contained in VA
Handbook 5005, Staffing. The reasons for an employee's resignation will
be documented on Standard Form 50-B, Notification of Personnel Action,
in accordance with instructions contained in OPM's Operating Manual
"Guide to Processing Personnel Actions."

8\. []{#ptVIpar8 .anchor}RETIREMENT

a\. **Disability**

\(1\) Employees covered by the Civil Service System (CSRS) who have 5 or
more years of civilian service may file for disability retirement under
the provisions of 5 CFR 831.

\(2\) Employees covered by the Federal Retirement System (FERS) who have
at least 18 months of civilian service may file for disability
retirement under the provisions of 5 CFR 845. FERS employees may also be
eligible for disability benefits under the Old-Age, Survivors, and
Disability Insurance (OASDI) program administered by the Social Security
administration.

\(3\) When an employee applies for disability retirement, the Human
Resources Management Officer will process the application and forward it
to the OPM. For centralized employees, the appropriate Central Office
officials will be notified.

b\. **Other Retirement.** The retirement provisions of title 5 U.S.C.,
including those for agency-initiated disability retirement, apply to
employees covered by this part.

c\. **Reporting to Licensing Boards.** The provisions VHA Handbook
1100.18, relating to reporting to State licensing boards and license
monitoring entities, must be followed in all instances in which an
employee whose standards of clinical practice are in question retires.

9\. []{#ptVIpar9 .anchor}SEPARATION FOR DISABILITY

a\. When a decision to separate an employee for disability is made under
the provisions of VA Handbook 5019, the facility Director will inform
the employee in writing, specifying the reasons for the separation and
the date of the separation. The notice will either be given directly to
the employee and the employee requested to acknowledge receipt, or
mailed by certified mail at least 15 days in advance of the separation
date. During the notice period the employee should be placed on sick
leave, annual leave, or leave without pay, as appropriate. Employees who
meet service requirements will be notified of disability retirement
eligibility and procedures. The separation will not be delayed if the
employee applies for retirement.

b\. An employee in a noncentralized position may, within 10 days of the
notice of separation, request a review of the action by the VISN. If a
review is requested, the complete record of the case along with any
statement or other evidence the employee desires to submit will be
forwarded to the appropriate Network director. The Network Director may
request additional information and/or medical evidence. If the employee
requests review, the facility Director may choose to postpone the
separation until a decision is reached.

c\. The procedures of VHA Handbook 1100.18, regarding reporting to State
licensing bodies and license monitoring entities, are for consideration
whenever an employee is separated for disability and the nature of the
disability may affect standards of clinical practice.

10\. []{#ptVIpar10 .anchor}FAILURE TO MEET STATUTORY OR REGULATORY
REQUIREMENTS. Employees are responsible for maintaining all
qualifications required for appointment and for providing evidence of
these qualifications, e.g., full and unrestricted licensure in a State,
when requested. An employee who fails to meet or who fails to present
evidence of meeting the statutory, e.g., 38 U.S.C.7402, or regulatory
requirements for appointment will be separated. If it is determined that
the employee willfully concealed the lack of or loss of a qualification,
e.g., full and unrestricted license in a State, the separation will be
made retroactive to the date the qualification was lost; otherwise the
separation will be effected upon determination that the statutory or
regulatory requirement is not met. The appointment of an individual who
did not fully meet all statutory and regulatory requirements at the time
of appointment will be canceled immediately upon discovery of the
disqualification. The following provisions apply to separations or
cancellations for disqualification:

a\. The employee will be notified in writing of the separation or
cancellation and, when applicable, of the right of review in
subparagraph c below by the facility Director. For Central Office
employees, the notification will be made by the Under Secretary for
Health or designee. The notification should be given directly to the
employee and the employee requested to acknowledge receipt, or mailed to
the employee by certified mail.

b\. In the case of the facility employees in positions centralized to
the Under Secretary for Health, the facility Director will immediately
notify the Network Director and appropriate Central Office official of
the separation or cancellation for failure to meet statutory or
regulatory requirements for appointment.

c\. Facility employees, whose separations are approved by the facility
Director, have the right to seek a post-separation or post-cancellation
review of the action by the Network Director. A request for review must
be made in writing through the facility Director. It must be delivered
to the facility Director or designee by hand or postmarked within 15
calendar days of the date the notification of separation or cancellation
was given to the employee or mailed by certified mail. The request for
review must be based solely on evidence relating to the failure to meet
statutory or regulatory requirements for appointment. If such a review
is requested, the facility will forward a complete record of the case
along with evidence submitted by the employee to the appropriate Network
director.

d\. If there is some doubt as to the legality of a facility employee's
appointment, the facility Director may request a review by the Under
Secretary for Health or designee. Requests for review should be
submitted through the appropriate VISN to the Assistant Deputy Under
Secretary for Health (10N\_/051). If review is requested by the
facility, the Director may choose to defer separation of the employee.
The employee will be detailed to nonpatient care duties while the
decision of the reviewing official is pending.

e\. Individuals who knowingly and willfully conceal their failure to
meet statutory and regulatory requirements may be subject to repayment
of monies and benefits received as a result of this concealment.

> \[f. Individuals whose names appear on the Health and Human Services
> sanctions listing and are

deemed ineligible for receipt of Federal health care funds, will be
determined as not meeting statutory requirements. These employees will
be notified in writing and discharged immediately.\]

11\. []{#ptVIpar11 .anchor}PRE-EMPLOYMENT SUITABILITY SEPARATIONS

a\. **General.** This paragraph contains procedures which will be used
to separate employees appointed under 38 U.S.C. 7306 and 7401(1), for
pre-employment suitability reasons unknown to VA officials at the time
of appointment; i.e., pre-employment misconduct which is judged to make
the employee

unsuitable for employment. Pre-employment misconduct includes
delinquency or misconduct in prior employment; criminal, dishonest,
infamous or notoriously disgraceful conduct; intentional false statement
or deception or fraud on the employment application; habitual use of
intoxicating beverages to excess; abuse of narcotics, drugs, or other
controlled substances; reasonable doubt as to the loyalty of the person
involved to the Government of the United States. Criteria contained in 5
CFR 731 should be used as a guide in determining if a particular act
constitutes pre-employment misconduct. The procedures provided in this
paragraph pertain only to pre-employment suitability matters and do not
relate to an individual's conduct or performance as a VA employee.

b\. **Procedures**

\(1\) **Standards Board.** Employees, whose pre-employment suitability
is in question, will be given the opportunity to have their case
reviewed by a Professional Standards Boards. If an employee requests
such review, the Board will be designated by the appointing official.
The employee's immediate and higher-level supervisors may not serve on
the Board.

\(2\) **Notice to the Employee.** The Assistant Deputy Under Secretary
for Health (10N) or the facility Director, as appropriate, will give
written notice as described below. The notice will contain the following
information:

\(a\) Notice of the opportunity for Board review and the pre-employment
suitability allegation(s).

\(b\) The fact that separation may result if the allegations are
sustained.

\(c\) The fact that the employee may chose to respond to the
allegations:

[1]{.underline}. Directly to the Assistant Deputy Under Secretary for
Health (10N) or the facility Director, as appropriate;

or

[2]{.underline}. Before a Professional Standards Board either orally or
in writing and that an oral response may be made informally before the
Board or in a full evidentiary hearing.

\(d\) The fact that the employee may be represented by counsel
throughout the proceedings.

\(e\) The fact that if the employee chooses to respond orally before the
Board, either informally or in a full evidentiary hearing, the employee
must so notify the official designated in the notice within three
workdays of receipt of the notice so that hearing arrangements can be
made. The employee will, however, be given at least the full 15 workday
notice period in which to prepare a response before the Board is
scheduled.

\(3\) **Employee Reply.** The employee will be given 15 days from
receipt or the notice of refusal to accept receipt of the notice to
submit a reply.

\(4\) **Procedural Options.** The employee will be given the option of
responding to the allegation(s) orally or in writing before a Board or
personally to the Assistant Deputy Under Secretary for Health

(10N) or designee or the facility Director as appropriate. Regardless of
the option selected, the

employee will have the right to be represented by counsel. If the
employee chooses to respond orally before a Board, the employee may
elect to do so informally before the Board or in a full evidentiary
hearing. An employee who chooses a full evidentiary hearing before the
Board is entitled to challenge the evidence against the employee, to
present evidence, and to call witnesses in the employee's own behalf.

c\. **Review**

\(1\) If the employee did not elect a Board review, a designee of the
Assistant Deputy Under Secretary for Health (10N) or facility Director,
as appropriate, will review the evidence including any submitted by the
employee. If the pre-employment suitability allegation(s) are supported,
this official will recommend to the appointing official whether or not
the employee should be separated. The recommendation will be based on
the nature of the pre-employment misconduct and the implications it may
have for the individual's conduct and performance as a VA employee. For
facility employees, the recommendation will be forwarded through the
Network Director (10N\_\_/051).

\(2\) If the employee elected a Board review, the Board will review all
evidence including any presented by the employee. If the Board finds
that the pre-employment suitability allegations(s) are supported, it
will recommend whether or not the employee should be separated. The
Board should base its recommendation on the nature of the pre-employment
misconduct and the implications it may have for the individual's conduct
and performance as a VA employee. The Board's findings and
recommendations will be documented on VA Form 10-2543, Board Action. The
Board Action and supporting evidence, along with comments, will be
forwarded to the appropriate approving official (i.e., the appointing
official).

d\. **Decision.** A decision by the approving official to separate will
be effected within five workdays of the decision. There shall be no
further appeal or review.

12\. []{#ptVIpar12 .anchor}ABANDONMENT OF POSITION

a\. When an employee appointed under 38 U.S.C 7306 or 7401(1) has been
absent from duty without authorization for more than five consecutive
workdays and all efforts to communicate with the individual have been
unsuccessful, a letter signed by the official authorized (see paragraph
5 of this part) to approve separation will be sent to the employee's
last known address by certified mail, return receipt requested. The
letter will contain:

\(1\) The date unauthorized absence began and efforts made to contact
the employee.

\(2\) Notice that if, within 10 days of the date the letter was mailed
by certified mail, the employee does not return to duty or make
satisfactory arrangements to do so, the employee will be separated for
abandonment of position.

\(3\) A statement that if the employee does not wish to return to duty,
the employee may resign if the resignation is submitted within 10 days
specified in subparagraph (2).

\(4\) Statement that the employee is currently being carried in an
absence without leave status.

\(5\) Notification that if separated for abandonment of position, the
employee may request in

writing a review of the action by the Under Secretary for Health or
designee.

b\. If the employee does not return to work or does not, in the judgment
of the approving official, make satisfactory arrangement to do so, the
separation will be effected at the end of the 10-day notice period. The
approving official should take into consideration any presentation by
the employee as to illness or disability or emergency circumstances
preventing the employee from returning to work.

c\. If, at any time prior to or during the 10-day notice period, the
employee returns to duty or makes satisfactory arrangements to do so,
the employee will be restored to duty or carried in an appropriate leave
status. If appropriate, disciplinary action may be taken by processing
the case under the provisions of parts II and III of this handbook. If
arrangements are made to return the employee to duty, the individual
will normally forfeit pay for the period of unauthorized absence. If
warranted, however, substitution of annual or sick leave may be
authorized.

d\. An individual separated for abandonment of position by decision of a
facility director may request a review of the action by the Under
Secretary for Health or designee. If the Under Secretary for Health or
designee determines that the employee did not abandon the position, the
employee will be restored to duty. The decision of the Under Secretary
for Health or designee is final.

**13.** []{#ptVIpar13 .anchor}**FAILURE TO ACCEPT REASSIGNMENT.** If
separation for failure to accept reassignment is approved under VA
Handbook 5005, part IV, the facility Director will give the employee an
advance written notice of at least 30 calendar days. The notice of
separation should either be given directly to the employee and the
employee requested to acknowledge receipt or mailed to the employee by
certified mail. The 30-day notice period begins on the day the employee
is given the notification or on the date it is mailed.

**14.** []{#ptVIpar14 .anchor}**SEPARATION FOR MILITARY SERVICE.**
Procedure involving separation for military service prescribed in VA
Handbook 5005 will be followed for employees appointed under authority
of 38 U.S.C. 7306 and 7401(1) and non-full-time employees appointed
without time limit under authority of 38 U.S.C. 7405(a)(1)(A) and (B).

15\. []{#ptVIpar15 .anchor}INVOLUNTARY SEPARATION OF EMPLOYEES APPOINTED
UNDER 38 USC 7405(a)(1)(A)

a\. In effecting involuntary separations of employees serving under 38
U.S.C. 7405\[(a)(1)(A)\], the procedural requirements prescribed for
separations, such as reviews by Professional Standards Boards or
Disciplinary Boards, do not apply.

b\. Although not required, employees should, where feasible, be given
such advance notice of separation as determined appropriate by the
approving official.

c\. The employee will not be entitled to a review of the involuntary
separation.

d\. The provisions of VHA Handbook 1100.18, relating to reporting to
State licensing boards and license monitoring entities, must be followed
in all instances in which an employee is separated whose standards of
clinical practice are in question.

16\. []{#ptVIpar16 .anchor}TERMINATION OF APPOINTMENTS MADE UNDER 38
U.S.C. 7306

a\. Appointments or designations made under authority of 38 U.S.C. 7306,
terminate on completion of the approved term of service unless
terminated sooner for such cause as will promote the efficiency of the
service or at the request of the employee.

b\. Normally, employees whose appointments will terminate on completion
of the approved term of service should be notified at least 30 calendar
days in advance as to whether their appointments will be terminated,
extended, or converted. (See VA Handbook 5005.)

17\. []{#ptVIpar17 .anchor}TERMINATION OF APPOINTMENTS OF CONSULTANTS,
ATTENDINGS, AND FEE-BASIS PERSONNEL. Appointments of fee-basis personnel
appointed in accordance with instructions contained in VA Handbook 5005
will terminate on the date of termination specified in any time-limited
appointment or at discretion of the appointing authority when the
services of fee-basis personnel are no longer needed. Whenever possible,
advance notice of termination should be given.

18\. []{#ptVIpar18 .anchor}SEPARATION OF MEDICAL AND DENTAL RESIDENTS
APPOINTED UNDER 38 U.S.C. 7406

a\. When a noncareer medical or dental resident in an independent
training program (accredited in the name of the VA facility) is proposed
for separation because of deficiencies in performance, suitability, or
conduct, the resident will be entitled to a review of the proposed
termination by a House Staff Review Committee. The composition of the
Committee will be as indicated in M-8, part II, chapter 1, except that
persons in a position to prejudice the action of the Committee, such as
immediate or higher-level supervisors, may not serve on the Committee.
The procedures to be followed will be similar to those for probationary
employees contained in part III of this handbook, except as indicated
below:

\(1\) The findings and recommendation of the House Staff Review
Committee will be sent, through the Deans Committee for their review and
comments, to the facility Director for final decision. If the decision
is to separate the individual, the separation will be effected within 15
calendar days after approval of the action.

\(2\) The resident will not be entitled to a further review of the
separation decision.

b\. When it is determined that a noncareer medical or dental resident in
an integrated program (accredited in the name of the affiliated non-VA
institution) should be separated for deficiencies in performance,
suitability, or conduct, the VA clinical supervisor under whom the
resident is assigned at the VA facility will prepare a separation
recommendation and will send it, through the Chief of Staff and program
director of the affiliated program for review and comment, to the VA
facility Director for a decision. The recommendation must be supported
by a thorough documentation of the individuals deficiencies. If the
decision is to separate, the separation will be effected within 15 days
after approval. (These procedures do not apply when a resident is no
longer an approved participant in an integrated program. Such employees
should be separated immediately upon notice from the affiliated
institution.)

c\. Facility directors may modify the provisions of this paragraph to
meet the requirements of accrediting bodies.

d\. Under normal conditions, the appointments of the residents will
terminate on completion of the approved term of service.