UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

RONNIE A. BELL, SR.,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

DC-0752-14-0633-I-1

DATE: January 23, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL*

Heather H. Bell, Youngsville, North Carolina, for the appellant.

Tanisha J. Locke, Charlotte, North Carolina, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed the appeal of his suspension for lack of jurisdiction. Generally, we 

grant petitions such as this one only when: the initial decision contains erroneous 

findings of material fact; the initial decision is based on an erroneous 

 * A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117(c).
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interpretation of statute or regulation or the erroneous application of the law to 

the facts of the case; the judge’s rulings during either the course of the appeal or 

the initial decision were not consistent with required procedures or involved an 

abuse of discretion, and the resulting error affected the outcome of the case; or 

new and material evidence or legal argument is available that, despite the 

petitioner’s due diligence, was not available when the record closed. See Title 5 

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). 

After fully considering the filings in this appeal, and based on the following 

points and authorities, we conclude that the petitioner has not established any 

basis under section 1201.115 for granting the petition for review. Therefore, we 

DENY the petition for review and AFFIRM the initial decision, which is now the 

Board’s final decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 The appellant alleged that the agency suspended him for 6 weeks and filed 

an appeal of the suspension before the Board, indicating that he was eligible for 

veteran’s preference under 5 U.S.C. § 2108. Initial Appeal File (IAF), Tab 1 at 

2-3. The agency filed a motion to dismiss the appeal for lack of jurisdiction, 

arguing that the appellant lacks appeal rights before the Board because his Form 

DD-214, which indicated no service-related disability or military service meeting 

any of the criteria for a “veteran” under section 5 U.S.C. § 2108(1), conflicted 

with the information in his Form PS-50 showing a veteran’s preference. IAF, Tab 

5 at 6-7, 11, 15. The administrative judge issued an order requiring the appellant 

to submit evidence and argument to prove that he was entitled to a veteran’s 

preference. IAF, Tab 6 at 2. The appellant responded that he had received a fivepoint veteran’s preference to gain employment with U.S. Postal Service and was 

given veteran’s preference in securing a home loan, but offered no explanation 

regarding his Form DD-214 and provided no evidence demonstrating that he was 

preference eligible. IAF, Tab 7 at 1. In an initial decision issued without holding 
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a hearing, the administrative judge dismissed the appeal for lack of jurisdiction 

based on the parties’ written submissions because she found that the appellant had 

failed to raise a nonfrivolous allegation entitling him to a hearing. IAF, Tab 8, 

Initial Decision (ID) at 3-4. The administrative judge found that, despite the 

appellant’s assertion that he was entitled to a five-point hiring preference based 

on his military service, his Form DD-214 showed no service-connected disability 

and service dates from September 21, 1979, to June 19, 1983, a period which did

not entitle him to preference-eligible status. ID at 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶3 On review, the appellant submitted an additional Form DD-214, showing

military service from June 20, 1983, to March 10, 1986, with general discharge 

under honorable conditions for “misconduct—drug abuse (use).” Petition for 

Review (PFR) File, Tab 1 at 4. The petition for review makes no statement 

concerning the appellant’s failure to provide this evidence to the administrative 

judge, but argues that the 6 years of military service shown qualifies him for 

veteran’s preference. Id. at 5. The agency submitted a response, arguing that the 

appellant had not submitted new and material evidence that was not available 

when the record closed. PFR File, Tab 3 at 5-6. Moreover, the agency argued 

that the additional military service shown in the supplemental Form DD-214 did 

not fall within the dates set out in 5 U.S.C. § 2108(1) or qualify under the other 

criteria to be a preference eligible. Id. at 7-8.

¶4 The Board’s jurisdiction is not plenary; it is limited to those matters over 

which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit 

Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). In order to have 

appeal rights before the Board, a Postal Service employee: (1) must be an 

excepted-service, preference-eligible employee, a management or supervisory 

employee, or an employee engaged in personnel work in other than a purely 

nonconfidential clerical capacity; and (2) must have completed 1 year of current 
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continuous service in the same or similar positions. See 5 U.S.C. 

§ 7511(a)(1)(B); 39 U.S.C. § 1005(a)(4)(A); Trabue v. U.S. Postal Service, 102 

M.S.P.R. 14, ¶ 5 (2006). A preference-eligible veteran includes an individual 

who served on active duty in the armed forces during specific periods of time, 

and who has been discharged or released from active duty in the armed forces 

under honorable conditions. 5 U.S.C. § 2108(1)(C), (3)(A)-(B). A disabled 

veteran is also preference eligible. 5 U.S.C. § 2108(3)(C). A disabled veteran 

means an individual who served on active duty in the armed forces, was separated 

under honorable conditions, and has an established service-connected disability. 

5 U.S.C. § 2108(2). 

¶5 The appellant bears the burden of proof of establishing Board jurisdiction 

by a preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2)(i). An appellant is 

entitled to a hearing if he raises a nonfrivolous allegation of Board jurisdiction 

over his appeal. See Edwards v. Department of the Air Force, 120 M.S.P.R. 307, 

¶ 6 (2013). In determining whether the appellant has made a nonfrivolous 

allegation of jurisdiction entitling him to a hearing, the administrative judge may 

consider the agency’s documentary submissions; however, to the extent that the 

agency’s evidence constitutes mere factual contradiction of the appellant’s 

otherwise adequate prima facie showing of jurisdiction, the administrative judge 

may not weigh evidence and resolve conflicting assertions of the parties and the 

agency’s evidence may not be dispositive. Ferdon v. U.S. Postal Service, 

60 M.S.P.R. 325, 329 (1994). Based on the record before her, the administrative 

judge correctly found that the appellant failed to make a nonfrivolous allegation 

that he is preference eligible as defined in 5 U.S.C. § 2108, because the Form 

DD-214 submitted by the agency showed military service from September 21, 

1979, to June 19, 1983, dates which fall outside of the specific periods stated in 

section 2108(1). Although the appellant made no argument that the supplemental 

Form DD-214 he submitted on review was unavailable to him prior to the close of 

the record, we note that this evidence is immaterial because the dates of military 
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service evidenced in this document do not correspond with any of the time 

periods established in section 2108(1). Thus, we find that the appellant has failed 

to make a nonfrivolous allegation that he is a preference-eligible veteran by 

nature of his dates of service or disability rating under 5 U.S.C. § 2108, and 

therefore has not adequately alleged any appeal rights before the Board.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information is available at the court's website, www.cafc.uscourts.gov. 

Of particular relevance is the court's "Guide for Pro Se Petitioners and 

Appellants," which is contained within the court's Rules of Practice, and Forms 5, 

6, and 11.
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If you are interested in securing pro bono representation for your court

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems 

Protection Board neither endorses the services provided by any attorney nor 

warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board