N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________

ELIZABETH RUTH DABNE Y, Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD, Respondent.

______________________

2013

- 3149

______________________ Petition for review of the Merit Systems Protection Board in No. AT0752120448 -I- 1.

______________________

Decided: June 5, 2014

______________________

E LIZABETH R UTH D ABNEY , of Memphis, Tennessee, pro

se.

K ATHERINE M. S MITH , Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, for respondent. With her on the brief w as B RYAN G. P OLISUK , General Counsel.

______________________

Before N EWMAN , D YK , and T ARANTO , Circuit Judges.DABNEY v. MSPB 2

P ER C URIAM

. Elizabeth Ruth Dabney appeals the decision of the Merit Sy stems Protection Board dismissing her appeal for lack of jurisdiction. Because the Board correctly found that Ms. Dabney is not a preference

- eligible veteran , the dismissal is affirmed

. D ISCUSSION Ms. Dabney was employed as a Rural Carrier Assoc iate with the U.S. Postal Service from 2006 to 2012

, when she was removed for violating the Postal Service ’ s Stan dard of Conduct , based on the following event: On Satu rday October 22, 2011 Ms. Dabney w as delivering a package when she exited her vehicle without setting the parking brake. T he vehicle rolled backwards and struck a second vehicle parked nearby. The incident r esulted in damage to both vehicles

. On October 27, 2011 the Postal Service issued a notice of proposed removal

, citing her accident as the primary cause for re moval. Ms. Dabney appealed to the Board on April 12, 2012. The Postal Service moved to dismiss Ms. Dabney’s claim on two bases: (1) she was not an “emplo yee” with appeal rights within the meaning of 5 U.S.C. §7511(a)(1)(B) because she was not a preference eligible veteran, and (2) she lacked an appealable claim under 5 U.S.C. §7512 because her remo val had not been effec ted at the time of her appeal. 1

1 The Postal Service finalized Ms. Dabney’s removal effective May 14, 2012. She independently appealed that action to the Board. The Board dismissed the second appeal for the same reason cited in this case, i.e. , lack of preference eligibility. Dabney v. U.S. Postal Serv.

, M.S.P.B. Docket No. AT

- 0752

- 13

- 0320 -I- 1 (May 14, 2013).DABNEY v. MSPB 3

By statute, a Postal Service employee who seeks to appeal a removal decision to the Board must be a prefe rence eligible veteran, a management or supervisory employee, or an employee engaged in certain personnel work. 5 U.S.C. §7511(a)(1)(B) (2006) ; 39 U.S.C. §1005(a) (2011) . The definition of preference eligibility is limited to those veterans who:
(A) served on active duty in the armed forces du ring a war, in a campaign or expedition for which a

camp aign badge has been authorized, or during the period beginning April 28, 1952, and ending July 1, 1955; [or]
(B) served on active duty as defined by sec tion 101 (21) of title 38 at any time in the armed forces for a period of more than 180 consecutive days any part of which occurred after January 31, 1955, and before October 15, 1976, not including service under section 12103 (d) of tit le 10 pursuant to an enlistment in the Army National Guard or the Air National Guard or as a Reserve for service in the Army Reserve, Navy Reserve, Air Force Reserve, Marine Corps Reserve, or Coast Guard Reserve; [or]
(C) served on active duty as defined by section 101 (21) of title 38 in the armed forces during the p eriod beginning on August 2, 1990, and ending on January 2, 1 992; [or]
(D) served on active duty as defined by sec tion 101 (21) of title 38 at any time in the armed forces for a period of more than 180 consecutive days any part of which occurred during the period b e gi nning on September 11, 2001, and ending on the da te prescribed by Presidential proclamation or by law as the last date of Operation Iraqi Fre e dom;
5 U.S.C. §§2108(1), (3) (2011)

.DABNEY v. MSPB 4

Ms. Dabney disputes the finding that she is not a preference eligible veteran

. She submitted her Form DD214 , which showed that sh e served in active duty in the Army from November 1, 1978 to October 10, 1980. She also provided a Notice of Personnel Action that listed her veteran’s preference as “2”.

T he Board’s Administrative Judge ruled that Ms. Dabney did not qualify as a preference eligible veteran

, for she did not satisfy the criteria set forth in 5 U.S.C. §2108

. Ms. Dabney responded that she served in and was honorably discharged from the United States Armed Forces

. She further stated that jurisdiction sh ould be found because she was injured while working for the Postal Service prior to this vehicular accident, and was returned to work under a limited

- duty job offer

. The AJ held that Ms. Dabney’s Form DD214 did not establish prefer ence eligibility for Postal Service app eal

purposes because it did not show that Ms. Dabney ever received a campaign badge or served in a campaign or expedition for which a campaign badge has been autho rized. Ms. Dabney’s Army service of 1978

– 80 does not correspond to any of the time periods specified in Section 2108 , and her Form DD214 does not state that Ms. Da bney received a campaign badge or served in a campaign for which a campaign badge has been authorized. Al though Ms. Dabney received Sharpshooter Badge s for the M16 r ifle and the h and g renade , those badges do not qualify as campaign badges as designated by the Office of Personnel Management’s Veterans Guide. See http://www.opm.gov/policy

- data -oversight/veteransservices/vet- guide#9

. Ms. Dabney relies on the Notice of Personnel Action that lists her veterans preference as “2” to support her claim of preference eligibility. However

, Ms. Dabney does not contend that her military record Form DD214 i nacc urately portrays her service record. T he military recordDABNEY v. MSPB 5

must be afforded controlling weight. See Perez v. Merit Sys. Prot. Bd. , 85 F.3d 591, 594 (Fed. Cir. 1996); GordonCureton v. U.S. Postal Serv. , 107 M.S.P.R. 79, 85

– 86 (2007); Sellers v. U.S. Postal Serv. , 98 M.S.P.R. 44, 49 (2004).
The AJ deemed Ms. Dabney’s reference to her injury to be a new claim for a compensable injury, which he severed and docketed for separate adjudication. The full Board affirmed the AJ. Ms. Dabney argues that the Bo ard erred because it did not consider her limited duty status in its decision, and also that she raised allegations of discrimination which were not addressed by the Board. The government responds that Ms. Dabney’s limited duty status is not relevant to t he present appeal as it was docketed as a separate appeal and was not addressed by the Board.
In her supplemental briefing, Ms. Dabney argues that the Board should have considered her allegations of discrimination. A ssuming Ms. Dabney raised a claim f or d iscrimination before the Board, it could not review those allegations in the absence of an otherwise appealable action

. Cruz v. Dep’t of the Navy , 934 F.2d 1240, 1245

– 46 (Fed. Cir. 1991) (en banc).

T he Board’s dismissal of Ms. Dabney’s appeal for lack of jurisdiction must be affirmed. 2

2 On Ma y 15, 2014 Ms. Dabney filed a Motion to Compel Agency to File Response for Hearing Held Jan uary 10, 2014

. Ms. Dabney’s case was received without oral hearing, and was decided by a panel of judges based on the written submissions of the parties

. See Notice of Calendaring
– Notice of Submission without Oral Arg ument, mailed to Ms. Dabney on Nov. 21, 2013 (“Because the court has not allotted time for oral argument, n othing concerning this case will take place in open court evenDABNEY v. MSPB 6

AFFIRMED

C OSTS Each party shall bear its own costs.

though the appeal appears on the court’s calendar for that day.”)

. No further response from the agency was appr opriate. Accordingly, the motion is denied

.