United States Court of Appeals 

for the Federal Circuit 

__________________________ 

NYLES DUNCAN, 

Petitioner, 

v. 

DEPARTMENT OF THE AIR FORCE, 

Respondent. 

__________________________ 

2011-3053 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in Case No. NY0752100081-I-1. 

___________________________ 

Decided: March 29, 2012 

___________________________ 

ANDREW L. MCNAMARA, Tully Rinckey, P.L.L.C., of Albany, New York, argued for petitioner. Of counsel were 

MATHEW B. TULLY and STEVEN L. HERRICK. 

DOUGLAS T. HOFFMAN, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With him on the brief were TONY WEST, Assistant 

Attorney General, JEANNE E. DAVIDSON, Director, and 

FRANKLIN E. WHITE, JR., Assistant Director. Of counsel on 

the brief was NINA R. PADALINO, Captain, United States 

Department of the Air Force, of Washington, DC. 
DUNCAN v. AIR FORCE 2

__________________________ 

Before RADER, Chief Judge, O'MALLEY, and REYNA, 

Circuit Judges. 

RADER, Chief Judge. 

The Merit Systems Protection Board (“Board”) held 

that as a matter of law the petitioner Nyles Duncan had 

not provided sufficient evidence to substantiate his claim. 

Because, under the facts of this case, Mr. Duncan failed to 

offer sufficient evidence to support his claim, this court 

affirms. 

I. 

Federal employees are entitled up to 15 days each 

year of military leave to attend training as a member of a 

reserve of the armed forces (e.g., the Air Force) or member 

of the National Guard. 5 U.S.C. § 6323(a)(1). In Butterbaugh v. Dep’t of Justice, this court held that federal 

agencies cannot charge military leave on nonworkdays (e.g., weekends). 336 F.3d 1332, 1338-39 (Fed. 

Cir. 2003). Since that decision, many petitioners have 

filed Butterbaugh claims seeking compensation for the 

charging of non-workdays against military leave. 

Here, Mr. Duncan worked as a civilian for the Department of the Air Force until his retirement in 2005. 

From 1980 to 1998, Mr. Duncan was also in the Air Force 

Reserve. To meet his reserve obligation, he performed 12 

days each year of active duty plus additional duty for 

training. 

In 2009, Mr. Duncan filed a Butterbaugh claim with 

the Board. Mr. Duncan alleged that the Air Force had 

charged him military leave on non-workdays in violation 

of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), causing him to 
3 DUNCAN v. AIR FORCE

exhaust his military leave and therefore to use his annual 

leave to meet his reserve obligation. At the outset, he 

alleged that the Air Force improperly charged him with 

military leave for 38 days on various weekends from July 

26, 1980 to March 8, 1998. Because he had to take military leave for those non-workdays, he prematurely consumed the 15 days of military leave allotted to him each 

year. Therefore, Mr. Duncan alleged that he had to 

prematurely take annual leave to perform reserve duty on 

6 days in 1996 and 1997 (September 27, 1996, and April 

28 to May 2, 1997). His claim seeks compensation for 

those 6 days. 

At the hearing, the following testimony was the sole 

evidence Mr. Duncan proffered on direct examination in 

support of his allegations as to events on those 44 days 

(i.e., whether he was charged military and annual leave): 

Q: Were you charged military leave on these 

dates alleged in the prehearing submission? 

A: Yes. 

Q: And what type of leave were you 

forced to take in order to participate in 

military duty as a result of this mischarged military leave? 

A: Annual leave. 

[statements by counsel omitted] 

Q: Mr. Duncan, were you on active duty on September 27th, 1996? 

A: Yes. 

Q: Do you recall if you had exhausted your military leave with the Agency by this time? 

A: Yes. 
DUNCAN v. AIR FORCE 4

Q: What were you forced to do on September 

27th, 1996, to fulfill your military obligations? 

A: Take annual leave. 

Q: And Mr. Duncan, were you on active duty on 

April 28th, 1997, through May 2nd, 1997? 

A: Yes. 

Q: And do you recall if you had exhausted your 

military leave with the Agency by that time? 

A: Yes. 

Q: And what were you forced to do on April 28th, 

1997, to May 2nd, 1997, to fulfill your military 

obligation? 

A: Take annual leave. 

Hr’g Tr. 11:1-12:10, Jan. 27, 2010. Mr. Duncan also 

proffered two documents created by his counsel. Hr’g Tr. 

63. First, a standard calendar from an online source 

showing the months and days for the years 1980 to 1998, 

on which his counsel made handwritten notations to 

visually demonstrate the dates about which Mr. Duncan 

testified. Second, a table created by his counsel again to 

visually demonstrate the dates about which Mr. Duncan 

testified. Mr. Duncan also proffered his military records, 

which do not show whether military or annual leave was 

charged but instead show the days Mr. Duncan performed 

reserve duty. 

Mr. Duncan did not provide his civilian records (also 

called time and attendance records, leave and earning 

statements, or leave slips), which would identify any 

dates the Air Force charged him military or annual leave. 

Hr’g Tr. 40:3-8; 64:3-16. Counsel for the Air Force represented that if Mr. Duncan had provided his civilian records and the records showed that he took annual leave as 
5 DUNCAN v. AIR FORCE

a result of improperly charged military leave, the Air 

Force would have compensated him for those days. Hr’g 

Tr. 38:17-22. In this case, however, it is undisputed that 

Mr. Duncan’s civilian records no longer exist, a fact that 

the Air Force admitted in a sworn declaration and that 

the Air Force’s counsel conceded at oral argument. See

Decl. of Jimmy D. Mannon, Resp’t’s App. 66 (“The agency 

has no pertinent existing records for appellant.”); Oral 

Arg. 15:02-16:16, Sept. 9, 2011 (agreeing that Mr. Duncan 

would have been unable to obtain his civilian records from 

the Air Force or the National Personnel Records Center). 

Thus, all involved agree that Mr. Duncan could not obtain 

his civilian records. 

The Air Force proffered a witness, Jimmy D. Mannon, 

Chief of Employee Relations and Civilian Personnel at the 

same Air Force base where Mr. Duncan worked. Mr. 

Mannon testified that when a petitioner has provided 

documents showing he was actually mischarged leave, the 

Air Force has corrected the petitioner’s records and compensated the petitioner for that time. Hr’g Tr. 73:17-20. 

He explained: “the military leave is actually charged on 

the civilian side, so you’d have to have the civilian pay 

records to be able to see that [he was mischarged any 

military leave].” Hr’g Tr. 84:23-25. 

Mr. Mannon highlighted the existence of case-by-case 

inconsistencies in the Air Force’s application of its leave 

policy. Hr’g Tr. 74: 14-16, 79:9-22. “It was the supervisors that recorded the time in payroll that actually recorded how the time was actually input.” Hr’g Tr. 77:24-

78:2. In other words, some supervisors improperly 

charged military leave while others did not: “It just depends on how the employee requested leave and what the 

supervisor approved and what they put in on the timecards.” Hr’g Tr. 74:14-18. Therefore, “the only way you 

can tell [whether Mr. Duncan was mischarged military 
DUNCAN v. AIR FORCE 6

leave] is if you had the civilian pay records to be able to 

make the determination then.” Hr’g Tr. 84:15-17. 

After the hearing, the Administrative Law Judge 

granted Mr. Duncan’s request, finding credible his recollection that “he had to take annual leave to meet his 

military obligations.” Duncan v. Dep’t of Air Force, No. 

DA-4324-10-0072-I-1, at *8 (Mar. 4, 2010)). The Air Force 

filed a petition for review to the Board. The Board 

granted the petition and reversed the initial decision. 

The Board held that as a matter of law the initial decision 

was inconsistent with Board precedent in which: 

the Board has required more than an appellant’s 

personal recollection and reliance on military 

documents to carry the burden of proof . . . The 

appellant neither submitted time and attendance 

records from his civilian employment, nor showed 

that he attempted to obtain these records from the 

National Personnel Records Center in St. Louis, 

Missouri. We find that the appellant has not 

submitted sufficient evidence to establish that, 

more likely than not, the agency improperly 

charged military leave on non-workdays and that 

he was required to use annual leave to fulfill his 

military obligations on the dates specified. 

Duncan v. Dep’t of Air Force, 115 M.S.P.R. 275, 278-79 

(2010)). 

Mr. Duncan appealed. This court has jurisdiction under 28 U.S.C. §1295(a)(9) and 5 U.S.C. § 7703. 

II. 

This court’s review of the Board’s decision is limited 

and governed by 5 U.S.C. § 7703(c). This court affirms 

unless the Board’s decision is (1) arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with 
7 DUNCAN v. AIR FORCE

the law; (2) obtained without procedures required by law, 

rule, or regulation having been followed; or (3) unsupported by substantial evidence. 

III. 

To obtain compensation for a Butterbaugh claim, the 

petitioner must show that he performed reserve duty on 

non-workdays, that the agency charged him military 

leave on those days, and that he exhausted his military 

leave and was charged other leave to fulfill his reserve 

obligation. See Pucilowski v. Dep’t of Justice, 498 F.3d 

1341, 1344-45 (Fed. Cir. 2007). The petitioner bears the 

burden of proof by a preponderance of evidence. See 

Sheehan v. Dep’t of Navy, 240 F.3d 1009, 1013 (Fed. Cir. 

2001); Cobb v. Dep’t of Defense, 106 M.S.P.R. 390, 393 

(2007); O’Bleness v. Dep’t of Air Force, 106 M.S.P.R. 457, 

461 (2007); Haskins v. Dep’t of Navy, 106 M.S.P.R. 616, 

621 (2007). 

Here, the first element is not in dispute. Mr. Duncan 

provided military records showing that he performed 

reserve duty on 38 non-workdays from 1980 to 1998. The 

second and third elements (charged military and annual 

leave) are at issue in this appeal. Mr. Duncan relied 

solely upon his own oral testimony and documents created 

by his counsel’s office to prove those elements. Though 

the counsel-created calendar and table visually show the 

dates on which he testified, these were similar to demonstratives summarizing his testimony and not evidence 

independent of his testimony to prove the underlying 

facts. See Hr’g Tr. 40:3-8; 64:3-16. 

The Board has consistently held that civilian records 

would be sufficient evidence to satisfy the military and 

annual leave elements. See, e.g., Davenport v. Dep’t of 

Justice, 104 M.S.P.R. 580, 586 (2007); Cobb v. Dep’t of 

Defense, 106 M.S.P.R. 390 (2007); O’Bleness v. Dep’t of Air 
DUNCAN v. AIR FORCE 8

Force, 106 M.S.P.R. 457, 461-62 (2007); Haskins v. Dep’t 

of Navy, 106 M.S.P.R. 616, 622-23 (2007). In this case, 

the parties agree that those records do not exist, so this 

court must consider whether, absent such records, the 

Board erred in finding that Mr. Duncan did not establish 

his claim. 

Here, the Board believed that Mr. Duncan was merely 

speculating about having to use annual leave based on his 

review of his military records, such that his recollection 

was not independent. The Board found that, “it is apparent that these dates are based upon speculation arising 

from his review of the DFAS records showing his dates of 

military service and his understanding that the agency 

would have charged him military leave on non-workdays.” 

Duncan v. Dep’t of Air Force, 115 M.S.P.R. 275, 278-79 

(2010)). Accordingly, the Board held that something more 

was required to substantiate Mr. Duncan’s claim. 

In this case, however, Mr. Duncan did not supply any 

evidence other than his testimony. He has not provided, 

for example, any other contemporaneous documents, 

physical evidence, or witness testimony to corroborate his 

testimony. The record does not show that all corroborating evidence was unavailable. 

Furthermore, the record reflects and the Board acknowledged that supervisors, not petitioners, charge 

military and annual leave. Even after an employee 

makes a request for military or annual leave, the supervisor must authorize and take additional, necessary steps to 

charge military or annual leave. Oral Arg. 28:31-29:05, 

Sept. 9, 2011. Thus, a petitioner may not be in the best 

place to know of the procedures adopted and followed by 

his employer. Therefore, on the facts of this case, this 

court cannot say that it was erroneous for the Board to 

find that Mr. Duncan’s testimony was not based on his 
9 DUNCAN v. AIR FORCE

independent recollection and was not supported otherwise 

by evidence in the record. Given these findings, the Board 

did not err in denying Mr. Duncan relief. Accordingly, 

this court affirms. 

In affirming the Board, this court does not create a 

blanket rule; rather, this court holds that determinations 

regarding the sufficiency of the evidence must be determined by the Board on a case-by-case basis. This Court 

would not foreclose, for example, the Board from admitting and relying upon a petitioner’s testimony in appropriate circumstances. 

In sum, this court recognizes the Board’s responsibility and expertise in adjudicating each case on its merits. 

For instance, in deciding what evidence to consider, the 

Board did not reach or rely on the Air Force’s challenges 

to the Administrative Judge’s credibility determinations. 

Therefore, that aspect of this case was not before this 

court on appeal. The Board states: 

The agency raises several claims on review, including but not limited to, challenges to the administrative judge’s credibility findings and 

weighing of the evidence ... However, in light of 

our findings concerning the insufficiency of the 

appellant’s evidence, we need not address these 

claims. 

Duncan v. Dep’t of Air Force, 115 M.S.P.R. 275, 277 n.2 

(2010)). The statutory standards of review give the Board 

broad leeway to determine the proper adjudicatory methods for these cases, and this case presents no reversible 

error. 

IV. 

Mr. Duncan spends the majority of his brief arguing 

that the Board erred in granting the Air Force’s petition 
DUNCAN v. AIR FORCE 10

for review under 5 C.F.R. § 1201.115(d) (“Contents of 

petition for review”). The court rejects this argument 

because the Board can consider an initial decision at any 

time under 5 C.F.R. § 1201.118 (“Board reopening of case 

and reconsideration of initial decision”), which provides: 

The Board may reopen an appeal and reconsider a 

decision of a judge on its own motion at any time, 

regardless of any other provisions of this part. 

See also Connolly v. Dep’t of Justice, 766 F.2d 507, 511 

(Fed. Cir. 1985) (discussing the prior regulation at 

§ 1201.117). 

For the reasons stated above, this court affirms.

AFFIRMED. 

COSTS

No costs.