U.S.
Merit Systems Protection Board

Information
Sheet No. 7

Military
Leave (Butterbaugh) Appeals



#### Purpose

The purpose of this information sheet is to provide general guidance
and background information. It does not represent an official
statement approved by the Board itself, and is not intended to
provide legal counsel or to be cited as legal authority. Instead, it
is intended only to help the public become familiar with the MSPB and
its procedures. In all instances, however, the Board’s
regulations and current case law control with respect to the matters
discussed here.

#### What is the Butterbaugh decision?

In Butterbaugh v. Department of Justice, 336 F.3d 1332,
1333-34 (Fed. Cir. 2003), the U.S. Court of Appeals for the Federal
Circuit held that agencies were not entitled to charge employees'
military leave accounts for days when they would not otherwise have
been required to work at their Federal civilian jobs. Under 5
U.S.C. § 6323, federal employees who work for agencies that
are covered by this section are to be given up to 15 days of paid
leave a year to attend training sessions required of them as members
of military reserves or the National Guard. Until § 6323
was amended in 2000, the Office of Personnel Management interpreted
it as providing 15 calendar days of leave each year, rather than 15
work days, and federal agencies therefore generally followed the
practice of charging employees' military leave accounts for absences
on non-workdays (e.g., weekends and holidays) when those days fell
within a period of absence for military training. In Butterbaugh,
the court said that this was improper.

#### What can the Board do?

If a Federal agency incorrectly charged military leave for
non-workdays so that you were required to use annual leave or leave
without pay for any period for which you should have been able to use
military leave, the Board may order compensation for the resulting
lost wages or benefits. In addition, the Board may order the
correction of military leave records by your
civilian employing agency, the Defense Finance and Accounting Service
(DFAS), and any other relevant agency.

#### Who has the burden of proof?

The employee (called the appellant) has the burden of proving by a
preponderance of the evidence that he was denied a benefit of
employment in violation of 38
U.S.C. § 4311(a) by being improperly charged military leave
he should not have been required to use, and being forced to use
annual leave or leave without pay in order to fulfill his military
obligations.

#### What kind of evidence do I need to present?

The appellant needs his military pay records or military orders in
order to prove which days he performed active military duty. He also
needs his civilian pay records, such as leave and earning statements
or leave slips, to prove that he was required to use annual leave or
leave without pay on days when he should have been able to use
military leave.

#### How can I get this information?

The Board has a procedure called "discovery" through which
an appellant can obtain relevant evidence or information which might
lead to the discovery of admissible evidence. For more information on
Discovery, refer to MSPB Information Sheet 5, Discovery.

In addition, you should contact your employing agency for assistance
in obtaining your civilian pay records and DFAS for assistance in
obtaining your military pay records. Procedures for filing an
administrative claim with DFAS are posted on the DFAS web site at
http:www.dod.mil/dfas/.



#### Can I file a claim elsewhere?

Some
agencies have established administrative claims procedures for their
employees to obtain relief. You should ask your servicing Personnel
Office whether such a claims procedure exists for your agency. Filing
with the agency may make filing an appeal unnecessary. If you wish to
file an appeal after using the agency process, however, you may still
do so because the law that allows you to appeal, called the Uniformed
Services Employment and Reemployment Rights Act of 1994 (USERRA)
contains no filing time limit.