NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAMES C. FREEMAN,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2019-1940
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-19-0119-I-1.
______________________
Decided: October 4, 2019
______________________
JAMES C. FREEMAN, Midland, GA, pro se.
DANIEL KENNETH GREENE, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
JOSEPH H. HUNT, ROBERT EDWARD KIRSCHMAN, JR.,
FRANKLIN E. WHITE, JR.
______________________
Before LOURIE, CLEVENGER, and DYK, Circuit Judges.
2 FREEMAN v. ARMY
PER CURIAM
James C. Freeman petitions for review of the final de-
cision of the Merit Systems Protection Board (the “Board”)
affirming the Army’s decision to remove Freeman from his
position as cook because of his frequent absences from work
without leave. See Freeman v. Dep’t of the Army, No. AT-
0752-19-0119-I-1 (M.S.P.B. Mar. 13, 2019); S.A. 1–15. We
affirm.
BACKGROUND
Freeman was employed from 2011 to 2018 as a cook
with the Army. Before that, he served on active duty in the
Army. Freeman was diagnosed with service-connected
post-traumatic stress disorder (“PTSD”) in 2013.
In January 2018, the Army proposed to remove Free-
man because of his frequent absences from work without
leave (“AWOL”). Freeman made an oral reply, but the
Army sustained his removal in June 2018, and Freeman
then appealed to the Board.
The administrative judge (“AJ”) found that Freeman
was absent from work without approval for 682.75 hours
over a period from January 2017 to January 2018. S.A. 4,
8–9. Freeman argued that his supervisors approved his
absences after the fact, but the AJ did not credit this argu-
ment because Freeman did not call any witnesses to sup-
port that contention, he had been previously reprimanded
and received a suspension for AWOL, and his explanation
was implausible given the sheer number of absences. Free-
man additionally argued that his service-connected PTSD
entitled him to leave without pay (“LWOP”), but the AJ de-
termined that Freeman still had the responsibility to re-
quest approval for his absences. The AJ also found that
Freeman’s absences caused hardships in his work section
and that Freeman had previously been disciplined for his
absences. Under these circumstances, the AJ found that
FREEMAN v. ARMY 3
the Army’s refusal to grant LWOP was reasonable. S.A. 9,
15. 1
The AJ’s decision became the final decision of the
Board on April 17, 2019. Freeman timely petitioned for re-
view. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm the Board’s decision unless we find it
to be “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5
U.S.C. § 7703(c). “The court will normally defer to the ad-
ministrative judgment unless the penalty exceeds the
range of permissible punishments specified by statute or
regulation, or unless the penalty is ‘so harsh and uncon-
scionably disproportionate to the offense that it amounts to
an abuse of discretion.’” Villela v. Dep’t of the Air Force,
727 F.2d 1574, 1576 (Fed. Cir. 1984) (quoting Power v.
United States,
531 F.2d 505, 507 (Ct. Cl. 1976)).
In his informal brief, Freeman first asserts that he
should not have been charged with AWOL at all because
his supervisor approved LWOP. The government responds
that the Board’s finding to the contrary was well supported
1 In April 2018, Freeman submitted an equal em-
ployment opportunity complaint alleging discrimination
based on his status as a disabled veteran. Freeman also
alleged discrimination before the AJ. The Army concluded
that Freeman was not a victim of discrimination, and the
AJ held likewise. Freeman indicated that he has aban-
doned or will not raise his discrimination claim here, and
his informal brief does not mention discrimination.
4 FREEMAN v. ARMY
and that Freeman’s bare assertion provides no reason to
overturn it.
We agree with the government. “Before removing an
employee, the government must prove by preponderant ev-
idence that: (1) the charged misconduct occurred, (2) there
is a nexus between what the employee did and disciplining
the employee to promote the efficiency of the service, and
(3) the particular penalty is reasonable.” Hansen v. Dep’t
of Homeland Sec.,
911 F.3d 1362, 1366 (Fed. Cir. 2018).
However, for a sustained charge of AWOL no separate evi-
dence of nexus is required because “any sustained charge
of AWOL is inherently connected to the efficiency of the
service.” Davis v. Veterans Admin.,
792 F.2d 1111, 1113
(Fed. Cir. 1986).
There is no dispute that the Board applied the correct
law; Freeman just asserts that the Board overlooked some
unspecified facts. The Board considered Freeman’s conten-
tion that his supervisors approved LWOP and reasonably
credited evidence to the contrary. For example, Freeman’s
supervisor testified that he counseled Freeman about the
need to call in when he could not report for work, and that
medical documentation was needed to justify his absences.
S.A. 4. Further, the Board observed that Freeman did not
call any witness to support his claim that his leave was ap-
proved, that it was inherently implausible to be given ap-
proval for such a large quantity of leave, and that Freeman
had previously been disciplined for AWOL. Freeman
points to no error in the Board’s finding, nor is one evident
on the face of its decision. We therefore conclude that sub-
stantial evidence supports the Board’s finding that Free-
man’s supervisors did not authorize his 682.75 hours of
absences over one year.
Freeman separately argues that a service-connected
disabled employee may, without more, request LWOP after
returning to work when the employee was “out seeking
medical treatment.” Pet’r’s Informal Br. 1. Before the
FREEMAN v. ARMY 5
Board, Freeman relied on Maneuver Center of Excellence
Regulation 690-630 § 3-14(c)(1), which provides that “by
law supervisors should grant LWOP to . . . [d]isabled vet-
erans seeking medical treatment for a service-connected
disability.” But Freeman directs us to no evidence that he
requested leave to seek medical treatment, nor does Free-
man even allege that he received such treatment during
any of his unexcused absences. The Board thus did not err
in denying Freeman carte blanche authority to re-charac-
terize such absences as LWOP rather than AWOL.
Ultimately, the Board credited evidence that Freeman
was absent from his job with the Army for an extensive pe-
riod without authorization, that the absences caused hard-
ships in his work section, and that Freeman had previously
been disciplined for similar practices in earlier periods. In
light of these circumstances, the Board found that removal
was warranted. We agree. We thus conclude that the
Board’s decision was not arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.
CONCLUSION
For the foregoing reasons, we affirm the Board’s deci-
sion.
AFFIRMED
COSTS
No costs.
