[Federal Register Volume 68, Number 244 (Friday, December 19, 2003)]
[Notices]
[Pages 70898-70901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30876]


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DEPARTMENT OF VETERANS AFFAIRS


Disciplinary Appeals Board Procedures; VA Directive and Handbook 
5021

AGENCY: Department of Veterans Affairs.

ACTION: Notice with request for comments.

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SUMMARY: The Department of Veterans Affairs (VA) is revising VA 
Directive and Handbook 5021, Employee/Management Relations, dated April 
15, 2002, to include the delegation from the Under Secretary for Health 
to the Deputy Under Secretary for Health the authority to accept, 
reject, or remand findings and decisions of Disciplinary Appeals Boards 
(DABs) involving major adverse actions taken against title 38 employees 
who have completed the probationary period and the delegation from the 
Under Secretary for Health to the Deputy Under Secretary for Health for 
Operations and Management the authority to make the final decision 
regarding the timeliness of appeals to a DAB. This notice announces 
that the revisions to the amended regulations are available for review 
and comment.

DATES: Comments must be received on or before December 19, 2003. The 
proposed effective date of these amendments is 30 days after 
publication of this notice.

ADDRESSES: Send written comments to: Director, Regulations Management 
(00REG1), Department of Veterans Affairs, 810 Vermont Avenue, NW., 
Washington, DC 20420.

FOR FURTHER INFORMATION CONTACT: Robert MacDonald, Employee Relations 
Team Leader, Department of Veterans Affairs, Office of Human Resources 
Management (051E), 810 Vermont Avenue, NW., Washington, DC 20420. Mr. 
MacDonald may be reached at (202) 273-9707.

SUPPLEMENTARY INFORMATION: The Under Secretary for Health has delegated 
to the Deputy Under Secretary for Health the authority to accept, 
reject, or remand findings and decisions of Disciplinary Appeals Boards 
(DAB) in connection with non-probationary title 38 employees' appeals 
of major adverse actions. The Under Secretary for Health has also 
delegated authority to the Deputy Under Secretary for Health for 
Operations and Management the authority to make the final decision 
regarding the timeliness of appeals to a DAB. These delegations will 
alleviate the need to convene a DAB to determine timeliness and provide 
more timely decisions of DAB findings.

    Dated: November 20, 2003.
Anthony J. Principi,
Secretary of Veterans Affair.

March 24, 2003.

Appendix A--Section C. Appeals to the Disciplinary Appeals Board

    1. Scope, Authority and Definitions. This section governs 
appeals of major adverse actions which arise out of, or which 
include, a question of professional conduct or competence in the 
Department of Veterans Affairs (VA). Major adverse actions are 
suspensions (including indefinite suspensions), transfers, 
reductions in grade, reductions in basic pay, and discharges. A 
question of professional conduct or competence involves direct 
patient care and/or clinical competence. The term clinical 
competence include issues of professional

[[Page 70899]]

judgment. This section applies to VA employees holding a full-time, 
permanent appointment under 38 U.S.C. 7401(l) who have 
satisfactorily completed the probationary period required by 38 
U.S.C. 7403(b). Included in this category are: physicians, dentists, 
podiatrists, optometrists, nurses, nurse anesthetists, physician 
assistants and expanded-function dental auxiliaries. The (preceding) 
categories of individuals are included in the term ``employee(s)'' 
as used in this section unless otherwise specified.

(Authority: 38 U.S.C. 501(a), 7401, 7403(b), 7421, 38 U.S.C. 7461-
7464.)

    2. References. a. Section 203 of the Department of Veterans 
Affairs Health-Care Personnel Act of 1991 (Pub. L. 102-40).
    b. 38 U.S.C. 501(a), 7421, 7461, 7462, 7464.
    3. Filing An Appeal to the Disciplinary Appeals Board. a. 
Initiating an Appeal. An employee subjected to a major adverse 
action which is based in whole or in part on a question of 
professional conduct or competence, may file a written notice of 
appeal to the Disciplinary Appeals Board under the provisions of 
this section. The employee may request a hearing before the Board. 
Any such request must be submitted in writing and accompany the 
employee's notice of appeal. The appeal must contain (1) the 
appellant's name, address, telephone number, designation of 
representative (if any), (2) a copy of the notice of action proposed 
and decision letter, (3) a statement as to whether the employee is 
requesting a hearing before the Board, (4) why the appellant 
believes the major adverse action taken was in error or should not 
have been taken, and (5) a statement describing the expected relief. 
The original appeal and the request for hearing, if any, must be 
submitted to the Under Secretary for Health or designee so as to be 
received within 30 days after the date of service of the written 
decision on the employee. Submission of the appeal must be by 
personal service, facsimile, or certified mail--return receipt 
requested. A copy of the appeal must be served on the decision 
official who took the action being appealed and any management 
representative of record.
    b. Establishing Timeliness of an Appeal. For purposes of 
computing the 30-day period for filing an appeal, the date of 
service of the written decision on the employee will be determined 
by the date of receipt by the employee of the personal delivery, the 
signed receipt of certified mail, or presumed to be 5 days after 
depositing the decision in the U.S. mail if no acknowledged receipt 
is available. The Deputy Under Secretary for Health for Operations 
and Management will make a final decision regarding the 
determination that an appeal is filed untimely. The employee will be 
notified in writing, by letter, of this final determination. There 
are no further administrative appeal rights regarding the issue of 
timeliness.
* * * * *
    8. Formal Hearing.
* * * * *
    b. Exclusion of Individuals During Proceeding. Prior to 
testifying or, if subject to recall, no witness will be permitted to 
hear the testimony being given by another witness unless the witness 
is the appellant, or is assisting in the representation of either 
party. In any event, the Chairman of the Board will make the final 
determination on exclusion of individuals during any phase of the 
proceeding.
    c. Oaths. The Chairman and Secretary of the Board shall have the 
authority to administer oaths or affirmations which will be made by 
all individuals giving testimony.
    d. Verbatim Record. A verbatim record shall be maintained of 
Board hearings (see subparagraph g below for further details).
    e. Witnesses. Both the appellant and management will have the 
right to call witnesses. The Chairman will, on his/her own 
initiative, call such witnesses on behalf of the Board as the 
Chairman deems necessary. The Chairman has the final authority to 
determine the acceptability of any witness.
    f. Scheduling of Hearing. The hearing will be conducted on 
official Government time, and normally, without charge to leave of 
the employee(s) concerned.
    g. Record of Hearing. (1) A verbatim record of the hearing 
proceedings will be prepared.
    (2) The employee and/or his/her representative shall be provided 
a copy of the transcript of the formal hearing after authentication.

(Authority: 38 U.S.C. 501(a), 7421, 38 U.S.C. 7461-7464)

    9. Disciplinary Appeals Board Decisions. a. Findings. The Board 
shall, with respect to each charge appealed, sustain the charge, 
dismiss the charge, or sustain the charge in part and dismiss the 
charge in part.
    b. Decision. The Board has full authority to render a decision 
on an appeal. The Board shall reach a decision within 45 calendar 
days of completion of the hearing, if a hearing is convened. In any 
event, a decision will be made by the Board no later than 120 
calendar days after the appeal is received by the Under Secretary 
for Health or designee.
    (1) If any charge is sustained in whole or in part, the Board 
shall approve the action as imposed; approve the action with 
modification, reduction, or exception; or reverse the action.
    (2) If none of the charges are sustained in whole or in part, 
the Board will reverse the decision.
    c. Action by the Deputy Under Secretary for Health. The Under 
Secretary for Health has delegated the authority to execute 
decisions made by Disciplinary Appeals Boards to the Deputy Under 
Secretary for Health. The Deputy Under Secretary for Health shall 
execute the Board's decision in a timely manner, but in no case 
later than 90 calendar days after the Board's decision is received 
by the Deputy Under Secretary for Health. Pursuant to the Board's 
decision, the Deputy Under Secretary for Health may order 
reinstatement, award back pay in accordance with the Back Pay Act, 
and provide such other remedies as the Board found appropriate 
relating directly to the proposed action, including expungement of 
records relating to the action.
    (1) However, if the Deputy Under Secretary for Health finds a 
decision of the Board to be clearly contrary to the evidence or 
unlawful the Deputy Under Secretary for Health may:
    (a) Reverse the decision of the Board; or
    (b) Vacate the decision of the Board and remand the matter to 
the Board for further consideration.
    (2) If the decision, while not clearly contrary to the evidence 
or unlawful, is found to be not justified by the gravity of the 
charges, the Deputy Under Secretary for Health may mitigate the 
adverse action imposed.
    (3) The Deputy Under Secretary for Health's execution of a 
Board's decision, or the mitigated action if appropriate, shall be 
the final administrative action in the case.
    d. Case Record. The case record will consist of the notice of 
proposed adverse action, appellant's reply, if any, all evidence 
(documents or testimony) relied upon by the Board in reaching its 
decision, notice of decision to appellant, appellant's request for a 
hearing, Deputy Under Secretary for Health's or designee's 
appointment of Board, Board communications and notices related to 
the hearing, any Board rulings or submissions of the parties, 
verbatim record of any formal hearing, Board Action (VA Form 10-
2543), Deputy Under Secretary for Health's execution of the Board's 
recommendation, and any Notification of Personnel Action (SF-50B).

(Authority: 38 U.S.C. 501(a), 7421, 38 U.S.C. 7461-7464)

    10. Review of Records. The Chairman of a Board may review 
records or information covered by 38 U.S.C. 5701 and 1332 in 
accordance with 7464(c)(1) of title 38.

(Authority: 38 U.S.C. 501(a), 7421, 38 U.S.C. 7461-7464.)

VA Handbook 5021/Part V, Chapter 1

Part V. Title 38 Appeals to the Disciplinary Appeals Board, Chapter 1. 
General

    1. Scope, Authority and Definitions. This chapter applies to 
Department of Veterans Affairs (VA) employees holding a full-time, 
permanent appointment under 38 U.S.C. 7401(l) who have 
satisfactorily completed the probationary period required by 38 
U.S.C. 7403(b). Included in this category are: physicians, dentists, 
podiatrists, optometrists, nurses, nurse anesthetists, physician 
assistants and expanded-function dental auxiliaries. These 
categories of individuals are included in the term ``employee(s)'' 
as used in this chapter unless otherwise specified. This chapter 
governs appeals of major adverse actions which arise out of, or 
which include, a question of professional conduct or competence in 
VA. Major adverse actions are suspensions (including indefinite 
suspensions), transfers, reductions in grade, reductions in basic 
pay, and discharges. A question of professional conduct or 
competence involves direct patient care and/or clinical competence. 
The term clinical competence includes issues of professional 
judgment.
    2. Representation. An employee of the Department may be 
designated by the decision official to represent management in any 
case before a Disciplinary Appeals Board. The decision official 
should direct requests for legal representation to the General 
Counsel or Regional Counsel, as appropriate.

[[Page 70900]]

    3. Filing an Appeal to the Disciplinary Appeals Board. a. 
Initiating an Appeal. An employee subjected to a major adverse 
action, which is based in whole or in part on a question of 
professional conduct or competence, may file a written notice of 
appeal to the Disciplinary Appeals Board under the provisions of 
this part. The employee may request a hearing before the Board. Any 
such request must be submitted in writing and accompany the 
employee's notice of appeal. The appeal must contain (1) the 
appellant's name, address, telephone number, designation of 
representative (if any), (2) a copy of the notice of action proposed 
and decision letter, (3) a statement as to whether the employee is 
requesting a hearing before the Board, (4) why the appellant 
believes the major adverse action taken was in error or should not 
have been taken, and (5) a statement describing the expected relief. 
The original appeal and the request for hearing, if any, must be 
submitted to the Under Secretary for Health or designee, through the 
Office of Human Resources Management (051), so as to be received 
within 30 days after the date of service of the written decision on 
the employee. Submission of the appeal must be by personal service, 
facsimile, or certified mail return receipt requested. A copy of the 
appeal must be served on the decision official who took the action 
being appealed and any management representative of record at the 
time of filing.
    b. Establishing Timeliness of an Appeal. For purposes of 
computing the 30-day period for filing an appeal, the date of 
service of the written decision on the employee will be determined 
by the date of receipt by the employee of the personal delivery, the 
signed receipt of certified mail, or presumed to be 5 days after 
depositing the decision in the U.S. mail if no acknowledged receipt 
is available. The Deputy Under Secretary for Health for Operations 
and Management will make a final decision regarding the 
determination that an appeal is filed untimely. The employee will be 
notified in writing, by letter, of this final determination. There 
are no further administrative appeal rights regarding the issue of 
timeliness.
* * * * *
    6. Powers of the Chairperson of the Disciplinary Appeals Board.
* * * * *
    a. Taking proper steps to expedite the hearing of evidence, and 
speaking and acting for the Board;
    b. Ruling on all questions arising during the proceedings, such 
as admissibility of evidence offered during the hearing, calling of 
witnesses, order of introduction of witnesses, etc.;
    c. Obtaining further evidence concerning any issue under 
consideration by the Board at any stage of the proceedings;
    d. Acting as the presiding officer, directing the regular and 
proper conduct of the proceedings, and authenticating, by his or her 
signature, instructions and proceedings of the Board;
    e. Ruling on questions of disqualification of any member of the 
Board. In cases where the Chairperson is the challenged member, the 
question shall be resolved in accordance with paragraph 7e of this 
chapter;
    f. Scheduling the specific hour and dates of hearings;
    g. Closing the record;
    h. Administering oaths or affirmations made by individuals 
giving testimony;
    i. Ruling on motions from the parties; and
    j. Calling witnesses on behalf of the Board.
    7. Procedure. a. Determining Jurisdiction. When a Board is 
convened to consider an appeal, the Board shall first determine 
whether the case is properly before it prior to considering the 
merits of the appeal. The Board shall determine whether the matter 
appealed is a major adverse action as defined in part II of this 
handbook, and whether it arises out of or includes a question of 
professional conduct or competence. The determination of 
jurisdiction will be made as soon as practicable. The Board will 
make a record of its determination.
    (1) The record of decision in any mixed case shall include a 
statement by the Board of its exclusive jurisdiction, citing 38 
U.S.C. 7462(a) as the authority and the basis for such exclusive 
jurisdiction. A mixed case is one that includes both (a) a major 
adverse action arising out of, or including, a question of 
professional conduct or competence, and (b) a major adverse action 
which does not arise out of a question of professional conduct or 
competence or a disciplinary action.
    (2) If necessary, the Board may develop the record to establish 
jurisdiction.
    (3) If the Board determines that the appeal is not properly 
before it, e.g., that it lacks jurisdiction, the Board shall fully 
set forth its reasons, including a statement of the appropriate 
appeal procedure. The Deputy Under Secretary for Health will take 
appropriate action on the decision of the Board as described in 
paragraph 9e of this chapter.
* * * * *
    8. Formal Hearings.
* * * * *
    (e) Technical advisors are not members of the Board and, 
therefore, do not possess any voting power.
    9. Disciplinary Appeals Board Decisions.
* * * * *
    c. Decision. The Board has full authority to render a decision 
on an appeal. The Board shall reach a decision within 45 calendar 
days of completion of the hearing, if a hearing is convened. In any 
event, a decision will be made by the Board no later than 120 
calendar days after the appeal is received by the Under Secretary 
for Health or designee.
    (1) If any charge is sustained in whole or in part, the Board 
shall approve the action as imposed; approve the action with 
modification, reduction, or exception; or reverse the action.
    (2) If none of the charges are sustained in whole or in part, 
the Board will reverse the action.
    d. Preparation of VA Form 10-2543. Following deliberation and 
voting on the findings and any penalty, VA Form 10-2543 will be 
prepared by the Disciplinary Appeals Board considering the case. The 
Chairperson of the Board will forward the complete record, including 
its findings and decision, signed and dated by all members of the 
Board and the technical advisor, through the Office of Human 
Resources Management (051) to the [Deputy] Under Secretary for 
Health for appropriate action. VA Form 10-2543 will contain 
supporting rationale for each of the findings.
    e. Action by the Under Secretary for Health. The Under Secretary 
for Health has delegated the authority to execute decisions made by 
Disciplinary Appeals Boards to the Deputy Under Secretary for 
Health. The Deputy Under Secretary for Health shall execute the 
Board's decision in a timely manner, but in no case later than 90 
calendar days after the Board's decision is received by the Deputy 
Under Secretary for Health. Pursuant to the Board's decision, the 
Deputy Under Secretary for Health may order reinstatement, award 
back pay in accordance with the Back Pay Act, and provide such other 
remedies as the Board found appropriate relating directly to the 
proposed action, including expungement of records relating to the 
action.
    (1) However, if the Deputy Under Secretary for Health finds a 
decision of the Board to be clearly contrary to the evidence or 
unlawful, the Deputy Under Secretary for Health may:
    (a) Reverse the decision of the Board; or
    (b) Vacate the decision of the Board and remand the matter to 
the Board for further consideration.
    (2) If the decision, while not clearly contrary to the evidence 
or unlawful, is found to be not justified by the gravity of the 
charges, the Deputy Under Secretary for Health may mitigate the 
adverse action imposed.
    (3) The Deputy Under Secretary for Health's execution of a 
Board's decision, or the mitigated action, if appropriate, shall be 
the final administrative action in the case.
    f. Remands. In circumstances where the Deputy Under Secretary 
for Health vacates the Board's decision and remands the matter for 
further consideration, the Board shall normally render its 
subsequent decision within 45 calendar days of the completion of the 
hearing, if a hearing was convened after the remand.
    (1) In any event, the Board's decision will be made no later 
than 90 calendar days after the remand is received by the Board 
Chairperson.
    (2) If the remand is related solely to jurisdictional issues, 
then the Deputy Under Secretary for Health may establish a shorter 
resolution period.
    g. Case Record. (1) The case record will consist of the notice 
of proposed adverse action, appellant's reply, if any, all evidence 
(documents or testimony) relied upon by the Board in reaching its 
decision, notice of decision to appellant, appellant's request for a 
hearing, Deputy Under Secretary for Health's or designee's 
appointment of Board, Board communications and notices related to 
the hearing, any Board rulings or submissions of the parties, 
verbatim record of any formal hearing, Board Action (VA Form 10-
2543), Deputy Under Secretary for Health's execution of the Board's 
recommendation, and any Notification of Personnel Action (SF-50B).

[[Page 70901]]

    (2) Major adverse action files, which have been involved with an 
appeal to the Disciplinary Appeals Board will be maintained by the 
Office of Human Resources Management, Human Resources Management 
Programs and Policies Service (051). Records are maintained and 
disposed of in accordance with the records disposition authorities 
found in General Records Schedule 1 and VA Records Control Schedule 
10-1, except where otherwise required to be retained for a longer 
period of time.
    (3) One copy of notice of decision will be provided to the 
employee, the employee's representative, and the official who 
decided the adverse action. Any SF-50B, Notification of Personnel 
Action, will be filed in the employee's personnel folder.
    10. Review of Records. a. The Board Chairperson, upon request of 
an appellant (or the appellant's designated representative), may, in 
connection with the considerations of the Board, review confidential 
records or information covered by 38 U.S.C. 5701 and 7332 in 
accordance with 38 U.S.C. 7464(c)(1).
    (1) The Board Chairperson may authorize the disclosure of such 
records or information to that employee (or representative) to the 
extent the Board considers appropriate for purposes of the 
proceedings of the Board.
    (2) Decisions on requests to disclose records or information 
will be in writing.
    b. In any such case, the Chairperson may direct that measures be 
taken to protect the personal privacy of individuals whose records 
are involved. * * *
* * * * *

[FR Doc. 03-30876 Filed 12-18-03; 8:45 am]
BILLING CODE 8320-01-U