Brown v. National Archives and Records, BN075299044-R-1, July 31, 2002.

An adverse action based on AWOL cannot be sustained when OWCP determines that the employee was entitled to compensation benefits as a result of a work-related injury for the period charged as AWOL.

In an April 9, 1999 initial decision, the administrative judge sustained the appellant's removal on the charge of unauthorized absence. The administrative judge found that the appellant was absent without leave (AWOL) for a period of 495.2 hours from February 23 through October 2, 1998. The appellant petitioned the Board for review of that initial decision. Because the record contained evidence indicating that the appellant may have filed for or been awarded OWCP benefits for all or part of the period of sustained AWOL, the Board asked the parties to submit any additional evidence in their possession on this matter. Both parties responded stating that the appellant had not received a decision on his OWCP claim. Accordingly, in a March 2, 2002, Opinion and Order the Board denied the appellant's petition for review. The initial decision therefore became final. However, the Board informed the appellant that he could file a request to reopen this appeal if he eventually was awarded workers’ compensation benefits for any or all of the AWOL period that resulted in his removal.

Subsequently, in late 2002, the Office of Workers' Compensation reversed its initial decision on the employee’s claim before that office and awarded him benefits. At the employee's request the Board reopened its earlier decision and held that an adverse action based on AWOL cannot be sustained when OWCP determines that the employee was entitled to compensation benefits as a result of a work-related injury for the period charged as AWOL.

Because it was not clear what period of time was covered by the OWCP award and to what extent such period overlapped with the period of charged AWOL, the Board remanded the decision back to the AJ for a new decision.

The outcome of this appeal depends on whether the appellant was awarded OWCP benefits for the period of time for which the administrative judge found that he was AWOL. Presumably if all or a substantial portion of the AWOL period was the same as the period for which OWCP benefits were awarded, the removal action will be reversed or mitigated.

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