Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
Q:
I am a Department of Defense employee with almost 30 years of federal service stationed overseas with return rights to my stateside position.
Despite outstanding ratings at my stateside position, and a fully acceptable rating in my first year overseas, the new supervisor has decided that I am a failure, has put me on a soon-to-end PIP and is likely to find unsatisfactory performance. Her boss, the deciding official, will likely confirm, and I face separation.
The CSRS handbook makes it clear that involuntary separation for poor performance makes me eligible for Discontinued Service Retirement (DSR). The Army Benefits Center says they need a Form 1510 issued by my agency to process the DSR, while my current agency is implying that they are not obligated to issue Form 1510. Is this correct? Isn’t the 1510 simply a statement of fact by the agency that they have not offered me an alternate position and MUST be issued?
Also, my preference is not to retire but to exercise my Return Rights to my stateside job/agency. However, to do so, I need to submit a curtailment request to my current agency. Can they deny such a request and issue a Notice of Separation instead (assuming the PIP outcome is negative)?
A:
If you are separated for poor performance after failing a PIP, you are eligible for Discontinued Service Retirement if you meet the age and service requirements. Your agency can propose your separation if it decides your performance is unsatisfactory after a PIP.
You do have MSPB appeal rights, but the agency has a fairly low burden of proof in performance cases. If you choose to request return rights, your agency may view that as an acceptable way out for you.
Bill Bransford is managing partner of Shaw Bransford & Roth PC.
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