Mock v. Department of the Air Force

In this case, petitioner, a former civilian employee at Tinker Air Force Base, Oklahoma, seeks review of the decision of the Merit Systems Protection Board (MSPB) upholding his removal from employment for possession of marijuana. Petitioner asserts that reversible procedural error having occurred, he is entitled to be reinstated with back pay to his effective termination date. Specifically, petitioner states that because his Notice of Proposed Removal charged him with Cause of Action No. 32 which refers to use of a narcotic while on government property or reporting for duty while under the influence of a narcotic, rather than, Cause of Action No. 31 which pertains to possession of a narcotic with intent to distribute, harmful error occurred requiring reversal of the MSPB decision. The MSPB determined that because the Notice of Proposed Removal sufficiently described the nature of, and the facts surrounding, the proscribed conduct, the erroneous citation to Cause of Action No. 32 was harmless error. We agree.

Petitioner knew and understood that he was charged with possession and his defense reflected this understanding. If the Notice of Proposed Removal had correctly stated Cause of Action No. 31, petitioner would have raised the same defenses. Because he would not have treated a Cause of Action that cited to the correct charge any differently, petitioner cannot now claim that harmful error has occurred.

Furthermore, we determine that the decision of the MSPB was neither arbitrary nor capricious and is supported by substantial evidence. 5 U.S.C. §7703 (Supp. V. 1981). Accordingly, we affirm the decision of the MSPB.