William Gibbs, Petitioner, v. Department of the Navy, Respondent, 837 F.2d 1097 (Fed. Cir. 1987)

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U.S. Court of Appeals for the Federal Circuit - 837 F.2d 1097 (Fed. Cir. 1987) Dec. 22, 1987

Before FRIEDMAN, EDWARD S. SMITH, and MAYER, Circuit Judges.

DECISION

PER CURIAM.


The final decision of the Merit Systems Protection Board, Docket No.1 AT07528610680, is affirmed.

OPINION

At argument plaintiff urged a distinction between his situation and the one discussed in Davis v. Veterans Administration, 792 F.2d 1111, 1113 (Fed. Cir. 1986). He said that whereas Nurse Davis was intentionally absent without leave for personal reasons, his absence was unintentional; he would rather have been at work than incarcerated upon a conviction for possession of marijuana. We see no significant difference between the two situations. Gibbs intentionally engaged in criminal conduct, the reasonably foreseeable consequence of which was incarceration, which would take him away from his job. We cannot accept his argument that conviction of a crime resulting in AWOL is less culpable than intentionally absenting oneself from work for personal reasons.

In all other respects we affirm on the basis of the Board's opinion.