Stanley D. Mccallon, Petitioner, v. Department of the Air Force, Respondent, 865 F.2d 269 (Fed. Cir. 1988)

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U.S. Court of Appeals for the Federal Circuit - 865 F.2d 269 (Fed. Cir. 1988) Dec. 23, 1988

Before RICH, Circuit Judge, BENNETT, Senior Circuit Judge, and BISSELL, Circuit Judge.

PER CURIAM.


Petitioner was removed from his position as an industrial engineer for unacceptable performance in three of the four critical elements of performance standards for his position. On appeal to the Merit Systems Protection Board (board), DA04328710180, the administrative judge, in an initial decision dated April 27, 1987, upheld the removal, finding that the agency established by substantial evidence McCallon's failure in only one critical element but that this was sufficient for his discharge. In his appeal to the board, petitioner alleged harmful procedural error and challenged the administrative judge's findings on the merits. The board modified but affirmed the administrative judge's decision. 36 M.S.P.R. 616 (1988). We affirm on the basis of the board's final opinion.

There is substantial credible evidence to support the board in its conclusions that there was no harmful error in the administrative proceedings, that the employee was afforded reasonable opportunity to demonstrate acceptable performance but failed to do so, and that his substantive rights were not violated.

Upon consideration of the briefs and record before us and the arguments presented by the parties on appeal, we conclude that under our limited scope of review there are no grounds to set aside the board's decision. 5 U.S.C. § 7703(c) (1982). Having so concluded, it is unnecessary to consider the impact of petitioner's disability retirement.