How to Defeat an AWOL Charge Before the MSPB

AWOL charges can carry penalties ranging from reprimand through termination of employment.

You can defeat an absence without leave (AWOL) charge in an appeal to the Merit Systems Protection Board by either preventing the agency from proving an element of the charge, or by proving either a standard or affirmative defense. The Merit Systems Protection Board, an independent agency in the Executive branch, oversees the federal merit system.



The agency must prove two elements about your AWOL charge: that you were absent from duty and that your absence was unauthorized or your request for leave was appropriately denied.

Instructions

1. Demonstrate that you were in fact on duty. If you were in fact at your work location doing an approved task at the work site, then the agency cannot establish the necessary element of the charge of absence. Often, this will occur when an employee is charged AWOL for being late from break or in reporting to duty, but in fact the employee was on site doing an approved task and the supervisor was mistaken.

2. Establish that your leave request was in fact approved by a manager. If you submitted a written leave request to your supervisor and he approved it but later revoked the leave, then you must show that the revocation was not appropriate under workplace rules or that you were not informed of the revocation.

3. Prove the agency's denial of leave was not lawful. One way to accomplish this is to show that the agency's denial of leave was in violation of the Family Medical Leave Act. The FMLA requires employers to provide up to 12 weeks of unpaid leave for an employee to care for his or her own serious medical condition, or that of a parent, spouse or child.

4. Prove the agency's denial of your sick leave request was unreasonable. Federal employees have a right to use accrued sick leave. Therefore, if your request for leave was supported by specific medical documentation, the employer must have a compelling reason for demanding your attendance despite your medical condition.

5. Show the agency acted disparately in denying your annual leave request but granting other employees' leave requests. Although the granting of annual leave is discretionary by your supervisor, if you are able to show the decision to deny annual leave was an abuse of discretion or was disparately applied, then the AWOL charge resulting from your taking the leave can likely be overturned.

Tips & Warnings

• Defeating the basic elements of an AWOL charge may not entitle you to prevail before the MSPB if you do not also defeat other related charges. Furthermore, even if you are able to show the leave was, or should have been, authorized, the agency may still be able to discipline you for excessive absenteeism.

• If you are facing an AWOL charge, consult an attorney who is experienced in practice before the Merit Systems Protection Board.

References

• MSPB: Riley v. Dept. of the Army, 53 MSPR 683 (1992)
• MSPB: Atchley v. Dept. of the Army, 46 MSPR 297 (1990)
• MSPB: Benally v. Dept. of the Interior, 71 MSPR 537 (1996).

Resources

• Merit Systems Protection Board