To Be Filed After Basic FPM Chapter 430

AR 690-400

432

CHAPTER 432 *

* This chapter does not supplement the FPM.

REDUCTION IN GRADE AND REMOVAL BASED ON

UNACCEPTABLE PERFORMANCE

Contents

SUBCHAPTER 1. GENERAL PROVISIONS

1-1. Policy

1-2. Scope

1-3. Definitions

1-4. Procedures

1-5. Unacceptable Performance Related to Alcohol and Drug Abuse

1-6. Appeal and Grievance Rights

1-7. Records

NOTICE

Actions which were started before publication of this chapter may be completed under CPR 752-1. When, however, a period of time has passed in which the employee could have demonstrated acceptable performance under a performance appraisal system established pursuant to the Civil Service Reform Act of 1978, the procedures in this chapter should be used. While the procedures in CPR 752-1 remain available, the higher burden of proof to sustain a CPR 752-1 adverse action on appeal (preponderance rather than substantial) make the procedures in this chapter preferable.

SUBCHAPTER 1. GENERAL PROVISIONS

1-1. Policy. a. Employees will be assigned and utilized at their highest performance levels consistent with governing regulations and the needs of the service. Supervisors will identify major and critical elements and establish written standards of performance for all critical elements. Employees will participate in the development of these standards and be given a copy of the performance standards for their positions. They will be informed when their performance is unacceptable in one or more critical elements. (For the definition of unacceptable performance, see para 1- 3a).

b. Management should attempt (through counseling, increased supervisory assistance, on- or off-the-job training, etc.), to improve an employee's performance whenever it is less than fully satisfactory. If, after a reasonable time, performance remains unacceptable, the employee should be removed from the position. If there are appropriate vacancies in the area serviced by the CPO, efforts should be made to reassign the employee to a more suitable position. If no chance for reassignment exists, de-motion should be considered before removal from service.

c. The decision to demote rather than remove an employee from the Federal service is based on the availability of a vacant position, the duties of which the employee could and would successfully perform. Action to remove the employee from the Federal service must be started if-

(1) There are no vacancies, or

(2) Management decides that the employee could not adequately perform the duties of available vacant positions.

1-2. Scope. a. Action coverage. This chapter covers removal and reductions in grade based solely on unacceptable performance. The exceptions follow:

(1) A reduction of a supervisor or manager, who has not completed the probationary period, to the grade held immediately prior to the present assignment.

(2) An action against an employee in the competitive service who-

(a) Is serving a probationary or trial period under an initial appointment, or

(b) Has not completed I year of current continuous employment other than a temporary appointment limited to i year or less.

(3) An action against an employee in the excepted service who has not completed I year of cur-rent continuous employment in the same or similar positions.

(4) An action initiated by the Special Counsel, Merit Systems Protection Board (MSPB) under the authority of 5 USC 1206.

(5) An action taken under 5 USC 7532 in the interest of national security.

(6) An action taken under a provision of a statute which excepts the action from Title 5 USC.

(7) A removal from the Senior Executive Service to a civil service position outside the Senior Executive Service.

(8) A reduction in force action.

(9) A voluntary action initiated by the employee.

(10) An adverse action for cause initiated under Part 752 of the OPM regulations.

(11) An action which terminates a temporary promotion within a maximum period of 2 years, and-

(a) Returns the employee to the position from which he or she was temporarily promoted, or

(b) Reassigns or demotes the employee to a different position at a grade or pay no lower than the position from which he or she was temporarily promoted.

(12) An involuntary retirement because of disability.

(13) A termination under the conditions of employment specified at the time of appointment.

b. Employee coverage. This chapter applies to DA civilian employees paid from appropriated funds who are covered by an appraisal system established pursuant to the Civilian Service Reform Act of 1978. The exceptions follow:

(1) Employees outside CONUS who are paid in accordance with local national prevailing wage rates for the area in which employed.

(2) Temporary employees, consultants, and experts.

(3) Army National Guard technicians employed under 32 USC 709.

(4) Employees in the Senior Executive Service. (5) Employees appointed by the President.

(6) Employees in positions outside the competitive service and excluded from coverage under this chapter by OPM regulations.

(7) Reemployed annuitants. 1-3. Definitions.

a. Unacceptable performance. Performance which fails to meet established performance standards for one or more critical elements of an employee's position.

b. Reduction in grade. The involuntary assignment of an employee to a position at a lower classification or grade level.

c. Removal. The involuntary separation of an employee from employment.

d. Reasonable time. The amount of time sufficient to show whether the employee can meet minimum performance standards. (The length of time to be allowed will vary with the complexity of the position. A few weeks may be adequate time for an employee doing simple clerical tasks to show acceptable performance. In contrast, several months or more may be required to determine whether a person with complex, technical, or scientific duties and responsibilities can show acceptable performance).

e. Days. Calendar days.

1-4. Procedures. a. Action may be initiated at any time to remove or reduce in grade an employee whose performance is unacceptable in one or more critical elements. To do so the following requirements must be met:

(1) The employee must be-

(a) Informed in writing of the applicable critical elements and standards of performance.

(b) Informed of performance deficiencies.

(c) Allowed reasonable time to demonstrate acceptable performance.

(2) The employee's performance remains unacceptable in spite of counseling and other management assistance.

b. Employees against whom action is proposed are entitled to the following:

(1) 30 days advance written notice of the proposed action which identifies-

(a) Specific instances of unacceptable performance on which the proposed action is based.

(b) The critical elements of the employee's position involved in each instance of unacceptable performance.

(2) Representation by a person of the employee's choice, so long as such service by the representative does not-

(a) Result in a conflict of interest or position,

(b) Conflict with priority needs of the Government, or

(c) Give rise to unreasonable costs. The employee will designate his or her representative and any changes in representative in writing. A copy should be provided to the employee's super-visor. Section 7114(aX5), Title 5, United States Code, and the terms of any applicable collective bar-gaining agreement govern representation for employees in an exclusive bargaining unit.

(3) Not less than 7 days to answer orally and in writing,

(4) A written decision as soon as possible, but not later than 30 days after the notice period expires. The decision must-

(a) Specify the instances of unacceptable performance on which the action is based. Only instances of unacceptable performance which occurred in the I year period before the date of the advance notice may be used to support the decision. Only those instances included in the advance notice may be relied on to support the final decision.

(b) Be concurred in by a higher level official than the one who proposed the action. If the decision is not rendered by a higher level official, the higher level official's concurrence must be documented. (This requirement does not apply when the action is proposed by the Secretary of the Amy.)

c. Improvement in the employee's performance during the notice period may be taken into account along with the employee's answer in the final decision. If, as a result of the employee's reply or improvement in his or her performance, it is decided to withdraw or cancel the action, the employee should be so notified in writing. This documentation will be maintained per paragraph 1-7b.

d. In order to avoid reversal on appeal, the letter of decision should-

(1) State the effective date of the action,

(2) Inform the employee of applicable grievance and appeal rights, and

(3) Be delivered to the employee at or before the time the action will be effective.

1-5. Unacceptable performance related to alcohol and drug abuse. The DA Alcohol and Drug Abuse Prevention and Control Program (AR 600-85) provides nondisciplinary procedures which offer rehabilitation assistance to employees with alcohol or drug-related problems. Actions to reduce in grade or remove employees for unacceptable performance resulting from alcohol or other drug abuse will be postponed 90 days for those enrolled and satisfactorily progressing in an approved rehabilitation program. See chapter 7, AR 600-85, before considering actions against employees for performance problems related to alcohol or other drug abuse.

1-6. Appeal and Grievance Rights. Employees who are preference eligibles or in the competitive service and who have been reduced in grade or removed from the Federal service under this chapter may submit an appeal to the MSPB. Appeals should be submitted not later than 20 days after the effective date of the appealable action. The filing date of the appeal is determined by the postal date shown on the certified mail. If the appeal is filed in person, the filing date will be the date it is received in the appropriate MSPB field office. Employees covered by a negotiated grievance procedure may elect to appeal to the MSPB or pursue the action under the negotiated grievance procedure, but not both. Employees in the excepted service who are not preference eligible have no appeal rights to the MSPB. When such employees are reduced in grade they must be informed of applicable grievance rights.

1-7. Records. a. When the action is effected, all relevant documents will be placed in an adverse action file. This information will be furnished to the MSPB and to the affected employee upon request. As a minimum, the file must contain-

(1) A copy of the notice of proposed action;

(2) The employee's reply, when written;

(3) A summary or transcript of the oral reply, if any;

(4) The notice of decision;

(5) Any supporting material relied upon; and (6) Documentation regarding the opportunity afforded the employee to demonstrate acceptable performance.

b. When action is not effected, all relevant documents mentioned in a above will be assembled and kept in an adverse action file. If the employee's performance remains acceptable for the period of 1 year from the date of the proposed notice-

(1) The entire file must be destroyed, and

(2) Entries or notations of the unacceptable performance (except the employee's official performance appraisal) will be removed from all records.

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