§ 7101A. — Members of Board: appointment; pay; performance review.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 38USC7101A]
TITLE 38--VETERANS' BENEFITS
PART V--BOARDS, ADMINISTRATIONS, AND SERVICES
CHAPTER 71--BOARD OF VETERANS' APPEALS
Sec. 7101A. Members of Board: appointment; pay; performance
review
(a)(1) The members of the Board of Veterans' Appeals other than the
Chairman (and including the Vice Chairman) shall be appointed by the
Secretary, with the approval of the President, based upon
recommendations of the Chairman.
(2) Each member of the Board shall be a member in good standing of
the bar of a State.
(b) Members of the Board (other than the Chairman and any member of
the Board who is a member of the Senior Executive Service) shall, in
accordance with regulations prescribed by the Secretary, be paid basic
pay at rates equivalent to the rates payable under section 5372 of title
5.
(c)(1)(A) The Chairman shall establish a panel to review the
performance of members of the Board. The panel shall be comprised of the
Chairman and two other members of the Board (other than the Vice
Chairman). The Chairman shall periodically rotate membership on the
panel so as to ensure that each member of the Board (other than the Vice
Chairman) serves as a member of the panel for and within a reasonable
period.
(B) Not less than one year after the job performance standards under
subsection (f) are initially established, and not less often than once
every three years thereafter, the performance review panel shall
determine, with respect to each member of the Board (other than the
Chairman or a member who is a member of the Senior Executive Service),
whether that member's job performance as a member of the Board meets the
performance standards for a member of the Board established under
subsection (f). Each such determination shall be in writing.
(2) If the determination of the performance review panel in any case
is that the member's job performance as a member of the Board meets the
performance standards for a member of the Board established under
subsection (f), the Chairman shall recertify the member's appointment as
a member of the Board.
(3) If the determination of the performance review panel in any case
is that the member's job performance does not meet the performance
standards for a member of the Board established under subsection (f),
the Chairman shall, based upon the individual circumstances, either--
(A) grant the member a conditional recertification; or
(B) recommend to the Secretary that the member be noncertified.
(4) In the case of a member of the Board who is granted a
conditional recertification under paragraph (3)(A) or (5)(A), the
performance review panel shall review the member's job performance
record and make a further determination under paragraph (1) concerning
that member not later than one year after the date of the conditional
recertification. If the determination of the performance review panel at
that time is that the member's job performance as a member of the Board
still does not meet the performance standards for a member of the Board
established under subsection (f), the Chairman shall recommend to the
Secretary that the member be noncertified.
(5) In a case in which the Chairman recommends to the Secretary
under paragraph (3) or (4) that a member be noncertified, the Secretary,
after considering the recommendation of the Chairman, may either--
(A) grant the member a conditional recertification; or
(B) determine that the member should be noncertified.
(d)(1) If the Secretary, based upon the recommendation of the
Chairman, determines that a member of the Board should be noncertified,
that member's appointment as a member of the Board shall be terminated
and that member shall be removed from the Board.
(2)(A) Upon removal from the Board under paragraph (1) of a member
of the Board who before appointment to the Board served as an attorney
in the civil service, the Secretary shall appoint that member to an
attorney position at the Board, if the removed member so requests. If
the removed member served in an attorney position at the Board
immediately before appointment to the Board, appointment to an attorney
position under this paragraph shall be in the grade and step held by the
removed member immediately before such appointment to the Board.
(B) The Secretary is not required to make an appointment to an
attorney position under this paragraph if the Secretary determines that
the member of the Board removed under paragraph (1) is not qualified for
the position.
(e)(1) A member of the Board (other than the Chairman or a member of
the Senior Executive Service) may be removed as a member of the Board by
reason of job performance only as provided in subsections (c) and (d).
Such a member may be removed by the Secretary, upon the recommendation
of the Chairman, for any other reason as determined by the Secretary.
(2) In the case of a removal of a member under this section for a
reason other than job performance that would be covered by section 7521
of title 5 in the case of an administrative law judge, the removal of
the member of the Board shall be carried out subject to the same
requirements as apply to removal of an administrative law judge under
that section. Section 554(a)(2) of title 5 shall not apply to a removal
action under this subsection. In such a removal action, a member shall
have the rights set out in section 7513(b) of that title.
(f) The Chairman, subject to the approval of the Secretary, shall
establish standards for the performance of the job of a member of the
Board (other than the Chairman or a member of the Senior Executive
Service). Those standards shall establish objective and fair criteria
for evaluation of the job performance of a member of the Board.
(g) The Secretary shall prescribe procedures for the administration
of this section, including deadlines and time schedules for different
actions under this section.
(Added Pub. L. 103-446, title II, Sec. 201(a)(1), Nov. 2, 1994, 108
Stat. 4655; amended Pub. L. 105-368, title X, Sec. 1002, Nov. 11, 1998,
112 Stat. 3363.)
Amendments
1998--Subsec. (a). Pub. L. 105-368, Sec. 1002(a), designated
existing provisions as par. (1) and added par. (2).
Subsec. (d)(2). Pub. L. 105-368, Sec. 1002(b), amended par. (2)
generally. Prior to amendment, par. (2) read as follows: ``Upon removal
from the Board under paragraph (1), a member of the Board (other than
the Chairman) who was a career or career-conditional employee in the
civil service before commencement of service as a member of the Board
shall revert to the civil service grade and series held by the member
immediately before the appointment of the member to the Board.''
Effective Date
Section 201(c) of Pub. L. 103-446 provided that: ``Section 7101A(b)
of title 38, United States Code, as added by subsection (a), shall take
effect on the first day of the first pay period beginning after December
31, 1994.''
Save Pay Provision
Section 201(b) of Pub. L. 103-446 provided that: ``The rate of basic
pay payable to an individual who is a member of the Board of Veterans'
Appeals on the date of the enactment of this Act [Nov. 2, 1994] may not
be reduced by reason of the amendments made by this section [enacting
this section and amending section 7101 of this title] to a rate below
the rate payable to such individual on the day before such date.''
Deadline for Establishment of Performance Evaluation Criteria for Board
Members
Section 202 of Pub. L. 103-446 provided that:
``(a) Deadline.--The job performance standards required to be
established by section 7101A(f) of title 38, United States Code, as
added by section 201(a), shall be established not later than 90 days
after the date of the enactment of this Act [Nov. 2, 1994].
``(b) Submission to Congressional Committees.--Not later than the
date on which the standards referred to in subsection (a) take effect,
the Secretary of Veterans Affairs shall submit to the Committees on
Veterans' Affairs of the Senate and House of Representatives a report
describing the standards established by the Chairman of the Board of
Veterans' Appeals.''
