1. U.S. Code
  2. title 38
  3. part I
  4. chapter 7
  5. subchapter I
  6. § 713

Collapse to view only § 713. Senior executives: removal, demotion, or suspension based on performance or misconduct

§ 701. Placement of employees in military installations

The Secretary may place employees of the Department in such Army, Navy, Air Force, and Space Force installations as may be considered advisable for the purpose of adjudicating disability claims of, and giving aid and advice to, members of the Armed Forces who are about to be discharged or released from active military, naval, air, or space service.

(Added Pub. L. 102–83, § 2(a), Aug. 6, 1991, 105 Stat. 394; amended Pub. L. 116–283, div. A, title IX, § 926(a)(4), (c), Jan. 1, 2021, 134 Stat. 3830, 3831.)

CITE AS: 38 USC 701

§ 703. Miscellaneous authorities respecting employees
(a) The Secretary may furnish and launder such wearing apparel as may be prescribed for employees in the performance of their official duties.
(b) The Secretary may transport children of Department employees located at isolated stations to and from school in available Government-owned automotive equipment.
(c) The Secretary may provide recreational facilities, supplies, and equipment for the use of patients in hospitals and employees in isolated installations.
(d) The Secretary may provide for the preparation, shipment, installation, and display of exhibits, photographic displays, moving pictures, and other visual educational information and descriptive material. For the purposes of the preceding sentence, the Secretary may purchase or rent equipment.
(e) The Secretary may reimburse employees for the cost of repairing or replacing their personal property damaged or destroyed by patients or domiciliary members while such employees are engaged in the performance of their official duties.
(f)
(1) The Secretary, upon determining that an emergency situation exists and that such action is necessary for the effective conduct of the affairs of the Department, may use Government-owned, or leased, vehicles to transport employees to and from their place of employment and the nearest adequate public transportation or, if such public transportation is either unavailable or not feasible to use, to and from their place of employment and their home.
(2) The Secretary shall establish reasonable rates to cover the cost of the service rendered under this subsection, and all proceeds collected therefrom shall be applied to the applicable appropriation.
(Added Pub. L. 102–83, § 2(a), Aug. 6, 1991, 105 Stat. 394.)

CITE AS: 38 USC 703

§ 704. Waiver of pay limitation for certain employees
(a)Employees of Veterans Health Administration Impacted by Closure or Realignment.—Notwithstanding any other provision of law, the Secretary may waive any annual premium or aggregate limitation on pay for an employee of the Veterans Health Administration for the calendar year during which—
(1) the official duty station of the employee is closed; or
(2) the office, facility, activity, or organization of the employee is realigned.
(b)Employees Providing Care to Veterans Exposed to Open Burn Pits.—
(1)In general.—Notwithstanding any other provision of law, the Secretary may waive any annual premium or aggregate limitation on pay for an employee of the Department whose primary duties include providing expanded care for veterans exposed to open burn pits.
(2)Open burn pit defined.—In this subsection, the term “open burn pit” has the meaning given that term in section 201(c) of the Dignified Burial and Other Veterans’ Benefits Improvement Act of 2012 (Public Law 112–260; 38 U.S.C. 527 note).
(c)Coordination With Office of Personnel Management.—In implementing this section, the Secretary shall coordinate with the Director of the Office of Personnel Management.
(d)Reports.—
(1)In general.—For each quarter that the Secretary waives a limitation under this section, the Secretary shall submit to the Committee on Veterans’ Affairs of the Senate, the Committee on Veterans’ Affairs of the House of Representatives, and the Office of Personnel Management a report on the waiver or waivers.
(2)Contents.—Each report submitted under paragraph (1) with respect to a waiver or waivers shall include the following:
(A) Where the waiver or waivers were used, including in which component of the Department and, as the case may be, which medical center of the Department.
(B) For how many employees the waiver or waivers were used, disaggregated by component of the Department and, if applicable, medical center of the Department.
(C) The average amount by which each payment exceeded the pay limitation that was waived, disaggregated by component of the Department and, if applicable, medical center of the Department.
(e)Employee Defined.—In this section, the term “employee” means any employee regardless of the authority under which the employee was hired.
(f)Termination.—This section shall terminate on September 30, 2027.
(Added Pub. L. 117–168, title IX, § 907, Aug. 10, 2022, 136 Stat. 1814.)

CITE AS: 38 USC 704

§ 705. Telephone service for medical officers and facility directors

The Secretary may pay for official telephone service and rental in the field whenever incurred in case of official telephones for directors of centers, hospitals, independent clinics, domiciliaries, and medical officers of the Department where such telephones are installed in private residences or private apartments or quarters, when authorized under regulations prescribed by the Secretary.

(Added Pub. L. 102–83, § 2(a), Aug. 6, 1991, 105 Stat. 395.)

CITE AS: 38 USC 705

§ 706. Additional authority relating to recruitment and retention of personnel
(a)Recruitment and Relocation Bonuses.—The Secretary may pay a recruitment or relocation bonus under section 5753(e) of title 5 without regard to any requirements for certification or approval under that section.
(b)Retention Bonuses.—
(1) The Secretary may pay a retention bonus under section 5754(f) of title 5 without regard to any requirement for certification or approval under that subsection.
(2) The Secretary may pay a retention bonus as specified in subsection (e)(2) of section 5754 of title 5 and may pay the bonus as a single lump-sum payment at the beginning of the full period of service required by an agreement under subsection (d) of such section.
(c)Merit Awards.—The Secretary may grant a cash award under section 4502(b) of title 5 without regard to any requirement for certification or approval under that section.
(d)Incentives for Critical Skills.—
(1) Subject to the provisions of this paragraph, the Secretary may provide a critical skill incentive to an employee in a case in which the Secretary determines—
(A) the employee possesses a high-demand skill or skill that is at a shortage;
(B) such skill is directly related to the duties and responsibilities of the employee’s position; and
(C) employment of an individual with such skill in such position serves a critical mission-related need of the Department.
(2) An incentive provided to an employee under paragraph (1) may not to 1
1 So in original. The word “to” probably should not appear.
exceed 25 percent of the basic pay of the employee.
(3) Provision of an incentive under paragraph (1) shall be contingent on the employee entering into a written agreement to complete a period of employment with the Department.
(4) An incentive provided under paragraph (1) shall not be considered basic pay for any purpose.
(5) The Secretary may prescribe conditions, including with respect to eligibility, and limitations on provision of incentive 2
2 So in original. Probably should be preceded by “an”.
under paragraph (1).
(6) Incentive 3
3 So in original. Probably should be “An incentive”.
provided under paragraph (1) shall not be included in the calculation of total amount of compensation under section 7431(e)(4) of this title.
(e)Student Loan Repayments.—
(1) Subject to the provisions of this subsection, the Secretary may repay a student loan pursuant to section 5379(b) of title 5.
(2) Paragraph (2) of such section shall not apply to payment under this subsection.
(3) Payment under this subsection shall be made subject to such terms, limitations, or conditions as may be mutually agreed to by the Secretary and the employee concerned, except that the amount paid by the Secretary under this subsection may not exceed—
(A) $40,000 for any employee in any calendar year; or
(B) a total of $100,000 in the case of any employee.
(f)Expedited Hiring Authority for College Graduates; Competitive Service.—
(1) Subject to paragraph (2) of this subsection, the Secretary may expedite hiring for college graduates under section 3115 of title 5 without regard to subsection (e) of such section or any regulations prescribed by the Office of Personnel Management for administration of such subsection.
(2) The number of employees the Secretary may appoint under section 3115 of title 5 may not exceed the number equal to 25 percent of individuals that the Secretary appointed during the previous fiscal year to a position in the competitive service classified in a professional or administrative occupational category, at the GS–11 level, or an equivalent level, or below, under a competitive examining procedure.
(g)Expedited Hiring Authority for Post-secondary Students; Competitive Service.—
(1) Subject to paragraph (2) of this subsection, the Secretary may expedite hiring of post-secondary students under section 3116 of title 5, without regard to subsection (d) of such section or any regulations prescribed by the Office of Personnel Management for administration of such subsection.
(2) The number of employees the Secretary may appoint under section 3116 of title 5 may not exceed the number equal to 25 percent of the number of students that the Secretary appointed during the previous fiscal year to a position at the GS–11 level, or an equivalent level, or below.
(h)Pay Authority for Critical Positions.—
(1) Subject to the provisions of this subsection, the Secretary may authorize the fixing of the rate of pay for a critical position in the Department consistent with the authorities and requirements of section 5377 of title 5 that apply to the Office of Personnel Management.
(2) The Secretary may fix the rate of pay for a critical position under this subsection in excess of the limitation set forth by section 5377(d)(2) of such title.
(3) Basic pay may not be fixed under this subsection at a rate greater than the rate payable for the Vice President of the United States established under section 104 of title 3, except upon written approval of the President.
(4) Notwithstanding section 5377(f) of title 5, the Secretary may authorize the exercise of authority under this subsection with respect to up to 200 positions at any time.
(i)Rates of Special Pay.—
(1) The Secretary may establish a rate for special pay under section 5305(a)(1) of title 5.
(2) In applying such section to the Secretary’s authority under paragraph (1)—
(A) “50 percent” shall be substituted for “30 percent”; and
(B) “level II of the Executive Schedule” shall be substituted for “level IV of the Executive Schedule”.
(j)Waiver of Limitations on Certain Payments Under Pay Comparability System.—The Secretary may waive the limitation in section 5307 of title 5 for an employee or a payment.
(k)Termination.—The authorities under this section shall terminate on September 30, 2027.
(Added Pub. L. 117–168, title IX, § 909, Aug. 10, 2022, 136 Stat. 1815.)

CITE AS: 38 USC 706

§ 707. Benefits for employees at overseas offices who are United States citizens
(a) The Secretary may, under such rules and regulations as may be prescribed by the President or the President’s designee, provide to personnel of the Department who are United States citizens and are assigned by the Secretary to the Department offices in the Republic of the Philippines allowances and benefits similar to those provided by the following provisions of law:
(1) Section 905 of the Foreign Service Act of 1980 (relating to allowances to provide for the proper representation of the United States).
(2) Sections 901(1), (2), (3), (4), (7), (8), (9), (11), and (12) of the Foreign Service Act of 1980 (relating to travel expenses).
(3) Section 901(13) of the Foreign Service Act of 1980 (relating to transportation of automobiles).
(4) Section 903 of the Foreign Service Act of 1980 (relating to the return of personnel to the United States on leave of absence).
(5) Section 904(d) of the Foreign Service Act of 1980 (relating to payments by the United States of expenses for treating illness or injury of officers or employees and dependents requiring hospitalization).
(6)Section 5724a(c) of title 5 (relating to subsistence expenses for 60 days in connection with the return to the United States of the employee and such employee’s immediate family).
(7)Section 5724a(d) of title 5 (relating to the sale and purchase of the residence or settlement of an unexpired lease of the employee when transferred from one station to another station and both stations are in the United States, its territories or possessions, or the Commonwealth of Puerto Rico).
(b) The authority in subsection (a) supplements, but is not in lieu of, other allowances and benefits for overseas employees of the Department provided by title 5 and the Foreign Service Act of 1980 (22 U.S.C. 3901 et seq.).
(Added Pub. L. 102–83, § 2(a), Aug. 6, 1991, 105 Stat. 395; amended Pub. L. 104–201, div. A, title XVII, § 1723(a)(2), Sept. 23, 1996, 110 Stat. 2759.)

CITE AS: 38 USC 707

§ 709. Employment restrictions
(a)
(1) Notwithstanding section 3134(d) of title 5, the number of Senior Executive Service positions in the Department which are filled by noncareer appointees in any fiscal year may not at any time exceed 5 percent of the average number of senior executives employed in Senior Executive Service positions in the Department during the preceding fiscal year.
(2) For purposes of this subsection, the average number of senior executives employed in Senior Executive Service positions in the Department during a fiscal year shall be equal to 25 percent of the sum of the total number of senior executives employed in Senior Executive Service positions in the Department on the last day of each quarter of such fiscal year.
(b) The number of positions in the Department which may be excepted from the competitive service, on a temporary or permanent basis, because of their confidential or policy-determining character may not at any time exceed the equivalent of 15 positions.
(c)
(1) Political affiliation or activity may not be taken into account in connection with the appointment of any person to any position in or to perform any service for the Department or in the assignment or advancement of any employee in the Department.
(2) Paragraph (1) shall not apply—
(A) to the appointment of any person by the President under this title, other than the appointment of the Under Secretary for Health, the Under Secretary for Benefits, and the Inspector General; or
(B) to the appointment of any person to (i) a Senior Executive Service position as a noncareer appointee, or (ii) a position that is excepted from the competitive service, on a temporary or permanent basis, because of the confidential or policy-determining character of the position.
(Added Pub. L. 102–83, § 2(a), Aug. 6, 1991, 105 Stat. 395; amended Pub. L. 102–405, title III, § 302(c)(1), Oct. 9, 1992, 106 Stat. 1984.)

CITE AS: 38 USC 709

§ 711. Grade reductions
(a) The Secretary may not implement a grade reduction described in subsection (b) unless the Secretary first submits to the Committees on Veterans’ Affairs of the Senate and House of Representatives a report containing a detailed plan for such reduction and a detailed justification for the plan. The report shall include a determination by the Secretary (together with data supporting such determination) that, in the personnel area concerned, the Department has a disproportionate number of employees at the salary grade or grades selected for reduction in comparison to the number of such employees at the salary levels involved who perform comparable functions in other departments and agencies of the Federal Government and in non-Federal entities. Any grade reduction described in such report may not take effect until the end of a period of 90 calendar days (not including any day on which either House of Congress is not in session) after the report is received by the committees.
(b) A grade reduction referred to in subsection (a) is a systematic reduction, for the purpose of reducing the average salary cost for Department employees described in subsection (c), in the number of such Department employees at a specific grade level.
(c) The employees referred to in subsection (b) are—
(1) health-care personnel who are determined by the Secretary to be providing either direct patient-care services or services incident to direct patient-care services;
(2) individuals who meet the definition of professional employee as set forth in section 7103(a)(15) of title 5; and
(3) individuals who are employed as computer specialists.
(d) Not later than the 45th day after the Secretary submits a report under subsection (a), the Comptroller General shall, upon request of either of such Committees, submit to such committees a report on the Secretary’s compliance with such subsection. The Comptroller General shall include in the report the Comptroller General’s opinion as to the accuracy of the Secretary’s determination (and of the data supporting such determination) made under such subsection.
(e) In the case of Department employees not described in subsection (c), the Secretary may not in any fiscal year implement a systematic reduction for the purpose of reducing the average salary cost for such Department employees that will result in a reduction in the number of such Department employees at any specific grade level at a rate greater than the rate of the reductions systematically being made in the numbers of employees at such grade level in all other agencies and departments of the Federal Government combined.
(Added Pub. L. 102–83, § 2(a), Aug. 6, 1991, 105 Stat. 396; amended Pub. L. 103–446, title XII, § 1201(e)(5), Nov. 2, 1994, 108 Stat. 4685; Pub. L. 104–316, title I, § 119, Oct. 19, 1996, 110 Stat. 3836.)

CITE AS: 38 USC 711

[§ 712. Repealed. Pub. L. 107–103, title V, § 509(a)(1), Dec. 27, 2001, 115 Stat. 997]

CITE AS: 38 USC 712

§ 713. Senior executives: removal, demotion, or suspension based on performance or misconduct
(a)Authority.—
(1) The Secretary may, as provided in this section, reprimand or suspend, involuntarily reassign, demote, or remove a covered individual from a senior executive position at the Department if the Secretary determines that the misconduct or performance of the covered individual warrants such action.
(2) If the Secretary so removes such an individual, the Secretary may remove the individual from the civil service (as defined in section 2101 of title 5).
(b)Rights and Procedures.—
(1) A covered individual who is the subject of an action under subsection (a) is entitled to—
(A) advance notice of the action and a file containing all evidence in support of the proposed action;
(B) be represented by an attorney or other representative of the covered individual’s choice; and
(C) grieve the action in accordance with an internal grievance process that the Secretary, in consultation with the Assistant Secretary for Accountability and Whistleblower Protection, shall establish for purposes of this subsection.
(2)
(A) The aggregate period for notice, response, and decision on an action under subsection (a) may not exceed 15 business days.
(B) The period for the response of a covered individual to a notice under paragraph (1)(A) of an action under subsection (a) shall be 7 business days.
(C) A decision under this paragraph on an action under subsection (a) shall be issued not later than 15 business days after notice of the action is provided to the covered individual under paragraph (1)(A). The decision shall be in writing, and shall include the specific reasons therefor.
(3) The Secretary shall ensure that the grievance process established under paragraph (1)(C) takes fewer than 21 days.
(4) A decision under paragraph (2) that is not grieved, and a grievance decision under paragraph (3), shall be final and conclusive.
(5) A covered individual adversely affected by a decision under paragraph (2) that is not grieved, or by a grievance decision under paragraph (3), may obtain judicial review of such decision.
(6) In any case in which judicial review is sought under paragraph (5), the court shall review the record and may set aside any Department action found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with a provision of law;
(B) obtained without procedures required by a provision of law having been followed; or
(C) unsupported by substantial evidence.
(c)Relation to Other Provisions of Law.—
(d)Definitions.—In this section:
(1) The term “covered individual” means—
(A) a career appointee (as that term is defined in section 3132(a)(4) of title 5); or
(B) any individual who occupies an administrative or executive position and who was appointed under section 7306(a), section 7401(1), or section 7401(4) of this title.
(2) The term “misconduct” includes neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function.
(3) The term “senior executive position” means—
(A) with respect to a career appointee (as that term is defined in section 3132(a) of title 5), a Senior Executive Service position (as such term is defined in such section); and
(B) with respect to a covered individual appointed under section 7306(a) or section 7401(1) of this title, an administrative or executive position.
(Added Pub. L. 113–146, title VII, § 707(a)(1), Aug. 7, 2014, 128 Stat. 1798; amended Pub. L. 115–41, title II, § 201(a), June 23, 2017, 131 Stat. 868.)

CITE AS: 38 USC 713

§ 714. Employees: removal, demotion, or suspension based on performance or misconduct
(a)In General.—
(1) The Secretary may remove, demote, or suspend a covered individual who is an employee of the Department if the Secretary determines the performance or misconduct of the covered individual warrants such removal, demotion, or suspension.
(2) If the Secretary so removes, demotes, or suspends such a covered individual, the Secretary may—
(A) remove the covered individual from the civil service (as defined in section 2101 of title 5);
(B) demote the covered individual by means of a reduction in grade for which the covered individual is qualified, that the Secretary determines is appropriate, and that reduces the annual rate of pay of the covered individual; or
(C) suspend the covered individual.
(b)Pay of Certain Demoted Individuals.—
(1) Notwithstanding any other provision of law, any covered individual subject to a demotion under subsection (a)(2) shall, beginning on the date of such demotion, receive the annual rate of pay applicable to such grade.
(2)
(A) A covered individual so demoted may not be placed on administrative leave during the period during which an appeal (if any) under this section is ongoing, and may only receive pay if the covered individual reports for duty or is approved to use accrued unused annual, sick, family medical, military, or court leave.
(B) If a covered individual so demoted does not report for duty or receive approval to use accrued unused leave, such covered individual shall not receive pay or other benefits pursuant to subsection (d)(5).
(c)Procedure.—
(1)
(A) The aggregate period for notice, response, and final decision in a removal, demotion, or suspension under this section may not exceed 15 business days.
(B) The period for the response of a covered individual to a notice of a proposed removal, demotion, or suspension under this section shall be 7 business days.
(C) Paragraph (3) of subsection (b) of section 7513 of title 5 shall apply with respect to a removal, demotion, or suspension under this section.
(D) The procedures in this subsection shall supersede any collective bargaining agreement to the extent that such agreement is inconsistent with such procedures.
(2) The Secretary shall issue a final decision with respect to a removal, demotion, or suspension under this section not later than 15 business days after the Secretary provides notice, including a file containing all the evidence in support of the proposed action, to the covered individual of the removal, demotion, or suspension. The decision shall be in writing and shall include the specific reasons therefor.
(3) The procedures under chapter 43 of title 5 shall not apply to a removal, demotion, or suspension under this section.
(4)
(A) Subject to subparagraph (B) and subsection (d), any removal or demotion under this section, and any suspension of more than 14 days under this section, may be appealed to the Merit Systems Protection Board, which shall refer such appeal to an administrative judge pursuant to section 7701(b)(1) of title 5.
(B) An appeal under subparagraph (A) of a removal, demotion, or suspension may only be made if such appeal is made not later than 10 business days after the date of such removal, demotion, or suspension.
(d)Expedited Review.—
(1) Upon receipt of an appeal under subsection (c)(4)(A), the administrative judge shall expedite any such appeal under section 7701(b)(1) of title 5 and, in any such case, shall issue a final and complete decision not later than 180 days after the date of the appeal.
(2)
(A) Notwithstanding section 7701(c)(1)(B) of title 5, the administrative judge shall uphold the decision of the Secretary to remove, demote, or suspend an employee under subsection (a) if the decision is supported by substantial evidence.
(B) Notwithstanding title 5 or any other provision of law, if the decision of the Secretary is supported by substantial evidence, the administrative judge shall not mitigate the penalty prescribed by the Secretary.
(3)
(A) The decision of the administrative judge under paragraph (1) may be appealed to the Merit Systems Protection Board.
(B) Notwithstanding section 7701(c)(1)(B) of title 5, the Merit Systems Protection Board shall uphold the decision of the Secretary to remove, demote, or suspend an employee under subsection (a) if the decision is supported by substantial evidence.
(C) Notwithstanding title 5 or any other provision of law, if the decision of the Secretary is supported by substantial evidence, the Merit Systems Protection Board shall not mitigate the penalty prescribed by the Secretary.
(4) In any case in which the administrative judge cannot issue a decision in accordance with the 180-day requirement under paragraph (1), the Merit Systems Protection Board shall, not later than 14 business days after the expiration of the 180-day period, submit to the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Affairs of the House of Representatives a report that explains the reasons why a decision was not issued in accordance with such requirement.
(5)
(A) A decision of the Merit Systems Protection Board under paragraph (3) may be appealed to the United States Court of Appeals for the Federal Circuit pursuant to section 7703 of title 5 or to any court of appeals of competent jurisdiction pursuant to subsection (b)(1)(B) of such section.
(B) Any decision by such Court shall be in compliance with section 7462(f)(2) of this title.
(6) The Merit Systems Protection Board may not stay any removal or demotion under this section, except as provided in section 1214(b) of title 5.
(7) During the period beginning on the date on which a covered individual appeals a removal from the civil service under subsection (c) and ending on the date that the United States Court of Appeals for the Federal Circuit issues a final decision on such appeal, such covered individual may not receive any pay, awards, bonuses, incentives, allowances, differentials, student loan repayments, special payments, or benefits related to the employment of the individual by the Department.
(8) To the maximum extent practicable, the Secretary shall provide to the Merit Systems Protection Board such information and assistance as may be necessary to ensure an appeal under this subsection is expedited.
(9) If an employee prevails on appeal under this section, the employee shall be entitled to backpay (as provided in section 5596 of title 5).
(10) If an employee who is subject to a collective bargaining agreement chooses to grieve an action taken under this section through a grievance procedure provided under the collective bargaining agreement, the timelines and procedures set forth in subsection (c) and this subsection shall apply.
(e)Whistleblower Protection.—
(1) In the case of a covered individual seeking corrective action (or on behalf of whom corrective action is sought) from the Office of Special Counsel based on an alleged prohibited personnel practice described in section 2302(b) of title 5, the Secretary may not remove, demote, or suspend such covered individual under subsection (a) without the approval of the Special Counsel under section 1214(f) of title 5.
(2) In the case of a covered individual who has made a whistleblower disclosure to the Assistant Secretary for Accountability and Whistleblower Protection, the Secretary may not remove, demote, or suspend such covered individual under subsection (a) until—
(A) in the case in which the Assistant Secretary determines to refer the whistleblower disclosure under section 323(c)(1)(D) of this title to an office or other investigative entity, a final decision with respect to the whistleblower disclosure has been made by such office or other investigative entity; or
(B) in the case in which the Assistant Secretary determines not to refer the whistleblower disclosure under such section, the Assistant Secretary makes such determination.
(f)Termination of Investigations by Office of Special Counsel.—
(1) Notwithstanding any other provision of law, the Special Counsel (established by section 1211 of title 5) may terminate an investigation of a prohibited personnel practice alleged by an employee or former employee of the Department after the Special Counsel provides to the employee or former employee a written statement of the reasons for the termination of the investigation.
(2) Such statement may not be admissible as evidence in any judicial or administrative proceeding without the consent of such employee or former employee.
(g)Vacancies.—In the case of a covered individual who is removed or demoted under subsection (a), to the maximum extent feasible, the Secretary shall fill the vacancy arising as a result of such removal or demotion.
(h)Definitions.—In this section:
(1) The term “covered individual” means an individual occupying a position at the Department, but does not include—
(A) an individual occupying a senior executive position (as defined in section 713(d) of this title);
(B) an individual appointed pursuant to sections 7306, 7401(1), 7401(4), or 7405 of this title;
(C) an individual who has not completed a probationary or trial period; or
(D) a political appointee.
(2) The term “suspend” means the placing of an employee, for disciplinary reasons, in a temporary status without duties and pay for a period in excess of 14 days.
(3) The term “grade” has the meaning given such term in section 7511(a) of title 5.
(4) The term “misconduct” includes neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function.
(5) The term “political appointee” means an individual who is—
(A) employed in a position described under sections 5312 through 5316 of title 5 (relating to the Executive Schedule);
(B) a limited term appointee, limited emergency appointee, or noncareer appointee in the Senior Executive Service, as defined under paragraphs (5), (6), and (7), respectively, of section 3132(a) of title 5; or
(C) employed in a position of a confidential or policy-determining character under schedule C of subpart C of part 213 of title 5, Code of Federal Regulations, or successor regulation.
(6) The term “whistleblower disclosure” has the meaning given such term in section 323(g) of this title.
(Added Pub. L. 115–41, title II, § 202(a), June 23, 2017, 131 Stat. 869; amended Pub. L. 116–61, § 6(1), Sept. 30, 2019, 133 Stat. 1116.)

CITE AS: 38 USC 714

§ 715. Congressional testimony by employees: treatment as official duty
(a)Congressional Testimony.—An employee of the Department is performing official duty during the period with respect to which the employee is testifying in an official capacity in front of either chamber of Congress, a committee of either chamber of Congress, or a joint or select committee of Congress.
(b)Travel Expenses.—The Secretary shall provide travel expenses, including per diem in lieu of subsistence, in accordance with applicable provisions under subchapter I of chapter 57 of title 5, to any employee of the Department of Veterans Affairs performing official duty described under subsection (a).
(Added Pub. L. 114–223, div. A, title II, § 247(b)(1), Sept. 29, 2016, 130 Stat. 890.)

CITE AS: 38 USC 715

§ 717. Limitation on administrative leave
(a)In General.—Except as provided in subsection (b), the Secretary may not place any covered individual on administrative leave, or any other type of paid non-duty status without charge to leave, for more than a total of 14 days during any 365-day period.
(b)Waiver.—The Secretary may waive the limitation under subsection (a) and extend the administrative leave or other paid non-duty status without charge to leave of a covered individual placed on such leave or status under subsection (a) if the Secretary submits to the Committees on Veterans’ Affairs of the Senate and House of Representatives a detailed explanation of the reasons the individual was placed on administrative leave or other paid non-duty status without charge to leave and the reasons for the extension of such leave or status. Such explanation shall include the job title and grade of the covered individual and the location where the individual is employed.
(c)Covered Individual.—In this section, the term “covered individual” means an employee of the Department—
(1) who is subject to an investigation for purposes of determining whether such individual should be subject to any disciplinary action under this title or title 5; or
(2) against whom any disciplinary action is proposed or initiated under this title or title 5.
(Added Pub. L. 114–315, title V, § 503(a)(1), Dec. 16, 2016, 130 Stat. 1568.)

CITE AS: 38 USC 717

§ 719. Reduction of benefits of employees convicted of certain crimes
(a)Reduction of Annuity for Removed Employee.—
(1) The Secretary shall order that the covered service of an employee of the Department removed from a position for performance or misconduct under section 713, 714, or 7461 of this title or any other provision of law shall not be taken into account for purposes of calculating an annuity with respect to such individual under chapter 83 or chapter 84 of title 5, if—
(A) the Secretary determines that the individual is convicted of a felony (and the conviction is final) that influenced the individual’s performance while employed in the position; and
(B) before such order is made, the individual is afforded—
(i) notice of the proposed order; and
(ii) an opportunity to respond to the proposed order by not later than ten business days following receipt of such notice; and
(C) the Secretary issues the order—
(i) in the case of a proposed order to which an individual responds under subparagraph (B)(ii), not later than five business days after receiving the response of the individual; or
(ii) in the case of a proposed order to which an individual does not respond, not later than 15 business days after the Secretary provides notice to the individual under subparagraph (B)(i).
(2) Any individual with respect to whom an annuity is reduced under this subsection may appeal the reduction to the Director of the Office of Personnel Management pursuant to such regulations as the Director may prescribe for purposes of this subsection.
(b)Reduction of Annuity for Retired Employee.—
(1) The Secretary may order that the covered service of an individual who the Secretary proposes to remove for performance or misconduct under section 713, 714, or 7461 of this title or any other provision of law but who leaves employment at the Department prior to the issuance of a final decision with respect to such action shall not be taken into account for purposes of calculating an annuity with respect to such individual under chapter 83 or chapter 84 of title 5, if—
(A) the Secretary determines that individual is convicted of a felony (and the conviction is final) that influenced the individual’s performance while employed in the position; and
(B) before such order is made, the individual is afforded—
(i) notice of the proposed order;
(ii) opportunity to respond to the proposed order by not later than ten business days following receipt of such notice; and
(C) the Secretary issues the order—
(i) in the case of a proposed order to which an individual responds under subparagraph (B)(ii), not later than five business days after receiving the response of the individual; or
(ii) in the case of a proposed order to which an individual does not respond, not later than 15 business days after the Secretary provides notice to the individual under subparagraph (B)(i).
(2) Upon the issuance of an order by the Secretary under paragraph (1), the individual shall have an opportunity to appeal the order to the Director of the Office of Personnel Management before the date that is seven business days after the date of such issuance.
(3) The Director of the Office of Personnel Management shall make a final decision with respect to an appeal under paragraph (2) within 30 business days of receiving the appeal.
(c)Administrative Requirements.—Not later than 37 business days after the Secretary issues a final order under subsection (a) or (b) with respect to an individual, the Director of the Office of Personnel Management shall recalculate the annuity of the individual.
(d)Lump-Sum Annuity Credit.—Any individual with respect to whom an annuity is reduced under subsection (a) or (b) shall be entitled to be paid so much of such individual’s lump-sum credit as is attributable to the period of covered service.
(e)Spouse or Children Exception.—
(1) The Secretary, in consultation with the Director of the Office of Personnel Management, shall prescribe regulations that may provide for the payment to the spouse or children of any individual referred to in subsection (a) or (b) of any amounts which (but for this subsection) would otherwise have been nonpayable by reason of such subsections.
(2) Regulations prescribed under paragraph (1) shall be consistent with the requirements of section 8332(o)(5) and 8411(l)(5) of title 5, as the case may be.
(f)Definitions.—In this section:
(1) The term “covered service” means, with respect to an individual subject to a removal for performance or misconduct under section 719 or 7461 of this title or any other provision of law, the period of service beginning on the date that the Secretary determines under such applicable provision that the individual engaged in activity that gave rise to such action and ending on the date that the individual is removed from or leaves a position of employment at the Department prior to the issuance of a final decision with respect to such action.
(2) The term “lump-sum credit” has the meaning given such term in section 8331(8) or section 8401(19) of title 5, as the case may be.
(3) The term “service” has the meaning given such term in section 8331(12) or section 8401(26) of title 5, as the case may be.
(Added Pub. L. 115–41, title II, § 203(a)(1), June 23, 2017, 131 Stat. 873.)

CITE AS: 38 USC 719

§ 721. Recoupment of bonuses or awards paid to employees of Department
(a)In General.—Notwithstanding any other provision of law, the Secretary may issue an order directing an employee of the Department to repay the amount, or a portion of the amount, of any award or bonus paid to the employee under title 5, including under chapters 45 or 53 of such title, or this title if—
(1) the Secretary determines that the individual engaged in misconduct or poor performance prior to payment of the award or bonus, and that such award or bonus would not have been paid, in whole or in part, had the misconduct or poor performance been known prior to payment; and
(2) before such repayment, the employee is afforded—
(A) notice of the proposed order; and
(B) an opportunity to respond to the proposed order by not later than 10 business days after the receipt of such notice; and
(3) the Secretary issues the order—
(A) in the case of a proposed order to which an individual responds under paragraph (2)(B), not later than five business days after receiving the response of the individual; or
(B) in the case of a proposed order to which an individual does not respond, not later than 15 business days after the Secretary provides notice to the individual under paragraph (2)(A).
(b)Appeal of Order of Secretary.—
(1) Upon the issuance of an order by the Secretary under subsection (a) with respect to an individual, the individual shall have an opportunity to appeal the order to the Director of the Office of Personnel Management before the date that is seven business days after the date of such issuance.
(2) The Director shall make a final decision with respect to an appeal under paragraph (1) within 30 business days after receiving such appeal.
(Added Pub. L. 115–41, title II, § 204(a), June 23, 2017, 131 Stat. 875.)

CITE AS: 38 USC 721

§ 723. Recoupment of relocation expenses paid on behalf of employees of Department
(a)In General.—Notwithstanding any other provision of law, the Secretary may issue an order directing an employee of the Department to repay the amount, or a portion of the amount, paid to or on behalf of the employee under title 5 for relocation expenses, including any expenses under section 5724 or 5724a of such title, or this title if—
(1) the Secretary determines that relocation expenses were paid following an act of fraud or malfeasance that influenced the authorization of the relocation expenses;
(2) before such repayment, the employee is afforded—
(A) notice of the proposed order; and
(B) an opportunity to respond to the proposed order not later than ten business days following the receipt of such notice; and
(3) the Secretary issues the order—
(A) in the case of a proposed order to which an individual responds under paragraph (2)(B), not later than five business days after receiving the response of the individual; or
(B) in the case of a proposed order to which an individual does not respond, not later than 15 business days after the Secretary provides notice to the individual under paragraph (2)(A).
(b)Appeal of Order of Secretary.—
(1) Upon the issuance of an order by the Secretary under subsection (a) with respect to an individual, the individual shall have an opportunity to appeal the order to the Director of the Office of Personnel Management before the date that is seven business days after the date of such issuance.
(2) The Director shall make a final decision with respect to an appeal under paragraph (1) within 30 days after receiving such appeal.
(Added Pub. L. 115–41, title II, § 205(a), June 23, 2017, 131 Stat. 876.)

CITE AS: 38 USC 723

§ 725. Annual performance plan for political appointees
(a)In General.—The Secretary shall conduct an annual performance plan for each political appointee of the Department that is similar to the annual performance plan conducted for an employee of the Department who is appointed as a career appointee (as that term is defined in section 3132(a) of title 5) within the Senior Executive Service at the Department.
(b)Elements of Plan.—Each annual performance plan conducted under subsection (a) with respect to a political appointee of the Department shall include an assessment of whether the appointee is meeting the following goals:
(1) Recruiting, selecting, and retaining well-qualified individuals for employment at the Department.
(2) Engaging and motivating employees.
(3) Training and developing employees and preparing those employees for future leadership roles within the Department.
(4) Holding each employee of the Department that is a manager accountable for addressing issues relating to performance, in particular issues relating to the performance of employees that report to the manager.
(c)Definition of Political Appointee.—In this section, the term “political appointee” means an employee of the Department who holds—
(1) a position which has been excepted from the competitive service by reason of its confidential, policy-determining, policy-making, or policy-advocating character; or
(2) a position in the Senior Executive Service as a noncareer appointee (as such term is defined in section 3132(a) of title 5).
(Added Pub. L. 115–46, title II, § 203(a), Aug. 12, 2017, 131 Stat. 962.)

CITE AS: 38 USC 725

§ 726. Annual report on performance awards and bonuses awarded to certain high-level employees
(a)In General.—Not later than 100 days after the end of each fiscal year, the Secretary shall submit to the appropriate committees of Congress a report that contains, for the most recent fiscal year ending before the submittal of the report, a description of all performance awards or bonuses awarded to each of the following:
(1) Regional Office Director of the Department.
(2) Director of a Medical Center of the Department.
(3) Director of a Veterans Integrated Service Network.
(4) Senior executive of the Department.
(b)Elements.—Each report submitted under subsection (a) shall include the following with respect to each performance award or bonus awarded to an individual described in such subsection:
(1) The amount of each award or bonus.
(2) The job title of the individual awarded the award or bonus.
(3) The location where the individual awarded the award or bonus works.
(c)Definitions.—In this section:
(1) The term “appropriate committees of Congress” means the Committees on Veterans’ Affairs and Appropriations of the Senate and House of Representatives.
(2) The term “senior executive” means—
(A) a career appointee; or
(B) an individual—
(i) in an administrative or executive position; and
(ii) appointed under section 7306(a) or section 7401(1) of this title.
(3) The term “career appointee” has the meaning given that term in section 3132(a) of title 5.
(Added Pub. L. 115–182, title V, § 501(a), June 6, 2018, 132 Stat. 1474; amended Pub. L. 115–251, title II, § 211(a)(1), Sept. 29, 2018, 132 Stat. 3174.)

CITE AS: 38 USC 726

§ 727. Reassignment of senior executives
(a)Approval of Reassignments.—No individual employed in a senior executive position at the Department may be reassigned to another such position at the Department unless such reassignment is approved in writing and signed by the Secretary.
(b)Semiannual Reports Required.—
(1) Not later than June 30 and December 31 of each year, the Secretary shall submit to Congress a report on the reassignment of individuals employed in senior executive positions at the Department to other such positions at the Department during the period covered by the report.
(2) Each report submitted under paragraph (1) shall describe the purpose of each reassignment and the costs associated with such reassignment.
(3) For purposes of paragraph (2), costs associated with a reassignment may only include the following:
(A) A salary increase.
(B) Temporary travel expenses for the individual or the family of the individual.
(C) Moving expenses.
(D) A paid incentive.
(c)Senior Executive Position Defined.—In this section, the term “senior executive position” has the meaning given such term in section 713(d) of this title.
(Added Pub. L. 115–188, § 2(a), June 21, 2018, 132 Stat. 1490.)

CITE AS: 38 USC 727

§ 728. Misuse of Department purchase cards
(a)In General.—
(1) The Secretary shall prohibit any employee of the Department who the Secretary or the Inspector General of the Department determines has knowingly misused a purchase card from serving as a purchase card holder or approving official.
(2) Such a prohibition shall be in addition to any other applicable penalty.
(b)Misuse.—For purposes of this section, the term “misuse” means—
(1) splitting purchases;
(2) exceeding applicable purchase card limits or purchase thresholds;
(3) purchasing any unauthorized item;
(4) using a purchase card without being an authorized purchase card holder; or
(5) violating ethics standards.
(Added Pub. L. 115–407, title V, § 501(a), Dec. 31, 2018, 132 Stat. 5376.)

CITE AS: 38 USC 728