Charles E. Chauvin petitions for review of the December 7, 1993 decision of the Merit Systems Protection Board affirming his demotion by the Department of the Navy.
Chauvin v. Department of Navy,
BACKGROUND
Chauvin worked as a night-shift Shipfitter Foreman at the Mare Island Naval Shipyard. His duties included overseeing scrap metal storage bins. One evening in November, 1989, Chauvin took a scrap metal plate from a storage bin, cut the plate to fit the bed of his 1953 Ford pickup truck, and put the plate in the truck. When questioned by police at the shipyard later that night, Chauvin stated that he intended to obtain a property pass from his superintendent the next morning before removing the plate from the shipyard.
The Navy charged Chauvin with “unauthorized possession and attempted removal of Government property.” Based on these charges, the Navy demoted Chauvin to a non-supervisory position, Shipfitter, on May 9, 1990. Chauvin appealed his demotion to the board.
The Administrative Judge (AJ) accepted as credible Chauvin’s explanation that he intended to remove the plate from the shipyard only upon obtaining authorization. The AJ determined that the Navy charged Chauvin with a single offense containing two elements, and that the second element (attempted removal) required proof of intent to remove the plate from the shipyard without authorization. In an Initial Decision dated September 20, 1990, the AJ reversed the Navy’s action because the Navy had not proved that Chauvin possessed the requisite intent.
The board, with one member dissenting, reversed the AJ’s Initial Decision. In its December 7, 1993 Opinion and Order, the board majority, like the AJ, assumed there was a single charge containing two elements. The board majority found that Chauvin had admitted unauthorized possession of government property. The board majority also found that Chauvin’s testimony that he did not intend to remove the property from the shipyard without authorization was not credible. The majority held that Chauvin’s actions created an unrebutted inference that he attempted to remove the plate without authorization and that, regardless whether a showing of intent was necessary, Chauvin’s actions demonstrated the requisite intent. One board member dissented on the ground that *565 there were two separate charges and the Navy had not established the attempted removal charge because it had failed to prove that Chauvin intended to remove the plate from the shipyard without authorization.
DISCUSSION
Under our narrow standard of review, we . affirm decisions of the board unless they are (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1988).
Chauvin argues that the board majority erred in considering there to be a single charge against him. He asserts that his demotion was effectively based upon two distinct charges: (1) unauthorized possession of the metal plate, and (2) attempted removal of the plate from the shipyard. We agree. When a single stated charge contains two separate acts of misconduct that are not dependent upon each other and that do not comprise a single, inseparable event, each act constitutes a separate charge.
See, e.g., Coyle v. Department of Treasury,
Having concluded that the Navy charged Chauvin with two distinct offenses, we must determine whether each charge is sustainable. We are satisfied that substantial evidence supports the board’s finding that Chauvin possessed the plate without authori-. zation. Chauvin has not convinced us that the board, after considering the relevant facts, erred in sustaining the charge of unauthorized possession of government property. We therefore affirm the board’s decision insofar as it upholds that charge.
As to the attempted removal charge, Chauvin argues that the board erred in sustaining that charge because he lacked the requisite intent to remove the plate from the shipyard. The Navy concedes that Chauvin did not intend to remove the plate from the shipyard, but argues that proof of such intent was not required to support the charge. We agree with Chauvin.
The Navy can point.to no law,.regulation, or court decision supporting its position that intent is not a necessary element of a charge of “attempted removal of Government property.” 2 Although the Navy’s Table of Penalties does not define “attempted removal,” the Table explicitly refers to Black’s Law Dictionary for the definition of another listed offense. According to Black’s, “In statutes and in cases other than criminal prosecutions an ‘attempt’ ordinarily means an intent combined with an act falling short of the thing intended.” Black’s Law Dictionary 127 (6th ed.1990) (emphasis added). Logically, intent is an important element of proof in an “attempt” charge, because, if the improper act, e.g., removal, had not yet occurred, it is difficult to determine whether a removal was *566 in fact being undertaken and thus whether an attempt had occurred without making a finding on intent. We therefore conclude that the charge of attempted removal of government property requires proof that Chau-vin intended to remove the plate from the shipyard without authorization. 3
The AJ concluded that Chauvin did not intend to remove the plate from the shipyard without authorization. Specifically, the AJ found that scrap metal was commonly used for non-production and personal uses at the shipyard; that Chauvin did not attempt to conceal the plate in his truck, which was parked near a security gate in the shipyard parking lot; that Chauvin testified in a “consistent and credible” manner; and that Chauvin’s explanation was corroborated by a written statement of a co-worker, who stated that prior to the date of the incident Chauvin informed him that he intended to obtain a property pass to borrow a piece of scrap metal for his truck. The board majority, disbelieving Chauvin’s testimony, substituted its contrary finding. Chauvin argues that the board majority erred in reversing the AJ’s credibility finding.
We agree. The board is not free simply to disagree with an AJ’s assessment of credibility.
Jackson v. Veterans Admin.,
Here, the board majority cited the Navy’s policy prohibiting personal use of government property, Chauvin’s position as a supervisor, and his actions in cutting the plate and placing it in his truck. None of these factors, however, is inconsistent with Chauvin’s explanation that he planned to remove the plate from the shipyard only if his supervisor granted him a property pass. They are not probative of the charge of attempted removal. ■ Also, whether a property pass would have been granted does not show lack of intention to obtain one. The evidence cited by the board thus fails to rebut Chauvin’s consistent and corroborated explanation for his having placed the plate in his truck. Moreover, the board majority’s finding is inconsistent with the Navy’s admission during discovery that it did not contend that Chauvin intended to remove the plate from the shipyard without a property pass. We conclude, as did the dissenting board member, and as the Navy now concedes, that the board majority did not articulate a sufficient reason for its disbelief of Chauvin’s testimony.
See Jackson,
Given the deference that should have been afforded the AJ’s credibility-based finding concerning Chauvin’s intent, and the Navy’s admission that it did not allege that Chauvin intended to remove the plate from the shipyard without authorization, we cannot agree that a reasonable fact-finder would have found that Chauvin intended to take that action.
See Jackson,
*567 As a final matter, Chauvin argues that his penalty must be reduced because the Navy did not prove one of the two charges upon which his demotion was based. The dissenting board member would reduce the penalty to a 80-day suspension. However, we are not prepared to decide that matter ourselves; we are persuaded that a remand is necessary for the board to determine whether the penalty should be reduced in light of our reversal of the charge of attempted removal of government property. 4 The agency or the board is a more suitable body for determination of penalties. On remand, the board is directed to consider the relevant Douglas factors and determine an appropriate penalty for the sustained charge.
CONCLUSION
We affirm the board’s decision insofar as it sustains the Navy’s charge of unauthorized possession of government property. We reverse the board’s decision insofar as it sustains the Navy’s charge of attempted removal of government property. The case is remanded for determination of the appropriate penalty.
COSTS
Each party shall bear its own costs.
AFFIRMED-IN-PART, REVERSED-IN-PART, AND REMANDED.
Notes
. The Navy’s Table of Penalties lists prohibited conduct, including “Unauthorized possession (including actual or attempted wrongful removal from its proper location) of government property.” We do not interpret the table as defining “unauthorized possession" and "attempted removal” to be the same offense, although they may be related.
. The Navy cites decisions holding that charges of unauthorized possession or removal of govemment property do not require proof of intent.
See, e.g., Castro v. Department of Defense,
. We also reject the Navy's argument on appeal that the charge referred to Chauvin’s removal of the plate from the storage bin. When asked on cross-examination what was meant by "attempted removal of Government properly,” the Navy’s deciding official responded, "attempted removal of government property from the shipyard."
. In MSPB cases, the first factor relevant to determining an appropriate penalty is "[t]he nature and seriousness of the offense ... including whether the offense was intentional or technical or inadvertent.”
Douglas v. Veterans Admin.,