submit a claim under the Federal Erroneous Retirement Coverage Corrections Act because he had not been employed by HHS for three years. The Board accordingly dismissed Maiers’ remaining claims. B. The Board’s Final Decision Maiers filed a request for the full Board to review the Board’s initial decision. In his request, Maiers argued that: (1) the initial decision’s interpretation of FERS violates USERRA; (2) the initial decision suffered from numerous procedural problems, including improper dismissal for lack of jurisdiction, improper reliance on Labor’s findings, and failure by the administrative judge to clearly articulate his findings; and (3) the administrative judge failed to apply this court’s holding in Butterbaugh v. Department of Justice, 336 F.3d 1332, 1336 (Fed.Cir.2003) (<HOLDING>). The Board affirmed the initial decision
holding that it is well established that whether an employees actions were within the scope of employment is a question of fact and even if some of the actions were unauthorized the question of whether the actions were within the scope of employment is for the jury recognizing that the necessary inquiry  is not whether there was a warrant or whether there was time to get one but whether there was probable cause for the arrest holding that plaintiff must come forth with sufficient facts to permit a determination that his statements were a substantial motivating factor in his employment termination holding that the correct inquiry under 38 usc  4311 is whether employees were denied a benefit of employment not whether the military service was a substantial motivating factor for cases in which the benefits at issue are only available to the military holding that in determining whether an accident arose out of employment the issue is whether the employees employment brought him in contact with the risk that in fact caused his injuries