dissenting.
I would affirm. In my view, Tippett has failed to establish an essential element of his involuntary discharge claim, namely, that had he been informed about the adverse consequences of a discharge upon his ability to obtain a Reserve commission, he instead would have chosen to appear before a Board of Inquiry.
I agree with the court that in connection with his discharge, Tippett was not informed either that the words “Misconduct, Moral or Professional Dereliction” would appear on his Department of the Army Form 214 in Block 28, under “Narrative *946Reason for Separation” or that his discharge under such circumstances would preclude his obtaining a commission in the Reserves unless the Secretary of the Army waived that prohibition. I also agree that the record supports the Court of Federal Claims’ finding that Tippett was not promised or assured that, if he received an honorable discharge, he could and would obtain a Reserve commission.
In our previous opinion we stated:
An otherwise voluntary resignation or request for discharge is rendered involuntary if it ... results from misrepresentation or deception on the part of government officers.... Misrepresentation can be caused by providing misleading information or by failing to provide relevant information.... Information is considered misleading if a reasonable person would have been misled by the representation.... “[I]f the employee materially relies on the misinformation to his detriment, his retirement is considered involuntary.”
Tippett v. United States, 185 F.3d 1250, 1255 (Fed.Cir.1999) (citations omitted).
The misrepresentation requirement of the standard has been satisfied here. The critical question is whether Tippett has shown that he “materially relie[d] on the misinformation to his detriment.” I do not think he has.
When Tippett applied for his discharge, he faced the following situation:
Following receipt of his adverse Officer Efficiency Report, Tippett was ordered to show cause why he should be retained on active duty. The order informed him that he had three options: (1) resigning his commission, (2) requesting a discharge, or (3) proceeding before a Board of Inquiry to show cause for retention. He discussed his situation with his military lawyer, who told him that the command would recommend an honorable discharge if he voluntarily terminated his active military service. Before Tippett was so told, his endeavors were directed toward the Board of Inquiry proceeding. Thereafter, his concern was over the differing consequences of a resignation and a discharge upon his chances of obtaining a Reserve commission.
There is no contemporaneous evidence that Tippett ever told his military lawyers (or anyone else) that unless it appeared that he would receive a commission in the Reserves, he would prefer to go before the Board of Inquiry. As a regular Army commissioned officer with more than 10 years of active duty, Tippett certainly was aware of the serious long-term consequences of receiving anything other than an honorable discharge. He was also aware that the Board of Inquiry was provided to determine whether to retain him. If the Board decided to remove him (which he must have realized was likely), there was a high probability that it would give him something other than an honorable discharge.
It is most unlikely that someone in Tippett’s position would have assumed that risk, with only a slim chance of obtaining a Reserve commission. Although Tippett greatly wanted such a commission, there is no reason to believe that he valued that result more than he did an honorable discharge. Because there is no contemporaneous evidence that despite that risk, Tippett would have chosen to appear before the Board had he been correctly informed, he has not demonstrated that he “materially relie[d] on the misinformation to his detriment.”