DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 2998-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER MEMBER, USNR, XXX-XX Ref: (a) 10 U.S.C. § 1552 (b) SECNAVINST 1920.6C, Change 4, 15 December 2005 (c) 10 U.S.C. § 12683 (d) DODI 6000.13 Encl: (1) DD Form 149 w/enclosures (2) Officer Appointment Acceptance and Oath of Office, 27 May 2005 (3) Petitioner Statement of Service, 14 March 2013 (4) Officer Appointment Acceptance and Oath of Office, 8 June 2011 (5) Request for Conditional Release, 16 November 2012 (6) Officer Appointment Acceptance and Oath of Office, 12 March 2013 (7) Armed Forces Health Professions Scholarship Program (AFHPSP) Service Agreement, 12 March 2013 (8) Navy Personnel Command (NPC) Memorandum, Subj: Your Navy Reserve Status, 9 February 2017 (9) Petitioner's Memorandum, Subj: Rebuttal Statement, 29 March 2017 (IO) Bureau of Naval Personnel (BNP) Memorandum, Subj: Your Navy Reserve Status, 2 June 2017 (11) Medicine Diploma, Doctor of Osteopathic Medicine, 4 June 2017 (12) Request for Remission of Indebtedness, 26 June 2017 (with 26 enclosures) (13) Office of the Assistant Secretary of the Navy for Manpower and Reserve Affairs (ASN(M&RA)) letter, 6 July 2018 (14) Defense Finance and Accounting Service (DFAS) letter, Subj: Final Notice Re: Indebtedness to the United States Government, 28 September 2018 (15) BNP Memorandum, Subj: Reque t for Comments and Recommendations in case of former, 1975, 25 January 2019 (16) Petitioner's Letter (Response to Enclosure (15)), 18 February 2020 (17) DD Form 149 w/enclosure (Petitioner's filing in U.S. District Court,), 2 April 2020 (18) NPC Memorandum, Subj: Request for Recommendations and Comments in the case of former member, USN, I June 2020 (19) Petitioner's Letter (Response to Enclosure (18)), 15 July 2020 (20) Petitioner's email correspondence with PERS-91 ID March-June 2017 1. Pursuant to reference (a), Petitioner, an honorably discharged commissioned officer of the U.S. Navy Reserve (USNR), filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected. Petitioner asks that his record be corrected to reflect that he was wrongfully discharged from the AFHPSP despite receiving his medical diploma, and that he was illegally discharged from the naval service without cause or administrative process. Petitioner asserts that these corrections to his record will bar the Navy's "improper attempts to seek recoupment" for the costs of his AFHPSP scholarship, and"reimburse[Petitioner] for his lost career benefits, including lost wages, loss of creditable service toward retirement, loss of medical and insurance benefits, injury to professional reputation and loss of professional reputation." The Board initially denied Petitioner's application on 26 February 2020, but reopened his case after it was determined that his contentions were not adequately addresed. On 13 April 2020, the United States District Court for the a stayed the proceedings in his case1 until the Board proceedings have been resolved. 2. The Board reviewed Petitioner' s allegations of error and injustice on 4 December 2020 and, pursuant to its regulations, the Majority determined that the corrective action indicated beloshould be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner's naval records, and applicable statutes, regulations, and policies. 3. The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error and injustice, found as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulation within the Department of the Navy. b. On 27 May 2005, upon graduating from the U.S. Naval Academy, Petitioner was commissioned as an Ensign in the U.S. Navy (designator 1160). He served on active duty for just over six years until he was separated on 31 May 2011. See enclosures (2) and (3). c. On 8 June 2011, Petitioner was appointed as a Lieutenant in the USNR (designator 1115), and placed on inactive duty in the Individual Ready Reserve (IRR). See enclosures (4). d. On 16 November 2012, Petitioner was granted a conditional release from the USNR-IRR in order to enter the Armed Forces Health Professions Scholarship Program (AFHPSP). This release was conditioned upon his appointment in the USNR. See enclosure (5). e. On 12 March 2013, Petitioner was appointed as an Ensign in the USNR (designator 1975). See enclosures (6). He also signed an AFHPSP service agreement (NAVCRUIT 1131/131) on this date. See enclosure (7). As part of this agreement, Petitioner accepted an Accesion Bonus of $20,000 upon his appointment as an Ensign. The scholarship covered Petitioner's tuition payments toward a health professions degree, and provided Petitioner with a stipend and covered other expenses. Among the terms that Petitioner agreed to were the following: 1, Acting Secretary of the Navy (Case No. 3:18-cv-1213-J- 34JRK) (1) In paragraph 8a: "[Petitioner] will incur an eight-year service obligation for any participation the program. That in return for 4 years of scholarship benefit in the AFHPSP, [Petitioner] shall serve 4 years on extended active duty and serve 4 years in the [IRR], unless it is served on active duty or in the Selected Reserve." (2) In paragraph 8d: "Should [Petitioner] become unable to commence the period of [Active Duty Service Obligation (ADSO)] specified in this service agreement ... , [Petitioner] agree[s] to reimburse the United States for the total cost (lump sum plus interest) of advanced education paid by the US Government as specified in IO U.S.C. 2005." (3) In paragraph Se: " Apart from [Petitioner's] educational ADSO, [Petitioner] will incur a minimum term of service of three years on active duty. [Petitioner's] minimum term of service will run concurrently with [Petitioner's] educational ADSO... Any time spent on active duty after completion of [Petitioner's] health professional degree will count toward completion of [Petitioner's] minimum term of service." (4) In paragraph 12: "[Petitioner] must take and pass parts I and II of the United States Medical Licensing Examination (USMLE) or Comprehensive Osteopathic Medical Licensing Examination (COMLEX) prior to entering [Graduate Medical Education]... A second time failure of the examination or clinical skills examination may result in loss of scholarship eligibility. If {Petitioner is] withdrawn from the program [Petitioner] may be processed/or separation from the United States Navy..." (emphasis added). (5) In paragraph 17c: "Only the Secretary of the United States Navy (or designee) may excuse [Petitioner] from [Petitioner' s] obligation to serve on active duty for the period specified in this agreement. If [Petitioner is] relieved of [his] ADSO for any reason before completion of that ADSO, [Petitioner may be given any of the following alternative obligations, as determined by the Secretary of the United States Navy:... Repayment of percentage of the total cost of [Petitioner' s] education incurred by the Secretary, on [Petitioner's] behalf, equal to the percentage of [Petitioner's] total ADSO being relieved, plus interest." f. Petitioner subsequently enrolled as a full-time student in the Lake Erie College of Osteopathic Medicine (LECOM) to pursue a health profession degree in medicine (Doctor of Osteopathic Medicine (DO) pursuant to the AFHPSP. He received scholarship benefits for approximately four years while attending LECOM. Prior to his graduation from LECOM, Petitioner failed the COMLEX twice. g. Upon learning of Petitioner' s COMLEX failures, on 6 February 2017 the U.S. Navy's Bureau of Medicine and Surgery (BUMED) recommended that [Petitioner] be administratively separated from the Navy, and that the funds expended for his education be recouped. By memorandum dated 9 February 2017 the NPC notified Petitioner that he was being considered for an honorable discharge from the USNR based upon these failures and his lack of academic progress. This memorandum notified him that he could submit a rebuttal to the recommendation for administrative separation. See enclosure (8). h. By memorandum dated 29 March 2017, Petitioner submitted a rebuttal to the above referenced notification that he was being considered for an honorable discharge. In this rebuttal, Petitioner notified BUMED that he had passed the COMLEX 2 PE on his third attempt, and that he was on track to graduate with his class on 4 June 2017. Accordingly, he requested that BUMED retain him in the AFHPSP. See enclosure (9). i. By memorandum dated 2 June 2017, the BNP notified Petitioner that his rebuttal was reviewed by NPC, but that NPC authorized his separation from the USNR effective 2 June 2017. This letter also informed Petitioner that the deadline for submission of a request for remission of his scholarship debt was 7 July 2017. See enclosure (10). j. On 4 June 2017, Petitioner graduated in good standing with his entering class and was awarded a DO degree from LECOM. See enclosure (11). k. By memorandum dated 29 June 2017, Petitioner submitted a statement and remission of indebtedness request. In this request, Petitioner asserted that his contractual responsibility was to graduate from LECOM with no interruption to his academic progression, and then fulfill his service requirements as a Navy physician. He further asserted that the Navy had no authority to drop an AFHPSP student from the program for academic deficiencies when the accredited medical school determined that the student met all academic requirements. Petitioner also asserted that the provisions of his AFHPSP service agreement discussed in paragraph 3(e)(4) above did not provide the Navy with authority to drop him from the AFHPSP because only the medical school could evaluate his academic progression. See enclosure (12). 1. By memorandum dated 6 July 2018, the Deputy Assistant Secretary of the Navy (Military Manpower and Personnel) (DASN (MMP)) responded to Petitioner's 29 June letter, denying his request for remission of the debt. See enclosure (13). m. By letter dated 28 September 2018, Petitioner received a final notice of indebtedness to the U.S. Government in the amount of $251,194.41 from the Defense Finance and Accounting Service (DFAS). See enclosure (14). n. By memorandum dated 25 January 2019, the BNP provided an advisory opinion (AO) to the Board regarding Petitioner's removal from the AFHPSP and his discharge from the USNR. In it, the BNP advised the Board that Petitioner was a probationary officer at the time of his discharge, despite his previous years of active duty service, because there was a break in Petitioner's service between his separation from active duty on 31 May 2011 and his appointment as a USNR-IRR officer on 8 June 2011. Accordingly, BNP concluded that Petitioner had less than six years of commissioned service, and therefore was not entitled to a Board of Inquiry (BOI) for involuntary separation. The BNP AO recommended to the Board that Petitioner's application for relief be denied. See enclosure (15). o. By e-mail dated 20 December 2019, Petitioner submitted a letter to the Board rebutting this AO. In this letter, Petitioner notified the Board that the Navy's representative had represented to the U.S. District Court for the that Petitioner was, indeed, eligible for a BOI, contrary to the BNP AO. He further asserted that efforts to recoup his indebtedness are invalid given the fact that his discharge from the Navy without a BOI was invalid, and reiterated his previous arguments that the Navy lacked authority to dis-enroll Petitioner from the AFHPSP. p. By e-mail dated 22 January 2020, the Board asked BNP to clarify its previous AO that Petitioner was not entitled to a BOI in light of the language of reference (c). BNP responded by e-mail on the same day asserting their position that Petitioner's six years of active duty service counted only for pay purposes in accordance with IO U.S.C. § 2004(a), and did not make him a non-probationary officer. This response further asserted that the NPC panel of officers that reviewed Petitioner's recommended separation satisfied the requirement of reference (c) for an "approved recommendation of a board of officers convened by an authority designated by the Secretary concerned." Petitioner rebutted this e-mail by letter dated 18 February 2020, asserting that the statute cited by the BNP e-mail AO (10 U.S.C. § 2004a) was not applicable to him, and citing to the plain language of reference (c) to establish that he was entitled to a BOI. He also refuted the BNP position that the previous administrative review satisfied the requirements of reference (c), and reiterated his previous argument that his disenrollment from the AFHPSP was unlawful. q. By e-mail dated 2 April 2020, Petitioner submitted an updated DD Form 149 to the Board to provide additional information to support his original application. The new information submitted was a recent filing in Petitioner' s court case which purported to refute arguments (presumably made within the context of his civil litigation) that Petitioner's withdrawal from the AFHPSP was supported by 10 U.S.C. § 2005. Within the e-mail submitting the DD Form 149 with the court filing, Petitioner asserted that "[i]t is certain that the [argument that Petitioner' s withdrawal from the AFHPSP was supported by 10 U.S.C. § 2005] was or will be made to BCNR, and [Petitioner] want[s] to ensure the Board's awareness that this position is untenable..." The Petitioner also provided the Board with a document purportedly authorizing the Navy' s Health Service Collegiate Program, which he asserts expressly allows medical student participations three attempts to pass the COMLEX 2 PE, to refute arguments (again presumably made in the context of his litigation but not to the Board) that passing it within two attempts is necessary to protect the interests of the United States. r. By memorandum dated 1 June 2020, upon request of the Board the NPC legal office provided another AO. This AO reiterated the position of NPC/BNP that Petitioner was a probationary officer due to the short break in his commissioned service in 2011, and therefore Petitioner was not entitled to a BOI. Although not entitled to BOI, this AO asserted that Petitioner' s rebuttal to his notice of separation was reviewed by a panel of officers at NPC prior to the approval of his separation. Accordingly, the NPC AO advised the Board that Petitioner was properly processed for separation based upon his second COMLEX failure, and that he was afforded all of the due process to which he was entitled as a probationary officer. See enclosure (18). s. By letter dated 15 July 2020, Petitioner rebutted the NPC Legal AO. In this letter, Petitioner highlighted the relevant provisions of reference (b) to supp01t his position that he was not a probationary officer, and therefore was entitled to a BOI. He also asserted that there was no actual break in his commissioned service, but rather an administrative error resulted in the erroneous appearance of such a break. Finally, he reasserted his position that he was illegally removed from the AFHPSP, asserting that IO U.S.C. § 2122 established the eligibility criteria for participation and that DoD Instruction 6000.13 established only that participants must complete the COMLEX without limiting the number of attempts permitted. t. In accordance with reference (b), which governed officer separations at the relevant time period, the following relevant definitions apply: Substandard Performance of Duty. Inability of an officer to maintain adequate levels of performance or conduct as evidenced by ... [f]ailure to satisfactorily complete any course of training, instruction, or indoctrination which the officer has been ordered to undergo. Probationary Officer. A commissioned officer on the active duty list with fewer than 6 years of active commissioned service. A Reserve commissioned officer with fewer than 6 years of commissioned service. Non-probationary Officer. A commissioned officer other than a probationary officer. u. In accordance with paragraph (a) of reference (c), "[a]n officer of a reserve component who has at least five years of service as a commissioned officer may not be separated from that component without his consent except ... under an approved recommendation of a board of officers convened by an authority designated by the Secretary concerned ... " None of the exceptions listing in paragraph (b) of reference (c) that would otherwise exclude Petitioner's separation from this require are applicable in this case. BOARD CONCLUSIONS: Upon careful review and consideration of all the evidence of record, the Board finds the existence of error and injustice warranting relief. Specifically, the Board unanimously found that Petitioner was, contrary to the AOs provided by NPC, a non-probationary officer. Accordingly, he was entitled to a 801 prior to his involuntary discharge, and the failure to provide him this right rendered his discharge invalid and an error warranting relief. Consequentially, the Board also found the current recoupment action pending against Petitioner to be unjust. The Board' s analysis regarding these contentions is discussed immediately below. While agreeing that Petitioner's discharge was invalid and that the pending recoupment action is therefore unjust, the Board did not reach a consensus regarding Petitioner's contention that his removal from the AFHPSP was invalid. The separate Majority and Minority conclusions in this regard are discussed further below. On three separate occasions, the NPC provided AOs to the Board asserting that Petitioner's short break in commissioned service between his six years of active duty commissioned service and his appointment in the USNR-IRR in 2011, rendered him a probationary officer when he was being separated, and therefore not entitled to a 801. Despite multiple requests for clarification however, the NPC never provided the Board with any legal or regulatory analysis to support this conclusion. By contrast, Petitioner provided the Board with direct citations to reference (b) to effectively establish that he was a non-probationary officer. Specifically, reference (b) defines a probationary officer to include "[a] Reserve commissioned officer with fewer than 6 years of commissioned service," and a non-probationary officer to include "[a] commissioned officer other than a probationary officer." These definitions make no reference to the service continuity requirement relied upon in the NPC AOs to attain non-probationary status. In fact, as Petitioner accurately noted, the term "continuous active service" is used in reference (b) only with regard to the status of warrant officers. Petitioner clearly had more than six years of commissioned service at the time that he was notified that he was being considered for separation from the Navy. Accordingly, Petitioner was clearly a non-probationary officer when he was notified that he was being considered for separation. In accordance with reference (b), "[i]f a non-probationary officer is being considered for [substandard performance of duty], then the [Show Cause Authority] will process such officer for separation using . .. BOI procedures." As Petitioner was a non-probationary officer at the time that he was notified that he was being considered for separation, and "substandard performance of duty" would be the basis upon which he would be separated for failing to complete the AFHPSP, he was entitled to a BOI. The failure to utilize the BOI procedures represents a fatal error which renders the Petitioner' s separation from the Navy void. The Board specifically rejected the contention of the NPC, made in the e-mail to the Board dated 23 January 2020, that an ad hoc panel of officers at NPC who reviewed the Petitioner's written rebuttal to his notice of separation, without Petitioner being afforded the opportunity to appear before the panel, to present witnesses and evidence, and to be represented by qualified counsel, satisfies the requirement of reference (c). The 801 procedures in reference (b) provide far more due process protections for non-probationary officers recommended for involuntary separation than was provided in this case. Given that the Board finds Petitioner's discharge from the Navy to be invalid, it also finds the current recoupment action pending against him to be unjust. Having not yet been properly discharged from the Navy, the criterion for recoupment of his indebtedness under the AFHPSP have not yet been attained. Although the Board members did not come to a consensus regarding Petitioner's removal from the AFHPSP, as discussed below, they did unanimously reject Petitioner's contention that the Secretary of the Navy (SECNAV) lacked the authority under Federal law and Department of Defense regulations to remove Petitioner from the AFHPSP. The Board acknowledged Petitioner's assertion that the statutory scheme which authorized the AFHPSP established that the service secretaries could implement the program (to include provisions to remove participants for "deficiencies in conduct or studies") under regulations prescribed by the Secretary of Defense (SECDEF), that the SECDEF's delegate prescribed the AFHPSP governing regulation in reference (d), and that reference (d) established eligibility criteria that did not include the above referenced two-time COMLEX 2 PE failure provision. Rather, with regard to the "deficiency in studies" language of IO U.S.C. § 2123, reference (d) directed the service secretaries to require AFHPSP participants to sign service agreements requiring them to "[c]omplete the educational phase of the [AFHPSP], including appropriate steps or levels of the. ..[COMLEX]... specified in the service agreement." The Board rejected Petitioner's assertion, however, that these eligibility criteria limit the SECNAV's discretion to add eligibility criteria for those who participate in the AFHPSP at Navy expense. The Board could find nothing in reference (d) limiting the discretion of the service secretaries to supplement the AFHPSP eligibility criteria within their respective services, and noted that the two-time COMLEX 2 PE failure provision in enclosure (7) does not contradict reference (d), but rather supplements it. The Navy's AFHPSP two-time COMLEX 2 PE failure provision in enclosure (7) unambiguously informed Petitioner such an occurrence could be considered a deficiency in studies that would authorize his removal from the program, was readily accepted by the Petitioner when he signed enclosure (7), and is consistently applied to all Navy AFHPSP participants as evidenced by its inclusion in enclosure (7). Accordingly, the Board rejected Petitioner's assertion that his removal from the AFHPSP was contrary to Federal law and/or Department of Defense regulation. The Board also rejected Petitioner' s assertion, as presented in enclosure (12), that the Navy was contractually bound by LECOM's assessment of Petitioner's academic progress, and therefore could not remove him from the AFHPSP for academic deficiency since LECOM ultimately awarded Petitioner a DO degree. In this regard, the Board found that Petitioner was on notice from paragraph 12 of enclosure (7) that two failures of the COMLEX 2 PE could be construed as an academic deficiency, as it specifically and unequivocally informed him that he could be removed from the program for this reason. Paragraph 12 of enclosure (7) is unambiguous in this regard. Finally, the Board rejected Petitioner's argument (made in enclosure (12)) that the language in paragraph 12 of enclosure (7) was made discretionary because the decision of whether to remove participants from the AFHPSP for two COMLEX failures depends upon how the medical school's academic review board responds to such failures. Such an interpretation would render this provision of enclosure (7) extraneous, as other provisions of the agreement address delays in academic progress. It also relies upon the illogical conclusion that the Navy would subject itself contractually and financially to an entity that is not a party to, or even mentioned within, the agreement. Rather, the Board finds that the discretionary language in paragraph 12 of enclosure (7) was intended to reserve for the Navy the discretion to remove a participant from the AFHPSP after two COMLEX failures. MAJORITY CONCLUSION (AFHPSP Removal): While agreeing that the Navy could have removed Petitioner from the AFHPSP for failing the COMLEX 2 PE twice, the Majority found his removal from the program under the circumstance of this case to be unjust . In this regard, the Majority noted that BUMED notified NPC that Petitioner failed the COMLEX 2 PE twice and was "not progressing academically," and that NPC subquently informed Petitioner by memorandum dated 9 February 2017 that he was being considered for discharge from the USNR. See enclosure (8). Consequently, the Majority determined that the decision to separate Petitioner was made after Petitioner submitted his rebuttal on 29 March 2017. As of 29 March 2017, Petitioner was progressing academically. He had by then passed the COMLEX 2 PE and was on track to graduate with his class on 4 June 2017. Accordingly, Petitioner was no longer deficient in his studies and would have been able to fulfill the educational phase of the AFHPSP. The Majority further noted that the Petitioner emailed NPC repeatedly between April and May 2017 to inquire if a decision had been made (see enclosure 20). Petitioner was informed that his request would be reviewed by a Panel of Officers and that it was still being reviewed as of 19 May 2017. On 19 May 2017, there was only 16 days remaining until Petitioner's graduation from medical school. Accordingly, the Majority found that the decision to remove the Petitioner from the program after NPC was notified of his academic status was without cause as the Petitioner was ready to perform his obligated service as a military medical officer. MAJORITY RECOMMENDATION : In light of the findings discussed above, the Majority recommends the following corrective actions: That Petitioner' s discharge from the Navy on 2 June 2017 be voided, and that Petitioner's naval service record be scrubbed and corrected to remove any reference to his invalid discharge of 2 June 2017. That Petitioner be granted constructive service credit as an inactive commissioned USNR officer from 2 June 2017 until the date that his record is corrected to void his discharge. Note: Petitioner's corrected record should be reviewed by the Defense Finance and Accounting Service to determine what, if any, pay or allowances would have accrued to him during this period. That the current recoupment action pending against Petitioner be cancelled without prejudice pending resolution of his status in the Navy. That Petitioner' s case be returned to BUMED to determine whether the needs of the Navy warrants invocation of Petitioner' s contractually obligated active service as a medical professional. In this regard, the Majority notes that Petitioner, upon the correction of his records to void his invalid discharge, remains contractually obligated to provide active service to the Navy unless excused from such obligation by proper authority. If BUMED determines that the needs of the Navy's Medical Service Corps are best served by Petitioner's contractually­ obligated active service, then that they be permitted to coordinate with NPC to order Petitioner, now restored as a USNR officer, to active duty to fulfill this obligation. If BUMED determines that the needs of the Navy's Medical Service Corps are not best served by Petitioner ' s active service, that NPC makes the determination whether to process Petitioner for separation utilizing a proper basis and procedures. MINORITY CONCLUSION (AFHPSP Removal) : Although finding that Petitioner' s discharge from the Navy without a BOI was an error, the Minority found no error or injustice in Petitioner' s removal from the AFHPSP under the circumstances. In this regard, the Minority noted that Petitioner signed enclosure (7) on 12 March 2013, which provided that he could lose his scholarship eligibility if he failed the COMLEX 2 PE twice. There is no question that Petitioner failed the COMLEX 2 PE twice before finally passing it on the third attempt. The Minority therefore found that it was within the discretion of the SECNAV's delegate (i.e., BUMED) to remove Petitioner from the AFHPSP at that moment. Given that BUMED recommended to NPC that Petitioner be separated from the Navy at some point prior to the 9 February 2017 memorandum from NPC notifying Petitioner that he was being processed for separation from the Navy, the Minority concluded that BUMED must have made the decision to remove Petitioner from the AFHPSP before that date, which would have been shortly after being notified of Petitioner's failure. Otherwise, there would have been no basis for NPC to initiate the separation proceedings. The Minority further concluded that Petitioner' s continued receipt of scholarship benefit through his graduation date was not an indication that he necessarily remained in the program, but rather was an unintended consequence of the due proces inherent in the separation proceedings. Accordingly, as BUMED had the discretion to remove Petitioner from the AFHPSP for two failures of the COMLEX 2 PE and did so at some point shortly after learning of Petitioner's failures, the Minority found no error or injustice in his removal. MINORITY RECOMMENDATION: In light of the findings discussed above, the Minority concurs with the recommendations of the Majority, but notes that its conclusion provides a ready basis to properly separate Petitioner from the Navy (i.e., substandard performance of duty) should BUMED decide not to attempt to bring Petitioner on to active duty. 4. It is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board' s proceedings in the above-entitled matter. 5. The foregoing action of the Board is submitted for your review and action. 12/19/2020 Executive Director PRINCIPAL DEPUTY, ASSISTANT SECRETARY OF THE NAVY (M&RA) DECISION: (Performing the Duties of the Assistant Secretary of the Navy (M&RA)) MINORITY Conclusion and Recommendation Approved (Petitioner's discharge void; revoke recoupment action without prejudice; send back to BUMED to determine whether or not to invoke Petitioner's contractual obligation and resolve Petitioner's status in the Navy and recoupment obligation based upon that determination, with option to discharge for substandard performance of duty should BUMED decide not to bring Petitioner to active status) 2/10/2021