Draper v. United States

In the United States Court of Federal Claims

No. 20-1444 C

Filed: November 30, 2022

________________________________________

)

RANDON H. DRAPER, )

)

Plaintiff, )

)

v. )

)

THE UNITED STATES, )

)

Defendant. )

________________________________________ )

David P. Sheldon, Law Offices of David P. Sheldon, Washington, D.C., for Plaintiff.

Brendan D. Jordan, Trial Attorney, United States Department of Justice, Civil Division,

Commercial Litigation Branch, Washington, D.C., with whom were Brian M. Boynton, Acting

Assistant Attorney General, Robert E. Kirschman, Jr., Director, Eric P. Bruskin, Assistant

Director, and Maj. Hank D. Nguyen, Personnel and Information Law, United States Air Force, of

counsel, for Defendant.

OPINION AND ORDER

MEYERS, Judge.

I. Introduction

Plaintiff, Randon Draper, served as a Colonel in the Air Force for approximately seven

years. During that time, Draper was punished for viewing inappropriate materials on his Air

Force-issued computer. After his punishment, Draper continued to serve for several more years

without any conduct issues, and his superiors and colleagues considered his service as a Colonel

before and after his misconduct to be exemplary. Because of his punishment, when Draper

chose to retire the Air Force required a review of his performance to determine whether he

should remain a Colonel in retirement or should retire as a Lieutenant Colonel. The Air Force

determined to retire Draper as a Lieutenant Colonel, and Draper brings this action challenging

that determination. The decision to demote Draper, however, rests in significant part on a factual

premise that is contradicted by the record. Further, it fails to account for contradictory findings

by the same ultimate authority. Therefore, the Court remands this matter to the Air Force Board

for the Correction of Military Records for it to reconsider whether Draper is entitled to any

correction of his military records.

II. Background

Randon H. Draper served in the Air Force for over 20 years, from August 1997 until his

retirement in March 2018; he served the last seven years as a Colonel. AR 35, 206.1 On April

10, 2015, Draper viewed sexually explicit materials on his government-issued laptop while on

duty in violation of Air Force Manual (“AFM”) 33-152 ¶ 3.2.3 (June 2012). AR 257-58. The

Air Force discovered Draper’s violation, and as punishment, Draper’s commanding officer,

Major General Dixie Morrow, proposed Article 15 Nonjudicial Punishment (“NJP”)

proceedings. AR 161-62. Draper accepted these proceedings and, although his attorney advised

against it, made a personal appearance before General Morrow. AR 161.

On May 12, 2015, Draper read a prepared statement to General Morrow and his

supervisor, Colonel Marksteiner. AR 165. In his statement, Draper admitted to further

misconduct that the Air Force was not previously aware of. Id. In addition to viewing sexually

explicit materials on April 10, 2015, Draper admitted to having looked at “similar offensive adult

searches on [his] work computer” several days later. AR 167.

General Morrow found that Draper did violate AFM 33-152 ¶ 3.2.3, and as punishment

reprimanded Draper for his conduct and deducted $1,000 of pay per month for two months. AR

162, 164. Draper did not receive any additional punishment for the further misconduct he

admitted to during the NJP proceeding. See id.

On June 24, 2015, just over a month after Draper’s NJP, General Morrow met with

special agents from the Air Force Office of Special Investigations (“AFOSI”). AR 193. The

special agents informed her that a review of Draper’s Electronically Stored Information and logs

of his web use revealed that from January 2014 to December 2014, Draper attempted to view

approximately 105 pornographic images, 19 of which he viewed and 94 to which the Air Force

IT system blocked his access. Id. The web logs also revealed that from January 2015 to April

2015, Draper attempted to view 3,177 pornographic images and videos, 888 of which he viewed,

while the IT systems blocked his access to 2,289. AR 193-94.

General Morrow issued Draper a Letter of Reprimand (“LOR”) on June 29, 2015, for

wilfully misrepresenting facts and leading her to believe during the NJP proceeding that his

“misconduct was limited to two episodes in Apr 2015 specifically tied to stressful family

circumstances, when in truth and fact, [Draper] had violated AFM 33-152 repeatedly over the

course of 15 months.” AR 193-94. General Morrow wrote: “The evidence clearly demonstrates

that your conduct was not limited in scope to two days in Apr 2015, resulting from time-specific

stressors as you declared. Instead, it was an ongoing, pattern of misconduct in 2014 and 2015

which you knew about at the time you made your oral presentation and submitted your written

response, and when you attempted to mitigate the damage resulting from a referral OPR [Officer

Performance Report].” AR 194 (emphasis in original). In response to the LOR, Draper admitted

that he had “not been fully honest with [Gen. Morrow] or [him]self.” AR 196. Draper did not

challenge the LOR. The LOR was the only discipline imposed on Draper for the alleged

misrepresentation of the facts. AR 193. The LOR was placed in Draper’s Unfavorable

Information File. AR 197-98.

1

The Administrative Record appears at ECF No. 21-1.

2

Aside from the NJP (resulting from the initial discovery of viewing sexually explicit

materials on Draper’s government-issued laptop) and the LOR (for willfully misrepresenting

facts), there are no other instances of misconduct in the record. In May 2016, Draper appeared

before a promotion board to be considered for promotion to Brigadier General. AR 188. On

July 7, 2017, the promotion board rated Draper “promote.” AR 141; see also AR 188.

Two years after the NJP, the Article 15 expired from Draper’s Officer Selection Record

(“OSR”) because there were no other violations. Shortly thereafter, on July 26, 2017, Draper

requested the Air Force remove the LOR from his OSR. AR 189-91. As part of his request,

Draper included a narrative titled “Factual and Legal Errors in the LOR” that contended the

allegations in his LOR to be “untrue and unfairly prejudicial.” AR 190. On July 31, 2017,

Major General McMullen2 directed the removal of the LOR from Draper’s OSR. AR 3. In

doing so, he stated that he “thought [Draper] got beat up for the same issue twice . . . [which is]

not in compliance with the spirit of the UCMJ . . . .” AR 192.

Draper chose to retire from the Air Force effective April 1, 2018. Because Draper

received the Article 15 NJP within four years of his retirement, the Air Force initiated an officer

grade determination (“OGD”). AR 169. The regulations governing an OGD mandate an officer

be retired at “the highest grade held satisfactorily as determined by the SecAF [Secretary of the

Air Force] or SecAF’s delegate.” AFI 36-3203 ¶ 8.2.13; see also AR 169. Thus, the OGD was

to determine whether Draper performed satisfactorily as a Colonel and would remain a Colonel

in retirement or should retire at a lower grade. On October 18, 2017, the Air Force notified

Draper that it would initiate an OGD because of his May 2015 NJP. AR 169. That same day,

Draper waived his right to counsel and responded to the OGD notice. AR 170-84. One month

later, Draper received a letter informing him that the LOR, which had been removed from his

OSR earlier that year, would be considered as part of the OGD. AR 185. Draper objected that

same day to the consideration of the LOR as part of the OGD and provided the same narrative he

submitted in support of removing the LOR from his OSR—the document titled “Factual and

Legal Errors in the LOR.” AR 190-91.

Mark Teskey, as the SecAF’s delegate, requested the recommendation of the Secretary of

the Air Force Personnel Council (“SAFPC”) regarding Draper’s OGD.4 On December 5, 2017,

2

In July 2017, Maj. Gen. McMullen was the Deputy Commander, Air Combat Command, Joint

Base Langley-Eustis in Virginia.

3

Both parties make their arguments based on the 2021 version of AFI 36-3203 (which

renumbered the relevant provisions in Chapter 7 of the 2015 regulation to Chapter 8—e.g.,

§ 7.6.2.2 is § 8.6.2.2 in the 2021 version) rather than the 2015 version that was in effect at the

time of Draper’s retirement. See ECF No. 28 at 15 n.7. It is unclear why this is because the

DoD is usually required to apply the version of a regulation in place at the time of a

servicemember’s retirement. See Chambers v. United States, 417 F.3d 1218, 1227 (Fed. Cir.

2005) (recognizing that agency “regulations in effect at the time of [a servicemember’s]

discharge[], rather than current regulations, guide [the] analysis.”).

4

The SecAF or the SecAF’s delegate “will normally seek the review and recommendation of the

SAFPC prior to making a determination of satisfactory service,” but the ultimate determination is

a matter of Secretarial discretion. AFI 36-3203 ¶ 8.6.

3

the SAFPC conducted a review as part of the OGD to make a recommendation of whether

Draper performed satisfactorily in the grade of Colonel. AR 243. The SAFPC reviewed

Draper’s records and considered “the nature and length of [Draper’s] improper conduct, the

impact the conduct had on military effectiveness, the quality and length of [Draper’s] service in

each grade at issue, past cases involving similar conduct, and the recommendations of the

officer’s chain of command.” AR 262-63 (citing AFI 36-3203 ¶ 7.6.2.2 (Sept. 18, 2015)). These

are the five factors that AFI 36-3203 ¶ 8.6.2.2 requires the SecAF’s delegate to consider when

performing the OGD. The SAFPC concluded that although “[v]iewing sexually explicit

materials on a government computer is clearly inappropriate and prohibited behavior, . . . [t]here

appears to have been little impact on miliary effectiveness . . . [and Draper’s] service as a

Colonel was otherwise exemplary.” AR 262. The SAFPC concluded by a 4-1 vote that Draper

performed satisfactorily and should retire as a Colonel. AR 257-64. The remaining member

voted to retire Draper as a Lieutenant Colonel because Draper’s conduct was “similar to and

lasted twice as long as an officer retired in the lower grade of O-5 in 2014.” AR 244. This

member also “focused on [Draper’s] lack of complete honesty and full disclosure, as a JAG

officer” in recommending that Draper retire in the grade of Lieutenant Colonel. Id.

Teskey disagreed with the SAFPC and determined Draper did not serve satisfactorily in

the grade of Colonel. According to Teskey, “even a single egregious incident of misconduct can

render service in a grade unsatisfactory despite otherwise exemplary service.” AR 246; see also

AFI 36-3203 ¶ 8.6.2.2. In making this determination, Teskey considered the length of time and

extent of Draper’s improper conduct, “the number of images viewed, the number of viewing

attempts, [and] the intentional use of the Firefox browser since it allowed less restricted access . .

. .” AR 246. Teskey also considered “ACC5 leadership’s singular focus on [Draper’s] record

and good conduct, in contrast with not acknowledging the length of time, the numbers, the lack

of forthrightness when confronted, and the intentional willfulness of the misconduct.” Id.

Teskey further explained that ACC leadership “downplay[ed] the LOR as unnecessarily adding

to the punishment . . . [and did not] address Colonel Draper’s minimization, obfuscation, and

continued avoidance of accountability.” AR 247. These omissions led Teskey “to conclude

[ACC leadership] must have missed these facts” given their failure to “address the additional

misconduct and the lengthly [sic] period of time for the misconduct . . . [as well as] Colonel

Draper’s lack of candor.” Id. Accordingly, Draper retired as Lieutenant Colonel—the highest

permanent grade in which the SecAF determined Draper to have served satisfactorily. AR 200;

see also 10 U.S.C. § 1370(a)(1) (requiring commissioned officers to be retired at the highest

permanent grade at which they served satisfactorily).

On April 1, 2018, Draper retired in the grade of Lieutenant Colonel. AR 8. Less than

three weeks later, Draper filed for a correction of his military records asking the Air Force Board

for Correction of Military Records (“AFBCMR”) to change the grade in which he retired from

Lieutenant Colonel to Colonel. Id. Draper also requested back pay for the difference in pay

from the date of his retirement to the date of the action correcting his retiring grade. Id.

Following his retirement, Draper went to the AFBCMR to set aside the OGD arguing

Teskey’s decision to retire him as a Lieutenant Colonel was arbitrary and capricious. AR 4-20.

5

The “ACC” is the Air Combat Command.

4

Specifically, Draper emphasized that Teskey “implies his chain of command was not aware of

the details of the misconduct,” even though “[a]ll of the senior officers who provided letters of

support were aware of the misconduct.” AR 5. In a brief analysis, the AFBCMR concluded

Draper was “not the victim of an error or injustice” and not entitled to the relief he sought. AR

6. The AFBCMR acknowledged that, while Draper performed as an “exemplary” Colonel, such

misconduct giving rise to the NJP and LOR rendered his service as Colonel unsatisfactory. Id.

The AFBCMR explained Teskey neither acted improperly in considering the LOR, nor exceeded

his authority in rejecting the SAFPC’s OGD recommendation and, in turn, retiring Draper as a

Lieutenant Colonel. AR 4, 6 (citing AFI 36-2608 ¶ 8.3.15.5). Finally, the AFBCMR rejected

Draper’s arguments that (1) SecAF’s failure to provide the AFOSI ROI in connection with his

OGD notification resulted in prejudice, (2) Teskey’s failure to recuse himself was unjust, and (3)

there existed a mental health disorder that warranted liberal consideration (as discussed in the

Kurta Memorandum). AR 4, 6.

The Board eventually determined that Draper “did not demonstrate material error or

injustice” in his OGD and voted against correcting his records. AR 6-7. Draper filed suit here

alleging the AFBCMR acted arbitrarily and capriciously in its decision to not retire him in the

grade of Colonel. The question for the Court is whether the AFBCMR acted arbitrarily and

capriciously when it did not find error in Teskey’s decision to retire Draper in the grade of

Lieutenant Colonel.

III. Jurisdiction and Legal Standard

A. Jurisdiction

The Tucker Act, 28 U.S.C. § 1491(a)(1), gives this Court authority to adjudicate “any

claim against the United States founded either upon the Constitution, or any Act of Congress or

any regulation of an executive department, or upon any express or implied contract with the

United States, or for liquidated or unliquidated damages in cases not sounding in tort.” Tucker

Act jurisdiction requires “a separate money-mandating statute the violation of which supports a

claim for damages against the United States.” Holley v. United States, 124 F.3d 1462, 1465

(Fed. Cir. 1997) (noting that this additional requirement is based upon sovereign immunity

principles). A money-mandating statute is “reasonably amenable to the reading that it mandates

a right of recovery in damages.” Fisher v. United States, 402 F.3d 1167, 1173-74 (Fed. Cir.

2005). The Military Pay Act, 37 U.S.C. § 204, “serves as the money-mandating statute

applicable to military personnel claiming damages and ancillary relief for wrongful discharge.”

Holley, 124 F.3d at 1465 (“If the discharge was wrongful the statutory right to pay continues;

this right serves as the basis for Tucker Act jurisdiction.”). The Military Pay Act affords active-

duty members of a uniform service an entitlement “to the basic pay of the pay grade to which

assigned or distributed, in accordance with their years of service . . . .” 37 U.S.C. § 204(a)(1).

B. Standard of Review of Military Pay Cases

The Court of Federal Claims is generally limited to reviewing the administrative record

in military pay cases. Metz v. United States, 466 F.3d 991, 998 (Fed. Cir. 2006). The Court will

not disturb a military correction board’s determination unless the plaintiff proves by “cogent and

clearly convincing evidence” that the determination “was arbitrary, capricious, contrary to law,

5

or unsupported by substantial evidence . . . .” Wronke v. Marsh, 787 F.2d 1569, 1576 (Fed. Cir.

1986) (citations omitted); see also Metz, 466 F.3d at 998 (providing that this is the “ordinary

standard of review” for this Court when evaluating a military correction board’s decision).

Although this standard “does not require a reweighing of the evidence,” it does require the Court

to determine “whether the conclusion being reviewed is supported by substantial evidence.”

Heisig v. United States, 719 F.2d 1153, 1157 (Fed. Cir. 1983) (emphasis in original). After all, it

is well established “that courts cannot substitute their judgment for that of the military

departments when reasonable minds could reach differing conclusions on the same evidence.”

Id. at 1156; see also Stine v. United States, 92 Fed. Cl. 776, 791 (2010) (recognizing that this

Court does not serve as a “super correction board” and will not substitute its judgment for that of

a military correction board). Where reasonable minds could differ on the same evidence, the

AFBCMR’s conclusion must be upheld. Heisig, 719 F.2d at 1156. Where a corrections board

fails to address contradictory evidence, however, or fails to expressly analyze evidence

altogether, the board’s decision may be arbitrary and capricious. See Chisholm v. United States,

41 F. App’x 394, 402 (Fed. Cir. 2002) (finding a correctional board’s failure to expressly analyze

three contradictory letters arbitrary and capricious); Quinton v. United States, 64 Fed. Cl. 118,

126 (2005) (finding the board’s decision arbitrary and capricious when the decision was

“internally inconsistent and not supported by the administrative record”). Consequently,

“military administrators are presumed to act lawfully and in good faith like other public officers,

and the military is entitled to substantial deference in the governance of its affairs.” Dodson v.

Dep’t of Army, 988 F.2d 1199, 1204 (Fed. Cir. 1993) (citation omitted).

C. Motion for Judgment on the Administrative Record

A motion for judgment on the administrative record provides an expedited “trial on a

paper record, allowing fact-finding” by the Court. Bannum, Inc. v. United States, 404 F.3d 1346,

1356 (Fed. Cir. 2005). Unlike a motion for summary judgment, the Court may grant a motion

for judgment on the administrative record even if there is a genuine dispute of material fact. See

id. at 1355-56. In lieu of an evidentiary trial, the Court references the administrative record to

resolve any question of fact. See id. at 1356. Here, the inquiry is whether the AFBCMR, “given

all the disputed and undisputed facts appearing in the record, acted in a manner that complied

with the legal standards governing the decision under review.” Williams v. United States, 116

Fed. Cl. 149, 157 (2014).

IV. Discussion

A. The AFBCMR’s decision to uphold Teskey’s OGD was arbitrary and

capricious

1. Teskey’s rejection of the chain of command recommendation is based on

factual assertions contradicted by the record.

The AFBCMR failed to recognize that Teskey makes several assertions about the chain

of command recommendations that Draper retire as a Colonel that are plainly contradicted by the

record. The SAFPC examined prior similar cases and the majority of the SAFPC concluded that

“the distinguishing feature” between OGDs resulting in demotion and those resulting in

retirement in grade was “the chain of command recommendations.” AR 263. This is further

6

confirmed by the Staff Judge Advocate for Headquarters Air Combat Command, Joint Base

Langley-Eustis, Virginia, who reviewed 24 Air Combat Command OGDs dating back to 2013

and found that the SecAF’s delegee followed the chain of command recommendation in every

case other than Draper’s. AR 52; see also id. at 55 (another Staff Judge Advocate with OGD

experience recognizing “deference to the wisdom of the subject’s commander . . . .”). While

Teskey is free to reject the chain of command’s recommendation, he must explain his rejection in

a way that is consistent with the record. He does not.

Draper challenges Teskey’s decision as arbitrary and capricious because Teskey asserts

that Draper’s chain of command “must have ‘missed’” the facts about Draper’s misconduct

spelled out in the LOR. ECF No. 28 at 27 (quoting AR 247). Draper is correct. Every member

of Draper’s chain of command specifically referenced the LOR and the Article 15 NJP in their

letters of support for Draper. According to Maj. Gen. McMullen:

I have had the opportunity to review Randon’s record as an O-

6/Colonel and have had discussions with others about his

performance, as well as have reviewed his misconduct leading up

to his Article 15 and Letter of Reprimand (LOR) three years ago. I

earlier ordered the removal of the LOR at Randon’s request as I

believed it unduly added to the punishment he had already received

with the Article 15.

AR 48. Similarly, Maj. Gen. Toth, the Director of Operations of the Headquarters Air Combat

Command at Joint Base Langley-Eustis, specifically referenced Draper’s Article 15 NJP and

LOR is his letter supporting Draper’s retiring as a Colonel:

I am fully aware of the Article 15 and closely tied LOR he

received before coming to ACC. While his misconduct was

inappropriate for an officer, it appears to me that Randon put his

misconduct behind him and continued to provide exemplary

service in grade. After serving for nearly three years post incident

and for over seven years overall in grade, I recommend he retire in

his current grade.

AR 49. Still more Generals and Colonels wrote in support of Draper’s retiring as a Colonel

despite his Article 15 NJP and LOR. AR 50-56. Each of these officers specifically referenced

the NJP and the LOR,6 which specifically documents the purported lack of honesty that Teskey

states these officers “must have missed.” AR 246. One of these reviewers was a Staff Judge

Advocate whose duties included reviewing OGD cases and advising Major Air Command

leaders on them. AR 55. This Staff Judge Advocate “ha[d] supported negative OGD

determinations for a single severe act of misconduct,” but concluded that “the misconduct in this

case simply does not rise to that level.” Id.

6

One of these officers referenced Draper’s “well documented” misconduct, which the Court

interprets as a reference to the NJP and LOR.

7

Given Draper’s chain of command’s explicit references to their knowledge of Draper’s

Article 15 NJP and the LOR, which details the specific conduct Teskey states they “missed,”

Teskey’s assertion that these accomplished officers “must have missed” these facts is

contradicted by the record and must be set aside. E.g., Caddell Construction Co., Inc. v. United

States, 111 Fed. Cl. 49, 79 (2013) (recognizing that agency decision can be set aside for

“‘offer[ing] an explanation for its decision that runs counter to the evidence before the agency’”)

(quoting Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658 (2007));

Quinton, 64 Fed. Cl. at 126 (finding an agency decision arbitrary and capricious when the

decision was “not supported by the administrative record”). Again, Teskey was free to disagree

with these chain of command opinions, but he had to do so on the merits and could not simply

declare that Draper’s chain of command missed facts when they clearly stated they were aware

of those same facts. The AFBCMR cannot ignore the fact that Teskey’s decision is contradicted

by the record.

The Government attempts to minimize Teskey’s unsupported dismissal of the chain of

command recommendations because other AFI 36-3203 ¶ 8.6.2.2 factors weighed in favor of

retiring Draper as a Lieutenant Colonel. ECF No. 31 at 4. According to the Government, other

factors supporting Draper’s demotion—namely, the nature and length of the inappropriate

conduct, the impact on military effectiveness, and past cases of similar misconduct—all

supported Teskey’s decision. Id. But, as explained above, the chain of command letters were

the dispositive factor in the prior similar cases (according to the SAFPC) and were always

followed except in Draper’s case. AR 263, 52. It is, therefore, impossible to conclude that

Teskey’s error was harmless as the Government posits.

It is also not clear that the other ¶ 8.6.2.2 factors weighed in favor of retiring Draper as a

Lieutenant Colonel. For example, if there is anything in this record indicating that Draper’s

conduct had any impact on military effectiveness, much less that this factor supported demotion,

it is well-hidden. The SAFPC concluded that there was “little impact” on military effectiveness

because “[t]here is no evidence the respondent’s subordinates knew of the misconduct or that it

was a distraction in his unit.” AR 262 (emphasis added). There is also no indication that the

SAFPC minority found Draper’s misconduct had any impact on military effectiveness. Id.

Teskey wholly ignored the impact on military effectiveness, so his analysis cannot establish that

this factor supported Draper’s demotion (if anything it is an acknowledgement that there was no

impact). And the chain of command letters lay to rest any notion that Draper’s misconduct had

any impact on military effectiveness. AR 48-55.

2. The Air Force must explain its conflicting conclusions about Draper’s

performance.

Draper argues that the AFBCMR failed to consider the factual incompatibility between

the SecAF’s conclusion (delegated to the promotion board) that Draper’s performance as a

Colonel merited a “promote” rating for Draper to Brigadier General and the SecAF’s decision

(delegated to Teskey) to retire Draper as a Lieutenant Colonel because of unsatisfactory

performance. ECF No. 28 at 21-28. Draper argues that the AFBCMR acted arbitrarily in not

accounting for this and the fact that neither Draper’s commanders nor the Promotion Board

required him to show cause for his retention on active duty. Id. The Government asserts that it

was not “legally inconsistent” or “legally impermissible” for Teskey to determine Draper’s

8

service as Colonel did not merit remaining a Colonel in retirement, and for the Promotion Board

to determine Draper’s service as Colonel was “consistent with his grade[.]” ECF No. 42 at

18:11-15; ECF No. 34 at 13. While the Government’s argument is certainly plausible, “an

agency cannot simply adopt inconsistent positions without presenting some reasoned analysis.”

Quinton, 64 Fed. Cl. at 129 (quoting Huntington Hosp. v. Thompson, 319 F.3d 74, 79) (2d Cir.

2003); see Chisolm, 41 F. App’x at 395 (“Corrections Board acted in an arbitrary and capricious

manner in disregarding contrary evidence without analysis”). In effect, the SecAF determined

that Draper’s performance as Colonel was satisfactory enough to rate him “promote” in his

promotion review for possible promotion to Brigadier General. This meant that he (and his

performance) was “of the desired quality” for promotion. AFI 36-2501 ¶ 2.1.1; see also id. ¶ 2.1

(“A promotion is not a reward for past service; it is an advancement to a higher grade based on

past performance and future potential.”). Accordingly, the SecAF found Draper sufficiently

“qualified for promotion” such that he “should compete on the basis of performance,

performance-based potential, and other considerations such as duty history, developmental

education, advanced degrees, etc.” AFI 36-2406 ¶ 8.1.2.3.3. Yet on the same record, the SecAF

determined that Draper did not perform satisfactorily enough as Colonel to retire in grade. These

conclusions somewhat conflict and require reasoned analysis and explanation. As the Court

stated during argument, “I’m not saying there can’t be a difference, but I think [the] difference

has to be explained somewhere, somehow.” ECF No. 42 at 108:10-12.

3. The lack of any show cause proceedings does not establish that Draper’s

performance as Colonel merited retirement in grade.

Draper also makes much of the fact that none of his superiors nor his Promotion Board

required him to show cause for retention. ECF No. 28 at 17-26. While the Court agrees that this

is a valid consideration during the OGD, the lack of a show cause proceeding cannot insulate

Draper from an OGD that results in a retirement as a Lieutenant Colonel. The SAFPC

recognized that Draper’s command could have taken more significant action against him after his

misconduct but did not. AR 263. Instead, Draper’s command “continu[ed] to place him in

positions of authority and responsibility, and the respondent continued to excel in them.” Id.

This reflected a command confidence in Draper’s performance that the SAFPC found

compelling. Therefore, the SAFPC majority found no basis to deviate from the chain of

command recommendation that Draper retire as a Colonel. Id. This conclusion is one that the

AFBCMR and/or the SecAF’s current delegee will need to confront on reconsideration that

Teskey largely avoided in his opinion that the AFBCMR affirmed.

In what appears to be an effort to refute the SAFPC’s reasons for following the chain of

command, Teskey states that:

After Col Draper’s Article 15 and LOR, he was assigned to

ACC/JA as the Chief of Civil Law, with layers of supervision

above him. The JAG Corps assigned him to a position where he

was given little leadership leeway and restricted supervisory

responsibility. This was not a position of significant leadership

responsibility and was unlikely to lead to promotion to Brigadier

General. The position did allow him to perform his duties and

succeed.

9

AR 247. It is unclear what Teskey is basing this assessment on, but Teskey’s assertion is

apparently trying to respond to the SAFPC’s conclusion that Draper’s command continued to put

him in “positions of authority and responsibility.” As to that point, Teskey’s assessment appears

untethered to the record. Draper’s command refers to him shaping policy, guiding

investigations, guiding administrative actions and ethics issues, and commends his supervision of

“senior civilians and rated O-5 officers.” AR 49-53. Indeed, the record indicates that Draper

“also served at times as acting [Staff Judge Advocate].” AR 53. If the AFBCMR believes these

are not positions of responsibility and do not provide a reasoned basis to follow the command

recommendation as the SAFPC concluded, it must explain why not.

The Court cannot agree, however, that the lack of any show cause proceedings by

Draper’s command or Promotion Board necessarily means that Draper should retire in grade.

Each of the show cause provisions that Draper relies upon are processes by which the Air Force

can separate officers that it believes should not be retained on active duty. For example, a “show

cause” action is initiated when an officer’s misconduct rises to such a level that separation from

the Air Force should be considered. AFI 36-3206 ¶ 1.1. Examples of such misconduct include

substandard performance of duty, misconduct, moral or professional dereliction, or when

separation is in the interest of national security. AFI 36-3206, Ch. 1-3. There is, however,

certainly a band of cases where the misconduct does not rise to the level of separation from the

Air Force but results in a retirement at a lower rank. E.g., AR 263 (the SAFPC considering prior

cases in which officers were not required to show cause for retention yet retired at a lower rank).

Therefore, the fact that none of the various officials or bodies that could have initiated a show

cause proceeding did so does not mean that Draper’s performance as a Colonel was necessarily

satisfactory for OGD purposes.

Then there is Teskey’s comment that Draper was not likely to be promoted. The

Government argues that a ‘“promote’ rating is not an indication that [] Draper was likely to be

promoted.” ECF No. 31 at 5. Whether Draper was, in fact, likely to be promoted is immaterial.

It is the Promotion Board’s determination that Draper performed satisfactorily as a Colonel and

is among the best qualified based on his performance to be considered for promotion that is

material. The Government also argues that Draper’s “promote” recommendation is akin to

“assessments by colleagues” and only represents “one aspect of the OGD.” ECF No. 31 at 4.

Not so. The determination by the Promotion Board is not akin to an assessment by colleagues; it

is an assessment by a panel of senior officers acting for the SecAF to determine whether Draper

is “of the desired quality” to be a Brigadier General of the Air Force based in part on his

performance as a Colonel. This is not the same thing as a colleague’s assessment.

4. The AFBCMR must clarify which version of AFI 36-3203 is applicable in

the instant case.

Finally, Draper faults Teskey for not considering all AFI 36-3203 ¶ 8.6.2.2 factors (e.g.,

the impact on military effectiveness). ECF No. 28 at 5. The resolution of this issue is

complicated by the fact that the Government argues before the Court based on the version of AFI

36-3203 in place today that became effective January 29, 2021, after Teskey and the AFBCMR

rendered their decisions in this case. See AR 246 (Teskey’s rationale memo dated January 3,

2018); AR 7 (the AFBCMR decision dated July 9, 2019). The version of AFI 36-3203 in effect

at the time of Draper’s retirement, however, required the SAFPC, not Teskey, to consider the

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factors listed in ¶ 8.6.2.2 of the current regulation. AFI 36-3203 ¶ 7.6.2.2 (Sept. 18, 2015). The

SAFPC did so. AR 257-64. The Court cannot fault Teskey for not conducting an analysis that

the relevant regulation did not explicitly require him to conduct at the time of his decision. That

said, there appears to have been a fair amount of ambiguity in the 2015 version of AFI 36-3203

regarding which entity was supposed to conduct which analyses, so the AFBCMR should clarify

both which version of AFI 36-3203 it applied to this case, which is not clear from its decision,

and which analyses the SAFPC was required to perform and which Teskey was required to

perform.

B. Teskey was not required to recuse himself from this matter

Plaintiff argues that Teskey should have recused himself from the OGD process based on

28 U.S.C. § 455. ECF No. 28 at 33-34. The Government responds that there is no Air Force rule

that required Teskey to recuse himself, that there was no logical reason for Teskey to recuse

himself, and that the recusal by one of the SAFPC members has no bearing on whether Teskey

should have recused himself. ECF No. 21 at 18-21. Plaintiff’s argument in favor of recusal is

grounded in “the due process principle” of 28 U.S.C. § 455(a) which requires “[a]ny justice,

judge, or magistrate judge of the United States [to] disqualify himself in any proceeding in which

his impartiality might reasonably be questioned.” Although Draper admits that Teskey was not

mandated by Air Force regulations to recuse himself, Draper nonetheless contends that, because

Teskey had worked with him in the past, his “professional judgment was flawed” and he

“form[ed] preconceived opinions about the matter and bias against [] Draper.” ECF No. 28 at

34.

The Court cannot agree. 28 U.S.C. § 455 clearly does not apply because Teskey is not a

“justice, judge, or magistrate judge of the United States.” And, as Draper concedes, there is no

Air Force regulation or other statute requiring Teskey to recuse himself from this matter. ECF

No. 42 at 84:9-10. Despite the lack of a recusal statute or regulation, Draper contends that

Teskey should have recused himself because of due process concerns. Draper does not make

much of an argument here; he relies on the fact that Teskey and Draper worked under the same

commander at one point and that Teskey’s decision “overturned a 4 to 1 decision of the OGD

Board . . . .” ECF No. 28 at 33-34. Neither is sufficient to compel Teskey’s recusal.

While Draper cites several cases for the legal propositions that he likes, he ignores the

glaring factual distinctions between his case and those that make those cases inapposite. For

example, Draper relies upon Williams v. Pennsylvania, 579 U.S. 1, 8 (2016), for the proposition

that “[t]he Court asks not whether a judge harbors an actual, subjective bias, but instead whether,

as an objective matter, the average judge in his position is likely to be neutral, or whether there is

an unconstitutional potential for bias.” ECF No. 34 at 5-6. The legal proposition is undisputed.

But the “unconstitutional potential for bias” in Williams arose from the fact that one of the state

supreme court justices deciding Williams’s appeal of his capital sentence was previously a

prosecutor who made the decision to seek the death penalty in Williams’s case. Id. at 8. This

direct involvement in the case before the Court was the concern because it ran afoul of “[t]he due

process guarantee that ‘no man can be a judge of his own case.’” Id. at 9. This case raises

nothing close to that concern.

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The fact that Draper and Teskey worked for the same commander at some time before

Draper’s misconduct did not mandate Teskey’s recusal. Here, Draper speculates that “Teskey

would have made assumptions and drawn conclusions about Col Draper during the time they

served together in the JAG Corps, and competed with each other for promotions and

assignments.” ECF No. 34 at 12. From this, Draper asserts that it was “reasonable to assume”

that Teskey was biased against him, which required Teskey to recuse himself. Id. at 13. The

Court cannot agree that the simple fact that Teskey and Draper knew each other and served in the

same command compelled Teskey’s recusal. At the time of Draper’s misconduct, Teskey had

retired from the Air Force and was working as a civilian in the Senior Executive Service. See

ECF No. 21 at 19 (citing Teskey’s Air Force biography). Indeed, Teskey left the Air Force three

years before Draper’s misconduct even happened. Id. At the time of Draper’s NJP and LOR,

Teskey was the Director of Air Force Small Business Programs at the Pentagon and was no

longer working for General Morrow. Id. They were not competing for anything. Nor is there

any indication that Teskey was aware of Draper’s misconduct or punishment prior to the OGD,

much less had any involvement whatsoever with Draper’s case prior to the OGD. And at the

time of the OGD, Teskey was no longer a subordinate of General Morrow or subject to her

command. AR 221-22. Therefore, Williams does not help Draper establish that Teskey should

have recused himself.

The same is true of Draper’s reliance on In re Al-Nishiri, 921 F.3d 224 (D.C. Cir. 2019).

See ECF No. 34 at 6. There the presiding judge in a military tribunal had applied for and

accepted a position as an immigration judge, which is an attorney position within the Department

of Justice. See In re Al-Nishiri, 921 F.3d at 235. The impartiality concern arose because the

prosecutors in the case were Department of Justice attorneys and the judge’s employment

application to the Department clearly undermined at least the appearance of impartiality. Id. at

237. And the judge there also highlighted his role presiding over the Al-Nishiri case to the

Department, but never mentioned it to Al-Nishiri. Id. As explained above, there is nothing

similar here. Teskey had retired from the Air Force and was in the Senior Executive Service at

the time of Draper’s misconduct. At the time of the OGD, Teskey was the Director of the Air

Force Review Boards Agency, a position that he still holds. In other words, there is no

indication that Teskey had any similar cloud of potential partiality over him when he made his

OGD decision, and no reason to compel his recusal.

Similarly, Draper complains that Teskey, purportedly like the judge in Al-Nishiri, “never

once mentioned that he personally knew Col Draper.” ECF No. 34 at 7. So what? Unlike any

of the cases that Draper relies on for this alleged transgression, i.e., Al-Nishiri and United States

v. Albaaj, 65 M.J. 167 (C.A.A.F. 2007), there was no undisclosed relationship in this case. In

essence, Draper is complaining that Teskey did not alert Draper to the fact that Teskey and

Draper knew each other and had previously served together. This is information that was equally

available to Draper as to Teskey. And the simple fact that Teskey and Draper previously served

together is insufficient to compel Teskey’s recusal.

Finally, Draper makes a somewhat circular argument that the fact that Teskey “overruled

a near-unanimous 4-1 [SAFPC] vote” to retire Draper as a Colonel shows Teskey’s bias. ECF

No. 34 at 8. Not so. Under AFI 36-3203 (either the 2015 or 2021 version), Teskey was

permitted to obtain “the review and recommendation of the SAFPC prior to making a

determination of satisfactory service for an OGD . . . .” AFI 36-3203 ¶ 8.6 (emphasis added);

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see also AFI 36-3203 ¶ 7.6 (Sept. 18, 2015) (same). The SAFPC decision was not binding on

Teskey and he could disagree with it had he provided a reasoned explanation that found support

in the record. The fact that his explanation for doing so in this case does not comport with

certain parts of the record does not indicate a bias sufficient to compel his recusal. If that were

the case, every time a decision lacked support in the record it would be grounds for the recusal of

the decisionmaker. That is not the law.

Draper has failed to come forward with a compelling reason that Teskey was required to

recuse himself on this record.

V. Relief

Draper argues that the Court should set aside the AFBCMR’s and Teskey’s decisions and

order the Air Force to follow the SAFPC’s opinion because it was the only body to apply the

AFR 36-3202 ¶ 8.6.2.2 factors to Draper’s case. ECF No. 28 at 43-44. The Court cannot do so.

As explained above, the Secretary did not delegate the OGD authority to the SAFPC, he

delegated it to Teskey. As the SecAF’s delegate, Teskey sought and received the

“recommendation” of the SAFPC. That does not confer the SAFPC with the authority to make

the final OGD determination. Instead, the proper remedy is to set aside the AFBCMR’s decision

and remand this matter to the AFBCMR pursuant to RCFC 52.2 for further consideration in light

of this opinion.

VI. Conclusion

For the reasons stated above, the Court:

1. Grants-in-part and denies-in-part the Government’s motion for judgment on the

administrative record, ECF No. 21;

2. Grants-in-part and denies-in-part Draper’s cross-motion for judgment on the

administrative record, ECF No. 28; and

3. Pursuant to RCFC 52.2, Remands this matter to the AFBCMR with the following

instructions:

• The AFBCMR shall rescind its July 9, 2019 decision and issue a new decision on

whether plaintiff, Randon H. Draper, is entitled to correction of his military

records denied by the AFBCMR in its July 9, 2019 decision, taking into account

the errors identified in this opinion.

• This remand shall not exceed 180 days, during which time this proceeding shall

remain stayed.

• Pursuant to RCFC 52.2(b)(l)(D), defendant shall file a status report every ninety

days indicating the status of the proceedings before the AFBCMR.

• The parties shall file a joint status report no later than seven days following the

date defendant receives notice from the AFBCMR of the conclusion of the

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remand proceeding. The joint status report shall set forth the parties’ positions

regarding whether further litigation is necessary. If the parties anticipate further

litigation, they shall provide (1) a proposed date for defendant to file the

administrative record associated with the remand proceedings, and (2) a proposed

briefing schedule for any dispositive motions.

The Clerk is directed to serve this Opinion and Order on the Air Force Board for the

Correction of Military Records at the following address:

Ms. Nicole D. Jackson, Executive Director

Air Force Board for the Correction of Military Records (SAF/MRBC) (AFBCMR)

3351 Celmers Lane

Joint Base Andrews, MD 20762-6604

IT IS SO ORDERED.

s/ Edward H. Meyers

Edward H. Meyers

Judge

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