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. …
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