Malcolm v. United States

1

RICHARD RALPH MALCOLM, Plaintiff-Appellant v. UNITED STATES, Defendant-Appellee

No. 2023-1084

United States Court of Appeals, Federal Circuit

August 7, 2023

This disposition is nonprecedential.

Appeal from the United States Court of Federal Claims in No 1:20-cv-00505-SSS, Judge Stephen S. Schwartz.

RICHARD RALPH MALCOLM, Hollywood, FL, pro se.

ANDREW JAMES HUNTER, Commercial Litigation Branch, Civil Division United States Department of Justice, Washington, DC, for defendant-appellee. Also represented by BRIAN M. BOYNTON DEBORAH ANN BYNUM, PATRICIA M. MCCARTHY.

Before LOURIE, BRYSON, and REYNA, Circuit Judges.

REYNA Circuit Judge.

Pro Se Appellant Richard Ralph Malcolm appeals from the United States Court of Federal Claims' ("Claims Court") decision, in which the Claims Court upheld the Board for Correction of Naval Records' ("BCNR") denial of Mr. Malcolm's request that the BCNR correct his military record to change the narrative reason for his separation to "disability" for disability retirement pay purposes and to remove derogatory information related to his misconduct. Malcolm v. United States, No. 20-505C, 2022 WL 4592894 (Fed. Cl. Sept. 30, 2022) ("Decision"). We affirm.

BACKGROUND

Mr Malcolm enlisted in the Navy on February 1, 2002. Appx303.^[1] But his time in the Navy was short-lived. He often complained of headaches, dizziness, and a general dissatisfaction with life in the Navy. See, e.g., Appx463-76.

In the spring of 2002, during basic training, a clinical psychologist examined him and diagnosed him as having an "Occupational Problem." Appx302; see also Appx21. Later that year, he reported to the USS Abraham Lincoln, where his duties were to assist in the launch, recovery, service support, turnaround, and daily maintenance of F-14D aircraft. Appx341. In September, he was again diagnosed with an occupational problem, along with a provisional diagnosis of adjustment disorder. Appx474; see also Appx21. In October, the Navy found that Mr. Malcolm had violated the Uniform Code of Military Justice based on his insubordinate conduct toward a petty officer, failure to obey an order or regulation, and making provocative speeches or gestures. Appx372. As a result, he was "awarded nonjudicial punishment," which included a reduction in rank and temporary pay forfeiture. Appx372-82. In November, he was punished for four separate incidences of failure to report for duty and for sexually harassing a female airman. Appx375; Appx377. Shortly thereafter, the Navy notified him that it would commence separation proceedings against him, that the separation was for misconduct for commission of a serious offense, and that his service may be characterized as "Other than Honorable." Appx368-69. He waived his rights to counsel, to see documents, and to request an administrative board. Appx368. And in December 2002, he was separated from active duty for misconduct and "under other than honorable conditions." Appx308.

A decade later, Mr. Malcolm was diagnosed with bipolar I disorder. See Malcolm v. United States, 690 Fed.Appx. 687, 688 (Fed. Cir. 2017) ("Malcolm I"). Ever since, he has tried to correct his military records, asserting that he suffered from bipolar disorder when he served. He first filed a request before the Navy Discharge Review Board-which has the power to reclassify a discharge characterization, see 10 U.S.C. § 1553(a)-to upgrade the character of his discharge from "other than honorable" to "honorable." Malcolm I, 690 Fed.Appx. at 688. It denied his request. Id. He then requested the BCNR-which can "correct any military record" when "necessary to correct an error or remove an injustice," 10 U.S.C. § 1552(a)(1)-to upgrade his discharge to "honorable" and to expunge his disciplinary records. Malcolm I, 690 Fed.Appx. at 688. The BCNR denied his request. Id.

So he filed suit in the Claims Court, seeking to correct his naval records to reflect an "honorable" discharge, an award of back pay, and an award of military disability retirement pay. Id. The Claims Court dismissed the complaint for lack of jurisdiction, finding, among other things, that the claim for military disability retirement pay was not ripe and that the Claims Court lacked jurisdiction over his non-monetary request to change his discharge status. See id. We affirmed. Id. at 689-90.

Mr. Malcolm then submitted another request to the BCNR, seeking to change his narrative reason for separation to disability and to obtain military disability retirement pay. Appx87. He asserted that he suffered from bipolar disorder at the time of his discharge and should have been referred to the Disability Evaluation System. Appx88. The BCNR denied his request. Appx89. Among other things, it concluded that there was insufficient evidence to support that he was suffering from bipolar disorder at the time of his discharge, noting that he was twice diagnosed in the Navy with occupational problems-not with bipolar disorder. Appx88. It further explained that his "Global Assessment of Functioning (GAF) score of 70 at the time indicated only mild symptoms or some occupational functioning," which "was consistent with medical notations that indicated [he] still possessed good judgment, insight, and impulse control." Id. This "led the Board to conclude that [he] w[as] capable of performing the duties of [his] office, grade, rank or rating despite any conditions [he] may have possessed." Id. The BCNR found that there was insufficient evidence to support that he was unfit for continued naval service due to bipolar disorder. Id.

Mr. Malcolm filed suit in the Claims Court. See Malcolm v. United States, 752 Fed.Appx. 973, 975 (Fed. Cir. 2018) ("Malcolm II"). The Claims Court granted the government's motion for judgment on the administrative record and denied Mr. Malcolm's competing motion. Id. On appeal to this court, we affirmed. Id. at 977. We found, among other things, that substantial evidence supported the BCNR's finding that Mr. Malcolm failed to prove that he suffered from bipolar disorder in 2002. Id. at 976.

In December 2018, Mr. Malcolm filed another claim at the BCNR, this time providing a 2018 psychiatric evaluation from the VA, which he contended showed that his bipolar condition existed at the time of his discharge. Appx41-57. He asked the BCNR to change his reason for separation to disability and to remove all derogatory information (including that he received nonjudicial punishment) from his record. Appx36; Appx40-41.

The BCNR granted partial relief. Appx37. It concluded that "liberal consideration" "mandates that his narrative reason for separation be changed to Secretarial Authority and [that] his characterization of service be upgraded to General under Honorable conditions." Id. It also concluded that he "should have been administratively separated during basic training after being diagnosed with occupational problems," and that, "by placing him in an operational environment, the Navy likely exacerbated his adjustment disorder" which contributed to "his misconduct." Id. It found that, given "his diagnosed adjustment disorder" and under the liberal consideration standard, his misconduct was not serious enough to merit an Other than Honorable characterization. Id.

Yet it found that he was responsible for his misconduct and so was "legally discharged with an Other than Honorable characterization upon waiving his administrative separation board." Id. Thus, it explained, the derogatory material should remain in his record. Id. The BCNR also rejected his request to change his reason for separation to disability. Appx37-38. According to the BCNR, there was "insufficient evidence to [show] that [he] suffer[ed] from a compensable disability condition at the time of his discharge." Appx37. The BCNR thought that "too many potential intervening factors exist to be able to rely on the 2013 diagnosis as a basis to overturn the 2002 adjustment disorder diagnosis." Appx37-38. So, even "applying liberal consideration to the circumstances of the case," there was insufficient evidence to support changing his narrative to disability. Appx38.

Mr. Malcolm again sued in the Claims Court, seeking "retroactive disability benefits" and "removal of all negative marks in [his] record." Appx528-30. The Claims Court remanded, finding that the BCNR failed to consider whether the 2018 VA evaluation showed that Mr. Malcolm had undiagnosed conditions during his service. Decision, at *2.

On remand, the BCNR sought an Advisory Opinion to consider the 2018 VA evaluation. Appx33. After receiving the Advisory Opinion, the BCNR reconsidered Mr. Malcolm's argument (1) that he had been unfit for naval service due to bipolar disorder and so should have his reason for separation changed to disability, and (2) that his record of misconduct should be removed. Appx12. It concluded that the VA evaluation did not show that Mr. Malcolm suffered from bipolar disorder at the time of his discharge. Appx12- 13. The BCNR found that his 2002 medical records were more probative of his mental health condition in 2002 than were his 2013 bipolar disorder diagnosis and the 2018 VA evaluation; that, "[i]n those [2002] medical evaluations, it was determined that [Mr Malcolm] suffered from 'occupational problems,' or possibly an adjustment disorder, but not Bipolar Disorder"; and that Mr. Malcolm was "more likely than not correctly diagnosed with 'occupational problems' at the time of [his] discharge." Id. It found that there was thus "insufficient evidence to conclude that [Mr. Malcolm] should have been diagnosed with Bipolar Disorder in 2002 or found unfit for continued naval service as a result of the condition." Appx13. The BCNR also reaffirmed its finding that he was mentally responsible for...