In the United States Court of Federal Claims
No. 20-505C
(Filed: September 30, 2022)
NOT FOR PUBLICATION
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RICHARD RALPH MALCOLM, *
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Plaintiff, *
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v. *
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THE UNITED STATES, *
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Defendant. *
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OPINION AND ORDER
This case returns to the Court after a remand to the Board for Correction of
Naval Records (“BCNR”). Plaintiff Richard Ralph Malcolm — proceeding pro se —
seeks medical disability retirement and removal of derogatory information about his
conduct from his military record. The parties have filed cross-motions for judgment
on the administrative record. See Pl.’s Mot. (ECF 53);1 Def.’s Am. Opp. & Cross-Mot.
(ECF 55).2 The government’s motion is GRANTED and Plaintiff’s motion is
DENIED. The case is DISMISSED.
BACKGROUND
Most of the relevant facts and procedural history are set out in my order of
May 12, 2021, in which I denied the parties’ previous motions for judgment on the
administrative record. See Order (ECF 29).
1 Plaintiff’s motion is presented as a motion for summary judgment. I construe it as a motion for
judgment on the administrative record.
2 Plaintiff has also filed another document captioned “Motion for Judgement and to supplement the
Administrative Record” (ECF 56) which I construe as a response to the government’s cross-motion and
reply in support of Plaintiff’s motion, combined with a motion to supplement the record. In support of
his motion to supplement, Plaintiff states that his mother “will testify” to certain facts, but does not
otherwise describe how he wishes to add to the administrative record. Id. at 4. Elsewhere Plaintiff
refers to statements by a doctor about his mental condition. Pl.’s Mot. at 3–4. Supplementation of the
administrative record — with his mother’s testimony or any other material — is DENIED because
(1) Plaintiff had the opportunity to add additional material to the record with his briefing on remand
to the BCNR, and (2) he has not shown how any of the limited bases for supplementing the record
apply. See Naval Sys., Inc. v. United States, 153 Fed. Cl. 166, 178–82 (2021).
Plaintiff served in the Navy in 2002. Administrative Record (“AR”) 3–4. During
his short service Mr. Malcolm was diagnosed with “occupational problems” and
“adjustment disorder,” was disciplined for violations of the Uniform Code of Military
Justice, and was separated from the Navy for “misconduct,” with his service
characterized as “Other than Honorable.” AR 3–4, 313–17, 324.
This is the third time Plaintiff has sought correction of his military records by
the BCNR. Each time, he has claimed that he suffered from mental health conditions
— in particular, bipolar disorder — during his service, entitling him to various forms
of relief. His first two requests were denied by the BCNR and by this Court. Malcolm
v. United States, No. 17-1417C, 2018 WL 1770525 (Fed. Cl. Apr. 12, 2018), aff’d, 752
F. App’x 973 (Fed. Cir. 2018); Malcolm v. United States, No. 16-545C, 2017 WL
105946 (Fed. Cl. Jan. 11, 2017), aff’d, 690 F. App’x 687 (Fed. Cir. 2017).
Plaintiff’s present request resembles the first two, except that he added records
of psychological evaluations performed by the U.S. Department of Veterans Affairs
(“VA”) in 2018 after interviews with Plaintiff and his mother. AR 9–24. The VA
evaluation contains statements that could be read to say that Plaintiff’s mental
illness affected him during his military service.
The BCNR granted partial relief, upgrading Plaintiff from an “Other than
Honorable” discharge to a “General under Honorable Conditions” discharge and
changing his discharge authority from a misconduct discharge to secretarial
authority. AR 4–5. The BCNR stated that Mr. Malcolm “should have been
administratively separated during basic training after being diagnosed with
occupational problems … and, by placing him in an operational environment, the
Navy likely exacerbated his adjustment disorder contributing to his misconduct.” Id.
The BCNR denied Plaintiff’s request for medical retirement. But in so doing,
it failed to consider whether Plaintiff’s VA evaluation shows that Plaintiff had
undiagnosed mental conditions during his service. The Court therefore remanded for
the BCNR to consider the VA evaluation in the first instance.
On remand, the BCNR reviewed the VA evaluation and obtained an advisory
opinion from the Council of Review Boards. AR 459. The BCNR concluded that the
2018 VA evaluation does not show that Plaintiff had bipolar disorder at the time of
discharge. That conclusion rested on several grounds, including: (1) The VA
evaluation was too remote in time from Plaintiff’s service to outweigh
contemporaneous evidence that he did not have bipolar disorder during service;
(2) the VA evaluation described Plaintiff as a “poor historian” of his mental condition,
casting doubt on how accurately he described his past symptoms; and (3) Plaintiff’s
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mother, whom the VA described as a better historian than Plaintiff, did not report
that Plaintiff had certain symptoms during Plaintiff’s service. AR 461–62.
The BCNR therefore concluded that Plaintiff may have had “occupational
problems” at the time of his service, but not an unfitting condition. AR 462. For
similar reasons, the BCNR also reaffirmed its previous conclusion that Plaintiff was
mentally responsible for his misconduct during service and therefore is not entitled
to removal of derogatory information. Id.
The motions for judgment on the administrative record followed.
DISCUSSION
A military service member may receive disability retirement if the secretary of
his branch finds, among other things, that he is “unfit to perform the duties of the
member’s office, grade, rank, or rating because of physical disability incurred while
entitled to basic pay[.]” 10 U.S.C. § 1201(a)–(b); see also 10 U.S.C. § 101(a)(9). A
member of the Navy who believes he was erroneously denied disability retirement
may petition the BCNR for correction of his military record. See Chambers v. United
States, 417 F.3d 1218, 1222 (Fed. Cir. 2005) (discussing the BCNR’s Army
counterpart); Porter v. United States, 131 Fed. Cl. 552, 558 (2017). The BCNR grants
relief upon finding an error or injustice. 10 U.S.C. § 1552(a)(1). Members who are
dissatisfied with the decision of the BCNR may obtain judicial review. Chambers, 417
F.3d at 1224–25.3
When resolving motions for judgment on the administrative record under
RCFC 52.1(c), this Court proceeds “as if it were conducting a trial on the record.”
Bannum, Inc. v. United States, 404 F.3d 1346, 1354 (Fed. Cir. 2005); see also Young
v. United States, 497 F. App’x 53, 58–59 (Fed. Cir. 2012). The Court reviews decisions
of military record correction boards under the standards of the Administrative
3 This Court has jurisdiction over this case. Plaintiff’s claims for disability retirement arise under 10
U.S.C. § 1201, which is a money-mandating statute that supports Tucker Act jurisdiction. See Fisher
v. United States, 402 F.3d 1167, 1174 (Fed. Cir. 2005) (citing Sawyer v. United States, 930 F.2d 1577
(Fed. Cir. 1991)).
A jurisdictional six-year statute of limitations generally runs from “[t]he decision by the first
statutorily authorized board that hears or refuses to hear [a] claim” for disability retirement.
Chambers, 417 F.3d at 1224; see Friedman v. United States, 310 F.2d 381, 395–96 (Ct. Cl. 1962); 28
U.S.C. § 2501. In this case, the first board to hear Plaintiff’s claim for disability retirement was the
BCNR, which denied it in 2017. Plaintiff filed his complaint in 2020, less than six years later. Even
counting from the BCNR’s resolution of Plaintiff’s previous claim in 2015, the same result would hold.
AR 199.
Plaintiff directed an earlier request for relief to the Naval Discharge Review Board, but that
body is not authorized to hear claims for medical retirement, see 32 C.F.R. § 724.205(a)(9), and so its
2014 decision cannot trigger the statute of limitations. AR 211–12.
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Procedure Act. Walls v. United States, 582 F.3d 1358, 1367 (Fed. Cir. 2009); see 5
U.S.C. § 706.
Especially when it comes to fitness for military service — which is not a
“judicial province,” Heisig v. United States, 719 F.2d 1153, 1156 (Fed. Cir. 1983) —
that standard of review is narrow. This Court “may appropriately decide whether the
military followed [its] procedures[.]” Murphy v. United States, 993 F.2d 871, 873 (Fed.
Cir. 1993); see also Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002).
Moreover, while it may not “reweigh[] the evidence” before the BCNR, see Heisig, 719
F.2d at 1157, the Court may consider whether the BCNR’s decision “was based on a
consideration of the relevant factors,” Bowman Transp., Inc. v. Arkansas-Best Freight
Sys., Inc., 419 U.S. 281, 285 (1974) (quoting Citizens to Preserve Overton Park v.
Volpe, 401 U.S. 402, 416 (1971)), and was “supported by substantial evidence,” Heisig,
719 F.2d at 1157; see also Dep’t of Com. v. New York, 139 S. Ct. 2551, 2569 (2019)
(stating that courts “may not substitute [their] judgment for that of [the agency],” but
instead look to ensure the agency engaged in a reasonable decision-making process).
To be supported by “substantial evidence,” the BCNR’s decision must be based
on “such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)). If the BCNR complied with the necessary
procedures and reached a decision rationally supported by substantial evidence, it
must be upheld. Stine v. United States, 92 Fed. Cl. 776, 791 (2010), aff’d, 417 F. App’x
979 (Fed. Cir. 2011).
Plaintiff argues that the BCNR’s remand decision was not supported by
substantial evidence. He also argues that the BCNR’s conclusion that he had
occupational problems that should have led to his separation, and which may have
been “exacerbated” by his service, “shows that [he] was discharged due to his
disability.” Pl.’s Mot. at 3.4
I conclude, however, that the BCNR’s decision survives this Court’s deferential
standard of review. The BCNR is correct that the VA evaluation was remote in time
4 Plaintiff claims that his separation from the Navy was procedurally unfair in several respects. E.g.,
Pl.’s Mot. at 4. As to Plaintiff’s fitness, those claims would only matter if Plaintiff has evidence that he
was in fact unfit for duty at the time of separation — otherwise, they are harmless. See Wagner v.
United States, 365 F.3d 1358, 1361 (Fed. Cir. 2004) (“[S]trict compliance with procedural requirements
is not required where the error is deemed harmless.”). Even as to derogatory information in Plaintiff’s
military record, the BCNR found no evidence of unfairness, AR 462, and Plaintiff has not pointed to
anything in the record to substantiate his claims. To the extent Plaintiff claims that the Navy violated
his Sixth Amendment right to counsel at the time of his separation, Pl.’s Mot. at 4, the right to counsel
very rarely applies to civil matters and does not apply in cases like Plaintiff’s. See Lariscey v. United
States, 861 F.2d 1267, 1270–71 (Fed. Cir. 1988).
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from Plaintiff’s service, and the BCNR therefore could reasonably determine that
contemporaneous evaluations were more relevant and more accurate as to Plaintiff’s
condition during his service. In addition, the BCNR articulated rational reasons for
weighing the evidence as it did: The VA in fact referred to Plaintiff as a “poor
historian of autobiographical history pertaining to his psychiatric history and
symptom presentation,” AR 12, while his mother denied knowledge of certain
symptoms Plaintiff claimed, AR 13.5 Faced with potential inconsistencies in the
evidence of Plaintiff’s mental condition during his service, the BCNR could
reasonably choose to credit the evidence it relied upon instead of the VA evaluation.
Substantial evidence supports the BCNR’s conclusion that Mr. Malcolm was not
medically unfit for service because of his mental condition at the time of separation.
The BCNR’s conclusion that Plaintiff should have been separated but was not
unfit for duty thus goes solely to Plaintiff’s fitness, which is not a question for this
Court to decide. This Court does not run the Navy, see Dodson v. U.S. Gov’t, Dep’t of
Army, 988 F.2d 1199, 1204 (Fed. Cir. 1993) (citing Orloff v. Willoughby, 345 U.S. 83,
93 (1953)), and “courts cannot substitute their judgment for that of the military
departments when reasonable minds could reach differing conclusions,” particularly
on a question that touches on military fitness. Heisig, 719 F.2d at 1156.
I have considered all the evidence in the record, as substantial evidence review
requires. See Dixon v. Dep’t of Transp., F.A.A., 8 F.3d 798, 804 (Fed. Cir. 1993)
(“Because the substantiality of evidence must take into account whatever in the
record fairly detracts from its weight, we must canvass the entire record.”) (quoting
Spurlock v. Dep’t of Justice, 894 F.2d 1328, 1330 (Fed. Cir. 1990) (quotes and
alteration omitted)); Heisig, 719 F.2d at 1157 (“Under the substantial evidence rule,
all of the competent evidence must be considered, whether original or supplemental,
and whether or not it supports the challenged conclusion.”). The BCNR’s conclusion
is reasonable in light of the entire record.
Plaintiff additionally seeks $1 million in compensation, but does not explain
why. There is no evident legal or factual basis for that claim, at least not one within
this Court’s jurisdiction to resolve, especially given that the BCNR’s decision about
medical retirement must be upheld. The money claim shall therefore be dismissed as
well.
5 The BCNR’s statement that Plaintiff’s mother “reported no recollection of [his] Bipolar-like symptoms
while [he was] on active duty” may overstate the VA evaluation’s report, see AR 462, but the substance
is similar, and any misstatement is harmless in light of the BCNR’s other findings.
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CONCLUSION
For the foregoing reasons, the government’s motion is GRANTED and
Plaintiff’s motion is DENIED. Supplementation of the administrative record is
DENIED. The case is DISMISSED.
The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
s/ Stephen S. Schwartz
STEPHEN S. SCHWARTZ
Judge
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