Malcolm v. United States

Case: 23-1084 Document: 24 Page: 1 Filed: 08/07/2023

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

RICHARD RALPH MALCOLM,
Plaintiff-Appellant

v.

UNITED STATES,
Defendant-Appellee
______________________

2023-1084
______________________

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

Decided: August 7, 2023
______________________

RICHARD RALPH MALCOLM, Hollywood, FL, pro se.

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

Before LOURIE, BRYSON, and REYNA, Circuit Judges.
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2 MALCOLM v. US

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, ser-
vice support, turnaround, and daily maintenance of F-14D
aircraft. Appx341. In September, he was again diagnosed
with an occupational problem, along with a provisional di-
agnosis 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 insubor-
dinate conduct toward a petty officer, failure to obey an or-
der or regulation, and making provocative speeches or
gestures. Appx372. As a result, he was “awarded nonjudi-
cial punishment,” which included a reduction in rank and

1 “Appx” refers to the government’s “second cor-
rected appendix to informal brief.” ECF No. 14.
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MALCOLM v. US 3

temporary pay forfeiture. Appx372–82. In November, he
was punished for four separate incidences of failure to re-
port 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 Decem-
ber 2002, he was separated from active duty for misconduct
and “under other than honorable conditions.” Appx308.
A decade later, Mr. Malcolm was diagnosed with bipo-
lar I disorder. See Malcolm v. United States, 690 F. App’x
687, 688 (Fed. Cir. 2017) (“Malcolm I”). Ever since, he has
tried to correct his military records, asserting that he suf-
fered 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.” Mal-
colm I, 690 F. App’x 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 F. App’x at 688. The BCNR denied his re-
quest. 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 re-
tirement pay. Id. The Claims Court dismissed the com-
plaint 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
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4 MALCOLM v. US

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 separa-
tion to disability and to obtain military disability retire-
ment 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 evi-
dence to support that he was suffering from bipolar disor-
der 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 occupa-
tional functioning,” which “was consistent with medical no-
tations 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 Mal-
colm v. United States, 752 F. App’x 973, 975 (Fed. Cir.
2018) (“Malcolm II”). The Claims Court granted the gov-
ernment’s motion for judgment on the administrative rec-
ord 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 evalua-
tion from the VA, which he contended showed that his
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MALCOLM v. US 5

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 infor-
mation (including that he received nonjudicial punish-
ment) from his record. Appx36; Appx40–41.
The BCNR granted partial relief. Appx37. It con-
cluded that “liberal consideration” “mandates that his nar-
rative reason for separation be changed to Secretarial
Authority and [that] his characterization of service be up-
graded to General under Honorable conditions.” Id. It also
concluded that he “should have been administratively sep-
arated during basic training after being diagnosed with oc-
cupational problems,” and that, “by placing him in an
operational environment, the Navy likely exacerbated his
adjustment disorder” which contributed to “his miscon-
duct.” 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 Honor-
able characterization upon waiving his administrative sep-
aration 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 dis-
charge.” Appx37. The BCNR thought that “too many po-
tential 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
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6 MALCOLM v. US

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 nega-
tive 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. Mal-
colm’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 ‘occupa-
tional problems,’ or possibly an adjustment disorder, but
not Bipolar Disorder”; and that Mr. Malcolm was “more
likely than not correctly diagnosed with ‘occupational prob-
lems’ at the time of [his] discharge.” Id. It found that there
was thus “insufficient evidence to conclude that [Mr. Mal-
colm] 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 his miscon-
duct, and that the derogatory information related to that
misconduct should remain in his record. Id. And finally,
it affirmed its pre-remand decision to upgrade his narra-
tive reason for separation to Secretarial Authority and his
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MALCOLM v. US 7

characterization of service to General under Honorable
conditions. Id.
On return to the Claims Court, the Claims Court
granted the government’s motion for judgment on the ad-
ministrative record; denied Mr. Malcolm’s competing mo-
tion; and dismissed the case. Decision, at *1. The Claims
Court explained that Mr. Malcolm’s claims for disability re-
tirement arise under 10 U.S.C. § 1201. Id. at *3 n.3. The
Claims Court found that the BCNR could reasonably credit
the 2002 evidence over the 2018 VA evaluation, and that
“[s]ubstantial evidence supports the BCNR’s conclusion
that Mr. Malcolm was not medically unfit for service be-
cause of his mental condition at the time of separation.” Id.
at *4.
Mr. Malcolm appeals. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(3).
DISCUSSION
We review legal determinations by the Claims Court,
including judgment on the administrative record, de novo.
Roth v. United States, 378 F.3d 1371, 1381 (Fed. Cir. 2004).
We apply the same standard as the Claims Court: We do
not disturb the BCNR’s determination unless it was arbi-
trary, capricious, contrary to law, or unsupported by sub-
stantial evidence. Id.
To receive disability retirement pay, a service member
must be found “unfit to perform the duties of the member’s
office, grade, rank, or rating” at the time of the discharge
“because of physical disability.” 10 U.S.C. § 1201(a). The
Navy implements this statute in its policies and regula-
tions, including the Secretary of the Navy Instruction
(“SECNAVINST”). See Kelly v. United States, 69 F.4th 887,
889 (Fed. Cir. 2023). “Where a service member has not
been considered or has been rejected for disability retire-
ment prior to leaving active service, the service member
can pursue disability retirement before [the] [BCNR].”
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8 MALCOLM v. US

LaBonte v. United States, 43 F.4th 1357, 1361 n.4 (Fed. Cir.
2022) (citations omitted). Here, Mr. Malcolm pursued dis-
ability retirement at the BCNR, contending that he was
unfit to perform his duties because he suffered from bipolar
disorder. The BCNR disagreed and the Claims Court af-
firmed.
On appeal, Mr. Malcolm first contends, without elabo-
ration, that the “trial court failed to take into account [his]
work performance” and that he “was clearly in a state of
psychosis.” Appellant’s Inf. Br. 1. We do not think that Mr.
Malcolm has shown any error.
The BCNR’s decision turned on whether Mr. Malcolm
suffered from a compensable disability—that is, whether
Mr. Malcolm was unfit for duty “because of physical disa-
bility.” 10 U.S.C. § 1201(a) (emphasis added). And in con-
sidering that issue, the BCNR addressed Mr. Malcolm’s
assertion that he was in a state of psychosis during his time
in the service. In particular, the BCNR found that the 2018
VA evaluation did not support that his alleged “psychosis”
originated at bootcamp or during his deployment. Appx12.
The BCNR found that Mr. Malcolm’s 2002 medical records
were “far more reliable and credible evidence of his mental
health condition” in 2002 than the 2018 VA evaluation, and
that those medical evaluations determined that Mr. Mal-
colm suffered not from bipolar disorder but from occupa-
tional problems and (provisionally) from adjustment
disorder. Appx12–13. The Board thus found that it was
more likely than not that Mr. Malcolm was correctly diag-
nosed with occupational problems and that there was in-
sufficient evidence to conclude that he should have been
diagnosed with bipolar disorder in 2002. Appx13. These
findings are supported by substantial evidence—including
the medical records discussed in the Advisory Opinion on
which the Board relied. See, e.g., Appx12; Appx26–32;
Appx302; Appx474. And the Claims Court affirmed. Deci-
sion, at *4. Mr. Malcolm’s assertion that his contention
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MALCOLM v. US 9

that he was in a state of psychosis was not considered
therefore fails. 2
So too does his argument that the trial court did not
consider his work performance. Mr. Malcolm does not ar-
gue that his diagnosis of occupational problems (or his pro-
visional diagnosis of adjustment disorder) could have been
considered a compensable disability—even if those prob-
lems or disorders had rendered him unfit for service. That
is not surprising given that the relevant regulations in
force at the time he served explained that, although condi-
tions like “Adjustment Disorders” “may become the basis
for administrative separation,” they “do not constitute a
physical disability despite the fact they may render a mem-
ber unable to perform his or her duties.” SECNAVINST
1850.4E, enclosure 8, ¶ 8013(a)(4) (emphasis added). Ac-
cordingly, even if Mr. Malcolm’s conclusory assertion that
the trial court failed to consider his work performance were
correct, it would fail because he has not shown that under
the circumstances here either the Claims Court or the
BCNR was required to consider his work performance.
Next, Mr. Malcolm argues that the trial court applied
the wrong law because it “did not invoke the liberal consid-
eration standard under [the] Hagel, Carson, and Kurta
Memos.” Appellant’s Inf. Br. 2. Mr. Malcolm does not elab-
orate on this argument. In any event, the BCNR applied
liberal consideration to his request for correction and did
so to his benefit. In its pre-remand decision, the BCNR ap-
plied liberal consideration in upgrading Mr. Malcolm’s

2 Mr. Malcolm also argues that “bipolar rapid cycle
is genetic in nature and clearly outweigh [sic] the dis-
charge.” Appellant’s Inf. Br. 2. Because the Board did not
err in finding that there was insufficient evidence to sup-
port that Mr. Malcolm should have been diagnosed with bi-
polar disorder at the time of his service, whether bipolar
rapid cycle is genetic or not is irrelevant here.
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10 MALCOLM v. US

narrative reason for separation to Secretarial Authority
and his characterization of service to General under Hon-
orable conditions. Appx37. The BCNR then affirmed those
upgrades in its post-remand decision. Appx13. Mr. Mal-
colm has neither pointed to where he argued to the Claims
Court about the liberal consideration standard under the
Memos nor shown that the Claims Court erred by not dis-
cussing that standard in its decision.
Finally, Mr. Malcolm argues that the trial court failed
to consider two grounds for relief. As for the first ground,
he conclusorily argues that the trial court failed to consider
that he “requested attorney representation before dis-
charge but was denied and [he] could not defend himself
and his right to due process of law was violated.” Appel-
lant’s Inf. Br. 2. But the Claims Court did address this ar-
gument and rejected it. See Decision, at *3 n.4. To the
extent that he is arguing that the Claims Court erred in
doing so, he has waived that argument by failing to suffi-
ciently develop it beyond his single-sentence assertion. See
Gelb v. Dept. of Veterans Affs., No. 2023-1157, 2023 WL
3493702, at *7 n.6 (Fed. Cir. May 17, 2023) (nonpreceden-
tial) (finding that pro se appellant waived arguments by
failing to develop them, explaining that “while ‘pro se fil-
ings must be read liberally,’” “such filings must still be
clear enough to enable effective review” (citations omit-
ted)). And we note that we previously explained that Mr.
Malcolm “waived his rights to counsel” at the time of dis-
charge. Malcolm II, 752 F. App’x at 974; see also Appx368
(notice of separation on which Mr. Malcolm initialed that
he waived his rights to counsel).
As for the second ground, Mr. Malcolm argues that the
trial court failed to consider that he “was in and out of con-
sciousness because he was deployed and put in a situation
against the military’s own rules.” Appellant’s Inf. Br. 2.
He does not elaborate on this argument. But as far as we
can tell from his informal brief, it appears to be simply
more argument that he suffered from bipolar disorder and
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MALCOLM v. US 11

was in a state of psychosis at the time of his discharge. It
thus fails for the reasons discussed above: Substantial evi-
dence supports the Board’s contrary findings (later af-
firmed by the Claims Court).
CONCLUSION
We have considered Mr. Malcolm’s other arguments
and find them unpersuasive. For the above reasons, we
affirm.
AFFIRMED
COSTS
No costs.