Malcolm v. United States

In the United States Court of Federal Claims
No. 20-505C
(Filed: May 12, 2021)
NOT FOR PUBLICATION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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ORDER
Richard Ralph Malcolm is a former member of the United States Navy. He
requests that this Court direct the Navy to (1) find him retroactively unfit to serve
and retire him as disabled, (2) remove all negative remarks from his record, and
(3) pay him $1,000,000 in compensation. The parties have filed cross-motions for
judgment on the administrative record.1 Mr. Malcolm has also moved for leave to
serve subpoenas.2
Neither party has shown a basis for judgment on the record. It appears,
however, that the Board for Correction of Naval Records (BCNR) failed to consider
all of Mr. Malcolm’s evidence. The Court therefore DENIES each pending motion.
The Court will remand to the BCNR for further consideration of Mr. Malcolm’s
claims.
Mr. Malcolm has represented himself in this case and prior similar matters.
Further proceedings may benefit from participation of counsel on his behalf. The
Court therefore STAYS the case for 60 days for potential referral to pro bono
representation. If Mr. Malcolm wishes to be referred for pro bono representation, he
is ORDERED to file his written consent.
BACKGROUND
Mr. Malcolm enlisted in the Navy on February 7, 2002, served briefly aboard
the USS Abraham Lincoln, and separated from active duty on December 5, 2002.
Administrative Record (AR) 3–4. During his short service Mr. Malcolm was diagnosed
1 Mot. for Judgment on the AR (ECF 12); Pl.’s Resp. & Cross Mot. for Judgment on the AR (ECF 16);
Def.’s Reply & Resp. (ECF 22); Pl.’s Reply (ECF 25).
2 Def.’s Mot. to Subpoena (ECF 28).
with “occupational problems” and “adjustment disorder.” Id. While aboard the
Abraham Lincoln, he repeatedly visited the ship’s medical providers for vague
physical and mental ailments and was twice disciplined for violations of the Uniform
Code of Military Justice. AR 3–4, 268, 313–17. As a result of those violations and his
otherwise poor performance, Mr. Malcolm was separated from the Navy for
“misconduct,” with his service characterized as “Other than Honorable.” AR 4, 324.
In 2013, Mr. Malcolm was diagnosed with bipolar disorder. AR 4. Two civilian
psychiatrists wrote short diagnostic statements on his behalf at the time. See AR 48,
337, 195. Mr. Malcolm has contended ever since — in administrative proceedings and
before this Court — that his mental health rendered him unfit for service and caused
his misconduct, entitling him to correction of his medical records and other forms of
relief.
Mr. Malcolm first requested that the Naval Discharge Review Board (NDRB)
upgrade his discharge to “honorable.” AR 212. Mr. Malcolm attached one brief
diagnostic statement dated April 15, 2013. AR 212, 337. The NDRB discounted that
evidence as “too far removed in time from his active service to be relevant to his
mental health during his enlistment in 2002.” AR 212. The NDRB denied relief in
2014. AR 211.
He next submitted a similar request to the BCNR, attaching a second cursory
psychiatrist letter and further requesting that the discipline he incurred in the Navy
be expunged from his record. AR 199. The BCNR denied his request in 2015, finding
“no evidence in the record … that [Mr. Malcolm was] diagnosed with, or denied
treatment for, bipolar I condition while in the service.” AR 200.
Mr. Malcolm then filed his first pro se suit in this Court, seeking correction of
his naval records to reflect an “honorable” discharge, back pay, and disability
retirement pay. 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). The Court dismissed his back-
pay claim as untimely. Id. at *1. Because Mr. Malcolm had not presented his claim
for disability retirement to the BCNR, the Court dismissed that claim as unripe. Id.
In the absence of a justiciable claim for money, his claim for correction of his record
was dismissed as well. Id.
After this Court’s dismissal, Mr. Malcolm filed a new petition with the BCNR
seeking disability benefits. AR 28. The BCNR, after obtaining advisory opinions from
the Council of Review Boards, denied that request in 2017. AR 30. Regarding his 2013
bipolar disorder diagnoses, the BCNR found insufficient evidence that the condition
existed during Mr. Malcolm’s naval service:
The Board considered your 2013 medical diagnosis of Bi-Polar disorder
but was unable to draw a nexus between the 2013 diagnosis and your
symptoms in 2002. … In the Board’s opinion, the severity of the
symptoms that led to your 2013 diagnoses did not exist in 2002 prior to
your discharge and the Board was unwilling to make that connection
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without medical evidence that substantiates your Bi-Polar condition
existed in 2002.
AR 29. The BCNR also found that even if Mr. Malcolm had bipolar disorder in 2002,
he was “mentally responsible” for his misconduct. AR 29–30.
Mr. Malcolm challenged the BCNR’s denial of his petition for disability benefits
in a second pro se suit before 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).
This Court held that “the BCNR was not arbitrary or capricious in its decision to deny
relief based on the lack of evidence of plaintiff having suffered from his disability at
or prior to his discharge.” Id. at *4. The 2013 diagnostic statements, the Court agreed,
“do not provide the missing link.” Id.
That brings us to the present case. Mr. Malcolm returned to the BCNR in 2018,
again requesting a medical disability discharge upgrade, and further requesting that
all negative remarks and non-judicial punishments be removed from his record. AR
8. In his renewed claim, Mr. Malcolm asserted that his discipline and discharge were
unjust because he was “under psychosis due to on the job stress which triggered
bipolar I, rapid cycling.” Id.
In support of his claim, Mr. Malcolm submitted — for the first time — a new
psychological evaluation performed by U.S. Department of Veterans Affairs (VA)
doctors in 2018. AR 9–24. The 2018 VA evaluation involved discussions with both Mr.
Malcolm and his mother regarding his adolescence, adulthood, time in the Navy, and
life after his discharge. In line with the 2013 diagnosis, the VA evaluators determined
that Mr. Malcolm suffered from “Bipolar I Disorder with mood-congruent psychotic
features.” AR 23. But the VA evaluation also detailed a longer history of psychological
symptoms that existed during the time of his military service and before. The
evaluation disclosed that beginning around the age of 19, Mr. Malcolm suffered from
“depressive episodes” involving “depressed mood, anhedonia, social withdrawal, low
energy and fatigue, concentration problems, sleep disturbance and not leaving his
bed for long period of time, appetite disturbance, and thoughts of death with no active
suicidal ideation.” AR 21. The VA evaluation also noted that Mr. Malcolm “describe[d]
a history of mood fluctuations, decreased need for sleep, paranoid ideation, and non-
command auditory and visual hallucinations that initially developed during his
military deployment at age 24.” AR 22; see also, e.g., AR 13, 14–15. Those findings of
the VA evaluation did not appear in Mr. Malcolm’s previous medical records or
administrative submissions.
The BCNR reviewed Mr. Malcolm’s latest petition and granted him partial
relief, upgrading him from an “Other than Honorable” discharge to a general
discharge and changing his discharge authority from a misconduct discharge to
secretarial authority. AR 4. 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.
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The BCNR, however, denied Mr. Malcolm’s requests for disability retirement
and for removal of negative remarks and non-judicial punishments from his record.
In so doing, the BCNR stated that it had “considered his 2013 bipolar diagnosis” but
“felt [that it] was too distant in time from his discharge date to be probative” and that
“too many potential intervening factors exist[ed] to be able to rely on the 2013
diagnosis as a basis to overturn the 2002 adjustment disorder diagnosis.” AR 4–5.
The BCNR stated that it “substantially concurred” with the advisory opinions
connected to the 2017 BCNR decision, id., but did not obtain new ones. The BCNR
did not discuss the 2018 VA evaluation at all.
Mr. Malcolm finally filed the present lawsuit before the Court, representing
himself pro se as he has done before.
DISCUSSION
When this Court reviews BCNR decisions on motions for judgment on the
administrative record, it looks only to “whether the Board’s decision is arbitrary and
capricious, unsupported by substantial evidence, or contrary to law.” Walls v. United
States, 582 F.3d 1358, 1368 (Fed. Cir. 2009) (quoting Metz v. United States, 466 F.3d
991, 998 (Fed. Cir. 2006)); see also Johnson v. United States, 93 Fed. Cl. 666, 672
(2010). The BCNR’s denial of an applicant’s request must articulate “the reasons for
the determination that relief should not be granted, including the applicant's claims
of constitutional, statutory, and/or regulatory violations that were rejected, together
with all the essential facts upon which the denial is based.” Bolton v. Dep’t of the Navy
Bd. for Corr. of Naval Recs., 914 F.3d 401, 407 (6th Cir. 2019) (emphasis added)
(quoting 32 C.F.R. § 723.3(e)). While correction boards are afforded deference, they
must address the facts in the record and connect the facts to their decisions —
otherwise the decisions are arbitrary and capricious. See Jackson v. Mabus, 919 F.
Supp. 2d 117, 121 (D.D.C. 2013); see also Dickson v. Sec’y of Def., 68 F.3d 1396, 1404
(D.C. Cir. 1995) (“[A]n agency’s explanation must minimally contain ‘a rational
connection between the facts found and the choice made.’”) (citations omitted);
Morrison v. Sec’y of Def., 760 F. Supp. 2d 15, 20 (D.D.C. 2011) (“Although not an
investigative body, the BCNR is required to review ‘all pertinent evidence of record’
when it examines applications to correct naval records.”) (citations omitted) (citing
32 C.F.R. §§ 723.2(b), 723.3(e)(1)).
The BCNR did not meet that standard because it failed to address the evidence
Mr. Malcolm presented — in particular, the 2018 VA evaluation. Instead, the BCNR
repeated its earlier conclusions based on Mr. Malcolm’s previous petition, which
included only his 2013 diagnoses. That omission matters because the 2018 VA
evaluation could be read to contain precisely the information that the NDRB and
BCNR previously found lacking: a connection between Mr. Malcolm’s mental health
diagnosis and the time of his naval service. It may be that the 2013 diagnoses are too
remote to bear on Mr. Malcolm’s condition in 2002, but it does not follow that the
2018 VA evaluation is too. When Mr. Malcolm returned to the BCNR with new
information intended to bridge the gap between his service and his diagnosis, the
BCNR was not at liberty to ignore it altogether.
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Defendant contends that the VA evaluation “does little to add to the picture of
Mr. Malcolm’s 2002 mental health condition.” See Mot. for Judgment on the AR at 17
(ECF 12). That may ultimately be correct, but it is attorney argument, not the
considered opinion of the BCNR — which, again, did not mention the VA evaluation
at all. See Verbeck v. United States, 97 Fed. Cl. 443, 460 n. 25 (2011) (explaining that
post hoc justifications of attorneys do not substitute for the agency’s own reasoning).
Because neither party has shown entitlement to judgment on the
administrative record, the best course is for the BCNR to consider the VA evaluation
in the first instance. The Court expresses no opinion on the document’s ultimate
significance or the merits of Mr. Malcolm’s claims.
CONCLUSION
The parties’ motions for judgment on the administrative record (ECF 12; ECF
16) are DENIED without prejudice.
Future proceedings in this case may benefit from participation of counsel on
Mr. Malcolm’s behalf. The Court of Federal Claims Bar Association maintains a
program for referral of consenting plaintiffs to volunteer pro bono representation. Mr.
Malcolm is ORDERED to file a notice no later than June 11, 2021 indicating
whether he consents to such referral. If Mr. Malcolm provides consent, this Court will
refer the case to the Bar Association. The Court emphasizes that all decisions
concerning representation, if any, will be by mutual agreement between Mr. Malcolm
and an attorney. The Court makes no guarantee that the Bar Association will be
successful in identifying possible counsel, and the Court does not endorse
representation by any individual attorney. No attorney is obligated to represent Mr.
Malcolm, and Mr. Malcolm is not obligated to engage any particular attorney.
This case is STAYED until July 12, 2021. When the stay lifts, the case will
be remanded to the BCNR pursuant to RCFC 52.2. The terms of the remand will be
ordered at that time. In light of the remand, and because any questions about the
scope of the record on remand should be addressed by the BCNR, Mr. Malcolm’s
motion for subpoenas (ECF 28) is DENIED AS MOOT.
IT IS SO ORDERED.
s/ Stephen S. Schwartz
STEPHEN S. SCHWARTZ
Judge
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