NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

RICHARD RALPH MALCOLM,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2017-1543

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:16-cv-00545-EDK, Judge Elaine Kaplan.

______________________ 

Decided: June 12, 2017 

______________________ 

RICHARD RALPH MALCOLM, Miramar, FL, pro se.

JOSHUA A. MANDLEBAUM, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, for defendant-appellee. Also 

represented by CHAD A. READLER, ROBERT E. KIRSCHMAN,

JR., DOUGLAS K. MICKLE. 

______________________ 

Before PROST, Chief Judge, BRYSON and HUGHES, Circuit 

Judges.
2 MALCOLM v. UNITED STATES

PER CURIAM.

Richard Malcolm appeals from a final judgment of the 

Court of Federal Claims dismissing for lack of jurisdiction 

his action to correct his Naval discharge status, for back 

pay, and for disability retirement pay. Because the Court 

of Federal Claims did not err, we affirm.

I 

Mr. Malcolm served in the Navy from February 2002 

to December 2002. During his ten-month period of service, he was subject to several non-judicial punishments 

for improper conduct, which ultimately resulted in his 

discharge under “other than honorable” conditions. 

More than ten years later, in April 2013, Mr. Malcolm 

was diagnosed with bipolar I disorder. Shortly after his 

diagnosis, he filed a request before the Naval Discharge 

Review Board (NDRB) to upgrade the character of his 

discharge from “other than honorable” to “honorable.” 

According to Mr. Malcolm, he suffered from bipolar disorder in 2002 and thus was not responsible for the actions 

leading to his discharge for misconduct. In January 2014, 

the NDRB denied Mr. Malcolm’s request.

In March 2014, Mr. Malcolm filed a request with the 

Board for Correction of Naval Records (BCNR) to upgrade 

his discharge to “honorable” and expunge his disciplinary 

records. In this request, he argued that the Navy had 

denied him treatment for his bipolar disorder. Mr. Malcolm, however, did not seek disability benefits from the 

BCNR. In July 2015, the BCNR denied Mr. Malcolm’s 

request. 

In May 2016, Mr. Malcolm filed suit in the Court of 

Federal Claims seeking the correction of his naval records 

to reflect an “honorable” discharge, a concomitant award 

of back pay, and an award of disability retirement pay. In 

January 2017, the Court of Federal Claims dismissed the

complaint for lack of jurisdiction. The Court of Federal 
MALCOLM v. UNITED STATES 3

Claims found that the claim for back pay was time-barred

and the claim for disability retirement pay was not ripe. 

Therefore, in the absence of jurisdiction over a monetary 

claim, the court found that it lacked jurisdiction over Mr. 

Malcolm’s non-monetary claim to change his discharge 

status. Mr. Malcolm appeals. We have jurisdiction under 

28 U.S.C. § 1295(a)(3).

II

We review de novo a decision by the Court of Federal 

Claims to dismiss for lack of jurisdiction. Diaz v. United 

States, 853 F.3d 1355, 1357 (Fed. Cir. 2017). 

 The Court of Federal Claims correctly found that Mr. 

Malcolm’s claim for back pay under the Military Pay Act 

is time-barred. “Every claim of which the United States 

Court of Federal Claims has jurisdiction shall be barred 

unless the petition thereon is filed within six years after 

such claim first accrues.” 28 U.S.C. § 2501. “This six-year 

limitations period is jurisdictional and may not be waived 

or tolled.” FloorPro, Inc. v. United States, 680 F.3d 1377, 

1380–81 (Fed. Cir. 2012). A claim against the government generally accrues “when all the events which fix the 

government’s alleged liability have occurred and the 

plaintiff was or should have been aware of their existence.” San Carlos Apache Tribe v. United States, 639 F.3d 

1346, 1350 (Fed. Cir. 2011) (quoting Hopland Band of 

Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed. 

Cir. 1988)). “The question whether the pertinent events 

have occurred is determined under an objective standard; 

a plaintiff does not have to possess actual knowledge of all 

the relevant facts in order for the cause of action to accrue.” Fallini v. United States, 56 F.3d 1378, 1380 (Fed. 

Cir. 1995).

Mr. Malcolm alleges that he was separated from the 

Navy in December 2002. Thus, his cause of action accrued in December 2002. See Martinez v. United States, 

333 F.3d 1295, 1303 (Fed. Cir. 2003) (holding that in a 
4 MALCOLM v. UNITED STATES

military discharge case, “plaintiff’s cause of action for 

back pay accrues at the time of the plaintiff’s discharge”). 

Mr. Malcolm did not file his complaint at the Court of 

Federal Claims until May 2016, more than thirteen years 

after the cause of action accrued and seven years after the 

limitations period had run. Mr. Malcolm argues that the 

accrual of his improper discharge claim should be suspended because he was unaware of a mental problem 

prior to his discharge. The accrual suspension rule “is 

strictly and narrowly applied” and requires Mr. Malcolm

to “show that defendant has concealed its acts with the 

result that plaintiff was unaware of their existence 

or . . . that its injury was ‘inherently unknowable’ at the 

accrual date.” Welcker v. United States, 752 F.2d 1577, 

1580 (Fed. Cir. 1985) (quoting Japanese War Notes 

Claimants Ass’n v. United States, 373 F.2d 356, 358–59 

(Ct. Cl. 1967). Although Mr. Malcolm now argues that he 

was unaware of his mental problems, he alleged in his 

amended complaint that he was actually aware of his 

mental problems prior to his discharge. Supp. Appx. 347. 

Therefore, his claim for back pay is time-barred. 

 The Court of Federal Claims also correctly determined 

that it lacks jurisdiction to review Mr. Malcolm’s claim for 

disability retirement pay. “[T]he Court of Federal Claims 

has no jurisdiction over disability retirement claims until 

a military board evaluates a service member’s entitlement 

to such retirement in the first instance.” Chambers v. 

United States, 417 F.3d 1218, 1225 (Fed. Cir. 2005). 

Here, Mr. Malcolm did not present any Navy board with a 

disability claim prior to the trial court’s decision. Although Mr. Malcolm argues that he applied to the BCNR

for disability benefits, he did not submit an application to 

the BCNR seeking “medical disability pay” until six days 

after the Court of Federal Claims dismissed his case. 

Supp. Appx. 373. The BCNR has not yet issued a decision 

in response to that application. Since Mr. Malcolm’s 

claim has not been decided by the BCNR, the Court of 
MALCOLM v. UNITED STATES 5

Federal Claims was correct in determining that it lacks 

jurisdiction because the claim is not ripe. 

Finally, the Court of Federal Claims lacks jurisdiction 

over Mr. Malcolm’s claim for equitable relief to change his 

discharge status. The court cannot grant equitable relief 

unless such relief is “an incident of and collateral to” a 

money judgment. 28 U.S.C. § 1491(a)(2); see James v. 

Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998) (holding that

“incident of and collateral to” means that non-monetary 

relief must be “tied and subordinate to a money judgment”) (internal quotations omitted). Because Mr. Malcolm has not pled a claim over which the Court of Federal 

Claims has jurisdiction to grant monetary relief, it has no 

jurisdiction to grant equitable relief.

 We have considered Mr. Malcolm’s remaining arguments but find them unpersuasive. Because the Court of 

Federal Claims properly dismissed the complaint for lack 

of jurisdiction, we affirm. 

AFFIRMED

No costs.