NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

RICHARD RALPH MALCOLM,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________ 

2018-1884

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 1:17-cv-01417-EGB, Senior Judge Eric G. 

Bruggink.

______________________ 

Decided: October 3, 2018

______________________ 

RICHARD RALPH MALCOLM, Miramar, FL, pro se. 

 ANDREW JAMES HUNTER, Commercial Litigation 

Branch, Civil Division, United States Department of 

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

represented by DEBORAH ANN BYNUM, ROBERT EDWARD 

KIRSCHMAN, JR., CHAD A. READLER. 

 ______________________ 
2 MALCOLM v. UNITED STATES

Before O’MALLEY, CHEN, and STOLL, Circuit Judges.

PER CURIAM. 

Richard Ralph Malcolm appeals from the judgment of 

the United States Court of Federal Claims (“Claims 

Court”), which affirmed the Board for Correction of Naval 

Records’ (“Board”) decision denying Malcolm’s requests for 

retirement disability and an upgrade in discharge status. 

Malcolm v. United States, No. 17-1417C, 2018 WL 

1770525 (Fed. Cl. Apr. 12, 2018). Because we agree with 

the Claims Court that the Board’s decision was not arbitrary, capricious, contrary to law, or unsupported by 

substantial evidence, we affirm. 

BACKGROUND

Malcolm served in the Navy from February 2002 to 

December 2002. On August 8, 2002, Malcolm reported for 

duty aboard the USS Abraham Lincoln. During his 

period of service, Malcolm’s conduct resulted in several 

non-judicial punishments, including punishments such as 

reduction in rank and temporary forfeiture of pay. Malcolm was also punished for sexually harassing a female 

airwoman and for multiple incidences of failure to report 

for duty. Malcolm’s commanding officer, Commander 

Haas, described Malcolm’s behavior as “oriented around 

getting himself discharged from the Navy.” J.A. 220. 

Malcolm made multiple contemporaneous visits to the 

medical examiner during this time, in which he complained of headaches, dizziness, and general occupational 

dissatisfaction. Such visits often ended with Malcolm no 

longer complaining of headaches and refusing medication

because he claimed that his headaches were due only to 

“high levels of stress” and “extreme job dissatisfaction.” 

J.A. 304, 307. During one visit, the examiner reported 

that Malcolm “went to command and declared he is gay to 

facilitate separation.” J.A. 302. During another visit, 

Malcolm stated that the Navy would “have to send [him]
MALCOLM v. UNITED STATES 3

off the ship eventually if [he] keep[s] coming back” for 

examinations, that he “would do whatever it takes,” and

that he “know[s] how it works, [the Navy] will have to 

send [him] somewhere if [they] can’t take care” of his 

headaches. J.A. 294. On November 20, 2002, the Navy 

notified Malcolm that it would commence separation 

proceedings against him for serious misconduct. Malcolm 

waived his rights to counsel, to review documents, and to 

request a hearing before an administrative board. Accordingly, the Navy discharged Malcolm on December 5, 

2002 without an administrative hearing and under “other 

than honorable” conditions. 

Over ten years later, in April of 2013, Malcolm was 

diagnosed with bipolar disorder. As a result of this diagnosis, Malcolm initiated a number of proceedings seeking 

various forms of relief related to his time aboard the USS 

Abraham Lincoln. First, on May 14, 2013, Malcolm 

submitted an application to the Board requesting that his 

discharge be upgraded to “honorable” and that his disciplinary records be expunged because his bipolar disorder 

caused bad and compulsive behavior and “made his 

continued service untenable.” Malcolm, 2018 WL 

1770525, at *2. The Board denied his requests, finding 

that Malcolm’s “service records were replete with misconduct that warranted his ‘other than honorable’ discharge 

and finding that the 2013 bipolar disorder diagnosis had 

no bearing on plaintiff’s mental health at the time of 

discharge 10 years prior.” Id.

On March 31, 2014, Malcolm submitted another similar request to the Board, claiming that he was denied 

adequate medical and psychiatric care and was bullied by 

service personnel despite complying with all rules and 

regulations. The Board again denied his request, finding 

insufficient evidence to demonstrate that Malcolm suffered from bipolar disorder or was denied treatment 

during his period of service. 
4 MALCOLM v. UNITED STATES

Malcolm appealed the second denial to the Claims 

Court, “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.” 

Malcolm v. United States, 690 F. App’x 687, 688 (Fed. Cir. 

2017). The Claims Court dismissed for lack of jurisdiction, finding that Malcolm’s claim for back pay was timebarred, his claim for disability retirement pay was not 

ripe, and that, in the absence of jurisdiction over any

monetary claim, it lacked jurisdiction over Malcolm’s nonmonetary request to change his discharge status. Id. 

Malcolm appealed the Claims Court’s dismissal to this 

court, and we affirmed. Id. at 689–90. 

Malcolm then submitted a third application to the 

Board for disability benefits. The Board requested and 

received an advisory opinion from the Council of Review 

Boards (“Council”). In a decision dated September 11, 

2017, the Board, upon recommendation of the Council, 

denied Malcolm’s request. The Board and the Council

found insufficient evidence to support a diagnosis of 

bipolar disorder at the time of Malcolm’s service, were 

unable to “draw a nexus between the 2013 diagnosis and 

[his] symptoms in 2002,” and noted that, even if Malcolm 

had been referred to a Disability Evaluation System at 

the time, his administrative separation proceedings would 

have superseded that referral. Malcolm, 2018 WL 

1770525, at *3.

Malcolm appealed to the Claims Court. Malcolm and 

the government both moved for judgment on the administrative record. The Claims Court denied Malcolm’s motion and granted the government’s motion because it 

found that the Board’s decision was not arbitrary and 

capricious and because it agreed that Malcolm “failed to 

carry his burden in establishing the existence of a disabling condition at the time of discharge that would have 

rendered him unable to appreciate the wrongfulness of his 
MALCOLM v. UNITED STATES 5

actions.” Id. at *4. Malcolm timely appealed to this court. 

We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

DISCUSSION

We review a decision of the Claims Court granting 

judgment on the administrative record without deference—that is, we reapply the statutory review standards 

applied by the Claims Court. Chambers v. United States, 

417 F.3d 1218, 1227 (Fed. Cir. 2005). Under the appropriate standard, we do not disturb the decision of a military corrections board unless it is arbitrary, capricious, 

contrary to law, or unsupported by substantial evidence. 

Lewis v. United States, 476 F. App’x 240, 245 (Fed. Cir. 

2012) (citing Metz v. U.S., 466 F.3d 991, 998 (Fed. Cir. 

2006).

Here, the Board applied the following Secretary of the 

Navy Instruction to deny Malcolm’s request: 

A member [of the Navy] may not be held responsible for his or her acts and their foreseeable consequences if, at the time of commission of such 

acts, as a result of severe mental disease or defect, 

he or she was unable to appreciate the nature and 

quality or wrongfulness of the acts. A member’s 

conditions not amounting to a lack of mental responsibility as defined above does not preclude 

holding a member responsible for his or her acts 

and their foreseeable consequences. 

U.S. Dep’t of Navy, Sec’y of the Navy Instr. 1850.4E, Dep’t 

of the Navy Disability Evaluation Manual ¶ 3414.b (2002)

(“SECNAVINST”). 

On appeal, Malcolm does not claim that the Board’s 

application of this instruction was contrary to law. Rather, he challenges various factual findings made by the 

Board. Specifically, Malcolm contends that he “was 

clearly unfit and mentally disabled for continued Naval 

Service” and that he “was a danger to himself and others.” 
6 MALCOLM v. UNITED STATES

Appellant’s Informal Br. at 1. He also argues that the 

“trial court failed to find the cause of the constant headaches” and “did not address the issue of psychosis and 

long standing mental psychosis,” and that the Navy failed 

“to facilitate maximum treatment” and “to recognize the 

sy[mp]toms of schizophrenia.” Appellant’s Informal Br. at 

1. 

None of Malcolm’s arguments demonstrate that the 

Board’s decision is arbitrary or capricious or that its 

findings are unsupported by substantial evidence. Rather, the Board reasonably applied its own instruction

and made ancillary factual findings that: (1) Malcolm had 

not proven that he suffered from bipolar disorder or 

schizophrenia1 in 2002—the time of the misconduct, and, 

(2) even if he had, his medical evaluations at that time 

indicate that he had the mental capacity to appreciate the 

nature and quality and wrongfulness of his actions. As 

discussed below, substantial evidence supports these 

findings. 

First, substantial evidence supports the Board’s finding that Malcolm failed to prove that he suffered from 

bipolar disorder or schizophrenia in 2002. That year, two 

mental health providers evaluated Malcolm on two sepa-

 

1 While Malcolm was diagnosed with bipolar disorder in 2013, the record does not indicate that he was ever 

diagnosed with schizophrenia. Nevertheless, Malcolm 

continues to refer to schizophrenia on appeal, likely as an 

additional ground for upgrading his discharge status. As 

explained herein, Malcolm fails to meet his burden of 

demonstrating that he suffered from schizophrenia in 

2002 for the same reasons he fails to demonstrate that he 

suffered from bipolar disorder at that time. Therefore, 

Malcolm’s references to schizophrenia do not change our 

conclusion that the Board did not err in denying Malcolm’s request. 
MALCOLM v. UNITED STATES 7

rate occasions, five months apart. Both providers concluded that Malcolm did not suffer from bipolar disorder 

or schizophrenia and suffered only from symptoms of 

“Occupational Problems.” J.A. 14. Indeed, Malcolm 

scored a 70 out of 100 at that time on the Global Assessment of Functioning Scale used by medical professionals 

to rate the severity of a mental diagnosis. Medical notations accompanying these evaluations indicated that 

Malcolm “still possessed good judgment, insight and 

impulse control.” J.A. 14. Moreover, the Board found no 

medical evidence demonstrating a nexus between Malcolm’s 2013 diagnosis of bipolar disorder and his symptoms from 2002. Therefore, substantial evidence supports 

the Board’s finding that Malcolm failed to prove that he 

suffered from bipolar disorder in 2002 when the misconduct occurred. 

Second, substantial evidence also supports the 

Board’s finding that, assuming Malcolm “was suffering 

from a bipolar disorder in 2002, the record contains no 

evidence upon which to reach the conclusion that his 

bipolar condition rendered him ‘unable to appreciate the 

nature and quality or the wrongfulness of the acts’ that 

le[]d to his discharge.” Malcolm, at 2018 WL 1770525, at 

*4 (quoting SECNAVINST 1850.4E ¶ 3414.b); see also

J.A. 14–15. Specifically, the medical findings made in 

2002 demonstrate that Malcolm was “mentally responsible” for his actions and possessed good judgment, insight, 

and impulse control. J.A. 14–15. Therefore, substantial 

evidence supports the Board’s alternate finding that 

Malcolm “would not have qualified for a disability discharge even if evidence of a compensable disability condition[, such as bipolar disorder or schizophrenia,] existed 

in 2002.”2 J.A. 14. 

 

2 As noted by the Claims Court, the Board appears 

to have provided an additional alternate reason for deny-
8 MALCOLM v. UNITED STATES

CONCLUSION

For the reasons stated above, we conclude that the 

Claims Court did not err in finding that the Board’s 

decision was not arbitrary, capricious, contrary to law, or 

unsupported by substantial evidence. Therefore, we 

affirm. 

AFFIRMED

COSTS

No costs. 

 

ing Malcolm’s request. The Board explained that, because 

Malcolm “was administratively processed for misconduct 

that ultimately led to [his] separation with an Other than 

Honorable characterization of service, the Board determined that [he was] not eligible for disability processing” 

“based on Department of Navy disability regulations[, 

SECNAVIST 18504E ¶ 1002.b,] that mandate misconduct 

processing take precedence over disability processing.” 

J.A. 15. We disagree with the Board’s reasoning on this 

point insofar as it indicates that SECNAVIST 

18504E ¶ 1002.b applies regardless of whether a member 

is found “unable to appreciate the nature and quality or 

wrongfulness of the acts” under SECNAVINST 1850.4E 

¶ 3414.b. Rather, we agree with the Claims Court’s 

finding that, although the Navy’s regulations “mandate[] 

that misconduct discharge proceedings take precedence 

over processing for disability, the case does not necessarily end” there because a plaintiff “might be able to establish eligibility for benefits [under SECNAVINST 1850.4E 

¶ 3414.b] despite the misconduct discharge.” Malcolm, 

2018 WL 1770525, *3. Here, Malcolm would not have 

been able to establish eligibility for benefits, despite the 

misconduct charge because, as noted above, he failed to 

satisfy the requirements set out in SECNAVINST 

1850.4E ¶ 3414.b.