Malcolm v. United States
| Decision Date | 11 January 2017 |
| Docket Number | No. 16-545C (Pro Se),16-545C (Pro Se) |
| Parties | RICHARD RALPH MALCOLM, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. Claims Court |
ORIGINAL
Not for Publication
Keywords: Pro Se Complaint; Military Pay Act; Disability Retirement Pay; Statute of Limitations; 28 U.S.C. § 2501.
Richard Ralph Malcolm, Miami, FL, Plaintiff pro se.
Joshua A. Mandlebaum, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC, with whom were Douglas K. Mickle, Assistant Director, Robert E. Kirschman, Jr., Director, and Benjamin C. Mizer, Principal Deputy Assistant Attorney General. Steven Gonzales, Office of the Judge Advocate General, General Litigation Division, Washington, DC, Of Counsel.
The pro se plaintiff, Richard Ralph Malcolm, has filed a complaint seeking the correction of his naval records to reflect an "honorable" discharge; a concomitant award of back pay; and, relatedly, an award of disability retirement pay. As discussed below, the Court lacks jurisdiction over Mr. Malcolm's claim for back pay because he filed his complaint after the six-year statute of limitations set forth in 28 U.S.C. § 2501 had run. Further, his claim for disability retirement pay is not ripe because Mr. Malcolm has not presented it to an appropriate military board in the first instance. The Court also lacks jurisdiction to correct Mr. Malcolm's records in the absence of a viable claim for monetary relief. Accordingly, Mr. Malcolm's complaint must be DISMISSED.1
Mr. Malcolm enlisted in the Navy on February 1, 2002. Admin. R. (AR) 107, Docket No. 13. Mr. Malcolm alleges that during basic training he "realized that his mental faculties were being diminished with each passing day." Am. Compl. at 7, Docket No. 8. According to Mr. Malcolm, he "told his unit leader that he should get an entry level separation because of his inability to focus and perform basic tasks." Id.
After completing basic training, on August 18, 2002, Mr. Malcolm reported to duty aboard the USS Abraham Lincoln. AR 145. Once aboard, he allegedly began to experience "extremely painful headaches" after some compact discs and computer programs were stolen from him. Id. at 32. He further claims that he "realized that [he] was developing a mental condition due to the compressed environment," and that he "sought treatment for [the] condition that [he] knew was developing." Id. at 35.
Mr. Malcolm began making regular visits to the ship's medical personnel. See id. at 69-72, 277-80. He primarily complained of headaches, which he claimed had never previously been a problem for him. See id. at 278-80 (); id. at 72 (); id. at 71 (); id. at 271 (); id. at 269 (); id. at 259 (); id. at 251 (); id. at 78 (); id. at 68 ().3
Mr. Malcolm also informed medical personnel that he believed he was developing a "mental condition" while aboard the ship. Id. at 35; see also id. at 1 (). He claims that he "sought treatment for a condition that [he] knew was developing." Id. at 35.
During his service aboard the USS Abraham Lincoln, Mr. Malcolm was twice subject to disciplinary action. First, on October 28, 2002, Mr. Malcolm was disciplinedfor demonstrating insubordinate conduct, failing to obey orders or regulations, and making provocative speech or gestures. Id. at 176. As a result, he received a reduction in rank, a 45-day restriction, and two months of half-pay status. See id. at 176-78.
Second, on November 19, 2002, Mr. Malcolm was disciplined for failing to timely report to his place of duty on four occasions and for violating Navy policy on sexual harassment. Id. at 179-81. As a result, Mr. Malcolm was punished with a three-day stay in the brig on a diet of bread and water. Id. at 181.
On November 23, 2002, Mr. Malcolm received a negative performance evaluation. Id. at 149-50. According to the evaluation, Mr. Malcolm:
[D]emonstrate[ed] a complete lack of suitability for military service. He require[ed] constant supervision and . . . bec[a]me a source of distraction to other Sailors within this command. [Mr. Malcolm] demonstrate[ed] no desire to become a contributing member to the Naval service. [Mr. Malcolm] display[ed] none of the core values expected of Sailors, and in his short time on board . . . dest[r]oyed all credibility and trustworthiness. No integrity or work ethic.
Id. at 150. The evaluators recommended that Mr. Malcolm not be retained in the Navy. Id.
Following this evaluation, the Navy commenced proceedings to separate Mr. Malcolm from the service. Id. at 172-73. He was then discharged from active duty on December 5, 2002. Id. at 112. His discharge documents stated that he was separated "under other than honorable conditions" based on "misconduct." Id.
On April 9, 2013, Dr. Addys Prieto, a psychologist, diagnosed Mr. Malcolm with bipolar I disorder. Id. at 200. At that time, Mr. Malcolm reported a history of mood swings, beginning during his late adolescence. Id. On November 25, 2013, Dr. Safir Azam, a psychiatrist, diagnosed Mr. Malcolm as having a history of bipolar I disorder, rapid cycling. Id. at 79. Dr. Azam wrote that Mr. Malcolm's history "indicate[d] long standing symptoms of mania and [that] he [was] vulnerable to stressors." Id.
On May 14, 2013, shortly after receiving his diagnosis from Dr. Prieto, Mr. Malcolm filed a request before the Naval Discharge Review Board (NDRB) to have the character of his discharge upgraded from "other than honorable" to "honorable." Id. at 197. He contended that he "did not violate any rules or procedures" during his service, but rather that "due to [his] bipolar disorder . . . [he] was render[]ed incapa[c]itated and [his] actions were compulsive rather than deliberate." Id. at 197-98.
The NDRB denied Mr. Malcolm's request on January 27, 2014. Id. at 190. It first determined that contrary to Mr. Malcolm's assertions, he had, in fact, violated Navy rulesand procedures during his service. Id. at 194. The NDRB noted that "[w]hen reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant's performance and ability to conform to the military's standards of conduct and discipline." Id. It concluded, however, that there was "no evidence in [Mr. Malcolm's] record that he was treated for a mental health condition while on active service or that he had a history of mental health issues that existed prior to his enlistment." Id.
Further, the NDRB found that that Mr. Malcolm's April 2013 bipolar diagnosis was "too far removed in time from his active service to be relevant to his mental health during his enlistment in 2002." Id. Accordingly, the NDRB concluded that "[t]here [was] nothing in the records, and [Mr. Malcolm] did not provide any documentation, to show that he was not responsible for his actions or should not be held accountable for his misconduct." Id.
After receiving the NDRB's decision, on March 31, 2014, Mr. Malcolm filed a request before the Board for Correction of Naval Records (BCNR) to have his disciplinary record expunged and his discharge "upgraded to honorable." Id. at 31. He claimed that, contrary to his records, he had "complied with all the rules and regulations as prescribed in the Navy code of conduct"; that "[a]t no time during [his] service did [he] disobey any lawful order"; and that he "performed [his] duties to the best of [his] ability in an environment in which [his] mental health was compromised." Id. at 34-35.
The BCNR denied Mr. Malcolm's request on July 10, 2015.4 Id. at 26. In making its determination, the BCNR "weighed all potentially mitigating factors," including Mr. Malcolm's "assertion that [he] was denied treatment for bipolar I condition." Id. at 27. The BCNR concluded, however, that "these factors were not sufficient to warrant [the] recharacterization of [Mr. Malcolm's] discharge given the seriousness of [his] misconduct." Id. Further, the BCNR noted that "there [was] no evidence in the record . . . that [Mr. Malcolm] [was] diagnosed with, or denied treatment for, bipolar I condition while in the service." Id.
Mr. Malcolm filed his complaint in this Court on May 4, 2016. Docket No. 1 He then filed an amended complaint on June 16, 2016. Docket No. 8. In his amended complaint, Mr. Malcolm alleges that his discharge was wrongful because the Navy "willful[ly] and deliberate[ly]" denied him access to medical care "even though [he had been] complaining of psychotic thoughts since the second week of bootcamp." Am. Compl. ¶ 1(a). Further, he alleges that he was "discharged . . . in violation of [his] due process rights" and was wrongfully denied access to counsel. Id. Mr. Malcolm also alleges that he "first developed his disabling condition due to his military service and dueto the lack of care is currently disabled because of it." Id. ¶ 1(c). As relief, Mr. Malcolm requests that the Court "issue an order that corrects his naval discharge." Id. ¶ 1. He further demands ...
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