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                                                No. l7-l4l7C
                                        (Filed: April 12,2018)                      FILED
                                       NOT FOR PUBLICATION
                                                                                   APR   I   2 20t8

:t:t:t:t(                                                                          U.S. COURT OF
            *.   i! {. {. ********:*             +r.,t:t *                        FEDERAL CLAIMS

zuCHARD RALPH MAICOLM,
                                                               Military   pay;   Board for
                                    Plaintffi
                                                               Correction        of Naval
                                                               Records; Not arbitrary or
                                                               capricious.

THE LINITED STATES,

                                    Defendant.

***    *. rr     r('*   :* r.   * * :* * :t * * * * * * * *

                                                  OPINION

      Plaintill, Richard Malcolm, seeks review of the decision by the Board
For Correction of Naval Record's denying his request for correction of his
military records to reflect a disability retircment. He also seeks $1,000,000 in
back pay for lost retirement benefits. 'l'his is ptaintiffs second request for
correction denied by the board, and the present complaint is his second in this
court appealing those denials. Dcfendant has moved for judgment on the
administrative record. Plaintiff opposes that motion and has separately moved
to supplement the administrative record with evidence concerning his mental
health. Defendant opposes that request. The motions are fully briefed, and
oral argument is unnecessary. Because the BCNR was not arbitrary nor
 capricious in denying plaintiff relief, wc grant defendant's motion for
judgment. We also deny plaintiff s motion to supplement the record because
those materials were not before the board.

                                                BACKGROI.IND

       Mr. Malcolm enlisted in the United States Nar.y on February 1,2002.
Mr. Malcolm's current complaint begins with the representation that he has
"never had any leaming difficulties nor have I ever been diagnosed with any



                                           ?01,? 1'J5u 000u    13qt   'rb05
mental or physical disabilities." Pl.'s Informal Br. 1-2.' His pleadings allege
performance difficulties during his basic training and general allegations that
he raised these complaints at the time regarding his mental and physical well-
being. Nonetheless he graduated from boot camp. Plaintiffs chronological
record of medical care indicates an evaluation by a clinical psychologist on
March 6, 2002, during boot camp. That record indicates an occupational
problem but that his mental status was "within normal iimits." Administrative
Record ("AR") 106. On June 4,2002, plaintiff was screened for health and
mental problems. The record from that screening indicated that plaintiffhad
neither. AR 299-300.

        He reported to duty aboard the USS Abraham Lincoln on August 18,
2002. He alleges that shortly thereafter, after having some of his personal
effects stolen, he began to complain regularly to his command about a need for
mental evaluation because he "could no longer distinguish between rational
and inational behavior" and had fallen out of touch with realitv. Pl.'s
Informal Br. 3.

        Mr. Malcom's service record shows an almost immediate problem with
performance once he was shipboard. .See AR 145-46, On October 28,2002,
an officer's mast found him to have been twice insubordinate to a petty officer,
that he failed to obey orders or regulations, and to have made provocative
speech or gestures. AR 176. He was given a non-judicial punishment that
included a reduction in rank and temporary forfeiture of pay. Plaintiff
appealed that decision to his commanding officer. The commander dismissed
one of the two charges of insubordination but otherwise upheld the
punishments as fitting the remaining offenses. That decision also recorded that
plaintiff s pattem ofconduct was "oriented around getting himself discharged
from the Navy." AR 185.

       Mr. Malcom was also rated poorly for his performance for               the
remainder of 2002, and the evaluators recommended separation from the Naly.
AR 149-50. On November 19,2002, plaintiff was punished for four separate


       I Plaintiff filed a very short document entitled "Complaint," using the
outline provided   by the court in a form for pro se litigants, and attached to it
a longer recitation of his allegations in a document entitled "Plaintiff-
Appellant's Informal Brief." We construe thetwo ofthese documents together
to be his complaint.
incidences of failure to report for duty and for sexually harassing a female
airman. AR 179-81.

        Contemporaneous medical and psychological records indicate that
plaintiff sought frequent treatment for headaches, dizziness, and a general
dissatisfaction with life in the Nary. See, e.g., AR 278-80 (Chronological
Record of Medical Care, September 13,2002). Records from one particular
visit state that plaintiff indicated that he was seeking to get out of his service
commitment and would do whatever it took to be released, including frequent
visits to medical personnel.2 AR 259-60 (Chronotogical Record of Medical
Care, October 22,2002). The Nary performed a CT scan of Mr. Malcom's
brain on October 28,2002. The results were normal.

       On November 20,2002, plaintiff received notice that the Nary would
commence separation proccedings against him for serious misconduct. Mr.
Malcolm waived his right to counsel, right to see documents, and the right to
request an administrative board. AR 172-73 . Thus no administrative hearing
was held, and plaintiff was separated from active duty on December 5,2002,
under "other than honorable" conditions. AR 112.

        On May 14, 2013, plaintiff submitted an application to the Naval
Discharge Review Board ("NDRB") requesting that his discharge be upgraded
to "honorable." The reason for the change listed was that his medical
condition at the time made his continued service untenable and that his bad
behavior was compulsive due to bipolar disorder. He attached to his
application a diagnosis of bipolar disorder from April 20 I 3. The NDRB
afforded no relief, noting that plaintiffs service records were replete with
misconduct that warranted his "other than honorable" dischargc and finding
that the 2013 bipolar disorder diagnosis had no bearing on plaintiffs mental
health at the time of discharge 10 years prior. AR 194. The decision also
notes that the board sought treatment records from the Department ofVeterans
Affairs but that none could be found. 1d

      Plaintiff then submitted a similar request to the Board for Correction of
Naval Records ("BCNR') on March 31,2014. He additionally asked that the



       2
         On November 2,2002, plaintiff requested examination for a skin graft
that he had received prior to service. which was found to be normal. AR 254.
non-judicial punishment be expunged from his record. The gist of the
application to the BCNR was that he was denied adequate medical and
psychiatric care, was bullied by other service personnel, and had complied with
all rules and regulations. He did not seek disability benefits in his 2014
application.

       The BCNR denied his request on July 10, 201 5, stating generally that
there was insufficient evidence of any material error or injustice and more
particularly that there was no cvidence in the record that Mr. Malcom had been
diagnosed with bipolar disorder or denied treatment for it during his 1O-months
of service. AR26-27.

       Plaintiff then filed his first suit in this court on May 4,2016, seeking
correction ofhis naval records to reflect an honorable discharge and an award
of disability retirement pay. That complaint was dismissed as untimely as to
the count ofwrongful discharge and the balance was dismissed as outside of
the court's jurisdiction. Malcolm v. United States, No. 16-545C,2017 WL
105946 (Fed. Cl. Jan. 11,2017), aff'd 690 Fed. App'x 687.

       Mr. Malcom subsequently filed a new petition to the BCNR for
disability benefits. Given the new request for disability benefits, the board
treated this application de novo, and it requested and received an advisory
opinion from the Council of Review Boards ("CORB"). The result of all of
which was a denial ofhis request dated September 11,2017. The CORB, and
BCNR along with it, fbund insufficient evidence to warrant a diagnosis of
bipolar disorder or schizophrenia at the time ofdischarge or before. AR at 42.
The board noted that Mr. Macolm had been twice evaluated for mental health
concems in 2002 with results no worse than occupational problems, and only
mild problems aI that. Id. The board was thus unable to "draw a nexus
between the 20 l3 diagnosis and your symptoms in2002." .Id The BCNR also
noted that, even had plaintiffbeen referred to the Disability Evaluation System
at the time, his administrative separation proceedings would have superceded
that referral. Id. Plaintiff now appeals that decision with his present
comnlaint.

                               DISCUSSION

       When deciding claims for military disability retirement benefits, our
review is limited to the decision of the military review board based on the
record and arguments that were before it. See Russell v. United States,106
Fed. Cl. 696, 698 (2012). The court's role is to determine, based on the
administrative record, if the decision of the board was "arbitrary, capricious,
unsupported by substantial evidence, or contrary to law." Metz v. United
States, 466, F.3d 991, 998 (Fed. Cir. 2006). This is a highly deferential
standard. In order to meet this standard, claimants must present "cogent and
clearly convincing evidence" that the board acted irrationally. llronke v.
Marsh,787 F.2d 1569,1576 (Fed. Cir. 1986),

        We begin with plaintifls request that the record be supplemented to
include testimony from "mental experts" that the headaches that he complained
of in the Naly were the "biproduct of schizophrenia" induced by stress. Pl.'s
Mot. to Supp. the AR l. The court will allow the record in an administrative
review case, such as this one, to be supplemented only when that supplemental
information is necessary for effective judicial review. See Axiom Res. Mgmt.,
Inc. v. United States, 564 F .3d 137 4, 13 8 I (Fed. Cir. 2009). Plaintiff has not
argued or atlempted to show how the unspecified testimony he seeks to
introduce would be necessary for the court to determine whether the BCNR
was arbitrary in its decision to deny him relief. Thus, the motion must be
denied.

         Defendant's motion for judgment argues that the BCNR's decision
should be upheld because the board was correct, as a legal matter, that a bad
conduct discharge takes precedence over disability proceedings. The import
of which is that, even if plaintiff could show that he ought to have been
refened to a Physical Evaluation Board ("PEB") to determine his eligibility for
a disabiliry retirement, one would not have been convened because the
administrative separation proceedings take precedence over any disability
proceedings under the applicable regulations. Defendant's second argument
is that the BCNR was rational in its decision that, in any event, plaintiff did not
show any entitlement to a PEB or disability benefits because his proffered
medical diagnosis offered no opinion as to the genesis of his condition nor
even suggested that Mr. Malcolm suffered from this condition while in the
Navy.

        Plaintiff s response in his opposition is difficult to decipher, but as best
we can tell, he argues that the court's decision in his earlier case established
the lact that he was suffering lrom bipolar and schizophrenia disordcrs prior
to his discharge. Plaintiff also quotes a document, without citation,
presumably somewhere in the record, to the effect that the medical personnel
involved during his service time were biased. Thus, in plaintiffs view, the
record is unreliable and the BCNR's reliance upon it was irrational.

       Although we agree with defendant that SECNAVINST 1850.4E fl
I 002.b mandates that misconduct discharge proceedings take precedence over
processing for disability, the case does not necessarily end. In the event that
the misconduct was caused by a service-related disability, such as a mental
disorder as alleged here, a plaintiff might be able to establish eligibility for
benefits despite the misconduct discharge if he was "unable to appreciate the
nature and quality or the wrongfulness ofthe acts" that lead to his discharge.
SECNAVINST I 850.4E't] 34 1 4 .b (2002). Such is not the case here, however.


       We agree with defendant that the BCNR was not arbitrary 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. The opinions provided
by Dr. Azam and Dr. Prieto in 2013 do not provide the missing link.

        Plaintiff offered the board and now offers the court two brief medical
opinions authored in 2013, one by Dr. Safir Azam (MD), a psychiatrist, and
the other by Dr. Addys Prieto (PsyD), a clinical psychologist. Dr. Azam's two
sentence letter states that he evaluated Mr. Malcolm twice in 201 3, and opined
that he "has a history of Bipolar I disorder, rapid cycling. His history indicates
long standing symptoms of mania and he is lulnerable to stressors." AR 79.
Dr. Azam's record, dated April 9, 2013, states that Mr. Malcolm reported a
history of mood swings since adolescence and other symptoms indicating
bipolar disorder (cyclical mania and depression). The doctor's "diagnostic
impression" was bipolar I disorder, and further it was his opinion that plaintiff
"maintains the ability to perform all personal activities of daily living at this
time." AR   80.

       In light of the opinions offered in the documents cited above and Naval
records discussed earlier, we do not find any error in the BCNR's conclusion
that plaintiff 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 ofhis actions. See ARatA2-A3. Even
fully crediting plaintiffs 2013 diagnoses and inferring from them that they
speak to plaintiffs condition in 2002, the proffered evidence falls far short.
Assuming that plaintiff 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 lead to his discharge. SECNAVINST
i 850.4E t13414.b. In fact, as the CORB noted in its advisory opinion, the most
relevant evidence of his overall mental condition at the time of discharge
supports the opposite conclusion. See AR at A.4 ("There was no consideration
of a possible diagnosis of Bipolar Disorder nor was significant impairment of
current duty performance noted . . . . judgment, insight and impulse control
were all considered good.").

                                 CONCLUSION

        Plaintiffhas not established any grounds for a disability retirement, and
thus all that remains is plaintiff s misconduct discharge. All of the other relief
requested must be denied as well because the predicate- conection of the
misconduct discharge-was not established.

       Accordingly, the following is ordered:

       I   . Plaintiff s motion to supplement the administrative record   is denied.


       2.    Defendant's motion for judgment on the administrative record is
       granted.

       3.    The clerk of court is directed to enter judgment accordingly. No
       costs.




                                             ERIC G. BRU
                                             Senior Judge
