       NOTE: This disposition is nonprecedential.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 arbi-
trary, 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. Mal-
colm 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 com-
plained 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. Ac-
cordingly, 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 diag-
nosis, 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 disci-
plinary 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 miscon-
duct 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 simi-
lar 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 suf-
fered 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 jurisdic-
tion, finding that Malcolm’s claim for back pay was time-
barred, 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 non-
monetary 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 adminis-
trative record. The Claims Court denied Malcolm’s mo-
tion 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 disa-
bling 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 defer-
ence—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 appro-
priate standard, we do not disturb the decision of a mili-
tary 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 respon-
   sible for his or her acts and their foreseeable con-
   sequences 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 re-
   sponsibility 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. Ra-
ther, 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 head-
aches” 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. Ra-
ther, 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
schizophrenia 1 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 find-
ing 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 disor-
der 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 Mal-
colm’s request.
MALCOLM v. UNITED STATES                                7



rate occasions, five months apart. Both providers con-
cluded 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 Assess-
ment of Functioning Scale used by medical professionals
to rate the severity of a mental diagnosis. Medical nota-
tions 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 Mal-
colm’s 2013 diagnosis of bipolar disorder and his symp-
toms 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 miscon-
duct 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 responsi-
ble” 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 dis-
charge even if evidence of a compensable disability condi-
tion[, 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 deter-
mined 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 necessari-
ly end” there because a plaintiff “might be able to estab-
lish 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.
