Malcolm v. United States

ffiRE&!NAt lJrtbt @nito! $rtstts trart of /t!ers[ @[ufms No. 16-545C (Pro Se) (Filed: January ll,20l7 | Not for Publication)

) Ke)"words: Pro Se ComPlaint; NCHARD RALPH MALCOLM, ) Military Pay Act; Disability ) Retirement Pay; Statute of Plaintiff, ) Limitations; 28 U.S.C. S 2501. ) ) ) FILED THE UNITED STATES OF AMERICA, ) ) JA|.| || 2917

Defendant. ) U.S. COURT OF ) FEDERAL C|jIMS

Richard Ralph Malcolm, Miatri, FL, Plirntiff pro se'

Joshua A. Mandlebaum, Trial Attomey, commercial Litigation Branch, civil Division' U.S. Department of Justice, Washington, DC, with whom werc Douglas K Mickle' Assistant Direct or, Robert E. Kirsciman, Jr., Director, and Benjamin C. Mizgr' Principal Deputy Assistant itto-"y General' Steven Gonzales, Office of the Judge Advocate Ce""ta, General Litigation Division, Washington, DC, Of Counsel' OPINION AND ORDER

KAPLAI\' Judge. TheproseplaintiflRichardRalphMalcolm,lrasfiledacomplaintseekingthe- award conection oihis naval records to reflecfan "honorable" discharge; a concomitant ofbackpay;and,relatedly,anawardofdisabilityretirementpay'Asdiscussedbelow'the he filed his Court lactcs jurisdiction over Mr. Malcolm's claim for back pay because complaint iter the six_year statute of limitations set forth in 28 u.s.c. $ 2501 had run. not f,r.tir"t, ttlt claim for disability retirement pay is not ripe because Mr' Malcolm has presented it to an appropriate military board in the first instance' The Court also lacks to trir. Malcolm'i records in the absence of a viable claim for i*irai.,i"n '-onet*y r"tief."o.r""t Accordingly, Mr. Malcolm's complaint must be DISMISSED't

I Along with his complaint, Mr. Malcolm filed a motion for leave to proceed in forma puup.ri, Docket. No. 2. The Court GRANTS that motion solely for the purpose of deciding the govemment's motion to dismiss.

BACKGROUND2

I. Mr. Malcolm's Naval Service and Discharge

Mr. Malcolm enlisted in the Navy on February l, 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." 4to. compl. at 7, Docker No. 8. According to Mr. Malcolm, he "told his unit leader that he should get an entry level separation because ofhis 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 allegedry began to experience "extremely painful headaches" after some compact discs and computer programs were stolen from him. rd. at32. He further claims that he ..realized ihat [he] was developing a mental condition due to the compressed environment,,' and that ire "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. 69-72,277-80. He pimarily complained of headaches, which he claimed had nerzer- ar previously been a problem for him. See id. at 27g-g0 (complaints ofdizziness, lightheadedness and confusion during September 13, 2002 ;isit to ship,s psychologist); id. at72 (complaints of"intense headaches since coming on the boaf, during s"ptJ.u". 16' 2002 medical visit); id. at 71 (complaints of "headaches,' and a.,spaced-out feeling" during September 18,2002 visit with ship's psychologist); id. at 271 (compraints of " headaches and severe shess during september 23, zooz vtifl ia. at zLe 1s'ame auring september 25, 2002 medical visit); id. at 259 (same during oclober 22,zboz meoicai visit); id. at 251 (Novemb er 9,2002 examination due to hiadaches); id,.. at 7g 6t tou"-u", 11,2002 examination due to headaches); id. at 6g Q.Jovember 12,2002 examination due to "recurrent" headaches).3

Mr' Malcolm also informed medicar personnel that he believed he was developing a "mental condition" while aboard_ the ship. Id. at 35; see also id. at 1 (statement by N,ir. Malcolm indicating that he "complained on nu-.rou. o""uiions that was [Le] experiencing a mental state that [he] was unfamiliar with,', that his ..mind had deteriorated," and that he "knew it_even if no one else did"). He claims that he,,sought treatrnent 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 2g, 2002, Mr. Malcolm was discinlined

'The facts set forth below are based on the assertions in Mr. Malcolm's amended complaint, as well as jurisdictional facts drawn from the govemment's motion to dismiss and the administrative record filed by the govemment.

3 During several of his medical visits, Mr. Malcolm apparently expressed a desire to leave the Nary. See. e.g., AR 259, 267,271.

for demonstrating insubordinate conduct, failing to obey orders or regulations, and making provocative speech or gestues. ld. at l7 6. 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 Narry 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 1 81 '

On November 3,2002, Mr. Malcolm received a negative performance 2

evaluation. Id. at 149-50. According to the evaluation, Mr. Malcolm:

[D]emonstrate[ed] a complete lack of suitability for military iervice. He require[ed] constant supervision and ' ' ' bec[a]me a source of disfiaction to other Sailors within this command' [Mr' Malcolm] demonstrate[ed] no desire to become a contributing member to the Naval sewice. [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 N{r. Malcolm not be retained in the Navy. Id.

Following this evaluation, the Navy commenced proceedings to separate Mr' duty on Malcolm from G service. Id. at 172-73. He was then discharged from active December 5,2002.ld. aI' 112. His discharge documents stated that he was separated "under other than honorable conditions" based on "misconduct'" Id'

IL Mr. Malcolm's 2013 Diagnosis and the Subsequent Administrative Proceedings

OnAprilg,20l3,Dr.AddysPrieto,apsychologist,diagnosedMr'Malcolmwith bipolar I disoider. ld. at 200. At that time, Mr. Malcolm reported a history of mood siings, beginning during his late adolescence. Id' On Novemb et 25,2013' Dr' Safir erari, a pfchiattist, diagnosed Mr. Malcolm as having a history of bipolar I disorder' long ,apia cyimg. M,. at7g.Dr. Aru. wrote that Mr. Malcolm's history "indicate[d] standing ty-pto-. 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 tLe Naval Discharge Review Board (NDRB) to have the character ofhis disiharge upgraded from "other than honorable" to "honorable'" Id. at 197. He contended that he'tid not violate any rules or procedures" during his service, and but rather that "due to [his] bipolar disorder . . . [he] was render[]ed incapa[c]itated Id' at 197-98' [his] actions were compulsive rather than deliberate'"

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 rules

and procedwes 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 hii 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 strow ' 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, 2}l4,Mr.Malcolm filed a request before the Board for Correction ofNaval Records (BCNR) to have his disciplinary record expunged and his discharge "upgraded io honorable.', Id. at 3 1. He claimed tlut, contrary to his records, he had "complied with all the rules an. regulations as prescribed in the Nary code ofconduct"; that "[a]t no time during [his] servie did [he] disobey any lawfirl order";.and that he "performed [his] duties ioihe best of [his] ability in an environment in which [his] menial health was compromised." Id. utic_js.

The BCNR denied Mr. Malcolm's request on July 10, 2015.4 Id. at 26. In making its determination, the BCNR *weighed ail poientially miiigating factors,', inctuaing M;.- "assertion that [he] was denied treatmeni for bfiohr I condition.,, n. aiZl. Yd.:Fj The BCNR concluded, however, that '1hese factors were not sufficient 'r,r"t recharacterization of [Mr. M"l"glt'rl discharge given the seriousness t" *".-i of [his] misconduct." Id. Further, the BCNR noted thai 'lhere [was] no evidence in the record.. . th{ [Mr Malcolm] [was] diagnosed with, o; de;ied treatment for, bipolar I condition while in the service.,' Id.

ilI. This Action

Mr. Malcolm filed his complaint in this court on May 4, 201 6. Docket No. 1 . He then filed an amended complaint on June 16, 2016. Docket No. g. In his amended :oTpJa.*t,_Mr_Malcolm alleges,that his discharge was wrongful because the Navy "willfully] and deliberate[ly]" denied him access to medical care ,,even though [lie had been] cornplaining of psychotic thoughts since the second week of boot"u.p.',,A-. compl.'l[ 1(a)' Further, he arleg-es_that he was "discharged . . . in violation oi process righls" and was wrongfully denied access to counsel. ihi.1 du" Id. Mr. Malcolm also alleges that he "first developed his disabling condition due to his military service and due

4 Although Mr. Malcolm's application to the BCNR "was not filed in a timely manner,,, the Board "found it in the interests ofjustice to waive the statute of limitations and consider [his] application on the merits." See AR 26.

to the lack of care is currently disabled because of it." Id' tf 1(c). As relief' Mr' Malcolm requests that the Court "issue an order that corrects his naval discharge." Id.'tf 1. He further demands "monetary compensation for $1,000,000 . ' . for legal employment compensation, medical retirement pay, disability benefits[,] and any and all other legallly mandated compensation." Id. lT 1(d).

On September 6,2016,the government moved to dismiss the case for lack of subject matteijurisdiction under Rule of the Court of Federal Claims (RCFC) 12(bxl)' Docket No. 9.'Mr. Malcolm filed a response and a cross-motion for summary judgment on September 16,2016. Docket No. I 1. The govemment filed an administrative record containing Mr. Malcolm's service records on September 23, 2016, Docket No' 13' and then frled a reply in support of its motion to dismiss on September 30,2016, Docket No. 14. On October 7, 2016, the court suspended briefing on Mr. Malcolm's cross-motion for summary judgrnent pending its ruling on the govemment's motion to dismiss. Docket No. 15. BV tle Court's leave, on October 26,2016, Mr. Malcoln filed a sur-reply to the sovemment's motion to dismiss. Docket No. 17.

DISCUSSION

Standard for Deciding a Motion to Dismiss Under RCFC 12(bxl)

In deciding a motion to dismiss for lack of subject matter jurisdiction, the court . accepts as true aliundisputed facts in the pleadings and d,raws all reasonable inferences in favoi of the plaintiff. Trusted Inteqration. Inc. v. United States, 659 F.3d I 159, 1 163

(Fed. Cir. ZOtt;. fne coun may "inquire into jurisdictional facts" to determine whether it ias jurisdiction. Rocovich v. United States ,933 F '2d991,993 (Fed' Cir' 1991)' Further' it is well established that complaints filed by pro se plaintiffs (like this one) are held to ..less stringent standards than formal pleadings drafted by lawyers." Haines v.. Kerner, 404 U.S. i:lq ,SZO(1972).Nonetheless,evenproseplaintiffsmustpersuadethecourt,_ 59 Fed' Cl. 497, that jurisdictional riquirements have been met. Bemard v. United States, 499 (2004), affld,98 F. App'x 860 (Fed. Cir.2004).

I The court of Federal claims' Jurisdiction in cases Involving the correction of Military Records

TheCourtofFederalClaimsisacourtof"limitedjurisdiction'"E'g.,Marcum grant of LLP v. United States, 753 F.3d 1380, 1382 (Fed. cir. 2014). The court's primary jurisdiction "to render N""dt.tt"r tr f",-d rn the Tucker Act, which gives the court judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation ofan executive department, or upon any express o. l-ptl"a i with the Unitid States, or for liquidated or unliquidated damages in "o"t casesnotsoundingintort.-28U.S.C.$1491(a\1).Further,"[t]oprovideanentire.. remedy and to coirplete the relief afforded by the judgment, the court may, as an incident of and collateral to any such j udgment, issue orders directing restoration to office _or - . position, placement in appropriaie duty or retirement status, and correction of applicable records." Id. $ 1a91(a)(2).

As the Supreme Court has observed, the Tucker Act waives the sovereign immunity of the United States to allow a suit for money damages. United States v. Mitchell,463 U.S. 206,212 (1983). It does not, however, confer any substantive rights on a plaintiff. United States v. Testan,424tJ.S.392,39B (1976). Therefore, to invole the court's Tucker Act jurisdiction, a plaintiffmust identify an independent source of a substantive right to money damages from the United States arising out of a contract, statute, regulation, or constitutional provision. Jan,s Helicooter Serv.. Inc. v. Fed. Aviation Admin. , 525 F .3d 1299, 1306 (Fed. cir. 2008); see also Golden pac. Bancorp v. United States, 15 F.3d 1066, 1076 (Fed. Cir. 1994).

A statute may serve as an independent source ofa substantive right to monev damages where it "'can fairly be interpreted as mandating compensatio; by the Federal G-ovemment for the damage sustained."' Roberts v. Unitid Staies ,7 45 F .3d 1 l5g, 1 162 (f9d. cir. 2014) (quoting United States v. white Mountain Apache Tribe ,537 u.s.465, 472 (2003)).In that regard, "[i]t is enough 'that a statute c."uiing u Tu"k"r Act right be reasonably amenable to the reading that it mandates a right ofreiovery in damagJs.',, Id. (quoting White Mountain Apache Tribe, 537 U.S. at 473).

It is well-established that the Military pay Acr, 37 U.S.C. g 204, grants.,an enlisted serviceman who ha-s been improperly discharged [the] eniitle[mJnt] to recover pay and allowances . . . to the date on which his term of enlistment would otherwise have expired had he not been so discharged." Dodson v. U.S. Gov't, Dep't of Army, 9gg F.2d 1208 (Fed. cir. 1993); see also Antonellis v. Unitecl States l]99, (Fed. Cir. 2013); Martinez v. U4itgd States, 333 F.3d 12g, 1303 (Fed. ,lni.za tl)s, nlt Cir. 2003i (en banc). Similarly, it is well-established that qualising former service members are entitled to disability pay following a medical retirement under 10 U.s.c. r 201. $ see Fisher v. g+rq+4rs, 402F.3d 1167, 1ti4 (Fed. Cir. ZOOS; lciting Sawyer v. Unitea States, qlO - F,.2d' 1577, 1580 (Fed. cir. l99l) (observing that the SecrJary of D"r"r.r" "tu... discretion whether to pay out retirement funds once a disabiliiy is found qualifuing")); lee also Brown v. United state_s ,396 F.2dggg, gg0-91 (ct. ci. tse s); c-o-, u. "u"ii"a S-tates, 113 Fed. cl. 651, 6s9 (2013). Thus, the court's jurisdictionut claims brought by former members of the armed services seeking coriections gr-t "*t*a, t-: to their military records that, if successful, will entitle them to back pay and/or disability retirement pay.

The court's exercise of that jurisdiction is subject, however, to certain prerequisites. First, claims under 37 u.s.c. g 204 and.10 u.s.c. $ 1201 are both subject to the general statute of limitations applicable to claims against the United states unier the Tucker Act, \i/hich states that "[e]very claim of whictithe 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." 2g u.s.c. 2501. ,.A cause ofaction cognizabie $ in a Tucker Act suit accrues as soon as a events have occ'rred that are n"""rr-] to enable the plaintiffto bring suit, i.e., when ,all events have occ'rred to fix the Govemment's alleged liability, entitling the claimant to demand payrnent ard sue here for his money."' Martinez, 333 F.3d at r303 (quoting Naeer Elec. io. v. United States, 368 F'2d 847 851 (ct. cl. 1966). In a military discri*g" ' Appeals have long held that the plaintiffs cause ofaction for thi. "u".,back pay "ourt -d th" coil of accrues at the time

ofthe plaintiffs discharge. See id. at 1304 ("lf the plaintiff does not file suit within the six-year limitation period prescribed in 28 U.S.C. $ 2501, the plaintiff loses all rights to sue for the loss ofpay stemming from the challenged discharge.").

Second, because "Congtess has entrusted the military boards with the task of determining whether a serviceman should be retired for disability," Friedman v. United States, 3 10 F.2d 3 81, 389 (Ct. Cl. 1962), the court ordinarily "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). In other words, in most cases, "a military board must determine eligibility for disability retirement before such a claim accrues."' Id. at 1226.

IIL Application to Mr. Malcolm's Clains

A. Claim for Wroneful Discharee

The Court concludes that it lacks jurisdiction over Mr. Malcolm's claim for wrongful discharge under the Military Pay Act' As noted above, a claim under the Militiry Pay Act based on a wrongful discharge must be raised within six years of the date thi claim accrues. Ordinarily, as noted above, such claims accrue on the date of discharge. See Martinez, 333 F.3d at 1303-04. In limited cifcumstances, accrual may be susoended 'until the claimant knew or should have known that the claim existed." Id. at t:iq. tnis,.accrual suspension,' rule, however, is "strictly and narrowly applied: . . . [The plaintiffl must either show that defendant has concealed its acts with the result that oluintiff*u. ..nu*are of their existence or . . . must show that [the] injury was inherently unknowable at the accrual date." Id. (first alteration in original) (quoting welcker v. United states, 752F.2d 1577, 1580 (Fed. cir. 1985)). Further, it is knowledge of the ,"t"r-t f*tr, not of their legal consequences, which determines the accrual date. See Yonng v. United States , 529 F.3d 1380, 1385 (Fed. Cir. 2008) ("It is a plaintiffs ttto*t"Ag" of the facts of the claim that determines the accrual date'")'

Here, Mr. Malcolm was not actively misied by the Nary about his condition; nor- ,'inherently unknowable." In fact, Mr. Malcolm claims that he knew of was his coniition his impaired mental condition and its effects on his behavior at the time of his discharge. See Ait 35 (alleging that Mr. Malcolm "realized that [he] was developing a mental for which he "sought treatment"); id. at 1 (informing the BCNR that he had "*aitio",' ..complained on numerous octasions that [he] was experiencing a mental state that [he] was unfamiliar with" and that "he knew it even if no one else did"). Further, to the extent that the circumstances of Mr. Malcolm',s discharge "violat[ed] [his] due process rights"; were tainted by "lack ofcounsel"; or were the result ofa "willful and deliberate lack of

5 The Court notes that such a claim may accrue in the absence ofa board determination if, at the time of discharge, the service member "knew that he was entitled to disability retirement due to a permanent disability that was not a result ofhis intentional misconduct and was service-connected." chambers, 417 F .3d at 1226; see also Real v. United States, 906F.2d1557,1563 (Fed. Cir. 1990).

medical care," see Am. Compl. fl 1(a), Mr. Malcolm was aware of the underlying facts supporting these claims at the time of his discharge as well.

Because there exist no grounds for suspending the accrual date of Mr. Malcolm's wrongful discharge claim, that claim accrued on the date of his discharge, December 2, 2002." The six-year statute of limitations thus expired on December 2, 2008, several years before Mr. Malcolm filed his complaint. Accordingly, the court lacks jurisdiction over Mr. Malcolm's claim under the Military Pay Act.

B. Claim for Disabilitv Retirement pav

The court also lacks jurisdiction over Mr. Malcolm's claim that he is entitled to disability retirement pay. As noted above, in general, the court has no jurisdiction over such a claim "until a military board [has] evaluate[d] a service member's entitlement to [disability] retirement [pay] in the first instance." chambers , 417 F.3d, at 1225; see also Jamison v. united states, 9 cl. ct. 297 ,30142 (19g5) ("There being no bo*d "o.r".ti* determination as to plaintiffs eligibility for disability retirement, the-claim before this court is premature."), affd, 802F.2d,469 (Fed. Cir. 1986).7

Mr. Malcolm did not present any claim for disability retirement benefits to the BCNR; rather, he requested only that the Board remove the disciplinary actions from his naval records and upgrade his discharge to ,,honorable.', See AR 1, 32_36. The BCNR thus made no decision with respect to Mr. Malcolm's entitlement to disability retirement pay' Nor does it appear that a separation board made a determination upon hi, discharge. See Def.'s Mot. to Dismiss at 19. Accordingly, the court lacks iurisdiciion over Mr. Malcolm's claim for disability retirement pay.

' In his sur-reply, Mr. Malcolm argues that the accrual-suspension doctrine should apply because the Naval medical personnel "ignored" his compliints about mental difficulties and "misadvised" him about the'lrue nature of [his] mental being." See pl.'s 2d Resp. and/or Mot. for Summ. J. at 10, Docket No. 17. Nothing in Mr. Malcolm's medical records, however, indicates that the Naval medical personnel were not responsive to his complaints, much less that they misled him regarding the existence ofany underlying mental disorder. Thus, the "narrowly applied" accrual-suspension rule is not impiicald here. See Martinez,333 F.3d at 1319.

7 That general rule applies here because the govemment does not argue-and the record before the court does not establish-that Mr. Malcolm knew at the iime of discharge "that he was entitled to disability retirement due to a permanent disability that was iot a result ofhis intentional misconduct and was service-connected,' See chambers 417 F.3d , ar 7226. rf the record did support such a finding, then Mr. Mul"olm,r cluirn fo, disabilitv retirement would have accrued at the time of his discharge and-like his wrongfut discharge claim-would be time-baned under 28 U.S.C. g 2501.

CONCLUSION

For the reasons discussed above, the Court lacks jurisdiction over Mr. Malcolm's claim under the Military Pay Act because it is baned by the jurisdictional statute of limitations set forth in 28 U.S.C. $ 2501. Further, his claim for disability retirement pay is not ripe because it has not been presented to an appropriate military board for review in the first instance. Finally, because the Court lacks jurisdiction over Mr. Malcolm's monetary claims, it also lacks jurisdiction to award Mr. Malcokn any non-monetary relief such as the correction ofhis naval records. See James v. Caldera, 159 F.3d 573, 580 (Fed. Cir. 1998) (observing that "the Court ofFederal Claims has no power to gtant affrrmative non-monetary relief unless it is tied and subordinate to a money judgment" (quotation omitted)).

Mr. Malcolm's complaint is therefore DISMISSED without prejudice.8 The Clerk is directed to enter j udgment accordingly. Each party shall bear its own costs.

IT IS SO ORDERED.

u tr'r ELAINE D. KAPLAN Judge

E Because of this dismissal, Mr. Malcolm's cross-motion for summary judgnr.ent is DEIYIED as moot.