Luxama v. McHugh

• Decision Date: 16 July 2018
• Docket Number: Appeal No. 16-6830,1:15cv1586 (CMH/JFA)
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Paul Luxama, Plaintiff, v. John McHugh, et al., Defendants.

Paul Luxama, Plaintiff, v. John McHugh, et al., Defendants.

1:15cv1586 (CMH/JFA)

Appeal No. 16-6830

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

July 16, 2018

MEMORANDUM OPINION

Paul Luxama, a federal inmate proceeding pro se, has filed a civil action asserting claims related to his discharge from the Army. Construed liberally, this civil action is taken as bringing claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) and the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq., as well as a claim for wrongful discharge from the military.¹ Dkt. No. 1. By Order dated April 7, 2016, this matter was dismissed without prejudice. Dkt. No. 10. By Order dated June 9, 2016, plaintiff's Motion to Re-Open this matter was denied. Dkt. No. 14. Plaintiff appealed, and the United States Court of Appeals for the Fourth Circuit reversed, in part, vacated, in part, and remanded this matter. Appeal No. 16-6830.

Pursuant to an Order dated July 2, 2018, plaintiff's Bivens claims were dismissed, as were most of the defendants. Dkt. No. 66. The only remaining defendant, Acting Secretary of the Army Ryan D. McCarthy, filed a Motion to Dismiss and a separate Motion for Summary Judgment, as well as a memorandum of law and supporting exhibits. Dkt. Nos. 50-54. Plaintiff was given the Notice required by Local Rule 7(K) and the opportunity to file responsive materialspursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). Dkt. No. 52. Plaintiff filed a response and Defendant McCarthy filed a reply. Dkt. Nos. 58, 61. This matter is now ripe for disposition. For the reasons that follow, defendant's Motion to Dismiss will be denied, as moot, and defendant's Motion for Summary Judgment will be granted.

I. Motion to Dismiss

In plaintiff's response to defendant's Motion to Dismiss, plaintiff states that he "requests this Court to apply the APA's jurisdiction 'exclusively' to his Declaratory and Injunctive relief and that he waves "compensatory relief; ... punitive relief, ... and Equitable relief that may exceed $10,000...." Dkt. No. 58. Construed liberally, these statements will be taken as a Motion for Voluntarily Dismissal of all of plaintiff's remaining claims, except for his claim arising under the APA, pursuant to Fed. R. Civ. P. 41 (a). This motion will be granted. Thus, the only remaining claim is plaintiff's APA claim. Because defendant's Motion to Dismiss for lack of jurisdiction only raises arguments to dismiss plaintiff's non APA claims, it will be denied, as moot.

II. Motion for Summary Judgment

A. Background

Plaintiff began his service in the Army on July 29, 1998. Admin. Rec. at 61. On December 17, 1998, plaintiff's status was changed from present for duty to absent without leave (AWOL). Id. at 51. On January 4, 1999, plaintiff's status was changed from AWOL to present for duty. Id. at 50. Accordingly, plaintiff was charged with being AWOL, in violation of the Uniform Code of Military Justice ("UCMJ"), and his charge was adjudicated through a non-judicial procedure ("NJP"), also known as an Article 15. There is no direct documentation in the record that plaintiff received an Article 15 for his first AWOL charge; however, as stated in further detail below, the record indirectly establishes that he did. Id. at 28.

Plaintiff was again AWOL from March 8, 1999, until August 26, 1999. Id. at 53-57; 40. Specifically, on March 8, 1999, plaintiff's status was changed from present for duty to AWOL and then from AWOL to dropped from rolls, and it was noted that plaintiff "left while on extra-duty serving punishment for an Article 15." Id. at 48-49. On March 10, 1999, plaintiff was charged with AWOL in violation of the UCMJ for a second time. Id. at 46-47. On July 26, 1999, plaintiff was apprehended by civilian authorities in Florida, and he was returned to military control on August 27, 1999. Id. at 5.

On September 1, 1999, plaintiff was informed of the second AWOL charge against him. Id. at 45. This AWOL charge was adjudicated through the judicial process as the charge sheet recommended that plaintiff be tried by a special court-marshal empowered to adjudge a bad conduct discharge. Id. at 43-45.

On September 1, 1999, plaintiff signed a request for discharge in lieu of court-martial which states, in relevant part, the following.²

I, Paul Luxama, ... hereby voluntarily request discharge in lieu of trial by courts-martial under AR 635-200, Chapter 10. I understand that I may request discharge in lieu of trial by courts-martial because of the following charge(s) which (has) (have) been preferred against me under the Uniform Code of Military Justice, which authorize(s) the imposition of a bad conduct or dishonorable discharge:

Article 86 UCMJ AWOL O/A 8 March 1999 to O/A 27 August 1999

I am making this request of my own free will and have not been subjected to any coercion whatsoever by any person. I have been advised of the implications that are attached to it. By submitting this request for discharge, I acknowledge that Iunderstand the elements of the offense(s) charged and am guilty of the charge(s) against me or of (a) lesser included offense(s) therein contained which also authorize(s) the imposition of a bad conduct or dishonorable discharge. Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service.

Prior to completing this form, I have been afforded the opportunity to consult with appointed counsel for consultation. I have consulted with counsel for consultation who has fully advised me of the nature of my rights under the Uniform Code of Military Justice, the elements of the offense(s) with which I am charged, any relevant lesser included offense(s) thereto, and the facts that must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; the possible defenses which appear to be available at this time; and the maximum permissible punishment if I am found guilty. Although I have been furnished legal advice, this decision is my own. ...

I understand that, if my request for discharge is accepted, I may be discharged under conditions which are other than honorable and furnished an Under Other Than Honorable Discharge certificate. I have been advised and understand the possible effects of an Other Than Honorable Discharge and that as a result of the issuance of such discharge, I will be deprived of many or all Army benefits, that I may be ineligible for many or all benefits administered by the Veteran's Administration, and that I may be deprived of my rights and benefits as a veteran under both Federal and State law. I also understand that I may expect to encounter substantial prejudice in civilian life because of an Under Other Than Honorable Discharge. I further understand that there is no automatic upgrading or automatic review of a less than honorable discharge by any Government agency or the Army Board for the Correction of Military Records. I understand that if I desire a review of my discharge, I must apply to either the Army Discharge Review Board or the Army Board for Correction of Military Records, and that the act of consideration by either board does not imply that my discharge will be upgraded.

Id. at 38-39. Plaintiff also signed a memorandum which stated, in relevant part:

I have been advised by my defense counsel that at the present time the government has not received the necessary documentation and/or records with which to obtain a conviction by a court-martial. ... Further, I have been advised by my military counsel that he cannot completely advise me without these records. I realize my defense counsel is limited by the few records that are available as to the advice he can give. Nevertheless, knowing all this to be true, I waive all defenses that may have become known had my defense counsel been able to review my records.

Knowing all this to be true, I knowingly, willingly, and voluntarily declare that I was absent without leave from the U.S. Army from O/A 8 March 1999 to O/A 27 August 1999. I make this admission for administrative purposesonly so I may process out of the Army and realize in doing so I may be given an under other than honorable conditions discharge.

I further declare that my military defense counsel has explained to me to my complete understanding and satisfaction, all the legal and social ramifications of that type of discharge and what it will mean to me in the future.

Id. at 42. Plaintiff's request for discharge was approved on July 14, 2000, and he was discharged from the Army on September 27, 2000, under other than honorable conditions, and was credited with one year, seven months, and nineteen days of active service. Id. at 6, 33, 31, 35.

On August 10, 2011, plaintiff applied to the Army Discharge Review Board ("ADRB") to have his "character of service, separation code, and ... reentry code upgraded." Id. at 31. Plaintiff requested these corrections because he was allegedly told, at the time of his separation, that he "could have [his discharge] upgraded after two years" and that "after 'x' amount of years the upgrade would be automatic." Id. The ADRB denied plaintiff's application on February 24, 2012, determining that plaintiff

was charged with the commission of an offense punishable under the [UCMJ] with a punitive discharge. [He] consulted with defense counsel, and voluntarily in writing, requested separation from the Army in lieu of trial by court-martial. In doing so, [he] admitted guilt to the stipulated or lesser-included offenses under the UCMJ.

[A]ll the requirements of law and regulation were met and the rights of [plaintiff] were fully protected throughout the separation process. It is also noted that the characterization of service for this type of discharge is normally under other than honorable conditions and that [plaintiff] was aware of that prior to requesting

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