United States District Court, E.D. Virginia, Alexandria Division
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.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.
to an Order dated July 2, 2018, plaintiffs 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 materials pursuant 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
Motion to Dismiss
plaintiffs 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 plaintiffs
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 plaintiffs APA claim.
Because defendant's Motion to Dismiss for lack of
jurisdiction only raises arguments to dismiss plaintiffs non
APA claims, it will be denied, as moot.
Motion for Summary Judgment
began his service in the Army on July 29, 1998. Admin. Rec.
at 61. On December 17, 1998, plaintiffs status was changed
from present for duty to absent without leave (AWOL).
Id. at 51. On January 4, 1999, plaintiffs 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
was again AWOL from March 8, 1999, until August 26, 1999.
Id. at 53-57; 40. Specifically, on March 8, 1999,
plaintiffs 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.
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.
September 1, 1999, plaintiff signed a request for discharge
in lieu of court-martial which states, in relevant part, the
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 I understand 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-martialFurther, 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 purposes only 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. Plaintiffs 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,
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.
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 plaintiffs
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 ...