Jered Sasen v. Richard V. Spencer

This case, which pits a retired

petty officer against the United States Navy, is awash with novel

legal questions concerning the application and operation of

Article 31 of the Uniform Code of Military Justice (UCMJ). These

questions center on Article 31(b), which requires that a sailor

suspected of an offense be warned both that he need not make any

statement regarding that offense and that any statement he makes

may be used as evidence against him in a subsequent trial by courtmartial.

See 10 U.S.C. § 831(b).

Specifically, petitioner-appellant Jered Sasen asserts

that he was entitled to a "cleansing warning,"1 but failed to

receive it. He further asserts that his waiver of Article 31

rights was involuntary, that he unfairly received a negative

performance evaluation, and that his promotion recommendation was

improperly rescinded. The Board for Correction of Naval Records

(the Board) found these assertions unavailing and upheld the

petitioner's non-judicial punishment, the Navy's rescission of his

recommendation for promotion, and his adverse employment

evaluation.

The petitioner sought judicial review. The district

court rejected the petitioner's asseverations and refused to set

1 The term "cleansing warning" refers to a warning given to

an accused service member advising him that earlier statements, if

made without an Article 31(b) warning, cannot be used against him

in a subsequent trial by court-martial.

- 4 -

aside the Board's decision. See Sasen v. Mabus, No. 16-cv-10416,

2017 WL 1147443, at *13 (D. Mass. Mar. 27, 2017). We hold that

the exclusionary remedy limned in Article 31(d) applies to evidence

offered in a trial by court-martial but not in a non-judicial

punishment proceeding; that both the Board's determination of

voluntariness and its approval of the adverse employment

consequences are in accordance with law; and that, in all events,

any error is not prejudicial. Consequently, we affirm the district

court's denial of the underlying petition for judicial review.

I. BACKGROUND

We start by rehearsing the largely undisputed facts and

then proceed, step by step, through the labyrinthine travel of the

case.

A. The Facts.

The petitioner joined the Navy in 2006 and, until early

2014, compiled an impressive record. During that period, he

received positive performance evaluations and numerous awards. By

2014, he was working as a Damage Controlman aboard the USS

Constitution, berthed at the Charlestown Navy Yard in

Massachusetts. By then, he was "frocking" as a Chief Petty

Officer.2 At the time, he also had garnered a recommendation for

a promotion to that rank (which was pending).

2 "Frocking" is the "administrative authorization to assume

the title and wear the uniform of a higher pay grade" before being

- 5 -

The denouement came on January 11, 2014. While on duty

that night, the petitioner learned that Elizabeth Abril, a sailor

under his command, had hurt herself by punching a bulkhead out of

frustration over a romantic entanglement gone sour. After Abril

told the petitioner what had happened, he asked her whether she

wanted to disclose the true story to their superior officer or

whether she wanted to fudge the truth and say that she had slipped

and fallen. Before Abril could respond, the superior happened to

call, and the petitioner prevaricated about the cause of Abril's

injury.

A different sailor took Abril to a shoreside medical

facility, where she received care. In the morning, the petitioner

reiterated the lie (that Abril had injured her hand by slipping

and falling) to the incoming duty officer, Lieutenant Julien R.

Geiser.

B. The Disciplinary Review Board.

In the days that followed, the petitioner learned the

hard way that "[n]othing is so painful to the human mind as a great

and sudden change." Mary Shelley, Frankenstein 209 (Transatlantic

formally promoted to that grade. U.S. Dep't of Navy, Military

Personnel Manual, 1420-060 (2014),

http://www.public.navy.mil/bupersnpc/

reference/milpersman/1000/1400Promotions/Documents/1420-

060%20.pdf. This authorization is meant to "provide[] early

recognition" for selected Navy members and obligates those members

to "exercise increased authority and willingly accept greater

responsibility." Id.

- 6 -

Press Books 2012) (1818). This observation has special bite when

damage to one's professional reputation is in prospect.

On the morning of January 13, the Navy convened an

Enlisted Disciplinary Review Board (DRB) to question the

petitioner about the events of January 11 and 12. The DRB was a

vehicle designed to "screen disciplinary cases of enlisted

personnel and mak[e] recommendations . . . regarding

dispositions." U.S. Dep't of Navy, Navy Personnel Command

Instruction 5811.1 (2007). Among other things, a DRB may interview

the accused sailor, scrutinize his service record, and hear from

material witnesses. See id.

At the commencement of a DRB hearing, accused

individuals are advised of their rights under Article 31(b) of the

UCMJ, which provides:

No person subject to this chapter may

interrogate, or request any statement from, an

accused or a person suspected of an offense

without first informing him of the nature of

the accusation and advising him that he does

not have to make any statement regarding the

offense of which he is accused or suspected

and that any statement made by him may be used

as evidence against him in a trial by courtmartial.

10 U.S.C. § 831(b). The petitioner claims — and the Navy does not

meaningfully dispute — that he did not receive such a warning when

his DRB convened.

- 7 -

During the DRB hearing, the petitioner confessed that he

had falsely told Lieutenant Geiser (on the morning of January 12)

that Abril had injured her hand by slipping and falling,

notwithstanding his knowledge of the true cause of her injury. A

day after the DRB adjourned the hearing, it referred the petitioner

to a non-judicial punishment proceeding known as a Captain's Mast.

At the same time, the DRB recommended that the petitioner's

promotion recommendation be rescinded.

C. Post-DRB Statements.

Within a matter of hours after the DRB hearing ended,

Lieutenant Geiser informed the petitioner that, based on the events

of January 11-12, the petitioner was suspected of having committed

two offenses under the UCMJ: dereliction of duty (by willfully

failing to report the true circumstances of Abril's injuries to

the chain of command), see id. § 892, and making a false official

statement (by furnishing Lieutenant Geiser, with intent to

deceive, an official statement that Abril's injury was caused by

"slipping on ice"), see id. § 907. Lieutenant Geiser advised the

petitioner in writing of his rights under Article 31(b), but the

written advice did not include a cleansing warning that informed

the petitioner that his earlier unwarned statements could not be

used against him in a later proceeding. The petitioner signed a

waiver acknowledging that he had been advised of his Article 31(b)

rights. He then made a written statement admitting that he had

- 8 -

falsely told his superior officer that Abril had fallen on the

evening of January 11 and that he had repeated the lie the next

morning to Lieutenant Geiser. The petitioner expressed regret for

his actions and wrote that he had not seen "the big picture."

The petitioner was not the only person to submit a

statement. On January 13, Abril wrote that, on January 11, she

had told the petitioner the circumstances surrounding her injury.

She described how, in her presence, the petitioner had lied to a

superior officer. Although she initially planned to go along with

the lie, she changed her mind: when she was asked directly by a

superior officer what had happened, she told the truth.

On January 15, the petitioner was notified that the

Commanding Officer was considering non-judicial punishment as

recommended by the DRB. See id. § 815. The petitioner was offered

the opportunity to avoid non-judicial punishment by opting instead

for a court-martial. In addition, he was told that he could seek

legal advice before making this choice. The petitioner, however,

elected to waive his right to counsel and face non-judicial

punishment (in the form of a Captain's Mast).

D. The Captain's Mast.

The Captain's Mast was held on January 15. The presiding

officer, Captain Sean D. Kearns, had received a report of the

- 9 -

incident from Lieutenant Geiser.3 He also had access to the written

statement that the petitioner had given to Lieutenant Geiser,

Abril's written statement, and a written statement obtained from

the sailor who had transported Abril to receive medical care.

During the proceeding, the petitioner admitted that he had made a

false report to Lieutenant Geiser on the morning of January 12.

Captain Kearns found that the petitioner had committed

both of the charged offenses. For these offenses, the petitioner

was subject to the following types of punishment: verbal reprimand,

written reprimand, restriction, extra duties, forfeiture of pay,

and reduction in rank. Captain Kearns chose to issue a written

reprimand. Separate from this non-judicial punishment, Captain

Kearns placed an adverse performance evaluation in the

petitioner's file and rescinded the earlier recommendation for

promotion.

E. Further Proceedings.

The petitioner appealed the non-judicial punishment and

protested both the rescission of the promotion recommendation and

the adverse performance evaluation. He maintained that the

punishment was not only disproportionate but also invalid because

he did not receive an Article 31(b) warning prior to the DRB

3 At the time of the relevant events, Captain Kearns was

Lieutenant Geiser's commanding officer and, thus, was directly in

the chain of command.

- 10 -

hearing. On February 14, 2014, the Director of Navy Staff (the

Director) denied the petitioner's intra-agency appeal, declaring

that his non-judicial punishment — a written reprimand — was

"neither unjust nor disproportionate" to his offenses. In the

course of this determination, the Director found that the

petitioner had "knowingly, intelligently, and voluntarily" waived

his right to counsel.

The petitioner then appealed to the Board alleging — in

addition to his earlier plaints — that he had failed to receive a

cleansing warning before providing further incriminating

statements both to Lieutenant Geiser and at the Captain's Mast.

He asked the Board to "correct" his record by removing the nonjudicial

punishment. See id. § 1552. The Office of the Judge

Advocate General provided the Board with an advisory opinion

concluding that the petitioner's non-judicial punishment was

lawfully administered. Based on this opinion and other materials

in the record, the Board refused the petitioner's entreaty,

explaining in part that he had not made a sufficient showing to

"establish the existence of [a] probable material error or

injustice."

Struggling to keep his case afloat, the petitioner

repaired to the federal district court. Naming the Secretary of

the Navy (the Secretary) as respondent, he sought judicial review

of the Board's decision under the Administrative Procedure Act

- 11 -

(APA). See 5 U.S.C. § 706. His petition beseeched the court to

annul the non-judicial punishment and order the Board to correct

his record by removing the written reprimand. He also sought to

have the Board vitiate his adverse employment evaluation and

reinstate the recommendation for his promotion.

Shortly after instituting the district court action, the

petitioner resigned from the Navy. He remained intent, though, on

removing the blot on his escutcheon, and his action continued

unabated. In due season, he moved for summary judgment,4 and the

Secretary cross-moved to affirm the Board's decision. The district

court took the matter under advisement and, in a thoughtful

rescript, ruled in the Secretary's favor. See Sasen, 2017 WL

1147443, at *13. This timely appeal followed.

II. STANDARD OF REVIEW

Under the APA, judicial review is limited: a district

court may set aside an agency decision only if that decision is

(A) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance

with law;

4 A motion for summary judgment has a "special twist in the

administrative law context." Bos. Redev. Auth. v. Nat'l Park

Serv., 838 F.3d 42, 47 (1st Cir. 2016) (quoting Associated

Fisheries of Me., Inc. v. Daley, 127 F.3d 104, 109 (1st Cir.

1997)). In such circumstances, the summary judgment motion merely

serves to "tee up" the case for decision on the administrative

record. Id.; see infra Part II (setting out APA standards of

review). The traditional summary judgment framework is

inapposite. See Bos. Redev. Auth., 838 F.3d at 47.

- 12 -

(B) contrary to constitutional right, power,

privilege, or immunity;

(C) in excess of statutory jurisdiction,

authority, or limitations, or short of

statutory right;

(D) without observance of procedure required

by law;

(E) unsupported by substantial evidence in a

case subject to sections 556 and 557 of this

title or otherwise reviewed on the record of

an agency hearing provided by statute; or

(F) unwarranted by the facts to the extent

that the facts are subject to trial de novo by

the reviewing court.

5 U.S.C. § 706(2). In applying these standards, an inquiring court

must "review the whole record or those parts of it cited by a

party." Id. These ground rules bound the court below, and they

are equally binding on this court. See River St. Donuts, LLC v.

Napolitano, 558 F.3d 111, 114 (1st Cir. 2009); Royal Siam Corp. v.

Chertoff, 484 F.3d 139, 144 (1st Cir. 2007). Thus, we afford no

special deference to the district court's determinations but,

rather, review those determinations de novo. See River St. Donuts,

558 F.3d at 114.

In the case at hand, the petitioner asseverates that the

Board's decision is not "in accordance with law," gives too short

shrift to a statutory right, and was reached "without observance

of procedure required by law." 5 U.S.C. § 706(2)(A), (C), and

(D). With respect to such an asseverational array, the APA

requires us to be respectful of the agency's views. Thus, "a

reviewing court may not substitute its judgment for that of the

- 13 -

agency, even if it disagrees with the agency's conclusions." Atieh

v. Riordan, 797 F.3d 135, 138 (1st Cir. 2015) (citations and

internal quotation marks omitted).

This deference, though, is not absolute. In general,

the agency's answers to questions of law engender de novo review.

See Ruskai v. Pistole, 775 F.3d 62, 67-68 (1st Cir. 2014). If,

however, the agency's legal analysis implicates the interpretation

of a statute or regulation that it is charged with administering,

we give some weight to the agency's views. See Administración

Para El Sustento De Menores v. Dep't of Health & Human Servs., 588

F.3d 740, 745 (1st Cir. 2009); see also Mendez-Barrera v. Holder,

602 F.3d 21, 24 (1st Cir. 2010).

A further narrowing principle is sometimes in play in

administrative law cases. Congress has directed federal courts to

take "due account" of the "rule of prejudicial error" when carrying

out judicial review under the APA. 5 U.S.C. § 706. The party

challenging the agency's determination bears the burden of showing

that a particular error was prejudicial. See Shinseki v. Sanders,

556 U.S. 396, 409 (2009); Ali v. United States, 849 F.3d 510, 514-

15 (1st Cir. 2017).

III. ANALYSIS

We divide our analysis into segments that correspond to

the various components of the petitioner's asseverational array.

To begin, we explain why the exclusionary remedy sought by the

- 14 -

petitioner is not available in non-judicial punishment

proceedings. Next, we explain why the finding of voluntariness is

supportable and why, in all events, any error was harmless.

Finally, we explain why the rescission of the petitioner's

promotion recommendation and his negative performance evaluation

are unimpugnable.

We approach the Board's decision mindful that the Board

may deny relief if it concludes that "the evidence of record fails

to demonstrate the existence of probable material error or

injustice." 32 C.F.R. § 723.3(e)(2); see 10 U.S.C. § 1552(a). In

making this assessment, the Board has the authority to consider

"all pertinent evidence of record." 32 C.F.R. § 723.3(e)(1).

A. The Exclusionary Remedy.

The petitioner claims that his non-judicial punishment

was unlawfully administered because he was not given a cleansing

warning to the effect that his earlier (unwarned) statements before

the DRB could not be used against him. Due to this omission, the

petitioner says, he made incriminating statements both to

Lieutenant Geiser and at the Captain's Mast — statements that were

ultimately used against him to support the imposition of nonjudicial

punishment.

We think it essential to distinguish, at the outset,

between non-judicial punishment proceedings and trials by courtsmartial.

The UCMJ provides "four levels of punishment proceedings

- 15 -

— [non-judicial punishment], summary court-martial, special courtmartial,

and general court-martial — gradually progressing upward

in both procedural protections and possible punishments." Turner

v. Dep't of Navy, 325 F.3d 310, 314 (D.C. Cir. 2003); see 10 U.S.C.

§§ 815-816, 818-820. A non-judicial punishment proceeding is an

"administrative method" for "dealing with the most minor

offenses." Middendorf v. Henry, 425 U.S. 25, 31-32 (1976). While

it is meant to ensure order and good behavior within the armed

forces, it is not a criminal proceeding. See United States v.

Stoltz, 720 F.3d 1127, 1129 (9th Cir. 2013); Manual for Courts-

Martial, Part V, ¶ 1.c. (2012 ed.)

https://www.loc.gov/rr/frd/Military_Law/pdf/MCM-2012.pdf

(the Manual for Courts-Martial). By contrast, trials by courtmartial

are reserved for more serious offenses and can result in

relatively severe punishments. See Henry, 425 U.S. at 31-32.

The petitioner strives to convince us that he was

entitled to a cleansing warning at his non-judicial punishment

proceeding. This premise attempts to draw sustenance from passages

in a number of official documents. See, e.g., U.S. Dep't of Navy,

Commander's Quick Reference Handbook for Legal Issues 5 (2009),

http://www.dtic.mil/dtic/tr/fulltext/u2/a501264.pdf; U.S. Dep't

of Navy, Manual of the Judge Advocate General, A-1-v (2012),

http://www.jag.navy.mil/library/instructions/JAGMAN2012.pdf (the

- 16 -

Manual of the Judge Advocate General). The Secretary, though,

disputes the petitioner's right to such a warning.

It would serve no useful purpose for us to resolve this

dispute. Ultimately, the dispositive query is whether uncleansed

statements should have been excluded from the Captain's Mast

proceeding under Article 31(d). Because exclusion would not be

proper even if a cleansing warning were required but not given, we

simply assume, favorably to the petitioner, that he was entitled

to such a warning.

From the very start, the petitioner's claim that

uncleansed statements should have been excluded from the nonjudicial

punishment proceeding faces a formidable barrier: the

text of Article 31(d) itself. See United States v. Charles George

Trucking Co., 823 F.2d 685, 688 (1st Cir. 1987) (explaining that

statutory interpretation must start with an examination of the

statutory text). That text appears quite plainly to rebuff the

claim that the exclusionary remedy extends to non-judicial

punishment proceedings. The statute provides: "No statement

obtained from any person in violation of this article, or through

the use of coercion, unlawful influence, or unlawful inducement

may be received in evidence against him in a trial by courtmartial."

10 U.S.C. § 831(d) (emphasis supplied).

This language strongly suggests that the exclusionary

remedy set out in Article 31(d) is available only at a court-

17 -

martial. See Kindred v. United States, 41 Fed. Cl. 106, 112 (Fed.

Cl. 1998). Such a suggestion is made more compelling by the

venerable canon of statutory construction inclusio unius est

exclusio alterius, which teaches that if one of a category is

expressly included within the ambit of a statute, others of that

category are implicitly excluded. See Frazier v. Fairhaven Sch.

Comm., 276 F.3d 52, 68 (1st Cir. 2002).

That suggestion is also bolstered by the broader

language of Article 31(c), the provisions of which extend to

evidence introduced "before any military tribunal." 10 U.S.C.

§ 831(c). If Congress had intended the exclusionary remedy of

Article 31(d) to apply more universally, it presumably would have

used the more expansive phrasing that it used in Article 31(c).

The conspicuous contrast between these adjacent provisions is a

telltale sign that Congress deliberately sought to limit the

applicability of Article 31(d)'s exclusionary remedy. After all,

when Congress uses broad language in one section of a statute and

trims down that language in a closely related section, it is

reasonable to conclude that Congress intended the latter section

to sweep more narrowly. See Duncan v. Walker, 533 U.S. 167, 173

(2001) ("It is well settled that where Congress includes particular

language in one section of a statute but omits it in another

section of the same Act, it is generally presumed that Congress

acts intentionally and purposely in the disparate inclusion or

- 18 -

exclusion." (internal quotation marks omitted)); Citizens

Awareness Network, Inc. v. United States, 391 F.3d 338, 346 (1st

Cir. 2004) ("The principle is clear that Congress's use of

differential language in various sections of the same statute is

presumed to be intentional and deserves interpretive weight.").

The petitioner demurs. He contends that Article 31(d)

should, at worst, be interpreted as "silent" as to whether the

exclusionary remedy applies in non-judicial punishment

proceedings. He further contends that regulations and policies

implemented by the Navy speak in ways that fill this "silence."

But this contention is unpersuasive: the petitioner does not point

to a single regulation or policy that clearly extends the

exclusionary remedy to non-judicial punishment proceedings.5

5 In an effort to prove his point, the petitioner alludes to

vague statements in the JAG manual, including appendix A-1-v. But

he wrests these statements from their context ignoring other

relevant commentary. For example, in appendix A-1-f of the JAG

manual, titled the "Nonjudicial Punishment Guide," commanding

officers are asked to note that:

If it is reasonably foreseeable that the accused's

statements during the nonjudicial punishment proceedings

may be considered for introduction in evidence in a later

court-martial, an explanation of rights and a waiver, in

the format of Appendix A-1-v of the JAGMAN, will have to

be obtained from the accused, prior to or during the

hearing, before proceeding further.

This language indicates that Article 31(d) rights attach only when

the specter of a court-martial looms.

- 19 -

The closest the petitioner comes is a vague statement

within the Manual for Courts-Martial, a set of rules for military

adjudication promulgated pursuant to the authority provided under

the UCMJ. See 10 U.S.C. § 836; Manual for Courts-Martial, Preface.

The petitioner highlights a sentence within the section on nonjudicial

punishment proceedings stating that "[t]he Military Rules

of Evidence (Part III), other than with respect to privileges, do

not apply at non-judicial punishment proceedings." Attempting to

build on this foundation, the petitioner suggests that extending

the privilege against self-incrimination to non-judicial

punishment proceedings is consistent with the quoted sentence and,

thus, should dictate the mandatory exclusion of statements made

without a cleansing warning. But the petitioner reads more into

the quoted sentence than its text permits.

Rule 301 of the Military Rules of Evidence relates to

the "[p]rivilege concerning compulsory self-incrimination." It

provides, in terms, that a witness "may not assert the privilege

if the witness is not subject to criminal penalty as a result of

an answer by reason of immunity, running of the statute of

limitations, or similar reason." Manual for Courts-Martial, Part

III, Mil. R. Evid. 301(c). This condition on the exercise of the

privilege casts in bold relief the privilege's core purpose: to

protect an individual from making statements against his interest

that would subject him to criminal penalties. Using a previously

- 20 -

made self-incriminating statement in a subsequent proceeding not

designed to produce criminal penalties does not in any way

interfere with this purpose. See Stoltz, 720 F.3d at 1129

(explaining that non-judicial punishment is "not criminal in

nature"); see also Henry, 425 U.S. at 31-32 (1976) (contrasting

"[g]eneral and special courts-martial [that] resemble judicial

proceedings" with a non-judicial punishment proceeding that is

"conducted personally by the accused's commanding officer" and "is

an administrative method of dealing with the most minor offenses").

We add, moreover, that even if criminal penalties are in

play, a statement "obtained in violation of the self-incrimination

privilege or due process clause of the Fifth Amendment" is not

automatically excluded from a court-martial proceeding. Manual

for Courts-Martial, Part III, Mil. R. Evid. 304. Rather, the

Military Rules of Evidence mandate special procedural steps — a

timely motion to suppress or a timely objection — that must be

taken in order to exclude the evidence. See id. If those steps

are not taken, the issue is considered waived.6 See id. The fact

that such steps are a clear reference to the formal structure of

a court-martial is itself an indication that the drafters of the

6 We note in passing that the petitioner did not raise the

Article 31(b) issue at the Captain's Mast but, rather, raised it

for the first time eight days later.

- 21 -

Manual for Courts-Martial did not intend to extend the exclusionary

remedy to non-judicial punishment proceedings.

Analogous case law suggests the same result. Although

few courts have directly analyzed the question of whether the

exclusionary rule applies to non-judicial punishment proceedings

in the military setting, other courts have refused to extend

Article 31(d) to bar the use of unwarned statements in civilian

criminal proceedings. See United States v. Singleton, 600 F.2d

553, 555 (5th Cir. 1979); see also United States v. Newell, 578

F.2d 827, 832-33 (9th Cir. 1978). The Singleton court

straightforwardly declared that "article 31(b) by its terms is

limited to evidence used in a trial by court-martial." 600 F.2d

at 555.

There is, of course, good reason to distinguish between

the application of the privilege against self-incrimination and

that of the concomitant exclusionary remedy in the context of a

non-judicial punishment proceeding. At the time of an

interrogation, it may not yet be clear whether a given statement

will give rise to criminal liability through a court-martial. Cf.

McCarthy v. Arndstein, 266 U.S. 34, 40 (1924) (explaining that

privilege against self-incrimination applies whenever a statement

"might tend to subject to criminal responsibility him who gives

it"). Such considerations are simply not at stake in connection

with the use of a previously-made incriminating statement in a

- 22 -

subsequent non-judicial punishment proceeding as the latter cannot

— and does not — expose the accused to criminal liability.7

Analogies help to prove this point. For instance, in

the Fourth Amendment context, the exclusion of evidence "has always

been [a] last resort, not [a] first impulse." Herring v. United

States, 555 U.S. 135, 140 (2009) (quoting Hudson v. Michigan, 547

U.S. 586, 591 (2006)). The reason for this chariness is evident:

the exclusion of evidence levies a "costly toll upon truthseeking."

Id. at 141 (quoting Pa. Bd. of Prob. & Parole v. Scott,

524 U.S. 357, 364-65 (1998)). Even while recognizing that the

deterrent value of an exclusionary rule for improperly obtained

evidence is important, the Supreme Court has taken great pains to

instruct lower courts that the exclusionary rule should not be

applied "in every circumstance in which it might provide marginal

deterrence." Id. at 141 (internal quotation mark omitted). This

is especially true where there is no suggestion of intentional

misconduct. See id. at 142-43. So, too, where statutory

violations are concerned, exclusionary rulings are generally

"disfavored as remedies for nonconstitutional violations of law."

7 We take no view as to whether the analysis would be different

if evidence existed of either egregious violations of Article 31(b)

or rampant disregard for the provisions of that article. See,

e.g., I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984)

(plurality opinion). Suffice it to say that the record before us

does not give rise to such questions.

- 23 -

United States v. Newell, 239 F.3d 917, 921 (7th Cir. 2001); see

United States v. Henry, 482 F.3d 27, 32 (1st Cir. 2007).

In the case at hand, the pertinent proceeding is noncriminal,

no allegation of deliberate misconduct is made, and the

right asserted is statutory rather than constitutional in origin.

Given this collocation of circumstances, we believe that an

exclusionary remedy should be similarly disfavored.

The short of it is that the petitioner does not point to

a single rule, regulation, or policy that operates to extend

Article 31(d) beyond the carefully circumscribed circumstances

delineated in the text of that article. When an accused sailor

elects non-judicial punishment in lieu of a court-martial, he

benefits from the relative informality of non-judicial punishment

proceedings and the lessened severity of the potential

punishments. In exchange for those benefits, he trades away

certain procedural protections. The exclusionary remedy contained

in Article 31(d) is one such traded protection. Cf. Van Harken v.

City of Chicago, 103 F.3d 1346, 1353 (7th Cir. 1997) ("The less

that is at stake . . . the less process is due.")

To say more would be to paint the lily. We hold that

the petitioner's uncleansed statements were properly relied upon

in the Captain's Mast proceeding.

- 24 -

B. The Waiver.

In the course of finding no error in the non-judicial

punishment proceeding, the Board implicitly endorsed the view of

the Office of the Judge Advocate General and the Director that the

petitioner's uncleansed statements were voluntary. Contesting

this view, the petitioner contends that even though he signed a

waiver of his Article 31 rights, his waiver was neither knowing

nor voluntary because he did not receive a cleansing warning

informing him that his earlier unwarned statements could not be

used against him.8 The voluntariness inquiry involves issues of

law and fact, but the ultimate conclusion as to whether a

confession was voluntary is a legal conclusion that is reviewed de

novo. See United States v. Jacques, 744 F.3d 804, 809 (1st Cir.

2014). Warming to task, we ask whether the petitioner's uncleansed

admissions were voluntary "considering all the facts and

circumstances of the case." United States v. Phillips, 32 M.J.

76, 80 (C.M.A. 1991) (quoting United States v. Steward, 31 M.J.

259, 265 (C.M.A. 1990)).

The fact that the petitioner did not receive a cleansing

warning does not "presumptively taint" his later statements but,

8 The petitioner's briefs are tenebrous as to whether this

argument is independent of, or inextricably intertwined with, his

argument about the applicability of the exclusionary remedy.

Because we uphold the Board's finding of voluntariness, we need

not probe this point.

- 25 -

rather, constitutes one factor in the overall analysis of whether

his statements were made voluntarily. Id. (citing Oregon v.

Elstad, 470 U.S. 298, 309-14 (1985)). In the military setting, a

myriad of factors inform the inquiry into voluntariness, including

the presence or absence of explicit coercion, the presence or

absence of difficult conditions (such as deprivation of food and

water), the age and experience of the speaker, the time between

the unwarned statements and the subsequent waiver, and the benefits

that would inure to the speaker from telling the truth. See United

States v. Freeman, 65 M.J. 451, 456 (C.A.A.F. 2008); United States

v. Norfleet, 36 M.J. 129, 131-32 (C.M.A. 1992); United States v.

Smith, No. NMCCA 20060139, 2008 WL 2252771, at *3 (N-M. Ct. Crim.

App. May 27, 2008). The decisional calculus depends on the

totality of the circumstances, not on any single factor. See

Freeman, 65 M.J. at 456 (noting that a finding of voluntariness

"rests with the particular facts of each case").

Even assuming that the burden of proving voluntariness

rests with the Secretary — a matter on which we take no view — the

Board had sufficient reason to find the petitioner's waiver

voluntary. Cooperation plainly afforded the petitioner the

likelihood of a lesser punishment and a far superior chance to

preserve his reputation. By the same token, there was no clear

countervailing benefit to remaining silent: the entire chain of

command knew that the petitioner had lied. On this record, we

- 26 -

have scant difficulty in concluding that the obvious and compelling

benefits of cooperation strongly support a finding that the

petitioner knowingly and voluntarily decided to waive his Article

31 rights. Cf. Miller v. Fenton, 796 F.2d 598, 605 (3d Cir. 1986)

("[S]o long as [the suspect's] decision [to confess] is a product

of the suspect's own balancing of competing considerations, the

confession is voluntary.").

The petitioner argues that a military disciplinary

proceeding is inherently coercive. This proposition — true to a

limited degree — is not enough to render a confession involuntary,

particularly where, as here, there is no danger of criminal

liability. Even threats or misconduct aimed to compel an accused

to waive his Article 31 rights require additional context in order

to warrant a finding of coercion. See Freeman, 65 M.J. at 456-57

(finding no coercion where defendant was questioned for nearly ten

hours, lied to by interrogating agents, and told that case would

be referred to civilian authorities if he refused to cooperate).

Here, the additional context favors a finding of voluntariness.

Last — but surely not least — the petitioner was not a

babe in the woods. He had been in the Navy for approximately eight

years and was frocking as a Chief Petty Officer. See supra note

- 27 -

2. As such, he was sufficiently sophisticated to make a reasoned

decision about waiver.9

That ends this aspect of the matter. We uphold the

Board's determination that the petitioner's waiver was made

voluntarily and, thus, the Navy's use of the ensuing statements

did not adversely affect his substantial rights.

C. The Harmless-Error Calculus.

We add, moreover, that even if error occurred — and we

discern none — any such error was harmless. We explain briefly.

In APA cases, courts are tasked to take "due account" of

what is called the "rule of prejudicial error." 5 U.S.C. § 706.

For all practical purposes, this provision incorporates harmlesserror

doctrine drawn from the ordinary run of civil cases. See

Sanders, 556 U.S. at 406. That doctrine instructs us that an error

is harmless unless it affects the complaining party's substantial

rights. See Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 102

(1st Cir. 1997).

The party challenging the agency's determination (here,

the petitioner) bears the burden of showing that a particular error

is prejudicial. See Sanders, 556 U.S. at 409; Ali, 849 F.3d at

9 Attempting to parry this thrust, the petitioner suggests

that he did not have specific knowledge of his Article 31 rights

and, therefore, could not have made a "knowing" waiver. We do not

agree. The petitioner's tenure in the Navy surely informed him of

the benefits of seeking the advice of counsel who could have

edified him — but he chose to waive that right as well.

- 28 -

514-15. In this case, the record shows beyond hope of

contradiction that the Board had substantial evidence to ground

its implicit determination that the petitioner failed to carry

this burden. The petitioner demurs: he asserts that the failure

to exclude his inculpatory statements could not be harmless

because, without those statements, there was insufficient evidence

to find that he had committed the charged offenses. The record

belies this assertion.

In determining whether there had been a "probable error

or injustice," the Board had before it (among other things) the

statement made by Abril, the recommendations of Captain Kearns, an

analysis by the Director, and an advisory opinion from the Office

of the Judge Advocate General. Abril's written statement alone

established that:

 Abril had hurt her hand by punching a bulkhead and had

told the petitioner as much;

 In Abril's presence, the petitioner had dissembled by

telling a superior officer that Abril had hurt herself

by falling;

 Abril had been taken to a shoreside medical facility for

treatment of her injury; and

 Abril had been questioned about the incident the

following evening by a superior, at which point she

- 29 -

provided a true account of the events that had

transpired.

Similarly, the Board had access to the recommendations

provided by Captain Kearns to the Director at the time of the

petitioner's intra-agency appeal. There, Captain Kearns related

how, despite his standing order to be informed of emergency medical

situations, he was not made aware of Abril's injury until the

morning following her visit to the doctor — and even then, it was

the incoming duty officer, not the petitioner, who supplied the

information. Indeed, the petitioner had "misrepresented the

incident" to the incoming duty officer.

The Judge Advocate General's advisory opinion lent the

Board further support for its decision. With no equivocation, the

opinion states that "independent evidence through other witness

statements demonstrate [the petitioner's] guilt." This opinion

reiterated how the petitioner provided a false report to Lieutenant

Geiser and how he failed to properly discharge his duty to inform

his commanding officer of Abril's trip to receive medical care.

It also recounts that the petitioner reported the entire incident

"as a turnover item" to Lieutenant Geiser "who in turn made the

proper report" to Captain Kearns.

This body of evidence against the petitioner remained

largely unrebutted before the Board. Thus, even if the petitioner

had not admitted lying to Lieutenant Geiser, the other proof

- 30 -

against him supplied an adequate basis for the Board to find that

the petitioner failed to demonstrate a probable material error or

injustice.

D. The Adverse Employment Consequences.

There is one more leg to our voyage. As an ancillary

matter, the petitioner invites us to direct the Board to reinstate

his recommendation for promotion. We decline the invitation.

The Navy made pellucid, at every stage of the inquiry,

that the rescission of the promotion was not a sanction imposed

through the non-judicial punishment proceeding, and the petitioner

has not convincingly challenged this dichotomy. In the absence of

such a challenge, there is little reason to suggest that the

petitioner has shown that, but for the written reprimand, the

promotion recommendation would not have been rescinded on

independent grounds. After all, the recommendation was wholly

within the discretion of the petitioner's commanding officers, who

may reasonably have chosen to withdraw it simply because the events

of January 11-12 changed their estimate of his worthiness. On

this record, the petitioner has not shown any probable error or

injustice in the Board's refusal to rescind this separate and

independent administrative action.

Relatedly, the petitioner entreats us to annul his

adverse performance evaluation. We deny that entreaty for

- 31 -

essentially the same reasons that we refuse to reinstate the

recommendation for promotion.

We need go no further. For the reasons elucidated above,

the district court's denial of the petition for judicial review is

Affirmed.