Sasen v. Spencer ( 2018 )


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  •              United States Court of Appeals
    For the First Circuit
    No. 17-1394
    JERED SASEN,
    Petitioner, Appellant,
    v.
    RICHARD V. SPENCER,
    Secretary of the Navy,
    Respondent, Appellee.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Allison D. Burroughs, U.S. District Judge]
    Before
    Lynch and Selya, Circuit Judges,
    and Levy, District Judge.
    Matthew T. Bohenek, with whom Sabin Willett and Eugene R.
    Fidell were on brief, for appellant.
    Annapurna Balakrishna, Assistant United States Attorney, with
    whom William D. Weinreb, Acting United States Attorney, was on
    brief, for appellee.
    
    Pursuant to Fed. R. App. P. 43(c)(2), we have substituted
    Richard V. Spencer, Secretary of the Navy, for Sean J. Stackley,
    Acting Secretary of the Navy, as appellee.
    
    Of the District of Maine, sitting by designation.
    January 9, 2018
    SELYA, Circuit Judge.        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 court-
    martial.       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    improperly rescinded.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.
    - 3 -
    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
    - 4 -
    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/bupers-
    npc/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. - 5
    -
    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 court-
    martial.
    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.
    - 6 -
    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
    - 7 -
    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
    - 8 -
    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
    3At the time of the relevant events, Captain Kearns was
    Lieutenant Geiser's commanding officer and, thus, was directly in
    the chain of command.
    - 9 -
    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 non-
    judicial 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
    - 10 -
    (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;
    4A 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
    .
    - 11 -
    (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
    - 12 -
    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
    - 13 -
    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 non-
    judicial punishment.
    We think it essential to distinguish, at the outset,
    between non-judicial punishment proceedings and trials by courts-
    martial.   The UCMJ provides "four levels of punishment proceedings
    - 14 -
    — [non-judicial punishment], summary court-martial, special court-
    martial, 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 court-
    martial 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
    - 15 -
    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 non-
    judicial 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 court-
    martial."    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-
    - 16 -
    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
    - 17 -
    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.
    - 18 -
    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 non-
    judicial 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
    - 19 -
    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.
    - 20 -
    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
    - 21 -
    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 truth-
    seeking."    
    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.
    - 22 -
    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 non-
    criminal, 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.
    - 23 -
    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.
    - 24 -
    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
    - 25 -
    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
    - 26 -
    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 harmless-
    error 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 9Attemp
    ting 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.
    - 27 -
    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
    - 28 -
    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
    - 29 -
    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
    - 30 -
    essentially the same reasons that we refuse to reinstate the
    recommendation for promotion.
    IV.   CONCLUSION
    We need go no further. For the reasons elucidated above,
    the district court's denial of the petition for judicial review is
    Affirmed.
    - 31 -