FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Allison D. Burroughs, U.S. District
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.
Lynch and Selya, Circuit Judges, and Levy, [**] District Judge.
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).
petitioner-appellant Jered Sasen asserts that he was entitled
to a "cleansing warning, " 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improperly rescinded.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.
petitioner sought judicial review. The district court
rejected the petitioner's asseverations and refused to
set 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.
start by rehearsing the largely undisputed facts and then
proceed, step by step, through the labyrinthine travel of 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. At the time, he also had garnered a
recommendation for a promotion to that rank (which was
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.
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.
The Disciplinary Review Board.
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 Press Books 2012) (1818). This observation has
special bite when damage to one's professional reputation
is in prospect.
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.
commencement of a DRB hearing, accused individuals are
advised of their rights under Article 31(b) of the UCMJ,
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.
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.
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 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."
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
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).
The Captain's Mast.
Captain's Mast was held on January 15. The presiding
officer, Captain Sean D. Kearns, had received a report of the
incident from Lieutenant Geiser. 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.
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.
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 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.
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 ...