879 F.3d 354
1st Cir.2018Background
- Petitioner Jered Sasen, a long‑serving Navy petty officer frocked as Chief Petty Officer, lied about a subordinate’s injury and was later investigated by an Enlisted Disciplinary Review Board (DRB).
- The DRB questioned Sasen without giving an Article 31(b) warning; he made statements at the DRB and thereafter signed a written Article 31 waiver and gave inculpatory statements to his superior and at a subsequent Captain’s Mast (non‑judicial punishment).
- Captain’s Mast found Sasen guilty of dereliction of duty and making a false official statement; he received a written reprimand, an adverse performance evaluation, and his promotion recommendation was rescinded.
- Sasen appealed administratively to the Director of Navy Staff and then to the Board for Correction of Naval Records; the Board denied relief, finding no probable material error or injustice and implicitly finding his waiver voluntary.
- Sasen sued under the Administrative Procedure Act; the district court affirmed the Board, and the First Circuit affirmed, addressing (1) whether Article 31(d)’s exclusionary remedy applies to non‑judicial punishment, (2) voluntariness of his waiver, and (3) prejudice and independent adverse administrative actions.
Issues
| Issue | Plaintiff's Argument (Sasen) | Defendant's Argument (Navy/Secretary) | Held |
|---|---|---|---|
| Whether Article 31(d) exclusionary remedy applies to non‑judicial punishment | Article 31(d) should bar use of uncleansed prior statements at Captain’s Mast; cleansing warning required | Article 31(d) by its text limits exclusion to trials by court‑martial; non‑judicial punishments trade procedural protections for informality | Exclusionary remedy under Art.31(d) applies to courts‑martial only; uncleansed statements may be relied on at Captain’s Mast |
| Whether Sasen’s waiver of Article 31 rights was knowing and voluntary | Waiver was involuntary because he never received a cleansing warning after unwarned DRB statements | Waiver was knowing and voluntary given benefits of cooperation, his experience, and totality of circumstances | Waiver was voluntary; Board’s implicit voluntariness finding upheld |
| Whether any Article 31 error was prejudicial (harmless‑error) | Use of uncleansed statements was outcome‑determinative; without them there was insufficient evidence | Independent evidence (Abril’s statement, other witness statements, command recommendations, JAG opinion) supported findings; burden on petitioner to show prejudice | Any error was harmless; petitioner failed to show prejudice to substantial rights |
| Whether rescission of promotion recommendation and adverse evaluation must be set aside | Both are tied to the Captain’s Mast and should be vacated if Mast invalid | Rescission and adverse evaluation were separate discretionary administrative actions justified by the incident | Board correctly declined to reinstate promotion or expunge evaluation; petitioner failed to show probable material error or injustice |
Key Cases Cited
- Turner v. Dep't of Navy, 325 F.3d 310 (D.C. Cir.) (distinguishing procedural protections among military punishment levels)
- Middendorf v. Henry, 425 U.S. 25 (U.S.) (non‑judicial punishment is administrative and for minor offenses)
- United States v. Stoltz, 720 F.3d 1127 (9th Cir.) (non‑judicial punishment is not criminal in nature)
- United States v. Charles George Trucking Co., 823 F.2d 685 (1st Cir.) (statutory interpretation begins with text)
- United States v. Singleton, 600 F.2d 553 (5th Cir.) (Article 31(b) limited by its terms to trials by court‑martial)
- Herring v. United States, 555 U.S. 135 (U.S.) (exclusionary remedy is disfavored and a last resort)