Opinion
GIERKE, Judge:A general court-martial composed of officers convicted appellant, contrary to his pleas, of rape, forcible sodomy, unlawful entry, and adultery, in violation of Articles 120, 125, and 134, Uniform Code of Military Justice, 10 USC §§ 920, 925, and 934, respectively. The adjudged and approved sentence provides for a dishonorable discharge, confinement for 15 years, total forfeitures, and reduction to the lowest enlisted grade. The Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.
Our Court granted review of the following issue:
WHETHER THE MILITARY JUDGE ERRED BY ALLOWING SERGEANT PIZZULO TO TESTIFY THAT APPELLANT REMAINED SILENT WHEN SERGEANT PIZZULO ASKED HIM WHETHER HE COMMITTED THE ACTS, AND, IF SO, WHETHER ERRONEOUS ADMISSION OF THIS EVIDENCE WAS PROPERLY TESTED BY THE AIR FORCE COURT OF CRIMINAL APPEALS UNDER A HARMLESS-ERROR STANDARD.[1]
We hold that the military judge erred, and that the error was prejudicial.
Factual Background
It was uncontested that appellant and Staff Sergeant (SSgt) H had sexual intercourse during the early morning of July 17, 1994. SSgt H testified that appellant broke into her house and then raped and forcibly sodomized her. The defense theory was that appellant and SSgt H had consensual sexual intercourse and that on the following morning, at the suggestion of a friend, SSgt H decided to accuse appellant of raping and forcibly sodomizing her. The defense presented no evidence but instead concentrated on attacking the testimony of SSgt H as improbable and suggesting that she was not credible because of her history of personality disorders.
At the time of trial, SSgt H was a 35-year-old single mother of two boys, aged 8 and 3. She lived on-base in military quarters. She testified that, on the evening of July 16,1994, she and several female friends went to the noncommissioned officers’ club. At the club, appellant came to their table and introduced himself. Even though appellant had a cast on his lower leg, he asked SSgt H to dance, and they danced one dance. While they were dancing, appellant talked about his family and his marital problems. SSgt H testified that, toward the end of the dance, appellant told her that “he would like to dance with [her] more, but, if he did, he’d end up f-g [her] on the dance floor,” and then he bit her on the neck. She pushed away from him, returned to her table, and told her friend, CL, what he had done. Later CL danced with appellant, and he also bit her on the neck.
SSgt H testified that, as she and CL were leaving the club, appellant approached and said, “What would you do if I showed up on your doorstep at 3:00 o’clock in the morning?” She replied, “Sleep right through it, so don’t bother.” Then she said, “But, if you want to talk, you can come over tomorrow afternoon, after church, and we’ll sit outside, and — you know — we can talk.” Asked why she invited appellant, she testified, “Because he was complaining, most of the night, about his marriage problems, so I thought he wanted to talk about it.” As SSgt H and CL left, appellant gave a “quick kiss” on the lips to each of them.
*238SSgt H testified that she was awakened during the night by someone knocking on her door. She saw appellant through a window and waited to see if he would continue knocking, but when she saw him walking away, she went back to bed. While in bed, she heard noises in the house and thought it was her younger son. As she was getting out of bed to investigate, appellant walked into her bedroom. She testified that she screamed and covered herself, and that appellant said, “Shhh. It’s Jeff.” She asked appellant, ‘What are you doing here?” and he said that she had invited him.
SSgt H testified that she put on a robe and told appellant, “[T]hat’s not what I said, but if you really want to talk that much, talk.” Appellant started talking about his wife and shouting that he could not afford a divorce. SSgt H cautioned him to be quiet so that he would not wake up her children.
SSgt H testified that, at that point, he began trying to touch her chest and she kept pushing him away and telling him to leave. Appellant pushed her onto the bed, removed her underpants, and performed oral sex on her. She kept saying, “Please don’t do this to me.” She testified that she was afraid that her boys would awaken and the older boy would try to protect her, not understanding what was happening.
SSgt H testified that appellant then unbuttoned his pants, put on a condom, and had intercourse with her. She continued to say, “Please don’t do this to me.” She testified that appellant threatened her with anal intercourse if she did not respond to him, and that he put his fingers in her anus. After a short time, appellant had sexual intercourse with her a second time and then grabbed her by the hair and pushed her face onto his penis and told her to “suck him.” She kept saying, “This isn’t going to work, it’s done. Get the hell out of my house, it’s done.” Appellant agreed to stop. SSgt H walked downstairs with him, and appellant kissed her before walking out the door. The entire episode lasted about 2 hours.
The next morning, CL visited, and SSgt H described what had happened. CL said, “He raped you.” CL testified that she and not SSgt H first used the word “rape.”
SSgt H testified that she was reluctant to report the incident but agreed to talk to the Office of Special Investigations (OSI) if that would keep the incident off the police blotter. She was afraid that her older son would find out what had happened if the incident was on the police blotter.
SSgt H admitted on cross-examination that she had been diagnosed with “adjustment disorders” as early as 1983, and that she had been again diagnosed as having an “adjustment disorder” approximately 1 month before the trial. Defense counsel elicited that, in 1985, SSgt H had been diagnosed as “an essentially angry, sullen, irritable, and suspicious individual” who was “manipulative and argumentative ... overly sensitive to criticism, and frequently jumps to conclusions, based on inadequate data.” In 1986 she was diagnosed as having “a mixed personality disorder, with histrionic and borderline features.” In 1990 she was diagnosed as having “histrionic personality traits” and being “prone to exaggerations of emotions and behavior in her interpersonal relations.”
During an Article 39(a)2 session convened before Sgt Pizzulo testified, defense counsel lodged several objections to Sgt Pizzulo’s testimony, including a specific objection to the purported admission by silence. Defense counsel asserted, “I don’t think the Government can offer an admission by silence, after an individual has been advised of his right to remain silent and his right to counsel, and, in fact, Sergeant Cook had obtained counsel at that time.” Without making findings of fact or reciting reasons, the military judge overruled the objection.
Sgt Pizzulo testified that appellant told him on the afternoon of July 17 that SSgt King had given him a ride to a house, that all the lights were out, and that he had gone inside the house and “had gotten lucky.” While appellant, Sgt Pizzulo, and some acquaintances were watching television that evening, appellant answered a knock on the *239door and was apprehended by agents of the OSI on Sgt Pizzulo’s front porch.
About a week later, appellant came to Sgt Pizzulo’s house and asked if he had told anyone about what had happened. Appellant said, “[I]f you were a true friend, you wouldn’t say anything.”
Sgt Pizzulo testified that he asked appellant, “[W]hat’d you get charged for? Was it rape?” Appellant did not respond. Sgt Piz-zulo asked, “Well, did you do it?” Again, appellant did not respond. The conversation changed to another subject, and appellant departed. On cross-examination Sgt Pizzulo conceded that appellant may not have responded to his questions because he had been advised by a defense counsel not to talk about it.
At the conclusion of the prosecution case, the defense rested without presenting any evidence. During argument on findings, trial counsel commented several times on appellant’s failure to respond to Sgt Pizzulo’s questions. He argued:
[W]hat you don’t say is more important than what you do say____ If he was falsely accused, wouldn’t you expect him to say, “No, by God, I didn’t do it. She’s lying?” Isn’t that what you expect from an innocent man? His silence in the face of a serious rape allegation speaks volumes about his guilty state of mind.
Finally, in rebuttal, trial counsel again argued:
If he’s not guilty, why would he stand silent, when Sergeant Pizzulo made the accusation? ... Why did he stand silent? Because he was evidencing his guilty state of mind.
The defense did not object to trial counsel’s arguments.
The military judge made no specific reference to admissions by silence in his instructions, but his instructions on findings included the following:
The accused has an absolute right to remain silent. You will not draw any inference adverse to the accused from the fact that he did not testify as a witness. The fact that the accused has not testified must be disregarded by you.
The Court of Criminal Appeals held that appellant’s failure to respond to Sgt Pizzulo’s questions was not relevant, but that the error in admitting the irrelevant evidence was not prejudicial.
Appellant now argues that the court below was correct in finding his silence irrelevant, but that the lower court erred in holding that the error was not prejudicial. Appellant argues that the purported admission by silence was a critical part of the Government’s case, as evidenced by trial counsel’s repeated references to his silence in his opening and rebuttal arguments on findings.
The Government asserts that appellant’s admission by silence was relevant and admissible, citing United States v. Pearson, 6 MJ 953 (ACMR 1979), and United States v. Cain, 5 MJ 844 (ACMR 1978). The Government also argues that the court below, although incorrectly holding that the evidence was irrelevant, properly concluded that any error was not prejudicial.
Discussion
The concept of an admission by silence was expressly recognized in the Manual for Courts-Martial before the Military Rules of Evidence were promulgated. Both paragraph 140a, Manual for Courts-Martial, United States, 1951, and paragraph 140a(4), Manual, supra, 1969 (Revised edition), provided that when an accused was not in custody or under arrest or investigation, failure to deny an accusation under certain circumstances “may be regarded as incriminating evidence which is admissible.” See generally United States v. Armstrong, 4 USCMA 248, 15 CMR 248 (1954).
The Military Rules of Evidence, Manual, supra (1995 ed.), do not expressly recognize admissions by silence but implicitly do so by stating when the inference drawn from silence may not be drawn. Mil.R.Evid. 304(h)(3) provides:
A person’s failure to deny an accusation of wrongdoing concerning an offense for which at the time of the alleged failure the person was under official investigation or was in confinement, arrest, or custody does *240not support an inference of an admission of the truth of the accusation.
MiLR.Evid. 304(h)(3) “is taken from Para. 140a(4) of the 1969 Manual,” which described admissions by silence. Drafters’ Analysis of MiLR.Evid. 304(h)(3), Manual, supra at A22-13. Although no longer expressly recognized in the Military Rules of Evidence, admissions by silence continue to be recognized in both military and civilian federal practice. See, e.g., United States v. Stanley, 21 MJ 249, 250 (CMA 1986); United States v. Giese, 597 F.2d 1170, 1196 (9th Cir.1979).
It is uncontroverted that on July 17, 1994, the day after the alleged rape, appellant was apprehended at Sgt Pizzulo’s residence, and the OSI began its investigation. Defense counsel’s assertion that appellant had been advised of his rights and had retained counsel was not contested by the Government. In his cross-examination of Sgt Pizzulo, defense counsel suggested that appellant’s silence might have been in accordance with advice of counsel.
The Court of Criminal Appeals held that MiLR.Evid. 304(h)(3) did not preclude admission of Sgt Pizzulo’s testimony about appellant’s silence, because Sgt Pizzulo was not acting in any official capacity. We disagree with that court’s narrow interpretation of MiLR.Evid. 304(h)(3). The Drafters’ Analysis indicates that the rule was taken from earlier Manual provisions describing admissions by silence.
We agree, however, with the lower court’s conclusion that appellant’s silence was not relevant. The gist of MiLR.Evid. 304(h)(3) is that silence by an accused who is under investigation will not logically support an inference of guilt. Thus, appellant’s silence after being apprehended, advised of his rights, and having obtained counsel was not relevant to the question of his guilt. Accordingly, we hold that the military judge erred by permitting the Government to introduce evidence of appellant’s silence when asked by Sgt Pizzulo if he had raped SSgt H.
The error, however, was not of constitutional dimension. It was an evidentiary error involving admission of irrelevant and highly prejudicial evidence. See MiLR.Evid. 402. Because Sgt Pizzulo was a friend, junior in grade to appellant, and not acting in a law enforcement capacity, Article 313 was not triggered. See United States v. Duga, 10 MJ 206 (CMA 1981). Appellant was not in custody and had not yet been charged. See United States v. Miller, 46 MJ 80 (1997). Trial counsel did not comment on appellant’s failure to testify or present evidence at trial, and the military judge specifically instructed the members not to draw any adverse inference from appellant’s failure to testify. Therefore, the Fifth Amendment was not implicated. See United States v. Saint John, 23 USCMA 20, 48 CMR 312 (1974).
In order to hold that a noneonstitutional error was harmless, we must be able to say, “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). The error must be evaluated, “not singled out and standing alone, but in relation to all else that happened.” Id. at 764, 66 S.Ct. 1239.
We disagree with the court below that the erroneous admission of evidence of appellant’s silence was harmless. While the evidence that sexual intercourse occurred was overwhelming, the evidence of rape, sodomy, and unlawful entry came solely from the testimony of SSgt H. Her testimony was vigorously attacked as improbable and unworthy of belief. The purported admission by silence directly pertained to the alleged rape.
The inadmissible evidence of appellant’s silence was presented as an admission, one of the most damaging types of incriminating evidence. See Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), quoting Justice White’s dissent in Bruton v. United States, 391 U.S. 123, 139-*24140, 88 S.Ct. 1620, 20 L.Ed.2d 476 (“[T]he defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him.”). Appellant’s purported admissions were a significant piece of the prosecution case. Although trial counsel was careful not to comment on appellant’s failure to testify or present evidence, trial counsel’s repeated hammering on appellant’s silence could not help but call attention to the absence of defense witnesses or testimony from appellant. There was no physical evidence or direct corroboration of rape, forcible sodomy, or unlawful entry. Trial counsel repeatedly argued that appellant would not have answered his friend’s questions with silence if he was innocent. See United States v. Riley, 47 MJ 276, 280 (1997). On this record, we “cannot say, with fair assurance,” that the military judge’s error did not substantially affect the court members’ decision to convict appellant. Kotteakos, supra at 764, 66 S.Ct. 1239.
Decision
The decision of the United States Air Force Court of Criminal Appeals is reversed as to Charge I and its specification (rape), Charge II and its specification (sodomy), Charge III and its specification (unlawful entry), and the sentence. The findings of guilty thereon are set aside. The decision is affirmed with respect to specification 1 of Charge IV and Charge IV. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered.
Judge EFFRON concurs.
. We also granted review of the issue whether rape is multiplicious with adultery. This issue was resolved against appellant in United States v. Hill, 48 MJ 352 (1997).
. Uniform Code of Military Justice, 10 USC § 839(a).
. UCMJ, 10 USC § 831.