“COL Vance will be intimately aware that under the Uniform Code of Military Justice, he can convict Bergdahl while also deciding to render no punishment at all for both crimes.”
Facing a possible life sentence for his actions in Afghanistan, Bowe Bergdahl has elected to be tried by a judge instead of a military panel of his peers. Bergdahl’s legal team notified the court of their client’s decision in a brief filing last week. His general court-martial is scheduled to begin October 23rd; jury selection had been scheduled to begin on October 16th. Bergdahl has admitted to intentionally and willfully leaving Observation Post Mest in Afghanistan on the night of June 30, 2009; Bergdahl spent five years in the custody of the Haqqani network in Pakistan before being exchanged for five Taliban senior leaders on May 31, 2014.
Bergdahl has been charged with “misbehavior before the enemy by endangering the safety of a command, unit, or place” and “desertion with intent to shirk important hazardous duty.” The misbehavior charge carries the most severe penalty, with the possibility of a sentence of life imprisonment if Bergdahl is convicted; the desertion charge carries a maximum confinement sentence of five years.
Bergdahl’s lawyers know that a military panel would be made up of service members that have fought and served honorably in combat zones.
If convicted of either charge, Bergdahl also faces a dishonorable discharge, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. A dishonorable discharge alone would ensure that Bergdahl is not eligible for any benefits, such as disability payments or the GI Bill.
The decision by Bergdahl to avoid being judged and sentenced by a jury of his peers was most likely an extremely wise one from a strategic point of view. While the defense team refused to comment on the decision, Bergdahl’s lawyers know that a military panel would be made up of service members that have fought and served honorably in combat zones; these jurors would have known sacrifice and may very well have harshly judged Bergdahl as being both a coward and a traitor. The judge for Bergdahl’s court-martial is COL Jeffery R. Nance, whom most experts say has been extremely balanced and fair during a litany of pretrial motions and hearings.
During the Article 32 hearing for Bergdahl, the investigating officer, Major General Kenneth Dahl, testified that he thought that any sentence involving jail time for Bergdahl would be “inappropriate.” The presiding officer for the hearing, LTC Mark Visger, recommended that Bergdahl should be referred for a special court-martial, where he would not face a punitive discharge or any confinement. However, the commander of United States Army Force Command disagreed and ordered Bergdahl to face a general court-martial.
Since the initial trial date in February 2017, the defense team has made various motions to have the case delayed and/or dismissed. After President Obama refused to pardon Bergdahl, the defense team attempted to have the case thrown out because of things that President Trump said during his 2016 campaign. COL Vance denied this request, as well as one from the defense team to allow them to ask potential panel members who they voted for in the presidential election.
Out of options for avoiding an actual court-martial and having plead not guilty, Bergdahl must seek to minimize the risk of punishment in the likely outcome of a guilty verdict. By avoiding the judgment of his peers, Bergdahl’s defense lawyers now only have to convince one person to go easy on their client if he is convicted. COL Vance will be intimately aware that under the Uniform Code of Military Justice, he can convict Bergdahl while also deciding to render no punishment at all for both crimes.
