“In another blow to the defense, Judge Nance also ruled that if convicted, testimony about the wounds received by service members conducting rescue operations would be allowed during sentencing.”
Last week, COL Jeffery Nance rejected a motion by the defense team of alleged deserter SGT Bowe Bergdahl to dismiss a charge of misbehavior before the enemy. Bergdahl’s general court-martial is scheduled to begin October 23rd at Fort Bragg, North Carolina. He is also facing a desertion charge, which carries the possibility of five years of confinement in a military prison if found guilty. The much more serious misbehavior charge carries the possibility of a life sentence. Both charges are directly related to Bergdahl’s actions on the night of June 30, 2009; this is when PFC Bergdahl abandoned his unit and walked off his combat outpost in Paktika Province, Afghanistan. Bergdahl was quickly captured by insurgents and eventually ended up in the custody of the Taliban, where he remained until May 31, 2014. He was subsequently exchanged for five senior Taliban members who had been in custody at Guantanamo Bay, Cuba.
Bergdahl’s lawyers claimed that the misbehavior charge should be dismissed because it didn’t name a specific offense and therefore it does not give fair notice of what action was forbidden. While judge Nance admitted that case law was scarce for such a rare charge, it was undeniable that any soldier who goes Absent Without Leave from his post would be aware that they could face punishment; thus, the misbehavior charge was stating a specific offense. In his ruling, COL Nance stated,
“There is simply no way the accused could not reasonably have understand that his conduct was proscribed. Furthermore, the alleged conduct cannot even be said to be ‘marginal’ misconduct. The government avers that the accused left his combat outpost intentionally, without authority and for the purpose of causing search and recovery operations, which he ultimately did cause. The specification alleges that all of this was done ‘before the enemy.’ How could such alleged conduct be characterized as anything other than misconduct under any definition of the word?”
In another blow to the defense, Judge Nance also ruled that if convicted, testimony about the wounds received by service members conducting rescue operations would be allowed during sentencing. The court previously ruled that such testimony could not be utilized during the court-martial itself, as second- and third-order effects of Bergdahl’s actions were not a part of the criminal charges against him.
Earlier this month, the prosecution introduced testimony that SFC Mark Allen and SCPO James Hatch both suffered traumatic injuries while conducting search and rescue operations for Bergdahl; Hatch’s career as a Navy SEAL was ended and he now has a permanent limp. Allen suffered a traumatic brain injury after being shot in the head and is now severely disabled and confined to a wheelchair. The prosecution wanted the court-martial panel to hear about the costs of Bergdahl’s actions during sentencing so they could weigh the severity of their impact against the severity of the sentence Bergdahl deserves.
In addition to the possible jail sentence, Bergdahl also stands ready to receive a Dishonorable Discharge that would ensure he was unable to draw any and all benefits due to him, including VA disability and the GI Bill. There is also the question of back pay from the five years Bergdahl was with the Taliban, which includes increases in pay from automatic promotions up to the rank of Sergeant. If convicted, he would likely forfeit all pay and allowances, to include the currently frozen back pay.
SGT Bergdahl has still not entered a plea. The next hearing before the court-martial is scheduled for July 27th.
