Army Times report here. In includes this:

In his report, the investigating officer for the Article 32 recommended Bergdahl avoid jail time, Fidell previously told the media. Lt. Col. Mark Visger’s report to Abrams also recommended the case be decided at a special court-martial.

Soldiers facing special courts-martial can receive no more than a year in jail and no worse than a bad-conduct discharge; punishments regarding hard labor and pay forfeiture have similar restrictions.

Not mentioned is one particularly significant collateral consequence of an executed punitive discharge adjudged by a general court-martial:

The discharge or dismissal by reason of the sentence of a general court-martial of any person from the Armed Forces . . . shall bar all rights of such person under laws administered by the Secretary [of Veterans Affairs] based upon the period of service from which discharged or dismissed, notwithstanding any action subsequent to the date of such discharge by a board established pursuant to section 1553 of title 10.

38 U.S.C. § 5303(a) (emphasis added). See also the VA benefits issue of the Military Law Review (winter, 2012 ed.).

101 Responses to “Bergdahl charges referred for trial by general court-martial”

  1. Bowe Contains Multitudes says:

    It would be an interesting situation if he were to receive a DD and yet still fit the definition of a POW. I wonder how many times a former POW has been denied all benefits because of a DD.

  2. stewie says:

    What I think would be more interesting is if he gets convicted, which he undoubtedly will be of something, unless a strong mental health defense is forthcoming…but then gets no kick and no jail time.
     
    Do they then do a separation board, which some might argue was the right answer in the first place?

  3. Joseph Wilkinson says:

    Undoubtedly…the result would be a general discharge (Army regs don’t allow OTH if you beat the kick at CM), but still with no VA benefits because of the statutory bar mentioned in the OP.
     
    (I don’t think that was, or is, the right answer; but I do think that is what will happen if he is convicted but gets no punishment.)

  4. oxwof says:

    Is there any chance, given the “based upon the period of service from which discharged or dismissed” language, that Bergdahl could get benefits anyway? That is, if he served his full enlistment obligation and has subsequently reenlisted after returning home, he would only forfeit benefits for that last period of service.

  5. Joseph Wilkinson says:

    oxwof – He can only be discharged for misconduct committed during the current term of enlistment; so if he were allowed to reenlist, that would cut off an administrative discharge.  But I hope he has been flagged since returning, which should block reenlistment per paragraph 3-1 of AR 600-8-2, so I don’t see how it would come up. 

  6. Awol says:

    Q for Wilkinson:  He was currently working at that base, does that mean he had to have reenlisted, otherwise was would the max original enlistment time have been?

  7. Zachary D Spilman says:

    The enlistment question is a little complicated, but he has almost certainly not reenlisted. 

    If Sergeant Bergdahl’s capture was the result of his own misconduct (desertion), then his absence is lost time that he has to make up. See 10 U.S.C. § 972. 

    There are also various authorities that allow the Government to extend Sergeant Bergdahl’s enlistment for legal action or medical treatment. 

  8. Saul says:

    JW – am I missing something or wouldn’t HQDA be able to issue a characterization of service of OTH?
     
    AR 635-200, 14-3b. When the sole basis for separation is a serious offense resulting in a conviction by court-martial that did notimpose a punitive discharge, the Soldier’s service may not be characterized as under other than honorable conditions unless approved by HQDA

  9. Scott says:

    saul, you are correct. Can still get an OTH in the Army after you beat he kick at CM, but the approval authority is HQDA. It’s a pain to route things to DA but it certainly can be done (and frequently is). 

  10. Joseph Wilkinson says:

    Scott & Saul – thanks for the reminder; I have never seen that tried myself.  Not that I have much confidence that he’d get OTH’d at the DA level…not after the “optics” of the return celebration at the White House.  The Army’s best hope is a long sentence and a kick from the MJ.  (I’d be shocked to see this go to a panel.)

  11. Joseph Wilkinson says:

    P.S. – With the VA benefits blocked by a statutory bar anyway, it’s so easy to see the command saying the OTH is not worth the bother (assuming Stewie’s hypothetical, in which he escapes court-martial with no kick).

  12. stewie says:

    I don’t know…if they believe in the case/outcome strongly enough to go GCM over the PHO’s recommendation, then they might continue to try to squeeze as much juice as they in my hypothetical by seeking an OTH and taking their chances with HQDA.  They have nothing to lose but time/effort.
     
    I don’t know if I would be shocked to see it go to a panel. It’s clear he will be convicted of at a minimum AWOL. I’m in favor of just chaptering him with a General, and I’d have to convict him of at least that if I were sitting on a panel given what we know so far.
     
    The real variability will come in the kick. I don’t know who the MJ would be. If the trial is at Sam Houston, you have a chance for folks with medical/mental health backgrounds to sit on the panel…it’s certainly not going to be a hardcore FORSCOM panel.  I think there may be at least some thought that goes into panel v. board based on the current makeup of both.

  13. Charlie Gittins says:

    I am completely unsurprised by the decision to refer charges.  General Abrams is looking out for himself.  His next assignment will likely be determined by the next President and if he hopes to get that next assignment, he needs to satisfy his political constituency, which is the United States Senate, Armed Services Committee.  At his level he is nothing if not a political animal.  It is a no lose proposition for him to send the case to trial.  He doesn’t have to be concerned about his next assignment being derailed (a la Franklin, etc) by Senators who are on record demanding trial and conviction, and if BB is acquitted, Abrams can shrug his shoulders and point to the fact that a military jury heard the evidence and made their decision, washing his hands of the case.  Like I said, no lose, no political capital expended, and he keeps his hopes alive for Army Chief of Staff or Chairman JCS in the future.  Pretty simple really.

  14. You Down with JPP? says:

    Does the accused get Allen credit for the time served with the Taliban?  It was confinement “as a result of the offense” charged.

  15. Joseph Wilkinson says:

    Stewie – To my mind the desertion with intent to shirk is likewise a no-brainer; combat zone service is “important service” and under United States v. Kim, all he needs is to know that his unit was doing important service and that he was going away from it…no matter how soon he planned to return or how noble his goal was.  (I did once see a judge convict on that, and afterwards admit that he hated doing it, but the law was just too clear.)   Throw in his inflammatory correspondence (at least as Rolling Stone reported it) and I’d think it was time to moderate the risk.

  16. stewie says:

    I don’t know that I agree it is a no-brainer. It’s certain possible, heck all of the charges have a respectable chance…but certainly desertion/shirk has a decent chance…but I could see a MJ or a panel deciding that AWOL is enough…but the reality is…do they think he was a mentally “touched” person who did something stupid but with no intent to run away from duty or put others in harm, or do they think he knew about such harm and duty but didnt care, or do they think he wanted to go join the Taliban.
     
    The fact-finder’s ultimate thoughts about all of that will determine what sentence he receives regardless of the offenses he is convicted of I think.

  17. Lieber says:

    Has a 706 board been done yet?
    86 is a no-brainer, not sure about the 85.  specific intent crimes are hard to prove. 

  18. Lieber says:

    that should have said “86 is easier”, not “is a no-brainer”

  19. J.M. says:

    When can we expect to see the trial start? 

  20. Joseph Wilkinson says:

    Stewie, Lieber — The “intent” you have to prove for desertion with intent to shirk is simply the intent to leave the unit,  combined  with knowledge of the “important service”– which combat zone service is.  And that is indeed incredibly easy to prove (I have a little experience doing it).  You do not have to prove the intent to “put others in harm” or any other evil result.  Kim — it’s 35 M.J. 553 (ACMR 1992) — lines it up pretty well…the guy said he was going to visit his sick grandma; the prosecution said he was going to visit his mistress; but it didn’t matter.  As long as he knew his unit was doing the important service (a train-up for a deployment), and knew that he was leaving, he was guilty. (He intended to come back for the deployment itself, if I remember that was undisputed, but that didn’t matter except as mitigation.) 
     
    Being “stupid” or “mentally touched” doesn’t matter either…the “lack of mental responsibility” standard is still the basic M’Naghten rule, so he’d either have to not realize he was leaving, or else not realize this was forbidden, based on a severe mental defect.  The letters I read in the Rolling Stone article suggest he had a bad case of “FTA” attitude, and another bad case of “f*** America” attitude, and walked away because he was angry and wanted to, not because he was hallucinating that he was in the Land of Oz and taking the Yellow Brick Road.

  21. Zachary D Spilman says:

    I previously explained why I believe Sergeant Bergdahl may have confessed to the charged desertion offense.

    And that was before the Serial revelations…

  22. Joseph Wilkinson says:

    Excellent post, ZS; wish I’d read it before.  It lines up also with United States v. Rockwood — you can’t get out of “quitting your place of duty” by saying you were “going off to investigate human rights violations.” 

  23. stewie says:

    In reverse order, since I clearly referenced his possibly being “mentally touched” in the context of sentencing and I’ve seen no one anywhere suggest he is either unfit to stand trial or NG by reason of insanity, your second paragraph is…perplexing.
     
    As to intent, I’ll stick with Lieber…it’s a lot harder to prove in practice than in theory, particularly in front of a panel, your personal successes notwithstanding.
     
    I’ll also cite to “Former Trooper” in ZS’s linked thread that I think says it better than I could:
     
    “I am saying as a matter of common sense, moral philosophy, and the legal tradition, it cannot be the case that general conclusions regarding intent can always support specific intent crimes, or put another way that motive is always irrelevant.  You’re tautological insistence as to what is relevant under current jurisprudence does not address the issue. The natural consequence of shocking someone in the chest with intense electric current is grievous body harm.  But assault with intent to cause grievous bodily harm is a specific intent crime.  Is it your argument that if I, as a bystander that saw someone having atrial fibrillation, took down a defibrillator and shocked his chest I am prima facie guilty of assault with the intent to cause grievous bodily harm?  
    Motive and intent are not two distinct concepts.  They both describe components of the mental state of an actor.  We have, over several hundred years, determined to call intent “motive that the legal system cares about.”  If we are going to have specific intent crimes there must be a different way to analyze the requisite intent over general intent crimes, and to say that “people generally intend the natural consequences of their actions” is circular and, frankly, dumb.”
     

  24. Concerned Defender says:

    To my mind the desertion with intent to shirk is likewise a no-brainer; combat zone service is “important service” and under United States v. Kim, all he needs is to know that his unit was doing important service and that he was going away from it…no matter how soon he planned to return or how noble his goal was.  (I did once see a judge convict on that, and afterwards admit that he hated doing it, but the law was just too clear.)   Throw in his inflammatory correspondence (at least as Rolling Stone reported it) and I’d think it was time to moderate the risk.

    I agree with JW above.  The 85 is a nobrainer, and the elements prove themselves, given the facts and BBs statements.  I’ve listened to the obviously politically motivated POTUS followers and it is impossible for an honest broker to believe there isn’t SOME evidence of a crime.  The 99 is also quite strong given the facts.  I’ve seen far less misconduct head to trial and result in convictions.   For BB, the elements write themselves, and I’m unaware of any legit defenses to the MERITS (e.g., It wasn’t me; I had authority; I was on a secret mission directly from the POTUS; etc.) that could feasibly save him.  It’s also curious how those claiming “UCI” from Congress might otherwise ignore the direct UCI from the POTUS and Congress and the SecArmy on prosecuting ALL allegations and handing out DDs like candy.  If that isn’t UCI, not sure what is.  
    JA vs Panel is an interesting discussion.  Seems that he could hope for panel nullification as a long shot.  MJs have to follow the law.  So he gets convicted there.  Perhaps a naked plea?  Dunno.  As a defense attorney I’d be pushing pretty hard for a deal to mitigate the damage, or do some damage control.  I suspect this will not work out well for BB.  We shall see. 
    As for a discharge and VA benefits…  if he was AWOL during captivity, the question is whether injury or disease due to ones’ own misconduct is covered by the military or VA.  Seems that a Line of Duty investigation would determine his misconduct was the proximate cause of his injuries, but maybe incident to his service in combat theater.  Interesting exercise.  
    From a Soldier standpoint, knowing the published information, I would be pretty upset if he does not get a punitive discharge for his misconduct.  I also think it warrants severe confinement.  I certainly do not think he should get 5 years of retroactive pay and promotions, nor do I think he should get the same Honorable discharges the rest of us have earned.  If convicted then BB’s misdeeds were the proximate cause or cause in fact of numerous GIs deaths, millions of wasted dollars on search and recovery, and the release of 5 top tier terrorists – in short, anyone in this practice has seen far, far less serious crimes punished by punitive discharges and lengthy sentences.  I’d say a conviction with a fair trial is a foregone conclusion;  If he’s convicted, I’d say it warrants a couple decades of confinement and a punitive discharge.  

  25. Lil' Wayne says:

    If he’s convicted of the most serious charge, what’s everyone’s prediction on sentence?  I’d say he’s staring at a DD and at least 25 years in Leavenworth.

  26. Joseph Wilkinson says:

    Stewie — You said, It’s certain possible, heck all of the charges have a respectable chance…but certainly desertion/shirk has a decent chance…but I could see a MJ or a panel deciding that AWOL is enough…but the reality is…do they think he was a mentally “touched” person who did something stupid but with no intent to run away from duty or put others in harm, or do they think he knew about such harm and duty but didnt care, or do they think he wanted to go join the Taliban.
     
    And I say, It’s not at all clear to me that that was about sentencing rather than findings…sounded as if you were muddling “intent” with “motive”….but anyway…
     
    The point is, under Kim and Huet-Vaughn, to prove the specific intent, all you need is the intent to leave or stay away plus knowledge of the important service.  That is incredibly easy to prove when the unit is already in a combat zone doing important service at the time the person leaves.  (That was how I won two of the desertion cases I prosecuted.)  The distinction between “intent” and “motive” is plainly spelled out in Huet-Vaughn itself:
     
    “A person often acts with two or more intentions.  These intentions consist of an immediate intention (intent) and an ulterior one (motive), as where the actor takes another’s money intending to steal it and intending to use it to buy money for his needy family…It may be said that, so long as the defendant has the intention required by the definition of the crime, it is immaterial that he may also have had some other intention.”
     
    ….no tautology there, nor do I see any relevance to the language you quote about whether “general conclusions always support specific intent crimes.”  The story might be different if, say, Bergdahl left his unit when it was still stateside, and rumors of the coming deployment were flying around, but no one had specific proof that he knew about the deployment.  In that case you’d have the AWOL but the desertion would be in play.  In fact, in a case like that, he could use motive to try to prove the upcoming deployment was not the stimulus that led him to flee.  But when the unit’s deployed already and he’s deployed with it, and he walks off under his own steam, he’s nailed.  
     
    It’s like proving intent to steal when your client took property off of a store shelf and ran away with it, versus when it was lying by the side of the road and he might’ve thought it was abandoned…sometimes it’s easy and sometimes it’s not.   In Bergdahl’s particular case, it is easy.   (The Benchbook instructions are not as clear as they should be, or they weren’t the last time I checked, but prosecutors can get around that by asking for some custom instructions incorporating the case law.)

  27. Joseph Wilkinson says:

    P.S. – I said:
     
    In fact, in a case like that, he could use motive to try to prove the upcoming deployment was not the stimulus that led him to flee. 
     
    To be clear, it would have to be part of a defense that he didn’t know the combat deployment was going to happen (by rebutting the Government’s argument that, “of course he knew; why else did he flee?”).  Once the knowledge is proven…the intent is there, and the motive no longer matters on findings.

  28. Concerned Defender says:

    It would be an interesting situation if he were to receive a DD and yet still fit the definition of a POW. I wonder how many times a former POW has been denied all benefits because of a DD.

    Going to the original post – probably not too often since the capture was the product of his own doing.  A Line of Duty investigation might or might not demonstrate his own negligence per se, thereby denying him of any benefits during the absent period.  Conversely, his being in a combat zone was not of his choosing (even though his leaving the relatively safety of the base was)… very interesting question.  I’d say you’d have to be a master at weighing causation versus duty verses negligence per se… on balance IF he were convicted of at least AWOL, then any events that occurred during the absent period due to his own misconduct should not be covered.  Stated otherwise, YOUR and MY tax dollars are not infinite.  Other veterans who served Honorably should get them and BB should not get benefits for his captivity related injuries…  Say you are a badly injured Honorably discharged veteran.  Is it fair that you stand in line behind BB for treatment?  I’d say no. 
    As for the intent piece, JW nailed it.  Walking off on foot, in Afghanistan, no weapon or equipment, into the dangerous area, to “report” whatever to the senior leadership at another base?  Pretty thin.  Particularly when there were reports by others to the contrary.   Nobody else seemed to report of the level of toxicity in his leadership/unit that they amounted to raising issues.  

    It’s particularly ironic and interesting that in one of his letters he wrote:  
    “There are some risks that are forced to be taken, however it was made clear more than once that clear minded understanding from leadership was lacking, if not non-existent. The conditions were bad and looked to be getting worse for the men that where actuly the ones risking thier lives from attack as well as Afghan ellements.”

    Ironic that he directly caused more Soldiers to extend their deployments and all units to divert resources to looking for him, thereby needlessly exposing themselves to danger.  Several died.   
    Setting that aside, how close was this other base?  Proximity would be important.  It’s often noted that he was going to “walk to the nearest base.”  But how far is it?  We know he left at night and was captured at sunup, so he’d been walking for many hours at least. He clearly knew how to write emails.  Why not just send a message over his chain of command to IG, or another CG, etc.  Much safer and less problematic than the course of action he took.  Here’s an except that’s particularly enlightening:

    “As a private first-class, nobody is going to listen to me,” Bergdahl says in the first episode of the podcast, released Thursday. “No one is going to take me serious that an investigation needs to be put underway.”

    So given this, he would have known that he might very well get to the next base, and then his relative powerlessness would amount to nothing.  Did he expect his walking away was a gesture that would convince someone higher to act?  Alternately, again, why not just send an email to several senior ranking folks.  This is a much more efficient and safer method of whistleblowing – if that was his intent. 
    The investigation from years ago concluded that BB was either accompanied by Afghans when he left the base, or he went to a local village and was reported looking for Taliban to meet with them.  So, there’s that ugly information, not particularly helpful to BB if true.
    His plan made no sense and it would have required at least 1 missed day of duty.  In my many deployments, Soldiers worked 7 days x 12 hours or so.  Rarely did Joe have a day “off” deployed.  So BB’s plan is flawed from the start since the natural and probable events would require that he be gone for at least long enough to miss a duty day.  Does he think he’s just going to show up at another base in the middle of the night and walk in and talk to some Commanding General?  Then return like nothing happened?  It’s just far-fetched.  
    So, once again, we’re left with clearly there’s enough evidence to warrant a GCM.  The 32 result was nonsense and was rightly ignored, and that IO is a sorry excuse for an investigating officer.  I’m fully in favor of BB’s due process rights, and he’ll stand trial and get to put on his defense.  When he’s convicted I won’t be surprised.  
    (The font sizes and types are unintentional – copying and pasting article excepts changes font size/style and I don’t see any font button to remedy it).  

  29. Habeas Corpse says:

    Wayne – while DD seems a possibility, it would be stunning if he got anywhere near 25 years.  Frankly, his sentence is likely to be not much more than a Special could have yielded.

  30. stewie says:

    Did you miss the very next sentence I typed??
     
    “The fact-finder’s ultimate thoughts about all of that will determine what sentence he receives regardless of the offenses he is convicted of I think.”
     
    And it isn’t clear to you that I was talking about the sentence??
     
     

  31. Jack Burton says:

    @ Concerned Defender:  “Rarely did Joe have a day “off” deployed.  Absolutely correct, BUT most Judge Advocates did, which gives them a skewed view of the Army.  It’s this skewed view that is the optics through which government counsel view this case.  Usually when someone says “watch this” it is typically followed by tragedy and/or a trip to the ER.  I can just imagine the prosectution team on this case sitting around saying to each other “watch this”.   
     
    @ ‘Lil Wayne:  25 years??? Really?  You must be a TC.  N’est pas?

  32. Lil' Wayne says:

    @ Jack Burton:  No, never been a TC.  I just don’t see all the M&E everyone else does, I guess.  Pardon the poor analogy, but this case kind of reminds me of the Pete Rose saga.  Ole Pete is still banned b/c the powers that be (rightly so, IMHO) know that his offense has the potential to bring down the whole enterprise.  Same thing with desertion on the battlefield.  25 years is light, quite frankly.

  33. Mike says:

    I hope the voir dire questions include 1) Do you watch Fox News? and 2) Is your favorite candidate Trump, Graham, or Cruz?
     
    Yes answers to either equals automatic disqualification.

  34. stewie says:

    Pete Rose wasn’t tortured for five years, and there are all sorts of flavors of desertion, some deserve more time than others, and I would think any attorney could “see” the M&E rather easily…they may or may not be moved by it, but it’s not a mythological creature.

  35. Concerned defender says:

    I see the M&E.  I’m just unmoved by it since it’s 100% a foreseeable product of his own criminal behaviour.

  36. stewie says:

    Well of course you aren’t because you seem to believe he left to join the Taliban.

  37. 4thClassOfficer says:

    I wonder how many times a former POW has been denied all benefits because of a DD.
     
    I can think of one real quickly:  Bobby Garwood

  38. k fischer says:

    This isn’t a sexual assault case, so to quote Marvin, “Man, I don’t even have an opinion.” 
     
    However, I do have an observation for anyone thinking he is going to get 25 years.  He’s being tried at Ft. Sam Houston.  From the Ft. Sam Houston website: Welcome to Joint Base San Antonio – Fort Sam Houston, Home of Military Medicine located in the heart of San Antonio.  My experience has been at Courts-martial that the Government ALWAYS preempts medical branch officers.  There is a reason why.  I don’t know one way or the other if it will impact SGT Bergdhal’s case, but that’s my observation.

  39. Jack Burton says:

    Free Pete Rose!!!
     
    Ole Pete’s transgressions fall far short of others like Barry Bonds, Roger Clemens, and Mark McQuire.  Those guys comitted sins that had the potential to bring down the entire enterprise. 
     
     

  40. Lil' Wayne says:

    No, the transgressions of the steroid era did not impact the integrity of the game the way gambling does.  The juicers still wanted to win…they just wanted to win too much.  Gamblers, on the other hand, can skew results toward losses to benefit their bets.  That’s the number one enemy of sports…throwing games.  Just as deserting on the battlefield is the number one enemy of a military.  It can break down the whole enterprise.  As for M&E in the Bergdahl case, I’m reminded of the accused who killed his own parents and then begged for mercy because he’s now an orphan…

  41. k fischer says:

    Pete Rose is a grade A A$$hole.  When he came back to the Reds as a player manager, I got to bat boy for the Reds at their away game in Vero Beach during Spring Training.  He wouldn’t sign my baseball card, after I gave him some gum and gave him a cup of water.  Dickie Thon and Jose Cruz gave me batting gloves the year before when the Astros were in town.  The year after, Terry Pendleton let me shag fly balls in left field during the Cardinal’s batting practice.  I used to skip school and ride my bike to Dodgertown, hop the fence, and tell the away teams that I was their bat boy.  Nobody ever questioned me.

  42. stewie says:

    Holy Bad Analogy Batman.  Begdahl didn’t kill his own parents…if you want to extend the proper analogy, he broke curfew by going outside and got beat the crap out of for five years, then came back home.  Granted, it’s a pretty serious curfew, one worthy of a few years in prison all things being equal, but all things aren’t equal.

  43. Concerned Defender says:

    Well of course you aren’t because you seem to believe he left [to join the Taliban].

    The unbracketed parts are correct.  I do believe, and the evidence seems easily to reach the BRD burden for desertion, that he indeed left, and he clearly had no authority to do so, and it was clearly in a combat zone.  That’s sufficient for an ART 85 conviction.  His reasons (whether he was trying to join the enemy) are irrelevant.  Anyone who doesn’t see it either doesn’t understand the law, or has Obama protectionism and refuses to believe the allmight was wrong.  So once again you’ve mischaracterized my position (as you frequently do).  For this alone it should clearly be at a GCM.  That’s sufficient to end that discussion.  
    The ART 99 stuff, take your pick of the allegations I guess.  I haven’t seen enough public information to know which of the many theories he could be charged under;  whether it is running away, shamefully abandoning, endangering the safety of the unit, casting away arms and equipment, etc.  Quite technical and too little is known about the specifics here… but it would presumably not be hard to craft the spec if the information were known in detail.  
    It is puzzling why he would leave his weapon… perhaps so he wouldn’t appear armed to the other base using night vision and since he was alone?  So he would not be shot by mistake as a possible armed insurgent, if he were unarmed?  Or, perhaps so he would not be shot by the enemy so he could engage them unarmed?  Dunno.  
    If he had just sent an email instead… 

  44. Lil' Wayne says:

    Stewie, “pretty serious curfew”?  I hope you don’t try that one in front of a panel.  Hell, or a judge.  Ain’t no curfews in combat. 

  45. Concerned Defender says:

     

    Holy Bad Analogy Batman.  Begdahl didn’t kill his own parents…if you want to extend the proper analogy, he broke curfew by going outside and got beat the crap out of for five years, then came back home.  Granted, it’s a pretty serious curfew, one worthy of a few years in prison all things being equal, but all things aren’t equal.

    Holy bad analogy Batman.  “Broke curfew” – Um no.  “Came back home.”  Again, not exactly.  I find it particularly dis-ingenious when folks downplay the 6 Soldiers who died specifically on missions out looking for Bergdahl.  I wasn’t there, nor was presumably anyone on this forum.  You know who was there?  The men who have openly spoke about it who where there.  That’s a term we like to use called “evidence.”  Not speculation.  
    I’ve seen articles that outlay the “costs” to rescue Bergdahl at $1 million, and that fails to account for the $400,000 or more per Soldier life insurance policies paid, nor the costs of the equipment destroyed by IEDs.  Nor the PTSD treatments of those effected, the lives of those families ruined.  Nor does it account for the 5 top terrorists and their ongoing costs to monitor and fight in the future. How many lives they will take on other battlefields.  We have seen where other released terrorists are captured again on the battlefield. 
     

  46. Phil Cave says:

     6 Soldiers who died specifically on missions out looking for Bergdahl.

    Has not DA and have not the investigators specifically denied any deaths related to searches for him?  Here’s what the Art. 32 transcript says:

    PHO: Okay.  Third, prior to the hearing, it was represented to me by the government, that the government would not be introducing evidence that any Soldier was killed or wounded during the alleged search and recovery operations.  As a result, to the extent that  Major S. or any other government witness testified that there were injuries suffered by U.S. forces during the alleged search and recovery operations, I will not consider this as evidence.

    We find at page 156, for example, during the major’s testimony that he is talking about IED’s encountered by the patrols while searching.  And at page 161 he testifies that “there were injuries.”  
     
     

  47. Lil' Wayne says:

    Color me shocked, Phil, that DA is saying no one was killed or injured.  There were people looking for him who can’t be subjected to media scrutiny.  The type folks who don’t get acknowledged when they die.  Not to mention that the administration would NEVER confirm that someone died looking for him—how could they?

  48. Vulture says:

    Lil Wayne.
    Are we saying now that some of that evidence that wasn’t classified that was just not subject to release to the media was classified?

  49. Lil' Wayne says:

    And could I also point out that our only source for this alleged rough treatment BB received in captivity is BB himself.  Who’s to say he wasn’t living it up while he was gone?  Frankly, I’m concerned about current allegiances given the amount of time he spent with the enemy.  Haven’t you folks seen “Homeland”?

  50. Concerned Defender says:

    Has not DA and have not the investigators specifically denied any deaths related to searches for him?  Here’s what the Art. 32 transcript says…

    I’ll wage in and suggest that the very administration that called him a “hero” and he “served honorably” and the POTUS who embraced his family in the Rose Garden celebration – odd when you consider that on the grand scale – and an administration for which the Armed Service Committee has found BROKE THE LAW in numerous ways….  Not really shocking that the Obama admin will say, do, and pressure everyone (probably including the Article 32 IO and General) to deny that any deaths occurred searching for this “hero.”  This is the administration who has pressured and used UCI relentlessly on sex assault prosecutions and dispositions.  So they are certainly not above pressuring Dept Army from doing its bidding.  
    I’d also suggest that Berdahl’s medical condition wasn’t that of a seriously abused person.  His pictures from captivity look that he’s underfed but otherwise fine.  His medical condition was as far as I know never worse than “stable” in military hospitals.  Compare that to for instance John McCain who had permanent damage from his treatment in captivity.  And Bergdahl seems to be the sole source of information about his treatment… so there’s that.

  51. (Former) ArmyTC says:

    KF, I believe he’s being tried at Fort Bragg. If not at Bragg, then at Sam with a FORSCOM panel. In any event, I don’t think the FORSCOM commander can detail anyone from Fort Sam Houston to a court martial since he doesn’t “own” any personnel there. 

  52. k fischer says:

    FATC,
     
    Indeed, Sir, I stand corrected.  Good catch, and I appreciate the feedback on my mistaken observation, which has changed immensely. 

  53. stewie says:

    Then they will just go JA, and I would be surprised if the result is life or anything close to it.
     
    CD, your conspiracy theories are…interesting.

  54. k fischer says:

    Stewie,
     
    I’ve only been in front of one judge from Bragg, but I went panel and it was a bs sex case.  Bradley Manning got 35 years when he went judge alone, but she is no longer assigned at Bragg. Different charges, but they are both pretty high profile cases. 

  55. Concerned Defender says:

    @ Stewie, not to derail this Bergdahl discussion, but as related, this administration and it’s underlings have been far from open, transparent, honest, or competent – with a very skewed view of reality. This is the same organization that promised to close Gitmo on day 1, citing that it is a recruiter of terrorists.  It has released scores of very bad people and, while it has prosecuted some, I disagree with the manner in which those were done (although do agree with the convictions).  Let’s review some of the other Agencies as analogous to the credibility of the Dept of Army.  The NSA top leadership denied they were spying, under oath, to Congress.  Jim Clapper “forgot” about the spy program when he testified before Congress.  This is a proven lie.  http://thehill.com/policy/technology/241508-spy-head-had-absolutely-forgotten-about-nsa-program
    IRS Chief Lois Lerner lied when she said she didn’t do anything wrong before invoking, when alleged to have purposefully targeted Obama political enemies with the power of the IRS.  House panel report concludes Lernier lied.  http://www.washingtontimes.com/news/2014/mar/11/house-panel-report-concludes-that-lerner-lied-to-c/
    Then IRS head John Koskinan lied and then lied again to cover up his previous lies. http://www.thefederalistpapers.org/us/irs-commissioner-lies-to-congress-then-clears-up-lie-with-bombshell
    Dept of Veteran Affairs is caught in a series of lies to Congress about the Veteran treatment scandal and employee terminations. http://www.theblaze.com/blog/2014/11/04/va-caught-telling-more-lies-to-congress/
    Then there’s Susan Rice, Hillary Clinton, AND President Obama repeatedly lying about Benghazi being a “spontaneous demonstration over a video.”  They repeated this lie to perpetuate the pre-election falsehood that Al Queda was destroyed and on the run.  If you care enough, you can easily find videos showing their statements days and weeks after the terrorist attacks.  Heck, in Hillary’s secret server they have recovered an email from her to Chelsey within hours of the attack calling it a terrorist attack.  So for her to say otherwise to the American people was a bold faced lie.  http://www.breitbart.com/national-security/2014/05/02/the-6-biggest-lies-about-benghazi/
    http://blogs.wsj.com/washwire/2015/10/22/hillary-clintons-email-to-chelsea-stars-in-benghazi-hearing/
    I could go on and on and on… you get the point.  
    So pardon me when the highly unethical Obama admin uses the sword and shield of the Dept of Army to rewrite history akin to the novel “1984.”   I will believe the two decorated officer commanders on the ground leading the missions and their troops, and the scores of Soldiers on those missions in harms way, who have zero to gain from Bergdahl’s prosecution conviction or acquittal.  Plenty of reading online about their statements and testimony, which carry more weight than the political unethical actions of this Admin and their various “Departments” which try to rewrite history. 
     
     

  56. Lil' Wayne says:

    Is it too late to get this case referred capital?

  57. Joseph Wilkinson says:

    Wayne – Yes, it is.   Leaving aside the fact that it’s been referred non-capital already, the process thus far has been far too slow, and taking the case and re-referring it, and jumping through all the capital hoops, would slow it down even more. 
     
    (Actually getting the death penalty on this one is hopeless…even high profile spy cases don’t get that these days; but I assume you mean using a capital referral to force it to a panel instead of a judge alone trial.)

  58. stewie says:

    CD, honestly, I stopped reading after underlings.
     
    kf, vastly different cases, the only thing they share is that they have media attention. He’s not getting 35 years. There’s no way his crime is worth remotely that much time in prison.

  59. k fischer says:

    I’m not saying Bergdahl is getting 35 years if he goes judge alone, or that he should get 35 years, either.  I’ve kind of eased up on my opinion of the case.  He seems a lot like Bradley Manning.  Kind of a dipstick, rather than a nefarious dirtbag.  But, I certainly didn’t see 35 years coming for Bradley Manning. I guess if you wanted to deter Servicemembers from disclosing classified documents from Wikishhhhhhhhh, then that would explain such a harsh sentence.  But, I’ve seen child rapists get sentenced to far less than that.  I’m just saying that after seeing the Manning sentence by an MJ of 35 years, I wouldn’t be completely surprised if Begdahl gets 25.
     
    But, Gene Fidell makes a good point, if true, that the only evidence the Government really has is a one day AWOL terminated by apprehension by the Taliban.  If he’s correct, then they better get some evidence if they don’t want to waste the taxpayer’s dime attempting to make a GCM out of a Chapter 10. 
     
    Could this case be like another case that began very high profile, US v. Chaplain Yee, where the Accused was facing an accusation espionage, which ultimately wound up being charges of adultery and porn on a government computer?  Mr. Fidell did a pretty good job representing him.

  60. Joseph Wilkinson says:

    I guess if you wanted to deter Servicemembers from disclosing classified documents from Wikishhhhhhhh, then that would explain such a harsh sentence.
     
    And if you want to deter Servicemembers who are frustrated and angry from saying “screw it” and walking away in the middle of a combat tour…that would explain a very hard sentence here.  Mr. Fidell is very eloquent on behalf of his client, but that is nothing like a garden-variety stateside AWOL. 
     
    (It illustrates in a way why I don’t think military justice should be concerned with punishing child molesters at all…the needs served by the punishment are way different.  Child molesters ought to be punished whether they’re in the military or not, to protect the community; but deserters and AWOL artists ought to be punished in accordance with the needs of discipline, and it’s a grave mistake to judge their sentences according to what child molesters are getting, and whom we hate worse.)

  61. Joseph Wilkinson says:

    Story on the arraignment here. Judge Nance is presiding.  It’s not real hard to guess what the forum choice will be.
     
    I see the story Bergdahl is telling now about his motives (as reported in that story) doesn’t match up what he was writing at the time.  I don’t find this surprising.

  62. Lil' Wayne says:

    Is Nance a hammer?

  63. Concerned Defender says:

    It’s a novel argument to argue “terminated by apprehension.”  I also think it’s a losing argument.  I just looked in the MCM for a definition or explanation and it’s lacking.  I haven’t researched the novel issue beyond that.  My instincts are that being captured by the enemy is significantly differentiated from being “apprehended” by law enforcement officials.  The latter immediately communicate, cooperate, and return an AWOL person – and that apprehension is an aggravating factor.  Here, BB is attempting to use his “apprehension” as a mitigating factor.  Contrasted with a law enforcement apprehension and immediate cooperation and return with minimal costs, his captors used him as propaghanda, our search was costly, and we had to effectively “buy” him back with a poorly negotiated and executed terrorist swap (I seem to recall that we don’t negotiate with terrorists somewhere in my history books).  
    On balance I’d see the argument having minimal impact one way or the other.  It’s perhaps aggravating offset by the mitigation of his treatment.  And, let’s not forget who the proximate cause of the mess is… he was arraigned today.  But perhaps he does get some form of confinement credit, day for day, 3 for 1, who knows.  
    As for charges and sentence, I’d say much like Manning and most convicted accused, they know what they are doing is wrong but they do it anyway.  While they may not know the severity of it, they form the mens rea and actus rea.  Low end, I’d say 10 years.  High end I’d say 30 years.  I’d also believe that he might get a creative sentence that reflects substantial confinement credit.  For instance, 25 years confinement, and a DD, but then get credited 3 for 1 on confinement credit for 15 years credit and end up with a 10 year sentence.  

  64. k fischer says:

    JW,
     
    I left the Army in 2007, but I don’t recall anyone during my service or recall any stories afterwards involving a Soldier walking off the FOB and into the hands of the enemy saying “screw it.”  I think the specific deterrence from such a boneheaded move is getting their throat slit when they are captured. But, I understand that opinions might differ and why some believe he would get 25 years. 
     
    I would imagine that the Accused would choose to be tried by military judge alone in this case, nor matter what judge is presiding.
     

  65. k fischer says:

    CD,
     
    I don’t know.  You have an investigating officer who spent a great deal of time interviewing him.  You had an Article 32 officer who heard the Government’s case and recommended a SPCM with no jail time.  I don’t think he gets “confinement” credit for this. But, it seems like two senior ranking officers looked at his crimes and did not feel like he should face a GCM.
     
    But, it seems on the surface that the aggravation was the swap for the 5 Taliban members.  Although, that was the Government’s decision.  Should he be punished more because of a decision that the Government made?   The Government could have left him with the Taliban, rather than making a trade for him, right?
     
    I think if he gets jail time it will not be in the double digits.

  66. Joseph Wilkinson says:

    Wayne — No, he’s not.  But he does know the difference between desertion with intent to shirk and AWOL.
     
    KF – Did you ever encounter a Soldier who deserted, and right before he deserted, he wrote, “I am ashamed to be an American. And the title of US soldier is just the lie of fools…The US Army is the biggest joke the world has to laugh at.  It is the army of liars, backstabbers, fools, and bullies…I am sorry for everything.  The horror that is America is disgusting”…and so on in that vein?   He won’t talk that way at trial, for sure, but that’s what was in his heart when he left.
     
    All this talk about wanting to report wrongdoing to higher echelons (in the Army he was so disgusted with, of the United States he was so disgusted with), or fantasizing about being an “action hero” (per the story I linked in my last post)…that all came after his return, but before he left, that was the way he was talking, and it was all “f**** my leaders” and “f*** the army” and “f*** America.”   So I think “screw it” is a decent, though too nice, short summary of what was in his mind at the time, when he wasn’t playing to a public audience.  And on the surface, the disloyal rhetoric is a much greater aggravator than the POW swap.   
     
    (The “I wanted to be an action hero” story reminds me of the Ronald Zamora “Kojak Defense”…the kid was supposed to be so obsessed with a crimefighting detective on TV, that naturally he had to break into an old woman’s apartment, shoot her, and rob the place…it has a strong tang of ex post facto, and gives me extra doubt as to any tale he tells before his case is over.  Afterwards, he can go back to the anti-American rhetoric or play himself up as a Muslim convert, or maybe both, and either way win admirers while serving as a propaganda coup for the Taliban…which didn’t cut his throat, after all.)
     
    My main concern about his sentence is his celebrity status….there are already tales of movies, and he’ll get the fame whether or not he gets a deal for royalties. I haven’t heard any word on the memoirs yet, but there’d be a good-sized audience for them.  So fame will likely bring him money and (based on how fame and money normally work) “female attention” if he’s inclined to it.  If the rewards are big enough, it’s too big an incentive for others to follow in his footsteps…if they’re angry and frustrated already, as Soldiers will get from time to time, and especially in combat zones.   So I would give him 18 years (bearing in mind that means 12 with good time, or less if he’s paroled) to give them this message: Yep, you might be the next “celebrity deserter,” but you’re going to lose the bloom of youth before you can enjoy it, and by then you may be yesterday’s news.    
     
    But I don’t expect it to happen, not in a judge alone trial.

  67. Joseph Wilkinson says:

    CD, re: “terminated by apprehension,” I think KF’s point is that the “apprehension” could be used as mitigation (nothing more than that; neither method of termination nor length of absence is a sentencing element in desertion cases as they are in AWOL).   If the defense can’t turn this desertion case into an AWOL case, their next best bet is to try to spin it into a “moral equivalent of AWOL.”  (The Prosecution might prefer the “moral equivalent of treason.”)  
     
    The discussion to Article 86 in Part IV of the MCM says that “the status of absence without leave is not changed by an inability to return through sickness, lack of transportation facilities, or other disabilities.  But the fact that all or part of a period of unauthorized absence was in a sense enforced or involuntary is a factor in extenuation.”  So even a real AWOL would not have been “terminated” by his capture though it still could be spun as mitigating.  But even thinking in “AWOL terms” is giving a huge and undeserved benefit to the defense.  (A deserter is liable for up to the maximum sentence even if he was gone only a few hours.  See United States v. Thun, 36 M.J. 468.)

  68. caaflog is great says:

    706 appears to be done from the prelim transcripts page 346
     

    DC: Defense Exhibit Charlie is a two-page memorandum from
    27 July 2015 and it is the two-page R.C.M. — or Rule for
    Courts Martial 706 Sanity Board Evaluation, conclusions only,
    ICO Bowdrie Bergdahl, Sergeant. And this is the memorandum
    concerning his severe mental disease or defect.

     

  69. k fischer says:

    JW,
     
    I’m sure I’ve represented Soldiers that felt that way and deserted.  Just never in the combat environ with an enemy just itching to slit an American’s throat.  An army full of liars, backstabbers, fools, and bullies?  I recall saying that a couple of times this month to potential clients.  Of course, I added cowards for those feckless GO’s and SJA’s  who sacrifice innocent Soldiers on the altar of SAPRO.  It’s amazing how someone can be a lion on the battlefield, but a coward in Garrison when dealing with the UCMJ.   I’m not saying that everyone fits this category, but are enohgh who fit that category that I would want to watch my back.  Maybe that’s a good thing   Keeps everyone honest.

  70. Joseph Wilkinson says:

    I’m sure I’ve represented Soldiers that felt that way and deserted.  Just never in the combat environ with an enemy just itching to slit an American’s throat.
     
    But is the Taliban so itching?  They certainly weren’t in this case.  (Or if they were, but didn’t, that raises the question of what Bergdahl said and did to convince them.) If you’re looking at the incentives to future deserters, as I am, there is obviously this one high profile case where they didn’t do it.  (When Bergdahl’s case is over, he is free to change his tune as to how bad it was to live with them.) 
     
    An army full of liars, backstabbers, fools, and bullies?  I recall saying that a couple of times this month to potential clients.
     
    But I hope you didn’t go on to say that they should be ashamed to be Americans, or that “the horror that is America is disgusting.”  That takes it to a whole new level…especially when you follow it up by deserting.  

  71. stewie says:

    If I were DC I would have full confidence in COL Nance being reasonable as the only area I recall him being perhaps likely to sentence more harshly than average is things dealing with kids. Otherwise he’s pretty much right down the middle.

  72. Lil' Wayne says:

    Right down the middle here is about 25 years…a hammer would give him 50.  It don’t get much worse than desertion on the battlefield.  Especially when the deserter contemporaneously was spouting anti-American rhetoric.

  73. dyskolos says:

    I think most of you are grossly inflating the sentence.  Assuming he gets confinement at all, I guessing single digits.  I am not  conversant with the matters in aggravation or mitigation, but my gut reaction is this a colossal screw up by a young man ill suited to be a soldier that didn’t recognize the seriousness of his actions.  A court-martial conviction and a DD will do severe damage to the rest his life, not to mention probably excluding him from needed medical care.  

  74. Saul says:

    Unless there’s evidence of collaborating or aiding the Taliban (in which case it should be charged), it’s incredibly unlikely he receives more time than he already “served”. 

  75. Advocaat says:

    What about the prospect of the MJ limiting any sentence to no punishment if the defense goes down a quasi-Murphy road and tries/is unable to get E&M evidence from the WH regarding his release?

  76. k fischer says:

    JW,
     

    But I hope you didn’t go on to say that they should be ashamed to be Americans, or that “the horror that is America is disgusting.”

     
    No.  Having gone through basic training myself as a prior enlisted JAG, I’ve spent quite a few pro bono hours talking basic trainees out of going AWOL.  My statements typically are to those accused of sexual assault crimes or other investigations brought on by retaliation for one reason or another.  I think Eric Montalvo hits the nail on the head with this statement that he made about an AF Lieutenant’s court-martial that is being re-referred after two recommendations against referral after two Article 32’s by the same IO:
     

    “It doesn’t even have to be a straight faced allegation because I’ve seen all kinds of craziness coming through the system now,” he said. “And so the pendulum has swung to the absurd and in my opinion a lot of true victims are getting lost in this shuffle because the amount of nonsense coming through the system is beyond belief.”

     
    I might have raised an eyebrow two years ago and discounted such a statement as hyperbole, but I must admit that I have now reconciled myself to the fact that many Judge Advocates are of the mindset that innocent men have to be prosecuted because “that case had to go to trial.  It just had to.”  I’m talking about SJA’s, TC’s and SVP’s.  And, the military judges seem to also be okay with presiding over cases that are completely absurd.  I’ve been in front of MJ’s who would have sua sponte lambasted a TC who after a successful motion in limine argued in closing that the panel did not hear evidence which was the subject of the TC’s motion.  But, I had a recent case where the MJ didn’t seem all that concerned that the TC was misleading the panel by inferring that evidence did not exist where (1) it did exist and (2) the TC kept it from them. 
     
    I can only hope that a general policy has been inferred that the way to get the pendulum to swing the other way is to give victim advocates what they want, i.e. try everybody no matter how absurd the charge, so our legislators who aren’t in bed with the grievance industry wake up and say, “Wait a minute!  We need to start focusing on the rights of the accused.  Good people are getting schlonged in violation of equal protection and due process.” 

  77. Concerned Defender says:

    It’s an interesting twist to watch the JAG Corps, on the one hand, prosecute innocent men alleged of 120 offenses by the figurative Auschwitz cattle car full without batting an eye, frequenlty on non-credible and extremely weak evidence.  Then on the other hand, get cold feet and reluctantly back into what amounts to a treasonous service-destroying allegation where the publically released evidence appears pretty damning indeed.   The motives as formulated in the letters, his own actions and explanations (which satisfy the elements of the crime(s)), and the fact that he wasn’t killed for 5 years makes one wonder why he was spared when no others have been, with a ruthless enemy that almost always brutally kills. 
    I agree with JW’s statements and other statements about dropping the hammer and I’d just include that I fully want his due process rights preserved but if he is convicted at trial, I hope for the integrity of the system the hammer falls.  And I’d say that should be measured in decades confinement, a Duck Dinner, reduction to E1, and a huge fine.  He’s in his mid-20s now.  I’d like to see him confined, if he’s guilty, until his mid-40s at least.  Like JW said, take away the blossom of youth.  
    A conviction that does not include significant confinement will allow him to write a book and make more money than anyone here who served honorably could hope to make on a novel.  I would be quite upset if BB leaves this situation with a multi-million dollar book deal and the fame and fortune that goes along with it and his youth, if he in fact is convicted.  A DD will be largely irrelevant if he’s sleeping on stacks of cash from book and movie deals.  
    I wonder though, too harsh of a sentence and this – “administration” will be inclined to exonerate him, showing once again its true cards. 
    The irony is that innocent men rot in prison cells from false 120 convictions of a flawed system, and folks can’t seem to accept BB’s admission of desertion and he’s the liberals poster child of a “hero.”  
    Anyone read the misery that his platoon mates and brothers from other companies went through looking for him?  To paraphrase his leadership, it was extremely dangerous, daily IED strikes destroyed 80% of their MRAPs, and the long term conditions of weeks in the field were harder than Ranger school and required maximum physical toughness as they literally wore out their uniforms from daily wearing. 
    As for a sentence, I’d start at a baseline of a few decades for the crimes themselves, maxing out the desertion and a couple decades for the misbehavior.  As part of his aggravation, imagine if the average Soldier committed a crime that put 1 person in immediate harms way, or resulted in the foreseeable and natural consequences of a destroyed 1/2 million dollar piece of equipment.  So, on sentencing, I’d calculate the number of guys looking for him, multiplied by 1 day per person, per day they were placed in harms way;  so let’s say 100 Soldiers looking for him, for 90 days under those dangerous conditions.  That’s 9000 days right there.  Add a year confinement per MRAP that was destroyed (those are $1/2 million dollars each) in the search.  Add a decade for every Soldier that was actually killed in the search (apparently it wasn’t raised in the 32, unclear why).  I’d also tack on time to reflect the total amount of money spent on the search and rescue, and the deal we had to strike to get him back.  Etc. Etc. Etc.   I would balance all of this with some form of credit for time he spent with the Taliban, if it’s proven that it was torture and not just hanging out with them.  I’d say that all arrives at some sort of “just” punishment factoring in the relevant info. 
     

  78. stewie says:

    I don’t know how to respond to that respectfully so I’m just going to nod and say interesting take.

  79. Phil Cave says:

    Stewie.
     
    It is time for application of a response to Godwin’s Law.  

  80. Lil' Wayne says:

    All you defense-oriented types might want to take a peek up over the berm from time to time.  All this BB sympathy does not mesh with the facts.  An America-hating battlefield deserter…and some of you are concerned about his loss of benefits from a DD.  That’s astonishing to me. 

  81. Phil Cave says:

    Ya mean like all those VN dissenter types. 

  82. Lil' Wayne says:

    Phil,
    What do Vietnam war protesters have to do with this?  How many of them abandoned their unit in Indian country?

  83. stewie says:

    Your facts don’t mesh up with the facts. You’ve decided to embrace the worst possible picture of the guy and chosen to disregard all evidence contrary. Folks are noting the E and M because it really is there…not because they are defense hacks.

  84. Concerned Defender says:

    I suppose this Navy SEAL on a Bergdahl rescue mission is imagining his mission, his gunshot wound injury that ended his career, and his mortally wounded canine shot by the enemy.  
    http://www.stripes.com/news/navy-seal-dog-handler-how-a-failed-mission-to-rescue-bowe-bergdahl-caused-irreparable-loss-1.385511
     

    The night of July 9, 2009 was no different.
    Hatch’s Virginia-Beach based Naval Special Warfare Development Group was deployed to Afghanistan when Bergdahl walked off his base on June 30. Resources across the country and particularly in the east were being diverted to participate in search efforts.
     
    Much of the war effort had been placed on hold to enable the search.
    That night, Hatch and his crew were part of an assault force acting on intelligence that had identified the location of Bergdahl and his Taliban-aligned captors. The SEALS were joined by Sr. Chief Mike Toussaint – a dog handler – and his combat dog Remco, who had deployed to Afghanistan with the SEAL team and had been on missions with them for the better part of a year…. 
    The men moved forward toward a large building that appeared to be heavily fortified and were quickly engaged in various firefights. Hatch and a small group that included Remco and Toussaint, peeled off to try to outmaneuver two apparent fighters who’d been spotted running a small distance away.

    Canine Remco, on orders from his handler, charged forward, running directly at the two fighters who had taken shelter in a nearby culvert. Both said the dog saved their lives, by exposing the location of the enemy.
    It was his last act. The men watched as one of the fighters stood and fired at Remco point blank, shooting him in the head. Remco flew backwards.
    Within seconds, Hatch was also shot in his leg in a devastating blow to his femur. He, too, flew into the air by the force of the impact and landed on the ground in a shattering of pain.
    Hatch, his femur shattered, went through 18 surgeries in two years. He lost his military career and suffered from debilitating Post Traumatic Stress Disorder. He nearly took his own life. His fate inextricably tied to Bergdahl’s, Hatch said he would readily testify if he is called upon.
    “I would tell them about the sacrifices of the group of individuals that went out with me on the night I was wounded,” Hatch said. “About the risks they took on behalf of Mr. Bergdahl because of his decisions.
    “I would like Mr. Bergdahl and his family to hear what his decisions did to me and my family. I’d like to tell him about my injuries and about the difficulties my family and I continue to have.”
     
     
     

     

  85. Concerned Defender says:

    Kinda grown tired of ‘experts’ who were not there spreading the falsehoods of “nobody was killed or hurt looking for Bergdahl.”  So if you really want to be informed about this topic from 1st hand witnesses, not from the Jedi-mind tricks of the administration and his defense team, if you have the courage to learn the truth, read on.  Or, against the backdrop of an organization that routinely lies and uses false flags, such as the outright lie over how Pat Tillman was killed, which it pushed for years, you can accept the version of the administration who was NOT there.  Or you can accept the version of the dozens of infantry Soldiers who were there, daily, getting the missions, and executing them, and suffering injury or watching buddies die. 
    So, you can accept Hagal’s version.  Or you can learn the truth from those who were there. 
    http://www.foxnews.com/us/2014/06/05/would-have-died-for-him-6-soldiers-who-served-with-bergdahl-seek-answers.html
    9 minute very informative video and what I would think is expected testimony from his immediate team mates in his Platoon.  They unanimously – all 6 – believe he deserted.  
    His team leader, his roommate prior to deployment, his squad leader, platoon medic, 
    These guys all have intimate insights into the situation and BB himself and were engaged in the recovery efforts. They are the experts on what happened at that time, much more so than any armchair quarterbacks here.  Some of them heard BB intimating or foreshadowing his departure, disillusioned with the Army, etc.  They agree that the attacks on the unit got worse but were unwilling to blame BB directly.  It’s worth the 9 minute listen.
    http://video.foxnews.com/v/3607071503001/fallen-soldiers-family-told-lies-about-heros-death/?#sp=show-clips
    PFC Baggett explaining how while they were out looking for BB, two Soldiers Andrews and Martinek were killed in an ambush. “VAN SUSTEREN: If I understand this correctly, that your platoon that got ambushed, the men in your platoon that were ambushed, they were actually out looking for Sergeant Bergdahl?
    BAGGETT: Right. That was part of the mission, yes, was to find him. Was to look for him, to search for him. We were always searching for him as soon as he came up missing”
     http://www.foxnews.com/on-air/on-the-record/2014/06/04/soldier-who-served-former-pow-bergdahl-he-got-real-heroes-killed
    Former platoon mates and friends give their perspectives on his premeditated desertion.   
    http://www.foxnews.com/us/2014/06/03/wartime-messages-to-parents-fellow-soldiers-reveal-troubled-bergdahl.html
    LTC Waltz, SOF Commander who helped lead the BB search states that “We were baited into ambushes and…. Soldiers died looking for him….” and significant equipment was diverted from other missions to and denied to other units to search for BB.  He said he has testified under oath to this fact (unclear where). 
    http://www.bizpacreview.com/2015/03/26/commander-recalls-grim-details-of-bergdahl-search-the-taliban-were-baiting-us-into-ambushes-190091
    This information is open source and widely available and this is the tip of the iceberg.  From at least the 05 LTC Special Ops Commander level down to the lower enlisted who were all dialed into the mission to find him, they all have very similar perspectives and it’s not that of E&M….
     
    Or you can just believe the admin that it was a big non event. 
     
     
     

  86. Lil' Wayne says:

    I bet Stewie thinks that SEAL getting shot and the dog getting killed is E&M for BB, too….

  87. stewie says:

    Hmmm…one guy talking to a paper or the Army saying no one was killed or so injured looking for him? Which one ends up in court as actual evidence? Tough one! But you guys have the REAL story.

  88. Concerned Defender says:

    Merry Christmas.  :)   Yes, it’s a conspiracy.  All these Soldiers, including guys who were very tight with him and a LTC have fabricated and conspired because….. well…. er….. um…..  hmmm…..  they’re bored?  
    I have not read General Dahl’s investigation, not sure if it’s been released.  What I find particularly interesting is that the General Dahl either didn’t interview any of these guys, or he did and somehow HE determined they are all full of hot air.  
    1.  If he did NOT interview them, this is in stark contrast and in violation of AR 15-6, which requires a thorough, fair, and balanced inquiry.  Just interviewing BB is insufficient. It should have thus been returned as legally insufficient.  Tell me what courageous JAG kicks this back given the politics of it?

     
    AR 15-6, sec. 1–6. Function of investigations and boards:
     
    “The primary function of any investigation or board of officers is to ascertain facts and to report them to the appointing authority. It is the duty of the investigating officer or board to ascertain and consider the evidence on all sides of each issue, thoroughly and impartially, and to make findings and recommendations that are warranted by the facts…”
    AR 15-6 sec. 3-10(b).  Standard of proof.  Unless another directive or an instruction of the appointing authority establishes a different standard, the findings of investigations and boards… must be supported by a greater weight of evidence than supports a contrary conclusion, that is, evidence which, after considering all evidence presented, points to a particular conclusion as being more credible and probable than any other conclusion.  The weight of the evidence is not determined by the number of witnesses or volume of exhibits, but by considering all the evidence and evaluating such factors as the witness’s demeanor, opportunity for knowledge, information possessed, ability to recall and relate events, and other indications of veracity.  

    2.  I’m quite curious of the legal reasoning to find in favor of BB if he did inteview these Soldiers.  I’m sure he took time to discredit and justify away all of the probably dozens of Soldiers who were on the ground, doing the missions.  
     
    It’s all political theater in my opinion.  I admire the SJA (if he recommended going forward) and the CG to send this case forward, showing the real courage of going against the Administration. 

  89. stewie says:

    Yeah I’m sure President Obama told the SJA and the CG don’t send this forward. I mean he’s got literally 100 things more important going on, but why let that get in the way of a good story… That and the fact that an investigation and a 32 were done that don’t find what you allege…but yeah no conspiracy theory at all.

  90. Concerned Defender says:

    I was curious as to why the 32 didn’t find these things.  Ya know why?  NOBODY ASKED.  These people weren’t called as witnesses.  The Platoon commander was asked if HIS platoon sustained casualties in the very narrow 45 days of the search.  The answer was no.  But the casualties came from outside HIS platoon.  Go figure.  
    I don’t have an answer why the TC held back on the witnesses or questions.  Perhaps to not muddy waters, perhaps strategy, perhaps these deaths are all fiction.  Perhaps a phonecall from higher.  No idea.  
    We shall see. 

  91. stewie says:

    Yes, clearly one of the possibilities is a WH directed 32. Clearly. I’m using the mocking incredulity font right aren’t I? I get it mixed up with the are you kidding me font sometimes.

  92. Lil' Wayne says:

    Stewie, print all your posts on this thread and let your family read them…I dare you.

  93. DCGoneGalt says:

    stewie:  Yeah, well, my best friend’s sister’s boyfriend’s brother’s girlfriend heard from this guy who knows this kid who’s going with the girl who saw Bergdahl hanging out at 31 Flavors with President Obama when the orders on how to handle this case were given.  
     
    [Ferris Buehler]
     
     

  94. Concerned Defender says:

    I find it pretty low and offensive for folks here to minimize and discredit the actual Soldiers that sacrificed looking for BB, who suffered extreme stress and daily exposure to IEDs, small arms, and danger.  And especially to those that did die looking for him.  You should be ashamed.   Not sure how you can take the word of the administration over the words of scores of Soldiers who were there doing the heavy lifting and sacrificing. 
    Willing to bed the admin will suffer a black eye when BB is convicted.  Anyone who thinks the admin isn’t or won’t attempt to intervene or change history isn’t paying attention.  
    http://www.cnn.com/2014/06/01/us/bergdahl-deserter-or-hero/

    “The sense of pride expressed by officials of the Obama administration at the release of Army Sgt. Bowe Bergdahlis not shared by many of those who served with him: veterans and soldiers who call him a deserter whose “selfish act” ended up costing the lives of better men.
    “I was pissed off then, and I am even more so now with everything going on,” said former Sgt. Matt Vierkant, a member of Bergdahl’s platoon when he went missing on June 30, 2009. “Bowe Bergdahl deserted during a time of war, and his fellow Americans lost their lives searching for him.” At least six soldiers were killed in subsequent searches for him, according to soldiers involved in the operations to find him. The Pentagon was not able to provide details on specific operations in which any soldiers killed during that time were involved.
    Also, many soldiers in Bergdahl’s platoon said attacks seemed to increase against the United States in Paktika province in the days and weeks following his disappearance.
    “Any of us would have died for him while he was with us, and then for him to just leave us like that, it was a very big betrayal,” said former U.S. Army Sgt. Josh Korder, who has the name of three soldiers who died while searching for Bergdahl tatooed on his back.
    Many of Bergdahl’s fellow troops — from the seven or so who knew him best in his squad to the larger group that made up the 1st Battalion, 501st Infantry Regiment, 4th Brigade Combat Team, 25th Infantry Division — told CNN that they signed nondisclosure agreements agreeing to never share any information about Bergdahl’s disappearance and the efforts to recapture him. Some were willing to dismiss that document in hopes that the truth would come out about a soldier who they now fear is being hailed as a hero, while the men who lost their lives looking for him are ignored.
    “I don’t think I could have continued to go on without being able to share with you and the people the true things that happened in this situation,” Korder said Monday. “Because if you guys aren’t made aware of it, it will just go on, and he’ll be a hero, and nobody will be able to know the truth.”

    However, the Administration’s position has been clear from the start though this collection of comments:  
    http://www.cnn.com/2014/06/01/us/bergdahl-deserter-or-hero/

    “Another senior Defense official said Bergdahl will not likely face any punishment. “Five years is enough,” he told CNN on condition of anonymity.”

    http://www.breitbart.com/video/2015/03/25/susan-rice-flashback-bergdahl-served-with-honor-and-distinction/

    National Security Advisor Susan Rice defended the prisoner swap for Sgt. Bowe Bergdahl on the June 1, 2014 brodcast of ABC’s “This Week” by saying Bergdahl “served the United States with honor and distinction.”

    http://www.politico.com/story/2014/05/barack-obama-bowe-bergdahl-afghanistan-pow-107288

    “Sergeant Bergdahl has missed birthdays, and holidays and simple moments with family and friends which all of us take for granted. But while Bowe was gone, he was never forgotten”— not by his family or his hometown in Idaho, or the military. “And he wasn’t forgotten by his country, because the United States of America does not ever leave our men and women in uniform behind.”

     

  95. stewie says:

    My family enjoys the concepts of logic and reason, and we’ve talked about this case, so I don’t need to print anything out since I’ve said the same thing out of my cranial orifice.  OTOH, they’d find your posts ridiculous.

  96. Concerned Defender says:

    @Stewie – you’re super clever with your little comebacks.  But you have yet to make any reasoned analysis on this case.  If all you’ve got is snide comebacks and personal attacks, that’s not a whole lot.  Ad hominum attacks amount to nothing, really.  I’d like to hear more about the motives of these other Soldiers – who ARE honorably serving or discharged combat veterans – yes, the motives for why they are lying about the rescue missions and injuries and deaths.  I’d love to know the legal analysis. 

  97. stewie says:

    Yes, I lack the reasoned analysis you’ve shown with conspiracy theories about literally everyone from the PHO to the President as to why the actual facts don’t match your “facts.”  Ya got me.

  98. Gen Lee Amused says:

    Concerned Defender, you lost a lot of credibility describing Stewie’s comebacks as “super clever.”  BTW, thank you Phil Cave for the Godwin’s Law reference, as this string of posts has gotten as ridiculous as Hitler’s mustache.

  99. General Lee Offended says:

    GLA,
     
    Didn’t you hear?  Nobody at any time or at any place is allowed to bring up anything involving the Confederacy.  Not sure if your pun involves the Confederate General or the car the Duke boys drove, but either way, I am about as amused as Hitler hunkered in a bunker.   

  100. Concerned Defender says:

    Let’s see, dozens of witnesses to his desertion.  His own confession to desertion.  Tons of evidence of both crimes.  Lots of aggravation. 
    When you don’t the law, argue facts.  When you don’t have the facts, argue law.  When you don’t have either, make ad hominum attacks to anyone who thinks Bergdahl is guilty.  lol.  
    This thread went downhill when the BB supporters can’t handle his pending conviction.  Don’t worry, Mr. Obama will likely exonerate him in a parting cast of letting criminals out of prison.  I’m frankly shocked he’s standing trial anyway.  Lois Lerner and Hillary Clinton certainly aren’t in spite of their unbelievable illegal activities.  No matter, as ‘get out of jail’ cards will certainly be dolled out in the end.