Story here.

Army Sgt. Bowe Bergdahl is expected to plead guilty soon to desertion and misbehavior before the enemy rather than face trial for leaving his Afghanistan post.

That’s according to two individuals with knowledge of the case.

They tell The Associated Press that Bergdahl will submit the plea later this month and sentencing will start Oct. 23. The individuals weren’t authorized to discuss the case and demanded anonymity.

Two months ago I noted that Bergdahl elected trial by a military judge alone, and I commented that the choice was a “preface to a guilty plea.”

Thanks to our reader for the tip.

24 Responses to “Associated Press reports that Bergdahl is expected to plead guilty”

  1. Concerned Defender says:

    Just read this in the news this morning.  Is anyone really surprised by this?  Kudos to the defense team for giving it a great effort to carve the battlefield terrain (even if I did feel some of their motions – at the time – were frivolous), but the entire case was a foregone conclusion.  I don’t think any reasonable person can look at these facts and say he isn’t guilty, and that it’s not extremely aggravating.  He’ll plead, get a couple decades in confinement, E1, and a DD.  No huge financial windfall for the accused, pull off all those insulting deployment stripes too I hope, and I wonder if he gets a PH after all this?  A fitting end in my view.  
    His conduct is exactly the sort that the law is designed to prevent from happening – desertion, captivity, massive resources and many years trying to find him, exploited by the enemy, extreme cowardice and disgrace to the Army and nation, abandoning a post in wartime, Soldiers injured (or worse, dying – much of the public and many service members believe deaths occurred due to his desertion) looking for him, probably tens of millions of dollars wasted in MISCAP search and rescue efforts, and then unsavory and costly negotiations to return him, trading 5 high level terrorists (illegally, I might add).  Then we also have the anti-American and anti-Army letters from BB to dad, and so forth.   I think a max sentence on the desertion (5 years) and at least a solid chunk of the max for the misbehavior (15-25 years).  
    And as a commentary, it’s just also a reflection of how clueless the prior administration was – calling him a hero, dealing for him without consent of Congress, a rose garden party (when in contrast our real heroes rarely/never get rose garden parties or recognition), and so forth.  What a disastrous 8 years….

  2. Defense Wizard says:

    His providence inquiry is going to sound very, very similar to his interview with Mark Boal as played on Serial. Also, what do his letters to his dad have to do with anything?

  3. Another Bored TC says:

    I’m interested to see what’s in Part II of the PTA.  This case is much more about politics than about substance, and most of the perceptions on what *should* happen to Bergdahl make for a pretty easy political litmus test. Regardless, I’m betting this case will have a rich life on appeal. 

  4. Concerned Defender says:

    I’d suggest some OPD for the folks who are interested in fairness and learning.  Go look up 1LT Franks, who had a nearly same length desertion over the same period of time; 5 years from 2009-2014.  No political posturing.  No real cost to the government.  No aggravation of substance.  Nobody got injured or died.  No terrorist trades.  Not in a deployed  environment.  1LT Franks received a sentence of 4 years and a dismissal.  https://www.nytimes.com/2014/12/16/us/a-deserter-who-chased-conflict-is-jailed-for-shirking-duty.html
    That should be the minimum starting point floor for where BB begins his sentencing, if you believe in fairness and justice.  

  5. (Former) ArmyTC says:

    Another Bored TC that is, assuming there is a PTA…

  6. Defense Wizard says:

    I feel like this is going to go more like Jenkins than Franks.

  7. CWG says:

    CD, I try to not to be surprised at anything ever since that time I woke up with my head sewn to the carpet, but I’d be surprised if Bergdahl gets hammered.  I understand all the arguments about his choice to desert and that ending up in enemy hands was a likely consequence of that choice, but I just don’t believe his years of captivity can be easily ignored.  I think a DD (and maybe a fine to gobble up what money he’s been able to save over the last several years and his substantial backpay) with no confinement time is the likely result here.

  8. Concerned Defender says:

    Well not it all just boils down to providency and sentencing.  Plenty of aggravation, not a whole lot of mitigation.  We look primarily to RCM 1001.  As they say, the prosecution owns the merits and defense owns sentencing.
    But as far as “mitigation” of enemy confinement when it’s the direct, proximate, and foreseeable result of the ILLEGAL behavior for which the 2 broken laws attempt to prevent, I believe it goes to weight and not admissibility.
    Admissible, surely.  Weight?  Not a whole lot in my view.  In fact, given that he was not beheaded he came out of it pretty good.  How do you suppose our hero avoided being beheaded there in the enemy confinement?  Can we read into this any?
    Does an illegal heroine user and dealer get mitigation when he’s become and addict, or gets AIDS from an infected needle, or is robbed and beaten during a bad heroine deal?
    Does the rapist get mitigation when he rapes a woman HSV positive and gets HSV?  
    Does the armed bank robber who gets in a car accident and seriously injured fleeing from his felony get mitigation credit for his injury and damaged car?
    Nope.  These are just bad luck results which the laws are there, in part, to prevent from happening.

  9. stewie says:

    The government will be just fine with a DD and some modest amount of jail time. They can’t be sure of the result and locking in both will be more than good enough for them.

  10. JackOfAllTrades says:

    No way BB gets any jail time after his torture and captivity in that hellhole.  Might not even get a kick if the gov’t overplays its hand and pisses off the judge.  The political backstory here is important.  He was traded by our former Prez.  I could easily see a reprimand only and then a chapter to get him out.

  11. k fischer says:

    CD:
     
    Bergdahl vs. SGT Jenkins vs. LT Franks:  Seems that Bergdahl’s case is a bit more related to SGT Jenkins than 1LT Franks.  Because Franks served in another Country’s military pretty honorably, it appears.  Franks wasn’t kept in a cage, kept from medical treatment, and treated as a prisoner.  He, as a West Pointer graduating near the top of his class mind you, fought for an allied country’s military, which he easily could have done for the United States during wartime. And he deserted his platoon right before his deployment. That’s pretty aggravating.  
     
    And, I’m not sure that the trade for terrorists will legally be considered.  It’s the United States vs. Bergdahl, and the United States decided through it’s CINC to trade 5 terrorists for him, so why do they now get to complain about that?  (Although I share your views about the previous administration)  If it was so bad, then they shouldn’t have done it.  It’s like a Commander testifying at Sentencing that they had to tote a pretrial confinee/convicted accused from the Pensacola brig to Ft. Benning 7 times for the PTC hearing, preferral of charges, Article 32, arraignment, motions hearing, second motions hearing, and Court-martial, which expended a lot of manpower from the unit.  That’s a decision you made, Bromigo. That’s not aggravation.
     
    To me, Jenkins is more similar in that he faced hell after abandoning his post and surrendering to North Korea.  In fact, Jenkins is a bit more aggravating in that he intended to surrender to the enemy when he abandoned his post, whereas, Bergdahl apparently intended to make it to another US Military post in Afghanistan to complain about his Chain of Command, and did not intend to surrender.  The big difference between Jenkins and Bergdahl are the ages.  I can see why a 77 year old man from a previous war only got 25 days in prison, and why a young spry deserter and misbehaver would be sentenced to more time.
     
    Defense Wizard: If he starts talking about how he was going to another post to complain about his chain of command, then wouldn’t he bust providence for desertion?  Because isn’t that what he said in the Serial podcast?  I don’t think that’s desertion.  I think both sides need to carefully consider the evidence they are going to put forth before the MJ.
     

  12. DCGoneGalt says:

    I’m not a gambling man but I’m with Jack O.A. Trades on this one.  DD and no jail time.  Maybe 

  13. HippieLawyer says:

    We should be giving Bergdahl a medal for all he’s been through, not a court-martial.  Hope the judge doesn’t give him the discharge so he can keep his much-needed benefits.

  14. Concerned Defender says:

    Bergdahl vs. SGT Jenkins vs. LT Franks:
    I believe BB is the most aggravating of all of these cases.
    LT Franks got nearly maxed out on the desertion, at 4 years and a dismissal IIRC.  He wasn’t charged with misbehavior.  I don’t see much in terms of aggravation either.  I don’t see how or what he did in those 4 years as being very relevant.  Whether he went to Las Vegas and gambled or fought with the FFL is marginally aggravating.   
    BB’s case is aggravating in that it required efforts to find him and negotiate for him.  Claiming this isn’t aggravating because it was “our decision” is incorrect – of course we’re going to look for him and do what we can to retrieve him.  It’s what we do.   Stated another way, desertion and misbehavior are often combat zone charges, so built into these are indeed the fact one might be captured.  I don’t see how that’s then mitigation, the fact that exactly what the law makes illegal actually happens, so then the accused benefits from it as mitigation.  
    BB is faced 5 years and life on two separate charges.   Looking at just the aggravation (the anti-American letters, the Soldiers serious injured [or maybe killed] looking for him, the costs in search and rescue, etc.), and he spent 5 years not having to deploy or work so he avoided duty for those 5  years;  and setting aside his captivity as mitigation, one would think he might get 30 years confinement – 5 on the desertion and 25 on misbehavior.  I’d deem his captivity as a wash.  It’s the direct and proximate cause and expressly what the laws are there to prevent.  However, if one considers his captivity as mitigating, perhaps he gets 1 for 1 or 2 for 1 credit, or heck even 3 for 1 is generous.  That would knock 5, 10, or 15 years off the 30 year sentence…. 
    I do not believe he walks out with anything better than a DD, E1, TF, and 10-15 years confinement.  
    I’ll add that overwhelmingly by probably 100-1 ratio, all the public and social media posts on veterans forums HATE BB and want him to hang or get life in prison… while not scientific, I believe a lot rides on this case in terms of Preserving Good Order and Discipline, and the other sentencing factors. 

  15. DCGoneGalt says:

    HippieLawyer:  Now that you mention it, it’s too bad BB isn’t Air Force, he would have earned a 4 yr longevity ribbon while he was away.

  16. k fischer says:

    CD and HippieLawyer raise a good point.  Other than attorneys and the Article 32 IO, I have yet to hear anyone else in the military express any kind of sympathy for Bowe Bergdahl.  Another great reason to go Judge alone.

  17. Bill Cassara says:

    I could see two different judges coming up with very different sentences in this case.  Just as every lawyer on this page views it differently, so might two judges, as there is really nothing to compare it to.  Judge Nance is a tough but fair guy. Will be interesting.

  18. MilJusExpert says:

    Bergdahl gets a reprimand and nothing else here.  Confinement time?  After being a tortured POW?  Are you guys nuts?  Not even on the table, and I’d be surprised if the government even argues for it.  The battle will be for a punitive discharge.  I could see that happening, but I think Colonel Nance will probably decide to let him keep his benefits given his captivity and torture and likely need for future treatment.  Some of you “armchair commandos” have no sense of reality at all.

  19. Concerned Defender says:

    I’m not picking a fight here, and have an honest question to those who think BB gets a slap on the wrist.
    Desertion is a very serious felony, with a 5 year max sentence.  Misbehavior is among the most serious, with life being the maximum sentence.  What would someone actually have to do in order to receive the maximums?
    *Disrespect the USA, or show disloyalty?  I think we have at least some evidence of that in his letters and behavior.
    *Cause a great interruption in the combat mission?  We clearly have that.
    *Put fellow Soldiers in additional perceived danger?  We have that here.
    *Put fellow Soldiers in actual danger, including getting some wounded?  There is evidence of this here.
    *Get fellow Soldiers killed looking for him?  This apparently is inadmissible but a large portion of the public and military believes this occurred.
    *Waste massive resources hunting for him and retrieving him – based entirely on his own misconduct remember?  Yes.
    So, please tell me if that amounts to a slap on the wrist, what exactly would one have to do IOT get a large sentence of confinement and punitive discharge?

  20. Chief says:

    As usual, Concerned Defender makes some great, unrefuted points.

  21. Vulture says:

    Its because he says them with *sprinkles.*

  22. Alfonso Decimo says:

    When I was a brand-new JAG, I was assigned a Vietnam War deserter, who actually deserted his post in Vietnam and went home. About 20 years later, he surrendered to U.S. authorities just to clear the record. This was not very uncommon. We expeditiously scheduled an administrative discharge board and sent him back home with bad paper. I know the facts are different, but it seems like the public’s attitude has changed towards deserters.

     

  23. Concerned Defender says:

    Alfonso raises a good point.  Perhaps the time frame is too close in proximity and the scars too recent.  As they say, time heals all wounds.  And as far as the Korean War or Vietnam War deserters, I think history looks pretty unfavorably to those very political wars.  Conversely, I don’t think many folks were against invading Afghanistan after 9/11/01…  Perhaps if BB was deserted for 3 decades, and then returned on his own, and there was no other aggravation it is a different matter.   But we are still fighting there, and bodies are coming home in caskets still… And a lot of veterans have a visceral hatred for BB.  I think Obama didn’t do him any favors rubbing salt in this and making it a political grand gesture, rose garden speech, having a heroes’ welcome by Susan Rice, etc. 
    It’s an interesting philosophical discussion, but I’d say that an admin discharge for abandoning brothers in Vietnam was a gift.  Nearly all, or maybe all of the AWOLs in CONUS I’ve dealt with that were lengthy resulted in CM convictions no matter how hard we pressed for something administrative.  I can’t recall one over a year that was solely and  admin discharge – and I even had some that were extremely mitigating (Soldier gets no help from unit, or abused by unit, leaves selflessly to care for dying parent, etc.).  Standard from my jurisdiction was around 1-3 months confinement per year gone…  (e.g. 3 years AWOL CONUS = 3-9 months confinement and BCD).  Garden variety stuff.  
    Which raises a problem in the fairness and uniformity.  Again, if 1LT Franks somehow receives a more harsh sentence than BB, that is a total injustice to 1LT Franks.  For instance… 

  24. Vulture says:

    So there you have it.  We time our wars for when the military justice system will not be burdened by a plague of sexual assault allegations instead of the real military crimes.

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