A military judge has found that Bowe Bergdahl should serve no prison time for endangering his comrades by walking off his Afghanistan post.

The judge also gave Bergdahl a dishonorable discharge, reduced his rank to private and said he must forfeit pay equal to $1,000 per month for 10 months. The judge made no other comments.

132 Responses to “Bergdahl avoids confinement”

  1. jagaf says:

    Looking forward to a level-headed, well-reasoned series of tweets any time now…

  2. Guilty Bystander says:

    Fixed.

  3. k fischer says:

    Congrats, Defense team.  

  4. Nathan Freeburg says:

    The big discrepancy between the expectations that many had and the actual result (leaving aside the political angle which was never BB’s fault) is that this was a case where what most thought they “knew” was actually just from the soldier’s rumor mill. There were multiple (contradictory)rumors out there as to his motives that lots of people took as gospel. All of them were false. He was blamed for every fatality in the area (none of which were on PR missions), supposed aggravating statements that were actually just rumors. Etc. and, yes, evidence substantiated his horrible treatment (much of it medical). 

  5. Scott says:

    Well done. Sounds about right all things considered. 
     
    Very similar to the assessment of the 15-6 Officer and the 32 Officer.  

  6. J.M. says:

    Is there an applicable Son of Sam law for court martial convictions, or can we expect to see his book hit Amazon in 10 months?
     

  7. stewie says:

    I think it’s the right result, but boy some folks are gonna lose there…stuff.

  8. Charlie Gittins says:

    A just result in my opinion. 

  9. slyjackalope says:

    What a huge waste of time, money, and effort.  Think of all the sexual assault allegations that could have been properly investigated (and not charged) rather than spending years on this case.

  10. Concerned Defender says:

    What a dishonorable disgrace. 
    I also have a lot of thoughts about this case, and none of them positive from a military or legal perspective.  Cue the calls to remove the UCMJ from the military in 4, 3, 2, 1… 
    A TERRIBLE precedent was just set.  A 1 day desertion huh?  Apparently nobody going forward is going to be responsible for the natural and probable consequences of their actions.  Look forward to the BB argument in all cases going forward.  How about the E4 who goes AWOL to care for his dying mother?  Is that not a form of involuntary servitude due to a high MORAL obligation that should turn a 1 year AWOL into a 3 hour AWOL to account only for the drive home, and tolled until she dies and he returns to duty 1 year later?
    From the rescue to the “investigations” to the 3.5 years to get this to trial, the massive waste of time, money, resources…. to accomplish a DD and set maybe the worst precedent I’ve ever seen in a non-sex crime.  Unbelievable.   The harm done to the UCMJ by this is off the charts. 
    Behavior that, at one time, resulted in simply being shot, now results in an conviction, loss of some rights and probably a multi-million dollar book deal and TV show circuit.  He needlessly put hundreds of his brothers in direct path of death, several suffered career ending and life altering combat injuries, others might have died, tens of millions of dollars spent searching and recovering him, years spent on a trial…  
    Given the distinction from a BCD to a DD is largely academic, I have literally seen a PFC who stole a pair of $400 NODs get a worse sentence of a few months jail and a discharge.  
    Still trying to process this abomination…  

  11. a. hernandez says:

     
    Great job by the defense team; congrats.  I thought he may get a minimal amount of jail time (three years or less) as an acknowledgement (er, aggravation) to those who suffered injuries looking for him.  Still, I can see the military judge reaching this conclusion, which as someone already mentioned, lines up with the 15-6 IO and 32 Officer.

  12. Jack Burton says:

    Once again the Gvt can’t move a case forward worth a poo.  The lead TC had to be brought in from the USAR.  Around the time of referral the Gvt had to bring in all Senior TCs in CONUS to Bragg to look thru the evidence that they had not reviewed prior to preferral.  Then they asked the court for 18 months delay after referral.  That speaks volumes to the state of practice in the JAG Corps. 
    This is the right result.  However, the underlying aspects of the MJ system in the Army should give the new TJAG serious things to think about.  Certainly his two predecessors put this mess into motion. 

  13. DCGoneGalt says:

    If the judge could have credited him with the time held by the Taliban I am sure there would have been confinement canceled by credit on the sentence.  That wasn’t an option so this was the sentence.  And it’s the right answer, IMO.  Bergdahl isn’t a danger to anyone now and he is a disgrace to the uniform.  The DD is well deserved.  But a half decade in taliban custody is worth 25 in prison IMO.

  14. Cheap Seats says:

    And, we have our first POTUS tweet… The MJ owns the case until authentication.  Time to refile the UCI motion?  POTUS has now weighed in, again.  Could that serve a chilling effect on the clemency process, assuming Bergdahl asks for clemency from the CA?  Or as he challenges the previous UCI rulings on appeal?  Now, perhaps, the MJ dismisses the case.  Let the games continue…

  15. Charlie Gittins says:

    Behavior that, at one time, resulted in simply being shot, now results in an conviction, loss of some rights and probably a multi-million dollar book deal and TV show circuit. 
    Really?  In the United States military?  I don’t think there has ever been a summary firing squad in the US military.  Hanging since time immemorial, and in World War II with some pretty sketchy legal processes.   Since none of those commenting here heard the evidence and likely few if any have actually imposed a court-martial sentence, myself included, I think it is hard to second guess a 30 year Colonel who has been an Army judge for just about as long as I can remember.

  16. tinfoil wars says:

    Big defense win. I’m guessing it was the five years of torture and captivity and not the anonymous cat whisperer testimony that drove this result.
    This is a just result, but should this have gone to trial? The right wing inter webs won’t be satisfied.  The case stretched on forever.  The best person to assist your personnel recovery program is less likely to want or be able to continue assisting. To the extent a court-martial case can play a role in resolving a tragedy or preventing future ones, this case seems to have only prolonged the suffering. The best you can say about it is that the CM put facts out into the open and allowed some of the injured to testify. I’m not critical of any of the JAGs in the process, but I wish this could have been avoided. 

  17. Old TC says:

    He should not get credit for the time spent captured. This sends a terrible message that the punishment may depend on the type of Enemy.  Desertion in that environment warrants a much harsher sentence despite the complications he brought on himself. 

  18. J.M. says:

    If being a 30 year col males someone’s judgement unquestionable and above criticism, what does that make the judgement of an Admiral accused of UCI and a BG confined to quarters for contempt?
    My days of not taking the military justice system seriously are coming to a middle. 

  19. Rob S says:

    This was a just result IMO, and Cheap Seats beat me to it…  POTUS just couldn’t keep a lid on the Tweets.  Very interested to see how this plays out.  
     

  20. DCGoneGalt says:

    Tinfoil Wars – Do NOT underestimate the cat whisperer/beast-master hypnosis theory for the lack of confinement.  I have seen no evidence to indicate the cat whisperer didn’t lull the judge into granting no confinement because the cat whisperer was some sort of specially trained Taliban sleeper cell agent working with Islamic extremist cats to bring about a one-world government with Bowe Bergdahl as the dictatorial Anti-Christ. 

  21. Saul says:

    I’m rarely right, but this went pretty much as I thought it would. Both the sentence and POTUS’s response. 
     

  22. stewie says:

    Practiced multiple times in front of COL Nance. He’s pretty much the textbook definition of down the middle. Not super harsh, not super light. He’s been a judge for a long time. He knows what he is doing. I’ve seen it, up close. Folks can call this an abomination or not take MJ seriously, but those folks aren’t to be taken seriously.

  23. CorsairF4U says:

    Can’t wait for the apoplectic screams of ‘we should have let him rot over there!” by all those who proclaim to be all about military service…..except when it comes to the concept of “taking care of our own”.
    Just result, IMO.  No argument, except with the fine (curious punishment, in my book)

  24. k fischer says:

    Seriously, CinC?  If I were the MJ, I sua sponte would have a series of post-trial 39a’s where I ordered diminishing levels of punishment that would be the parallel opposite of the standoff between Dick Vernon and Johnny Bender.
    POTUS:  That’s a disgrace.
    MJ: BCD.
    POTUS:  Oh!  I’m Crushed about this Court-martial.
    MJ: No kick.  6 months forfeitures.  You through?
    POTUS:  Not even close, Juuuuuudge!
    MJ: No kick. No forfeitures.  Reprimand.
     
    Can the SecDef order an airstrike on the building that houses Twitter’s server?
     
     
     

  25. RY says:

    Corsair–I think the fine may be due to an unjust enrichment idea.  Normally, the Service can characterize AWOL/Desertion as lost time and recoup money paid for that time period.  Because his capture was the result of his own misconduct, there is some argument he should not receive any pay for the time in captivity.  He pled guilty to just 1 day so he may very well be entitled to back pay, if not already paid, for his entire time in captivity.  The fine may be a way of returning some of that pay, that he deserved more than a DD but no additional confinement due to the mitigation of his captivity.  I’d have preferred to see the fine paid to those who were most impacted by his desertion but you have to get creative to try to make that happen and no amount of money is going to make those people whole. 

  26. J.M. says:

    In the past month, the Navy had their head lawyer accused (and according to a judge, substantiated) of UCI, a COL and BG can’t put their egos aside and now one’s confined to quarters, and a SVC blasted by name in a recent decision for frivolous filings. How many posting on this blog include the phrase ‘prosecutorial misconduct’? And when was the last time someone committing prosecutorial misconduct was held accountable?  But I’m not to be taken seriously?
    Bergdahl is on tape, admitting that his intent was to disrupt all military activity in his units AO to the fullest extent possible. That’s what a DUSTWUN is, drop everything and go find our guy or gal. And regardless of how he got captured, getting him back was the right thing to do. We keep the faith, even with people that walk away from us. But every asset dedicated to searching for him was pulled from units that suffered for it. Did the investigators look into how many troops were injured from IEDs due to lack of ISR coverage during the search because UAS assets were retasked? And to let him walk without a single day in jail to pay for his crimes is a travesty. 
    Coming to a middle, I say.

  27. jagaf says:

    @KF, I like that idea, though I have to say that POTUS has thus far been more restrained than I expected.
     
    What BB did was a serious crime and rightly could have yielded far worse consequences but for the significant mitigation of five years as a prisoner. Given that mitigation, it’s a just sentence.
     
    However, my real take away from this entire farce is just disgust at the degree to which this case has been exploited for political ends; many in the public have embraced a counter-factual narrative that all but suggests BB (a stupid, pathetic figure) is the Manchurian Candidate. The result, reached after an exhaustive, objective review of the actual evidence (vice what people ‘learned’ listening to idiots like Sean Hannity), is…shock…along similar lines to the recommendations of the 15-6 investigator and the 32 officer. In my view, this gives lie to the ridiculous assertions spread about this case from the outset of his release; lie that had a lot less to do with BB than who was at the top of the COC when the decision was made to make the trade for him.

  28. Philip D. Cave says:

    I guess we should thank POTUS for creating a post-trial and appellate issue.  I expect the UCI litigation to continue–no?

  29. G.S.D. says:

    Not a huge surprise balancing the full case and precedent like Jenkins, as well as likely desire to mitigate claims of UCI.  Of course, POTUS tweet in response re-opens that whole issue given that CA and ACCA have not acted yet…  How can anyone claim that that tweet is not UCI in regards to action by the CA?

  30. DCGoneGalt says:

    Don’t get all worked up.  POTUS will tweet out “J/K, lol”, attach it to an affidavit, and the appellate attorneys will say “damn, that’s airtight” and call it a day.

  31. OMC_Alum says:

    Berdahl and Manning should open a law firm…”Do the crime. Do no time”.

  32. Less Concerned says:

    There was no adjuged fine; there were forfeitures.  Not an uncommon result even where there is no confinement.  Hard living as an E1.  I wonder if he’ll opt for voluntary excess leave rather than have to be PCSd to one of the MCFs to do clerical work.  I would guess the former.

  33. k fischer says:

    jagaf/Phil,
     
    Well his offense occurred one day in 2009, so does that mean that the Convening Authority could disapprove the DD?  If so, then I think this has created an appearance of unlawful command influence, so that the Convening Authority will be loathe to provide clemency to a sentence that his Commander in Chief says is a disgrace.
     
    I didn’t like it when 44 expressed his opinion regarding the inflexible disposition of sexual offenses.  So, likewise, this is unacceptable, so much more so that it is tied to a specific case.  While he is the president.  I really don’t think there is anyway that one could be reasonably convinced beyond a reasonable doubt that his statements will not affect clemency, unless the new rules regarding clemency come into play and the Convening Authority has no choice in reducing BB’s sentence.  Whatever part of this sentence that the Convening Authority is permitted to reduce should not be approved as a remedy to this Tweet.

  34. Less Concerned says:

    By MCF, I mean PCF.
    AR 600-62, para 3-12(b)(4) provides:

    If the soldier received a BCD or DD but no confinement, the excess leave documents must be sent to the PCF. If the soldier does not voluntarily request excess leave, and the convening authority has not acted (the involuntary leave cannot be processed), the soldier will report to the PCF for duty.

  35. jagaf says:

    @OMC_Alum…”Do the crime. Do no time.”? Manning was in PTC and confinement for a combined 7 years and got a DD. Bergdahl did 5 years as a Taliban captive and got a DD. Criticize the ultimate outcome of their cases if you want, but to act like neither of them suffered as a result of their misconduct would be laughable if there were not people in the public gullible enough to actually believe it. Please stop making me have to appear to defend these two disgraces to the uniform.

  36. Judge Mike says:

    What about the six people who died searching for this traitor?  This corrupt, leftist judge is himself guilty of dereliction of duty and I hope the President revokes his commission and retirement.  

  37. Retired Paralegal says:

    I think the sentence was just.  I spent 20 years, mostly as a government hack.  When you consider his time in captivity, it is not hard to see how COL Nance came to his sentence.  You have to remember that he was being sentenced for a 1 day desertion and misbehavior before the enemy, which were combined for sentencing purposes.  Based upon my experience, the Judge had a baseline sentence in mind, before he heard any sentencing evidence.  Ultimately, I think he determined that the treatment Bergdahl received during his five years of captivity was enough, in regards to confinement.  Interestingly enough, I told a member of the USAR that I work with, this would probably be the result, or a non-binding recommendation to the CA that he disapprove the confinement based upon Bergdahl’s five years of captivity.  

  38. Wes says:

    I understand his military pay during his time he was held by the Taliban has been held pending resolution of this case.  Based on the findings and sentence, will he receive or lose that pay for the time he was not present for duty due to his desertion? 

  39. Retired Paralegal says:

    Wes,
    It should have been forfeited, after the completion of the AR 15-6 Investigation.  He should have been found “not in the line of duty due to his own misconduct.”

  40. Nick Stewart says:

    How should this case reflect on miljus at the end of the day? Did miljus actually serve justice here, or did it fail to hold accountable – and fail to parade through the streets to the gallows – a schizotypal soldier who was determined mentally unfit for the Coast Guard, but not determined by the Army to be mentally unfit for combat? Hard to say. But, certainly the Army may have missed an opportunity to deter similar future conduct by demonstrating to its soldiers of reasonably sound mind what happens to any mentally challenged soldier deserting his post without giving some logical thought to the consequences of his actions.
     
    Separately, a hypothetical that comes to mind is, “What would the sentence be absent the Rose Garden comments the MJ acknowledged would be considered in mitigation?” More severe? The same? Also hard to say with certainty.

  41. Christian Deichert says:

    @Less Concerned: yes, if he takes voluntary excess leave, only his paperwork will go to the Fort Sill PCF (Army’s sole remaining PCF).  If he doesn’t, he can show up and draw a paycheck for a while, until the Sill GCMCA can place him on involuntary excess leave after the referring GCMCA takes initial action.
     
    Speaking of paychecks, I thought the $1,000 forfeiture for 10 months was odd.  I figured some confinement time but wasn’t terribly surprised when I didn’t see it.  E1 and DD, natürlich.  But $1k for 10 months?  Why not full pay, or just not address it and let the automatic forfeitures ride?

  42. Jack Burton says:

     I hope the President revokes his commission and retirement.  
     

    @ Judge Mike:  You probably should read up on how that actually works. 

  43. k fischer says:

    Could somebody send this to POTUS?
     

    § 837. Art. 37. Unlawfully influencing action of
    court
    (a) No authority convening a general, special, or summary courtmartial,
    nor any other commanding officer, may censure, reprimand,
    or admonish the court or any member, military judge, or
    counsel thereof, with respect to the findings or sentence adjudged
    by the court, or with respect to any other exercises of its or his
    functions in the conduct of the proceedings. 

  44. former JAG says:

    wait, 6 people died searching for BB?  I thought 2 were injured and none died.

  45. Concerned Defender says:

    I just simply cannot rationalize this ruling of a 1 day desertion/misbehavior.  BB admitted he intended to leave to shirk duties and create a DUSTWUN, he sent belongings home, wrote anti-American sentiments… 
    I guess bank robbers with fake guns aren’t to be held responsible when the fearful teller dies of a heart attack and a police car in response to the call hits a pedestrian?  
    And yet BB spends not a day in a civilian or military jail.  Just simply unreal.  Violated his duties and left his guard duty, laid down weapons, dressed as a local, and ran away.  Unreal there’s no punishment in terms of confinement, and he gets a windfall of pay for it.  
    As a reminder, this is key excerpts from BB’s serial podcast.  If there’s any material conflict from his testimony, I sure hope the government looks at an Article 107 false official statement charge.
    https://serialpodcast.org/season-two/1/dustwun/transcript
     

    Bowe Bergdahl
     
    A man disappears from a TCP, and a few days later, after DUSTWUN is called up, he reappears at a FOB? Suddenly, because of the DUSTWUN, everybody is alerted. CIA is alerted. The navy is alerted. The marines are alerted. Air force is alerted. Not just army.

    Mark Boal
    Weren’t you afraid they were going to, like, throw you in the jail or whatever?

    Bowe Bergdahl
    Yeah. That’s actually what I’d … you know, that’s what I figured they’d do.

    Mark Boal
    And then how long did you figure you’d stay in there?

    Bowe Bergdahl
    Well, I figured I’d stay in there until people got the situation cleared up, you know? I was fully confident that when somebody actually took a look at the situation, and when people started investigating the situation, that people would understand that I was right. You know, what was going on was a danger to the lives of the men in that company. The idea was I’d rather be sitting in Leavenworth than standing over the body of Nascimento or Coe or somebody like that. And understanding that if somebody had done something, they’d still be alive.
     

    Bowe buys a local outfit, a sort of robe.

    Bowe Bergdahl
    Because I knew there was a possibility of me being out in the open in the daytime. So, obviously, a big white guy in a uniform walking through the desert by himself is gonna, you know, attract a lot of attention.
     

    Bowe Bergdahl
    However, a person with a traditional … like a local dress on, and a local headscarf wrapped around his head, that’s not going to draw as much attention.

    Sarah Koenig
    He also took out $300 from his bank account in U.S. and Afghani money, just in case he’d need to bribe someone. At the end of June, 2009, Bowe’s platoon was on its very last rotation at OP Mest. The company was getting ready to hand the place over to the Afghans, which really just means they were going to take their trucks and leave.

    When he talks about it now, he’ll sometimes acknowledge the wrongheadedness of it—that he overestimated his ability, that he wasn’t aware of the other ways he could have registered concerns about leadership. But there was this other idea Bowe was testing out: Yes, he says, he wanted to bring attention to the plight of his platoon. But he also admits that his plan was part crucible.

    Bowe Bergdahl
    I was trying to prove to myself—I was trying to prove to the world, to anybody who used to know me—that I was capable of being that person.

    Mark Boal
    Like a super-soldier, you mean.

    Bowe Bergdahl
    Yeah. I was capable of being what I appeared to be. Like, doing what I did was me saying, I am—

    Mark Boal
    Right.

    Bowe Bergdahl
    —like I don’t know, Jason Bourne.

    Mark Boal
    Right. A character in a book or whatever. A character.

    Bowe Bergdahl
    Yeah. So I had this fantastic idea that I was going to prove to the world that, you know, I was the real thing. You know, I could be, you know, what … I could be what it is that every … you know, all those guys out there who go to the movies and watch those movies, they all want to be that. But I wanted to prove that I was that.

    Mark Boal
    Why not just wait and see if you got the opportunity to prove that, like, on a mission? You know? Because you hadn’t even been there that long. Like, why not—

    Bowe Bergdahl
    No, I hadn’t been there very long.

    Mark Boal
    Why not wait a couple months and see if you get a chance to prove yourself in a, you know, some kind of tactical engagement?

    Bowe Bergdahl
    Because it was a combination of situations. The situation that I was in was an extremely bad situation. I saw things falling apart as far as my command was—

    Mark Boal
    Right, right, right.

    Bowe Bergdahl
    —was concerned. So it wasn’t that I just decided, hey, I’m going to do it to prove that I can do it. I was trying to find a solution to the problem at hand.

    Mark Boal
    Right.

    Bowe Bergdahl
    And I just tied—I tied into it this idea, you know, kind of like two birds with one stone.

    Mark Boal
    I was just going to say two birds with one stone.
    Sarah Koenig
    On the morning of June 30th, 2009, Bowe had been scheduled to take over guard duty. The soldiers would keep watch from the turret of one of the MRAPs, which is a big armored truck. Bowe was supposed to take over from Austin Lanford. But Lanford comes to the end of his shift: no Bowe. So he gets down from the big truck—which he’s not technically supposed to do until he’s relieved, but whatever. He steps down and shakes Bowe’s little tent, which is right near the MRAP, to wake him up for duty. Then Lanford goes back up in the truck. Still no Bowe.

  46. Ryan Coward says:

    So, with POTUS tweets, how can the GCMCA take post trial action on 1105 and 1106 matters without UCI?  Heck, I’m pretty sure all AWOL/desertion defendants now have great UCI motions to file regarding POTUS statements and the impact on sentencing.

  47. DJT says:

    Judge Mike/Former JAG, 
     
    6 dead or two injured.  Doesn’t matter.  They knew what they were getting into when they signed up, right?
     
    —-DJT

  48. Guilty Bystander says:

    This ruling just adds to the public perception that government employees are simply not acting in good faith.
    Once again the wisdom of the founding fathers is ratified by the blatant dishonesty and duplicity of the government careerists who “serve.”
     

  49. Tami a/k/a Princess Leia says:

    Kind of the sentence I expected, and personally I think the right result.  Eliminates a lot of appellate issues.
     
    Do the charges and/or the DD impact his POW status?  If so, I would think the Army would seek to recoup the pay he received as a result of automatic promotions.  That would be a pretty hefty bill.

  50. PAS says:

    Pretty amazing, and here we are with soldiers being confined and lives ruined for arguing with their spouse. Just goes to show if you want a real defense council to represent you, make the case hit mainstream media. Hey you might even be labeled a “hero” to some.

  51. Guilty Bystander says:

    Hey PAS, let’s not forget all those cooling their heels in Leavenworth for actions to keep themselves and their troops from getting slaughtered in hostile territory.
    There’s a theory that this absurd ruling has more to do with Nance than anything military or justice.

  52. Allan says:

    For those who don’t like the sentence…
    Which would you rather have: life in Leavenworth military prison or five years being a Taliban POW (with all the horrors it entails).  I really don’t think that any soldier will desert thinking, “hey, I will only get five years of hell and then I will be free.” 
    To be clear, this is a crime unique to the military.  The purpose of the whole exercise is to ensure good order and discipline.  Frankly, I don’t see how a lprison sentence would help much in this case.

  53. k fischer says:

    Ryan Coward, 
     
    That’s the question I have?  Under the new R.C.M. 1107 can the Convening Authority grant clemency by reducing the DD or disapproving it all together?  I don’t think the exceptions apply and the CA cannot reduce or disapprove the DD, in which case, POTUS’s tweet has no prejudicial effect.  If the pre-2013 changes to RCM 1107 permitting clemency applies because the offense date is 31 May 2009, then I think UCI has reared it’s ugly head.  Anybody got an answer on this?

  54. Cheap Seats says:

    k fischer – the changes to Article 60 were AFTER the date of the offense and do not apply to offenses committed before enactment.  The way I read it, the CA could disapprove the findings and sentence, or approve a lesser sentence as a matter of clemency.  Please somebody more recently in MILJUS correct me if I have read it wrong.  Now, after the apparent UCI allegedly committed a mere 90 minutes after sentencing, I’m not sure the public can feel confident that a CA would even consider it.  And would the Secretary, or the Board Of Clemency?  ACCA?  I mean, why would I grant clemency after such a statement from the CinC?

  55. Sympathy and Dead Goats says:

    Its been a while since I had to eat crow.  I forgot how good it tastes.
    V.

  56. JC89 says:

     
    I am utterly disgusted. This validates my decision to retire from the Army after over 28 years of service.
     
     
    Will there be a write up by COL Nance on how he came up with this sentence (I write that word and wonder if the results are even really a sentence)? I am curious what his justification is.
     
     
    Someone on this thread or an earlier thread made the comment that some personnel that were wounded were not on a “PR” mission. That their mission brief did not say they were on a PR mission could very well be factual. In truth though, the vast majority, if not all, units in that sector conducted missions in order to recover or facilitate the recovery of BB. In all likelihood they traveled routes they would not normally have, set up VCPs in areas they would not normally have and conducted searches in built up areas which they would not normally have. This is the fact of a DUSTWUN. Units/organizations that had “PR” in their mission statements were relocated from other areas of the AOR to conduct the “PR” mission. When this happened their original missions went uncompleted. Stewie has educated me that third order effects cannot be considered in judicial proceedings but there were those effects that without a doubt affected a number of service members. Simply stating that units were not tasked with “PR” in their mission statements so were not directly related to BB is not factual. Tactical, operational and strategic assets were retasked and reprioritized. Anyone who has served downrange knows this; BB certainly did.
     
     
     
    I have read so much about the 5yr in captivity being mitigation on this site. There are 2 things I don’t understand.
     

    Is there any information about BBs treatment for those 5 yr that doesn’t come directly, or indirectly (PR professionals testifying based on what BB has told them doesn’t count), from BB?

    I fail to understand why his 5 yr in captivity based on his own admitted actions (misbehavior before the enemy) is mitigating. For example, if someone breaks into my house at night and I only wound them (unlikely), their jail sentence is not going to be reduced because they were wounded.

     
     
     
    Some posters have made sarcastic comments based on the deterrent effect that this case could provide. I agree with them that the likelihood of this type of situation happening again is very unlikely. The thing is that isn’t the point. The point is on the deterrent effect of the UCMJ. Think about it. A Soldier deserted and misbehaved before the enemy and the punishment was minimal to say the least. What does this say about the rest of the UCMJ? About the rest of the standards that the Army runs on? What standards does a Soldier have to follow and which does he not? The Army has utilized a significant amount of resources on showing/educating the force on being a profession (CAPE). I cringe at the effects that this decision has on that effort.
     
     
    UCI. Here is the great debate. My impression is that some posters preach UCI in this case because of their personal animas against the current president. I didn’t see any of these concerns with the IO right after the Rose Garden debacle and cabinet comments on national TV (interesting that the IO pinned on another star after the investigation was over).
     
    From reading posters comments, the relief from UCI ref the former CinC comments on sexual assault was to not allow the punishments that the former CinC specified. So, it would stand to reason that would be applied in this case if there was UCI found. Since death was off the table (this is the punishment that CANIDATE Trump talked about) because it is not punishment proscribed for these offenses (plus COL Nance has said that he’s not influenced regardless because he’s retiring) then how is it meaningful in this case?
     
     

  57. Advocaat says:

    I don’t think this accused should have been crushed with confinement.  On the other hand, no confinement does not fit the offenses and the impact they had, especially when far less culpable military members go to jail for simple drug use. Nobody cares about a kid who uses drugs; soldiers care about this.  As a long-ago infantryman, I care about this.  Good order and discipline?  I don’t think so.

  58. Actually Deployed says:

    JC89, from your lips to God’s ears, buddy.  Good luck swaying any of the numerous libtards that infest this board, though.  They don’t understand the big picture…most likely because their most dangerous deployment was an office run to Krispy Kreme for Doughnut Fridays.
    And, BTW, you are spot on regarding the numbers of wounded/killed.  I bet A LOT of missions (some of which incurred KIA/WIA) were excluded b/c the way the OPORD was set up.  Not to mention the tier 1 assets that were likely utilized and whose missions were classified.

  59. Ganthet says:

    Since the Firefly quote veil has already been pierced, Actually Deployed, anyone who uses the term “libtard” in an non-ironic sense clearly has never been accused of having an overabundance of schooling.  If you can’t debate the merits of something without resorting to crude, irrelevant political name calling, maybe you should stop talking/typing to avoid being thought a fool rather than removing all doubt.

  60. Javert says:

    ”libtard” = project much? 
     
    Nothing convinces me that someone is not worth listening to quite like phrases like “libtard.”
    some of us were concerned about UCI well before 2016. 

  61. Guilty Bystander says:

    The enigma in this decision is Nance. He gave the sentence in the most public profile case in a decade and then he silently split. Did he not explain the sentence because it’s unexplainable?  Did he not defend the sentence because it’s indefensible? Fidell refused to divulge who hired him to defend old Bowe, and Nance evidently is not interested in divulging why he ruled as he did.
     
    Gotta love arbitrary justice from an inscrutable judge.
     
    Good for discipline and whatnot.

  62. Concerned Defender says:

    To be clear, BB’s actions were a direct, foreseeable cause of the severe injuries of several service members who were unnecessarily sent out looking for him, and many of whom had their careers ended and lives changed forever.  And a pile of other aggravation (some probably wrongly not allowed in trial, like the deaths of Americans looking for him or the money spent on the rescue, or the Taliban trade, and so forth).   And for that he won’t serve a day in jail.  Not. One. Day.  
    I see overwhelming furious comments on veterans sites like the American Legion, VFW, Army Times, etc.  I think the MJ owes the military and tax payers who pay his salary an explanation on his ruling.  I’d sure like to hear one.  

  63. Javert says:

    col Nance owes the public precisely jack squat. Sentencing is not a democratic process; that’s what a lynch mob does. 

  64. Tami a/k/a Princess Leia says:

    Guilty Bystander and Concerned Defender,
     
    COL Nance doesn’t owe an explanation for the adjudged sentence.  In fact, how he reached his decision is protected by privilege MRE 509.  He is not at liberty to disclose to the public how he reached his lawful sentence.
     
    Concerned Defender,
     
    There is no evidence that anyone died searching for BB.  BB wasn’t responsible for the trade, that was Obama’s decision, and a poor one at that.  But the only person answerable to that is Obama, not BB.
     
    Actually Deployed,
     
    If you think the people who post here are “libtards,” then what does that make you?  Takes a lot more than a deployment to understand the military justice system, which obviously you don’t.
     
    JC89, the differences between Obama’s comments regarding mandatory dishonorable discharge and other punishments for sexual assault and Trump’s comments regarding BB are 2-fold:  1.  Obama’s comments were made while he was POTUS, where as Trump was merely a candidate, and him reminding people of his candidacy comments do not magically transform them into comments as CIC; 2.  Obama’s “suggested” punishments were viable, whereas Trump’s weren’t.
     
    Wouldn’t be the first time a deserter got “only” a dishonorable discharge.

  65. Some Defense Counsel says:

    Some here have asserted that BB should have received no mitigation credit for his captivity because it was a natural and foreseeable consequence of his desertion.  But that’s not how our law works. Other peoples’ unlawful acts are never a natural and foreseeable consequence. The analogy is not a burglar who gets shot or a drunk driver who gets injured; it’s someone drunk in public who gets dragged into an alley and assaulted or raped. 

  66. K fischer says:

    JC89,
     
    I voted for the current president.  My animas is against UCI.  It doesn’t matter who employs it and I didn’t like it when 44 did it.  I also believe that deterrence is a factor that warranted confinement, but I didn’t sit through the sentencing case, so I’m not about to say that an MJ who is pretty well respected is a disgrace or a leftist or a libtard.

  67. Bridget Wilson says:

    It is quite a day. I am agreeing with Gittens across the board. UCI soon to be litigated (again). Yes. Will anyone really think that this senior military judge is influenced by Trump tweets? Probably not. Does it look very bad to have the CINC doing this, why yes. Much UCI litigation to happen. Someone take that phone away from the CINC, please.
     

  68. JC89 says:

     
    Tami a/k/a Princess Leia 
     
    Thank you. You have stated my point much more succinctly then I did.
     
    Could you please post a link to the testimony that details that there were no WIAs in the search for BB. Please include all units/organizations that had their missions changed as a result of this DUSTWUN.
     
     
    COL Nance’s decision may be legal and protected under the rules. At the same time it would be enlightening to see what he based his decision on. I know it will not happen but I suspect that many would prefer that he didn’t regardless.  
     
     
    Some Defense Counsel
     
    You stated, “Other peoples’ unlawful acts are never a natural and foreseeable consequence.” I am not sure what you are referring to. Are you referring to the detention of BB by the Taliban? If so, why were their acts illegal?
     
     
     
    Once again, this is larger than just BB and the whole political mess that is involved in this.
     
    This result is a slap in the face of not only those it may be intended for, but also for those Soldiers who did their duty in conditions that we cannot even imagine.
     
    This relates directly to the MILITARY rule of law. It relates to why the military has a different penal code. This is due to congress deciding that there needs to be different rules (traditionally more strict/restrictive) for good order and discipline. I know, I know. Many will scoff at this. It is easy for us to debate this on this board. Where the rubber meets the road and battles, large or small, are won or lost, good order and discipline (cohesion) does matter.
     

  69. K fischer says:

    If there were no WIA searching for Bergdahl, then why would he during his unsworn and Eugene Fidel in his statement to the press apologize to those who were wounded searching for him?  Although I think Tami said there were no KIA.

  70. JC89 says:

    K fischer
    Thank you. I stand corrected. My question should be changed from “WIAs” to “KIAs”. 
    My point really isn’t about that though, it is about the absolute statements. I suppose that I am having a hard time with the definitions of causation. If a unit changed its mission as a result of the DUSTWUN and incurred a KIA, then shouldn’t that be laid at the feet of BB? Even though that unit was not specifically tasked with “recovery” or “rescue”? What if their mission change was a supporting effort of other organizations who were specifically tasked for that mission.

  71. Guilty Bystander says:

     

    Tami, I ain’t no lawyer, but wouldn’t the sentence and the reason(s) for the sentence count as results of the deliberation? 
     
    Rule 509. Deliberations of courts and juries:  Except as provided in Mil. R. Evid. 606, the deliberations of courts, courts-martial, military judges, and grand and petit juries are privileged to the extent that such matters are privileged in trial of criminal cases in the United States district courts, but the results of the deliberations are not privileged. 
     
    You can all cite chapter and verse all day and all night; the judge’s actions in this case simply undermine military justice credibility. Congratulations to all involved.

  72. Tami a/k/a Princess Leia says:

    There were Was, and several testified, or someone testified on their behalf.  However, with the desertion being limited to one day, that greatly limits the “causation” factor of seach and rescue efforts.  At some point, searching for BB became a lost cause, yet if a high level commander decided to take the chance to continue those efforts, then that is not attributable to BB, no more than Obama’s  bad decision to trade Taliban for a deserter wrongfully characterized as a “hero.”  Clearly embarrassing, but again not BB’s fault.

  73. Tami a/k/a Princess Leia says:

    Guilty Bystander,
     
    The sentence is the result of the deliberation, and was announced in open court.  How COL Nance got to that sentence, i.e. his deliberations, are privileged and he is not required to disclose and he can’t be required to disclose.  Long ago, there used to be “bridge the cgap” sessions where judges would meet with the attorneys after the trial to discuss the thought processes in general terms as profession al development, but then their comments started to be used against them.  And in a high profile case like this, I expect COL Nance will keep quiet about why he adjudged this particular sentence.
     
    Now if POTUS wants to change the rule on the deliberative process privilege, he is free to do so.  Congress can also chime in and creat rule that requires the judge to provide an explanation.  Maybe this case will provide the impetus for that change.  But those changes  won’t apply to this case.

  74. Bad Company says:

    Kind of surprised, but not really.  I would have been interested in a resolution of “I sentence you to X years, but you get X years credit for being confined by Haqqani and POTUS’ continuing comments” but that’s not necessary and would just create an opportunity for an interlocutory appeal, wouldn’t it? Now back to the other ongoing UCI shitshows.
     
     –

  75. Guilty Bystander says:

    Privileges can be waived.
     

  76. Tami a/k/a Princess Leia says:

    Sometimes yes, privilege can be waived.  But there is fallout to waiving deliberate process in past cases, I don’t see anyone willing to take that chance.  And he can’t be required to disclose it.
     
    Like I said before this isn’t the first time a deserter got “just a dishonorable discharge. 

  77. Concerned Defender says:

    MJ deliberations aside, I think the public is entitled to some rationale here for some transparency and consistency in sentencing.
    I won’t be surprised if this is the turning point for some mandatory minimums or taking UCMJ away from the military with such an apparently irresponsible ruling.
    I’ll be using the BB “confinement” defense in my next marital or dating rape case where the “victim” was allegedly raped.  “But you’re honor, he had to endure this ***** for 9 years nagging on him, and he couldn’t get out due to the kids so he had to stay around.  Slept on the couch, denied conjugal relations, and had to listen to non-stop ******** tantamount to confinement.  So yeah, he is alleged to have committed rape, but can’t we just call it a wash?”
    Or my next armed robbery.  I’ll use the “he feels really bad about it” defense.
    “You’re honor, it’s true that he shoved a gun in the tellers face and she died of a heart attack.  And that a cop ran over a pregnant lady en route to the robbery alarm.  But he didn’t mean to hurt anyone and the gun wasn’t loaded.  So, can’t we just agree to no confinement and call it a day.  He feels really badly about it?”
    Give. Me. A. Break. 
    Let’s remove the aggravation entirely.  The starting point is that desertion and misbehavior are almost an automatic DD.  Both 1LT Franks and SGT Jenkins received Dishonorable Discharges.  And nobody got injured looking for them.  
    1LT Franks got 4 YEARS confinement and a dismissal for his CONUS 5-year desertion and conduct unbecoming.  No aggravation in that case.  But one might argue mitigation in terms of the fact he was in a military contract which would have prevented him from returning, fighting in the French Foreign Legion.  Franks also had serious mental issues.  He’s far more sympathetic than BB. https://www.nytimes.com/2014/12/16/us/a-deserter-who-chased-conflict-is-jailed-for-shirking-duty.html
    Jenkins was in confinement or psuedo confinement for the bulk of the decades he was deserted.  Even he got a harder sentence than BB. 30 days and a DD.  There’s no record of anyone hurt looking for him.  
    So then what was the PURPOSE of allowing and hearing painful testimony of severely wounded GIs and their family member(s) and digging all of this back up.  I see this light sentence as a slap in the face to them in particular.  I am willing to bet they are very distraught over this reward of no confinement when they live with severe injuries every day.
    Was the MJ unpersuaded by these career injury ending Service Members?   BB gets the lightest by far sentence of these 3 cases, and yet is by far the most aggravating and not the most “mitigating.”  
    Or was the MJ so determined to prove he wasn’t swayed by political talk, that he was swayed to give an extraordinarily light sentence?
    I’d also like to have revisited why those 6 KIA who – according to their fellow Soldiers were on missions to find BB – were not part of this case.  Was that a government screwup, or did the MJ hear and rule against this?  I’ve seen interviews with those Soldiers and they said they were on a mission to find BB at the time.  Are they collectively mistaken?
     

  78. Sir Lance-a-lot says:

    Has anyone else heard the rumor that Bergdahl’s motive for leaving his base in the first place was far more nefarious than he subsequently admitted?  I.e., he wanted to collaborate with the Taliban but things didn’t exactly work out the way he hoped…or maybe they did and that’s why he doesn’t look like one who was “tortured” for five years. 

  79. Javert says:

    I remain flabbergasted at the number of people who, ordinarily would decry “judicial activism,” that want Judge Nance to make a finding based on something other than the facts in evidence and the law.  

  80. civlawyerbot says:

    I served in two different branches, one as an MP where I saw some injustice in an otherwise fair system. There were some times a lower ranking enlisted would receive stronger court martial punishments for things handled with resignation or wrist slapping for higher ranks. Overall fair.
    I went back to school, got my JD, and part of my disability practice is in the VA system. I follow things here on the blog without commenting because it’s interesting. There are some things that are confusing.
    In normal courts sometimes judges lose their cool or their own biases take over, but for the most part guidelines and norms control the issues, and appeal courts will fix real problems.
    I am frankly shocked at some of the garbage that comes out of the military system. I understand these are mostly appeal court cases, but WTF?
    A serviceman attempts suicide while supervised and rather than assign any blame to the chain of command, they charge him with a crime and military judge not only goes along with it but attempts to bulldoze their way past the fact it is an insane charge?
    People are called back onto active duty to railroad charges that are completely unwinnable in real courts, and the officers in the chain of command and the judges think that is acceptable, spiking the football in the face of good Americans that they are a kangaroo court?
    A soldier committed admitted desertion and misbehavior before then enemy and a military judge openly conspires to slap him on the wrist because he loves the former president and hates the current one?
    A sitting commission judge ordered a supervising defense lawyer to violate privilege in open court? I would end up in jail, too. For the 4 hours it would take the chief judge or the court of appeals to spring me and call the trial judge in for a serious talk.
    For the most part the system seems fair, bu when the mil justice system goes bad it goes completely off the rails and there don’t seem to be any adults involved to right the disasters.
    The closest broken system to the military seems to be the VA, where initially poorly made decisions are also rubber stamped, initially by DROs rather than mil judges, and then pretend courts vomit macro paragraphs onto paper as they pretend to review the problems and end up upholding the wrong decisions.
    I hate to say it, but it may be time to take both the military and VA systems away from appointed officers and sinecure career admin judges, and assign the cases to real courts with real judges.

  81. Tony Kurlander says:

    civlawyerbot wrote, in part, “I hate to say it, but it may be time to take both the military and VA systems away from appointed officers and sinecure career admin judges, and assign the cases to real courts with real judges.”  I respectfully demur. 
    Who are the “real” judges?  I was privileged to serve as an Air Force military judge, and I took my job incredibly seriously.  I am now an administrative law judge, and I take my job incredibly seriously (writing, of course, in my personal capacity).  In the military justice system, there is an appellate oversight process, which potentially ends up in the Supreme Court.  In the federal administrative judiciary, there is also an appellate oversight process, which potentially ends up in the Supreme Court.  “Real” judges are involved throughout the process, from the trial or hearing, through appeal.  
    And you know what?  At one time or another, all judges are criticized.  Yes, even the Article III judges.  All judges have to make tough calls all the time.  Some are upheld.  Some aren’t.  But Article III judges are no more “real” judges than other “real” judges, and no judge is perfect.  If you think that turning everything over to an Article III judge is going to make everything hunky-dory from now on, you’re kidding yourself.  Oh, and that next court-martial or whatever it’s going to be called–it’s going to last eight years, and the public defender’s office is going to be swamped.  Good luck with that.  
    I commend our judges, in courts-martial and in the Commissions, for being professionals and for making those tough calls.  Every one of them is a “real” judge.  
     

  82. Guilty Bystander says:

    civlawyerbot said:
    A soldier committed admitted desertion and misbehavior before then enemy and a military judge openly conspires to slap him on the wrist because he loves the former president and hates the current one?
     
    Is this the Nance situation?  If so, did the defendant benefit from Inverse Unlawful Command Influence?

  83. Advocaat says:

    A previous comment about this case’s potential for spawning more mandatory minimums resonated with me.  I think one of the strengths of the military justice system is the wide discretion at sentencing for most offenses.  I hope that does not change b/c of this accused and the sentence he received for abandoning his post and his unit.

  84. Vulture says:

    The public is entitled…  The public is entitled to what, CD?  The public isn’t entitled to jack diddly.  It was a Congressional member that said there where going to be hearings if the sentence went this way.  Let him do it.  In the diction of your Mousseline want to be President, we’ll see what the public in entitled to.
     
    This stream of conscious vehicle called CAAFLog is that it’s like fine Russian literature.  Dostoevsky to be exact.  See Zach, No-Man, and Isaac, they are Crime and Punishment.  Tami, stewie, DCGG, and Kyle, that’s the Brothers Karamazov.  You.  You are the other one. 

  85. jagaf says:

    https://mobile.nytimes.com/2017/11/03/opinion/bowe-bergdahl-sentence-benefits.html?smid=fb-nytimes&smtyp=cur&referer=http://m.facebook.com
     
    i have no real issue with the sentence handed down yesterday based on many of the facts mentioned in this piece; the conclusion, that a DD was too harsh, I find ridiculous however. I could have lived with a UO if they’d sep’d him years ago, but with the evidence adduced in court, DD was the obvious right answer. That said, with the UCI issues, particularly if more tweets are forthcoming, it will be interesting to see what happens going forward.

  86. Woobie says:

    There needs to be an AAR focused on the pre-trial and referral of this case. Hindsight is not 20/20 when the 15-6 IO and article 32 IO called for leniency. This was a waste of resources and probably caused the witnesses to feel worse about the whole situation than before they testified. The TCs did a good job for trial, but You have to question objectivity and savvy in the valuation of the case and lack of  foresight that leniency would be a just, but problematic, outcome for the command.

  87. J.M. says:

    I asked before, but it was probably lost in the comments. Are there applicable Son of Sam laws to prevent a book or movie deal? And what will happen with his promotion and back pay? Does he get 5 years back pay as a SPC then SGT, then busted to PV1, or is he considered to have been a PFC during those 5 years? 

  88. Concerned Defender says:

    A day later and I’m still thinking this was a total injustice.  
    Revisiting the issue of KIA’s, it would take very strong evidence to compel me to believe that those KIA’s were not looking for him just 1-2 months later.  Absent that, I think a mistake was made (unclear who made it) to not introduce or allow the introduction of evidence of same.  Did the prosecutors screw this up, or did the MJ screw up a ruling I wonder?  Or are all these Soldiers from the same BCT mis-informed that just a month later they were not looking for BB?  
    I’ve seen overwhelming evidence, in terms of Soldiers being interviewed on television, that they were told their missions or side missions were looking for BB when 6 or 8 Service Members were KIA from enemy attacks.  So, it’s going to be very hard to convince me otherwise when many of those on the ground there were told they were looking for BB.  They also believe attacks got worse and resources were diverted. 
    Here’s one of these videos and if you want my perspective please watch this interview.
    https://www.youtube.com/watch?v=sFjbMJRSdtY
     
    http://time.com/2809352/bowe-bergdahl-deserter-army-taliban/
    Staff Sergeant Clayton Bowen, 29, of San Antonio, Texas, and Private 1st Class Morris Walker, 23, of Chapel Hill, N.C., were killed by a roadside bomb in Paktika province on Aug. 18, 2009, while trying to find Bergdahl. Like Bergdahl, they were part of the 4th BCT from Fort Richardson, Alaska.
    Staff Sergeant Kurt Curtiss, 27, of Murray, Utah, died Aug. 26 in Paktika Province, Afghanistan, of wounds suffered when he was shot while his unit was supporting Afghan security forces during an enemy attack. Like Bergdahl, Bowen and Walker, he was part of the 4th BCT.
    2nd Lieutenant Darryn Andrews, 34, of Dallas, Texas, died Sept. 4 in Paktika Province when enemy forces attacked his vehicle with an improvised explosive device and a rocket-propelled grenade. Like Bergdahl, Bowen, Walker and Curtiss, Andrews was part of the 4th BCT.
    On Sept. 4, 2009, Private 1st Class Matthew Martinek, 20, of DeKalb, Ill., was seriously wounded in Paktika province when Taliban forces attacked his vehicle with an improvided explosive device, a rocket-propelled grenade and small-arms fire.
    Staff Sergeant Michael Murphrey, 25, of Snyder, Texas, died Sept. 6 in Paktika province after being wounded by an IED. Like Bergdahl, Bowen, Walker, Curtiss and Andrews, Murphrey was part of the 4th BCT.
     

  89. Tami a/k/a Princess Leia says:

    Concerned Defender:
     
    Just because a news article claims there were KIA during a search for BB doesn’t make it so, no more than a family’s belief their sons were killed during a search for BB.
     

    In mid-July, military officials called off the dedicated ground search and gave soldiers other primary missions after concluding that Bergdahl had been taken to Pakistan, according to a U.S. military official speaking on condition of anonymity. The official said some Bergdahl-related surveillance continued for about another month, and soldiers were also told to keep an eye out and to ask about Bergdahl while carrying out primary missions.

    The deaths of these 6 Soldiers occurred 1-2 months after military officials called off the ground search for BB.  Therefore, their deaths are not “directly related to or resulting from” the crimes of which BB was found guilty.  This is the standard for the government being able to introduce aggravating evidence on sentencing.
     
    Since there was no evidence of any KIAs, COL Nance couldn’t consider them.  There certainly were WIAs, which COL Nance did hear from them.
     
    If you’re going to bash the sentence, then please at least show some knowledge of the system.  And show some knowledge of the actual facts of the case.  The participants in the BB knew the facts far more than we will ever know, and were much more capable of separating fact from fiction.  Perhaps if the Government had charged AWOL, where an inability to return doesn’t stop the AWOL, they would’ve gotten a conviction for a much longer period of time, and then MAYBE the KIAs would’ve become relevant.  MAYBE.  But in going for the jugular of desertion, it ended up being ONE DAY.  So I would expect the Government to closely examine its charging choices from this case to figure out what they could’ve done differently to convince the judge to issue a more severe sentence.

  90. Tami a/k/a Princess Leia says:

    I am hopeful that when the record of trial is finally completed, the unclassified portions will be publicly released.  I think that’s important for transparency.  Also I suspect that when the FORSCOM CG takes final action, he will provide a written explanation for why he takes the action he does, whatever that may be.
     
    Out of curiosity, what would people think if the DD was commuted to a term of confinement?  Would people be happier with that?  Personally, I wouldn’t.  He would end up with a General Under Honorable Conditions Discharge.

  91. Tami a/k/a Princess Leia says:

    JM,
     
    To answer your question about pay and promotion entitlements, BB was classified as “Missing/Captured.”  He was entitled to a variety of pay and allowances and promotions as he became eligible.  He was a PFC when captured, and promotion to SPC was automatic.  And apparently due to time in grade, became eligible for promotion to SGT.  At that point, promotions become competitive.
     
    Now that he’s an admitted deserter, that takes him out of the “Missing/Captured” status.  But whether that results in complete denial of all the pay & allowance benefits, or only a small reduction equal to the “one day” of desertion, I have no idea.  I had asked that question before, hopefully someone can provide a definitive answer.
     
    http://myarmybenefits.us.army.mil/Home/Benefit_Library/Federal_Benefits_Page/Captive__POW__MIA_Entitlements.html?serv=147

  92. Concerned Defender says:

    @ Tami –
    I have ZERO faith in the “anonymous official” report that the military called off the search for two reasons:
    1. That’s NOT what many Soldiers on the ground were told their primary or secondary missions were.  Are you saying they were lied to or mistaken?  Because if they were lied to IOT go out on false missions, that seems like it would have been a crime or very irresponsible at best.
    2.  This “anonymous official” is almost certainly connected to a BB sympathizer within the Obama administration – the one that made the bad deal, did an ugly political victory lap in the Rose Garden, and called BB (now a convicted deserter) a “hero.”   This is the same administration which oversaw what I recall being a garbage Article 32 investigation which recommended no punishment and (like Comey can’t find any wrongdoing by Hillary Clinton or ‘no prosecutor would reasonable prosecute her’) other legal gymnastics… so we know that at least the 32 IO was wrong on this count… BB pled and is at LEAST a federal convict with a DD.  And while that’s not justice in my humble view, at least his misconduct resulted in some tangible punishment (albeit it practically nothing). 
    I agree that all the info from this case MUST be released to the public because folks like me are fairly aggravated at the total lack of what appears to be real justice here.  I rue the day when setting in motion probable and natural chain of events that leads to the aggravation BB did, including serious injuries to other vets, results in not 1 day in jail. 
     
    Likewise, how does foreseeable enemy capture sever a term of Desertion is unclear.   Does a vet get a pass when he feels a moral duty akin to confinement to go AWOL to care for an ill parent?  Not in my experience, in my AWOL cases.  It’s an express question.  I believe we are entitled to a clear explanation and interpretation of the law, just like what we can expect from an appellate decision where the law is fully and transparently explained. 
    I will gladly correct my beliefs when I am convinced otherwise by full disclosure of evidence and judicial explanation of the law on these matters.  Why should a Judge be afraid to explain the law?  If an MJ is too afraid of sharing his legal rationale, then perhaps the ruling is ripe for questioning.
     
     

  93. jagaf says:

    @CD, come on…you can continue with this specious comparison between actual captivity (where one literally cannot leave) and “moral duty akin to confinement” in as many posts as you want but just try to see past your emotional investment in this case and I think you may see that it simply doesn’t hold water.

  94. Concerned Defender says:

    @jagaf – That’s not even a primary argument that you’ve clung to.  I’d REALLY like to know how someone who deserts under such circumstances is not responsible for one of the very likely, probable, and foreseeable results of his desertion.  
    I can think of no other legal case, situation, or argument where a criminal is somehow magically absolved from his misconduct due to an intervening cause that is an almost near certainty in such a situation.
    From bank robbery to rape to kidnapping and co-conspirator behavior, it is such a well-established principal that one has to mentally stretch to go against the grain.  A 1 day desertion ruling is mental gymnastics. 

  95. Ghost_of_Cossio says:

    The sentence is a joke. Those who say that he “served his time” with the Taliban is laughable. When I was court-martialed many things befell me as a result of being extended past my enlistment (stuff stolen, delay in attending college, parents house burning down etc). Confinement is to send a message to others. I’m sure this has been espoused by the very same lawyers who now find themselves on the other side of the fence.
     
    I would have given him 5 years, equal to the amount he was with the Taliban, plus the DD.
     
    I can tell by these comments, and the emphasis about POTUS twitter, that many just don’t like the President. But the argument on UCI is sound although no reasonable person would ever lessen the sentence.
     
    The argument against UCI is that the sentence was already lite enough.  Which may have been the MJ’s intention.

  96. Tami a/k/a Princess Leia says:

    Concerned Defender,
     
    Why should anyone try to convince you the sentence, though disagreeable by many, is still a “just” and “fair” sentence, when you condition your acceptance on the military judge explaining his rationale?  You’ll never accept it as fair because COL Nance won’t explain his rationale.  Regardless, if you knew anything about the military justice system, you’d know the following:
     
    1.  Desertion focuses on the accused’s intent when they left.  Since BB’s intent to leave his post lasted only one day, it is only a “1 day desertion.”  Had this been charged as an AWOL, where BB’s intent may have been irrelevant, he could have been convicted of AWOL for the entire time of his absence, including captivity.  If you don’t like that, then go bug Congress, they created these laws.
     
    2.  As far as evidence in aggravation, we are limited to that admitted into evidence at TRIAL.  NO EVIDENCE OF KIAs!  Any evidence of KIAs is SPECULATIVE!  With the primary mission of S&R operations for BB being called off mid-July, if anyone continued to look for BB, that was secondary to their primary missions.  When deaths occur during performance of other primary missions, then their deaths aren’t directly “related to or resulting from” BB’s actions.  As unfortunate as it is, those deaths would’ve occurred anyway.

  97. J.M. says:

    Bergdahls intent was to cause maximum disruption to his units activities in that AO to call attention to himself. That’s what a DUSTWUN is. Drop everything and look for your missing person. And it’s part of predeployment training since well before 07. Almost every JRTC and NTC rotation includes a DUSTWUN scenario, not to mention the occasional real world ones. Especially since he uses that exact term in a podcast. B.B. didn’t show a single bit of remorse or accept responsibility until he was in a court room. That’s where a lot of anger about this from the rank and file come from. What he did was bad enough. But to be paraded around and take a victory lap to enjoy his 15 minutes of fame was unconscionable and unforgivable. How or why that wasn’t argued as an aggravating factor, I don’t know. But, IMO, it should have been. 
     
    A lot of us are angry. He pleads guilty and immediately appeals his sentence and asks for a POW medal. That’s his right to argue for it. But it’s our right to be outraged by the lack of remorse he’s shown and his attempts to profit and gain attention from this. I guarantee there’s a book deal in place, or there will be one in 10 months. That’s just obscene. No we’re not lawyers and it’s easy to dismiss our anger as right winger nonsense (if you check the post comments on here, that term was used long before ‘libtard’, which is just as stupid and ignorant of a comment to make) or ignore it since we’re not lawyers and don’t know what we’re talking about. But the rank and file are watching. We see senior people walk with slaps on the wrist and retirements intact while Joe gets prison time. The military won’t hesitate to grab jurisdiction for every 120 case they can find, regardless of how weak. But a Chief master sergeant gets charged with killing a kid while drunk driving and the Air Force lets him retire as a E-8. I’ve listed other examples earlier. Where is the justice in this?
     
    I can accept that what happened in this case happened the way it did, despite my anger. But I don’t think it’s unreasonable to ask that the Army make efforts to open up the process and explain to everyone why things happened the way they did and why he’s walking without a single day in jail. Properly explained, it will alleviate a lot of the anger and leave the troops better informed. 
     
     
     

  98. K fischer says:

    All the gnashing of teeth over this sentence is curious.  
     
    If a panel sentenced a man convicted of rape to a DD and no confinement, then should they have been called front and center to explain their rationale for the sentence?  The answer to this question is No.
     
    Ater the recommendations of the 15-6 Officer and the 32 Investigating Officer, should anyone be surprised that he didn’t have a sentence of confinement?  I would be rather have gotten a DD, than a BCE and 12 months.  But, in light of the two previous investigations calling for little or no confinement, I don’t get the lawyers being so outraged at something they should have seen coming.
     
    Did the Officer who referred the case to a GCM should explain his rationale for referring the case to a GCM after two officers recommended lesser dispositions?  
     
    This is case is similar to a bs rape case taken for political reasons and ending in a full acquittal, which supports why Courts martial should not be taken for political reasons.  The Government takes every piece of evidence for the most it has to be worth while turning a blind eye to an alternate equally reasonable exculpatory explanation and is humiliated by the result. The complaining witnesses all away disgusted and rejected at the system.  The Accused went through months or years of litigation and appeals.  The taxpayers funded the monstrosity.  And those responsible for the political pressure resulting in the court martial make their usual statements to the press.  And, the only ones who walk away are the defense attorneys.

  99. Government says:

     
    Did the Officer who referred the case to a GCM should explain his rationale for referring the case to a GCM after two officers recommended lesser dispositions?  
     
    If you ask most people, a case that does not look like it is likely to get confinement, shouldn’t go to trial. In the absence of UCI, it would be interesting to know what the actual SJA-CG interactions were in this case.

  100. Guilty Bystander says:

    I just wanted to thank you all for your explanations and contributions to help this lowly civilian struggle to understand what’s going on in the military justice system. As a matter of principle, a judge should be able to explain his sentence to those who are paying the hefty bills for the military justice system. And as a matter of principle, the option to try the case before a judge as opposed to a jury of peers should also be eliminated. It’s clear the military justice system has become an insular governmental bureaucracy that is more interested in shielding itself from public scrutiny than clearly explaining to the unwashed masses what it’s up to.
     
    Thanks again.

  101. jagaf says:

    @GB, there are certainly legitimate criticisms that may be leveled against the MJ system, but your concerns are not unique to it and could be made against any system of justice in America.

  102. Tami a/k/a Princess Leia says:

    JM,
     
    The reason BB’s “15 minutes of fame” and his “victory lap” weren’t evidence in aggravation is because those weren’t his choices to make.  Obama made those choices on his own, just like with the Taliban 5 swap.  You can’t attribute those to BB anymore than you can blame an accused for inconveniencing his unit because they have to provide personnel for escort and bailiff duties.
     
    Guilty Bystander,
     
    Congress is pushing for military judges to do the sentencing, even when the accused selects a panel for the merits phase of the trial.  The thinking that military judges are in a better position to adjudge a “normal range” sentence.  This is not a “normal” case.  How do you punish someone without breaking them?  That should be the primary consideration in any case.  I’m not sure a panel would’ve arrived at a different sentence.  If anything, probably more lenient, as I think they would’ve factored in the fails by BB’s chain of command even more.
     
    At the Article 32, not only was there a recommendation for no confinement, there was also a recommendation for no punitive discharge because the Government chose not provide evidence of casualties related to the search and rescue operations for BB.  Obviously a different story at trial, there were several WIA who got to testify about victim impact.  For me, that’s enough to justify a DD.  A BCD would also punish, but BB would still be eligible for VA health care for his captivity injuries.  So what kind of punishment has some teeth in it for BB?  A DD.

  103. Concerned Defender says:

    @ Tami, while I generally agree with your views on CAAF, you should know I’m fully dialed into the UCMJ.  The ART 32 I/O and ART 32 was a joke and the recommendation was a joke to be ignored, which if you recall was tantamount to no punishment.  It was akin to Jim Comey reciting 10 serious felonies/federal offenses committed by Mrs. Clinton and then bewilderingly stating that no reasonable prosecutor would charge her?!  Um. Say what?  
    Bergdahl and Hillary were not recommended or prosecution for no other reason that pure politics.  Hillary was powerful enough to avoid charges, but BB was apparently not.  And I take some comfort in that he was charged and at least leaves with two federal offense convictions and a DD.  At least *some* minimal justice was served.
    He left with criminal intent to leave and remain away and create chaos and a DUSTWUN.  Perhaps his intent to remain away was forever but that was severed by captivity for 5 years and a rescue.  Perhaps his intent was to escape his captivity and continue to remain away.  We don’t know do we, and he has apparently LIED under oath, which is a crime itself.  The 1 day desertion ruling should be, if possible, appealed by the government as it’s a really bold mistake and injustice.  
    I see lots of lecturing about this or that, but in 100+ posts nobody has “explained” how a deserter profits from his desertion severing his intent to leave due to the natural, probable, and foreseeable results of his separation.  Let’s say BB instead of being capture, 1 day into his intentional DUSTWUN and desertion he got lost and injured and lived in a cave unable to return and then was found after  5 years.  Would that too just be a 1 day desertion?  Nonsense.
    I really hope the government is continuing to search for ways in which to pursue any/all perjury charges against him, if there are any.  
    This abnormal ruling angers me and undermines my faith in the UCMJ.  I have seen so many good Soldiers go to prison and suffer punitive discharges for short terms of AWOL when they left for very good reasons to care for ill family members, for instance; worse punishment than BB.  
    I would also hope there is some order that he cannot profit from any media on this or his profits will be disgorged.  It would be a travesty if he profits from his misconduct. 

  104. Vulture says:

    What!  We are still going round on this?  Hey I can understand the anger.  BB became a SGT with 5 years in terrorist hands.  Captain America has been that way for SEVENTY-FIVE YEARS.  The dream is over.  Let it go.

  105. Tami a/k/a Princess Leia says:

    Concerned Defender,
     
    If you are so “dialed in” to the UCMJ, then you would know the government can’t appeal the desertion ruling because the finding of guilt of only 1 day led to a finding of not guilty on the remaining time, and a not guilty ruling can’t be appealed.
     
    If the government had just charged the absence as a general AWOL for the 5 year period, BB could’ve been convicted of AWOL for the entire 5 year period.

  106. Concerned Defender says:

    @ Tami,
    Seems you’re making a distinction perhaps between a general intent and specific intent crime, which is academically interesting.  It would be an interesting discussion that perhaps the government could have/should have charged both Article 85 and Article 86 in the alternative, or bifercating the periods of time (eg 1 day desertion and the balance awol).  
    It does seem intellectually dishonest that the same basic behavior (e.g. you’re not here and intended to not be here for at least some of the time, and due to likely and foreseeable circumstances of your own doing you’re not here  for 5 years) that the accused gets an academic windfall.  (eg that somehow an awol charge would be more appropriate or result in a worse penalty than the proper desertion charge).
    On the other thread you gave the example of going on leave but being unable to return due to a late plane or a storm or a hospital visit.  You’re still in violation but it’s simply mitigating.
    Also seems as though an AWOL should really be an LIO for Desertion, as the latter really simply includes an “intent” element. Seems the MJ probably should have allowed the government leave to correct/amend this in some fashion or found him guilty of ART 86 for the time he was gone that was not desertion.  This might be akin to, for instance, finding that a 120 is instead a 128 simple assault lacking the elements of the former but not the latter.
    That the MJ did not do this in some capacity seems like a windfall for the accused.  

  107. Tami a/k/a Princess Leia says:

    AWOL is a general intent crime, whereas desertion is a specific intent crime.  AWOL usually is an LIO of desertion.  In BB’s case, AWOL was 1 year of confinement based on the entire 5 year absence, while the desertion was 5 years for just 1 day.
     
    I don’t see where the MJ “should have allowed the government leave to correct/amend” anything, especially since BB was arraigned back in 2015.  It’s not for the MJ to police up the government’s charging strategy or ask if they’re sure they’re comfortable with their charges.  That’s for the Chief of Justice to do, and for the Article 32 hearing officer too, which happened.  I would think the MJ asked about LIOs on the record, perhaps the defense objected to the MJ considering AWOL as an LIO.  I don’t know as I wasn’t there.  You have no basis for saying the MJ failed to do something if you weren’t there watching the trial.
     
    I don’t see this as a windfall, I see this as brilliant defense strategy.  Hopefully they’ll release the unclassified portions of the ROT, I’d be very interested in reading it.

  108. Charles Dunlap says:

    Maybe I missed it, but does anyone have any idea why the government asked for only 14 years?   Has anyone heard what the government thinks went wrong with their case?  Thanks, Charlie

  109. Charles Dunlap says:

    Also, should Article 37 be changed to cover the President?  Do folks think that would be Constitutional?  Thanks, Charlie

  110. k fischer says:

    Charles Dunlap, 
     
    I think an argument could be made that Article 37 covers the President as it states that no Convening Authority nor any other Commanding Officer shall admonish a Judge with respect to a sentence adjudged by the Court. 
     
    Is the Commander in Chief a Commanding Officer?  His tweet clearly admonished the judge and sentence by calling it a disgrace, so that shouldn’t be an issue.  Clearly, if POTUS is considered a Commanding Officer because he is the Commander in Chief, then he committed UCI.
     
    And, that’s what Judge Nance believes, as well, that the Commander in Chief can commit UCI.  See here.  Of course, one might wonder if the Defense filed another motion for reconsideration based on the President’s latest tweet calling his sentence a disgrace, whether General Abrams’ affidavit would continue to convince Judge Nance BARD that UCI would not affect the 1105 matters.  On the one hand, you have the kind of vague statement on the day Bergdahl pleaded guilty refusing to make a comment, but referencing what he said in the past and the subsequent memo that was quickly issued once the motion for reconsideration was filed.  COL Nance seemed to place great weight in this memo’s ability to extinguish UCI.  How much weight does he give it now that this specific statement describes this specific sentence in this specific case as a disgrace?
     
    My opinion is not based on a hatred for Trump.  I voted for Trump.  I want Trump to succeed for the good of our Country.  But, I hate UCI.  I hated it when 44 did it with his give anyone caught engaging in Article 120 behavior DD’s.  But, at least he was making a general statement about rape offenses in an attempt to combat sexual assault in the military, although he was giving his desire for an inflexible disposition of the offense.  And as much as it pains me to say it, this is far worse in that 45 knows he was not allowed  previously to comment on the case because of this military thing called UCI.  He says as much in a recognition that he can’t comment on it.  Then, when it is all over he calls the Judge a disgrace before the CA can take action.  Anyone who does not recognize this is not being intellectually honest.

  111. Charles Dunlap says:

    k fischer, thank you so much! 
    I’d be grateful for some more thoughts re: Art 37.  Actually, the UCMJ defines “commander” to be a commissioned officer (which is why it is not legal to designate civilians or warrant officers as commanders as I’ve seen folks try to do from time to time.)  so that would seem to eliminate Trump.
    Re: convening authority.  Article 37 says “No authority convening a general, special, or summary court-martial…”  Would that include the President (or anyone else) who is not actually convening a case?    
    Would welcome your (or anyone’s thoughts) as I’m thinking about writing on this.  THANKS!!!!!!  Charlie
     
     

  112. DCGoneGalt says:

    Maj Gen (Ret) Dunlap: 
    I think the general consensus, based on first thinking of the issue, is that “yes, POTUS committed UCI”.  Hell, Art 22/23/24 specifically include POTUS as a convening authority.  However, Art 37 would cover POTUS only IF POTUS was the convening authority for that particular court-martial. 
     
    But in thinking that over . . . wouldn’t that mean that a the superior officers in a GCMCA’s chain of command also could not commit UCI?  If that is the case then there has been a lot of wasted ink and time on UCI motions.  I have always read Art 37 to prohibit actual UCI (or attempts thereof) whereas the appearance of UCI, which is also prohibited through caselaw, is triggered when those outside Art 37 get involved.  (Granting that the appearance can also be created by those covered by Art 37).

  113. Tami a/k/a Princess Leia says:

    I’m not sure a POTUS (unless retired) could directly commit UCI, BUT certain comments from politicians have a way of influencing military officials, so it could be considered indirect UCI.
     
    I am more concerned about Lindsey Graham’s voiced disappointment with the sentence as having influence, and I suspect the FORSCOM CG will have to write an explanation for the action he takes on BB’s case.  Regardless of the action, this will be a fight at ACCA and CAAF.

  114. Charles J. Dunlap says:

    DCGoneGalt:  Thanks!!!!  Do you happen to know of a case that discusses UCI beyond the four corners of Art 37?
    Tami: Do you think UCI can operate to suppress criticism of the outcome by someone outside the process in the legislative branch?
    All: do you think that the Rose Garden comments of Obama, Susan Rice, ect., operated as UCI?  
    All thoughts welcome!  (Can send directly to my Duke account if you prefer: dunlap@law.duke.edu )

  115. Concerned Defender says:

    MJ Nance already wrote he was not impacted by the POTUS comments and would be retiring.  And the sentence is already handed down.  The CG can not make the sentence worse.  So it’s literally impossible for Trump to commit UCI on this case.
    I see the POTUS comments as public admonishment for a poor job.  Not a good technique for sure for a leader.  But sometimes perhaps warranted.  A boss can privately or publically say, “You did a bad job.”  Is that not what happens when a Commander is relieved for XYZ reasons, or charged, or reprimanded?  
    Are some here saying that the POTUS cannot disagree with a ruling or admonish a Judge – or is a Judge immune from any criticism by virtue of his position?  
    Anyone recall when POTUS Obama admonished the SCOTUS and Judge Roberts during the State of the Nation Address?
    https://youtu.be/BiDiHX50zT4?t=17
    http://www.nytimes.com/2010/01/29/us/politics/29scotus.html

    WASHINGTON — It is not unusual for presidents to disagree publicly with Supreme Court decisions. But they tend to do so at news conferences and in written statements, not to the justices’ faces.
    President George W. Bush, for instance, did not hesitate to criticize a 2008 ruling recognizing the rights of prisoners held at Guantánamo Bay, Cuba — but he did it at a news conference in Rome. President Richard M. Nixon said he was disappointed with a 1974 decision ordering him to turn over the tapes that would help end his presidency — in a statement read by his lawyer.
    President Obama’s approach at the State of the Union address Wednesday night was more personal, and he seemed a little self-conscious about it.
     
    Before he began his attack on a Supreme Court decision not yet a week old, Mr. Obama added a few words that had not been in the prepared text. The new preface — “with all due deference to separation of powers” — seemed to acknowledge that he was aiming unusual rhetorical fire at several Supreme Court justices sitting right in front of him.

     
     

  116. Jubilee says:

    Can Bergdahl get fair consideration at clemency? Can there be an appellate process where there is fair consideration? 
    The President can fire the convening authority, SJA, and all the appellate judges. You can call it something else besides UCI, but the comments are explicit on Judge and the court-martial. The comments also affirm the defense arguments in their previous motions.

  117. Tom Booker says:

    Please look at the table of maximum punishments (Appendix 12).  You’ll see that the circumstances of a desertion (in time of war; shirk important duty; terminated by apprehension) dictate the maximum punishment, not the length.  A 1-day desertion in time of war carries the same maximum punishment as a 1-year desertion in time of war.
     
    Contrast this with unauthorized absences, where length and circumstances can both factor into the maximum punishment.  A 2-day UA terminated by surrender is treated very differently from a 35-day UA terminated by apprehension.
     
    Respectfully, LTB

  118. k fischer says:

    1. Judge Ryan, in a concurring opinion in Hutchins found a civilian, i.e. Secretary of the Navy, made remarks which resulted in the appearance of UCI.
     

    The Secretary further stated that (1) Appellant had not acted “ ‘in the fog of war,’ ” (2) “ ‘[the] sentence [was] commensurate with the crime,’ ” and (3) Appellant had been granted “ ‘substantial clemency already,’ ” referring to the convening authority’s approval of only eleven of the fifteen years confinement provided for in the adjudged sentence.
     
    Following these events, and as relevant to the unlawful command influence claim before this Court, the NC & PB, which had previously recommended that Appellant receive a six-year reduction in his sentence, recommended that he receive no clemency or parole at all. Whether the Secretary’s comments actually caused the NC & PB’s change of heart is irrelevant in assessing apparent unlawful command influence, as “the mere appearance of unlawful command influence may be ‘as devastating to the military justice system as the actual manipulation.’ ” United States v. Ashby, 68 M.J. 108, 128 (C.A.A.F.2009) (quoting United States v. Ayers, 54 M.J. 85, 94–95 (C.A.A.F.2000)).
     
    In Appellant’s case, “a reasonable member of the public,” Lewis, 63 M.J. at 415, apprised of the Secretary’s unequivocal, publicized position that Appellant deserved no further clemency, would “harbor a significant doubt about the fairness,” id., of Appellant’s annual NC & PB clemency review. This doubt would be bolstered by (1) the NC & PB’s dramatic change following the Secretary’s comments that Appellant receive no clemency or parole; (2) the subordinate status of all NC & PB members to the Secretary, see Dep’t of the Navy, Sec’y of the Navy Instruction, Dep’t of the Navy Clemency and Parole Systems pt. I, § 111, at I–2 (June 12, 2003) [hereinafter SECNAVINST 5815.3J]; and (3) the fact that any NC & PB clemency or parole recommendation would have to be approved by the Assistant Secretary of the Navy M & RA, see id. pt. II, § 205, at II–3, who was presumably aware of the Secretary’s position on this matter. That Appellant ultimately received 251 days of clemency—a period commensurate with the duration of his release following United States v. Hutchins, 68 M.J. 623 (N.–M.Ct.Crim.App.2010)—is far from curative of the apparent unlawful command influence when viewed in light of the NC & PB’s initial recommendation of six years of clemency.
     
    No member of the public, aware of the remarks made and the change in clemency *303 recommendation that occurred, could fail to harbor grave concerns that the change in the NC & PB’s clemency recommendation was directly related to the Secretary’s intemperate remarks about Appellant, in a case where neither appellate review nor clemency proceedings had been completed. These concerns are not cured by the facts that (1) Appellant has no right to any clemency at all, (2) the Secretary need not feel impartial about Appellant’s actions, and (3) the Secretary has the ultimate authority to grant any or no clemency. Here, the Secretary’s brash public remarks resulted in the appearance of unlawful command influence.
     

    U.S. v. Hutchins, 72 M.J. 294, 302–03 (C.A.A.F. 2013)(Ryan, concurring in the result)
     
    2.  Footnote 3 in US v. Boyce seems to indicate that civilians cannot commit UCI, apparent or actual, but, instead, commit a due process error of constitutional dimension.  

     
    3 The principal statutory provision prohibiting unlawful command influence is Article 37(a), UCMJ, 10 U.S.C. § 837(a) (2012), which states in pertinent part: “No person subject to [the UCMJ] may attempt to coerce or, by any unauthorized means, influence the action of a court-martial … or any member thereof.” The Secretary of the Air Force is not a person subject to the UCMJ, and it could be argued that it was her conduct—rather than the conduct of the Chief of Staff of the Air Force—that raised the issue of unlawful command influence in this case. Nevertheless, we need not address the factual issue of who was the key actor in this case on the legal issue of whether improper influence by a civilian official not subject to the UCMJ may present a due process error of constitutional dimension, because the Government unequivocally conceded at oral argument that our jurisprudence pertaining to unlawful command influence applies in the instant case, and we deem it appropriate to accept that concession in the course of analyzing the assigned issue.

     
    U.S. v. Boyce, 76 M.J. 242, 246 (App. Armed Forces 2017), reconsideration denied, (App. Armed Forces June 22, 2017)
     
    3. And, C.A.A.F. as early as 2003 ruled that the Government proved UCI did not affect the Court-martial beyond a reasonable doubt.  Some of the UCI was comprised of statements from the Secretary of the Army.  While they did not address whether or not these statements made by a civilian constituted UCI, it is interesting that they went all the way to the third prong to show that the Government proved BARD that the UCI did not affect the proceedings.
     

    Appellant further contends that the senior military and civilian leadership improperly influenced the disposition of charges and actions of the court-martial by: (1) using phrases such as “no leniency” and “severe punishment”; (2) asserting as a factual conclusion that there had been an “abuse of power”; and (3) articulating an incorrect legal conclusion—that “there is no such thing as consensual sex between drill sergeants and trainees.” The media items submitted by Appellant attribute these phrases to the Secretary of the Army, the Assistant Secretary for Manpower and Reserve Affairs, the Chief of Staff of the Army, and other senior leaders.
     
    In the present case, the testimony of the officers involved in the disposition decision and the answers of the panel members during voir dire demonstrate that the persons responsible for prosecutorial discretion and adjudication in Appellant’s court-martial were either completely unaware of the foregoing statements or had only a vague recollection of such comments by the senior leadership. None of these statements were transmitted directly to persons involved in the court-martial process, nor were they communicated through command channels. The phrases at issue were not otherwise repeated or disseminated in a manner so direct or pervasive as to undermine the reasonableness of the assertions by persons involved in Appellant’s court-martial either that they were not aware of such comments or that they did not regard the media reports as reflecting command policy.
     
    Under these circumstances, we conclude that the Government has demonstrated beyond a reasonable doubt that the few media stories in which these phrases appeared did not taint Appellant’s court-martial with unlawful command influence. Because the Government has met the third prong of Biagase by showing beyond a reasonable doubt that the court-martial was not unlawfully influenced, we need not determine whether, in the context of the present case, the phrases at issue fit within the first two prongs of the Biagase test.
     

    U.S. v. Simpson, 58 M.J. 368, 376 (App. Armed Forces 2003)
     
    4.  Finally, there was the case where the United States filed a writ of mandamus against MJ Marcus Fulton who took a DD off the shelf in US v. Johnson.  Here is a link to a copy of the writ, but I cannot find an answer or an opinion.  The Government argues that the President could not commit UCI because he is not covered under Article 37.

  119. Tim says:

    If he got $10K fine and has 10 months to pay it, how is the govt going to collect since he’s busted to the lowest rank, has to forfeit all pay and allowances, but also receiving a DD.  He won’t be in the military for the next 10 months and no pay? 

  120. DCGoneGalt says:

    Maj Gen (Ret) Dunlap:  It has been quite a while since I handled a UCI motion (and I certainly hope it stays that way) but througout the Bergdahl case I was considering the cases involving Lt Gen (Ret) Franklin where the UCI issue involved both commanding officers above him as well as political (especially Senate).  The actual UCI concern would be from the chain of command but the appearance UCI concern would come from political actors.  The appearance of UCI can come from actions taken by convening authorities or can manifest itself due to the appearance that the convening authority was tainted by political non-convening authorities, i.e. Senate or POTUS. 

  121. Tim says:

    If he got $10K fine and has 10 months to pay it,\\\\\\\\\\\\\\\\\\\\
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
     
    How is the govt going to collect since he’s busted to the lowest rank, has to forfeit all pay and allowances, but also receiving a DD.  Doesn’t make sense.  The govt will never get the money if he’s not in. 

  122. k fischer says:

    Concerned Defender, 
     
    You are correct that UCI affecting the MJ is no longer an issue and never was an issue.  The issue now is whether this UCI will affect the Convening Authority in his discretion to provide clemency to Bergdahl.  He has already stated in an affidavit for purposes of a previous motion that the statements had no effect.  Judge Nance found the affidavit to validate a finding that UCI did not affect the proceedings and would not affect post trial proceedings.  Of course, this was based on a motion because of POTUS very vague statement referencing statements he made as candidate Trump.  Also, there was the memorandum instructing all involved to make an independent decision.
     
    So, when the MJ does exactly that, the President decides, notwithstanding Article 37, to call the sentence a “complete and total disgrace to our Country and our Military.”  So much for that little memorandum he had his Counsel draft.  And so much for Abrams affidavit that he wrote.  
     
    And, the issue is not that the CA can make the sentence any worse and effectuate the President’s desire that he be given back to the Taliban by being dropped from an airplane.  The issue is that the CA will feel pressure not to grant Bergdahl any clemency.  (And, I’d advise the SJA against giving him the Lorge advice.)  Can you imagine what would be tweeted if General Abrams disapproved the punitive discharge? 
     
    Heck, if I were defense counsel, I’d submit a post-trial Chapter 10 and make sure somebody reported on it just so the President would have a Twitfit meltdown.
     
    Think about it this way, CD.  You are defending 45’s actions pretty vehemently.  So, what happens when 46 is Kirsten Gillibrand?  You gonna think it’s hunky dory for her to call a Military Judge in your case a disgrace to the military for acquitting your client or a panel for convicting your client of rape, but giving him no jail time?  Because what’s the difference?  There is none.  If you didn’t like it when Obama did it, then you shouldn’t like it when your guy did it.

  123. stewie says:

    Sorry, I stepped out for a second…what did I miss?

  124. Charlie Dunlap says:

    stewie: LoL!!
    For all (and just to be devil’s advocate): is it “legislative” UCI when Congress establishes by law the “Special Victim’s Counsel” designation?  In other words, the government – inside the unique context of the military – ican designate a complainant as a “victim” without any screening, let alone adjudications of the same?  Do the SVC create something of a government-established mindset within the system that the accused has to overcome?  Has it been litigated in a reported case? 
    Can defense lawyers start calling themselves “Counsel for the Falsely Accused”?  I’m joking, but perhaps you see the point…  Thoughts?  

  125. Concerned Defender says:

    KF – I see your point and I was against any UCI as a class of cases like Sex Assaults that Obama and various senators engaged in.  That led INNOCENT men to the gallows.
    The distinction is fact based.  BB did it.  We all know he did it.  His crimes were very serious, warranting at minimum a DD.  He admitted to his crimes.  Now it’s apparently a disagreement about the severity of the sentence.  I doubt few serious minded folks think his sentence of a DD isn’t warranted.  Take away the blind koolaid drinkers and anti-military types and never Trumpers and I’d wager very few think his actions don’t warrant a DD.  I doubt many think he should have not faced a CM, and the conviction/evidence is overwhelming.  
    File the motions, sure.  But do you really think the CG wouldn’t ratify a DD even absent any POTUS comments? I highly doubt it.
    Conversely, you and I and probably any defense counsel would agree we’ve seen or are aware of innocent men in prison for false rape or sex assault allegations.  
    Apples and oranges. 

  126. DCGoneGalt says:

    Gen Dunlap:  The government has tried hard to create that mindset through an endless series of SHAPR/SARC briefs (that I believe have been counter-productive to their intended purpose) but there is no concern on my end for the Special Victim Counsel or Special Victim Prosecutor label.  However, defense counsel do not have to submit to the NewSpeak linguistic pre-judgment of those position names.  Refer to them instead as the trial counsel and the counsel for RANK NAME (or if you really want to push it . . . Complainant’s Counsel). 
     
     
     
     

  127. JC89 says:

     
    J.M.
     
    Thank you. You stated some truths regarding the concern of those outside of the legal profession much calmer then I could have.
     
    K fischer
     
    “Did the Officer who referred the case to a GCM should explain his rationale for referring the case to a GCM after two officers recommended lesser dispositions?” 
     
    To the best of my knowledge that officer didn’t. I too would like to see his rationale. At the same time I would like to see the rationale of those two officers that didn’t recommend referral. My thoughts at the time when he was referred after the two other recommendations were along this line, “Finally, a senior officer who has intestinal fortitude in this matter.”
     

  128. Charlie Dunlap says:

    Thanks to all for a great and VERY informative discussion – CAAFlog at it’s best!   With great respect!  Charlie

  129. Tami a/k/a Princess Leia says:

    Charlie Dunlap,
     
    I believe our legislative branch certain people (rhymes will Shrillibrand) do things or say things that influence the military to take action or to not take action when, but for those comments, they would’ve taken completely different action.  Same thing when Obama was President.  I like to call it “undue political influence,” which is a subset of UCI.  And that’s why I say “indirect” UCI..
     
    My concern is FORSCOM CG is in a “damned if he does, damned if he doesn’t” situation.  any clemency, like reducing the DD to a BCD, look at all the screaming now over “just the DD,”  look at all the hoopla over that.  But if he approves as adjudged, the defense is going to through the political UCI flag.  Commuting the DD to a term of confinement will result in a General discharge.  He can’t reduce to a BCD + confinement because that would be more severe than the sentence adjudged.  No basis to disapprove findings, BB pled guilty.  That will be one heck of an affidavit.
     
    Tim,
     
    To clarify, it wasn’t a “fine,” it was a “forfeiture of pay.”  I understand your concern.  Because of the DD, ordinarily results in automatic forfeitures.  However, the convening authority can waive that for 6 months after he takes action.  He could defer forfeitures until action.  Because BB isn’t in jail, they could keep him working in a job fit for a private, and he will receive 1/3 base pay as a private because he isn’t in confinement.  One way or another, there is money to take.  A fine is due immediately (if approved) and you can be ordered to jail for not paying the fine.  The punitive discharge doesn’t go into effect until after his appeals are done.  His pay will continue until he reaches his ETS date.  But I think with the pay allowances during his captivity, he will have a good chunk of money so paying the forfeiture shouldn’t be much of a problem.
     
    K fischer, you can read the rationale in the documents on the Bergdahl Docket files:  https://bergdahldocket.wordpress.com/
    Essentially no confinement due to the captivity; no punitive discharge because no evidence of any KIAs or WIAs, which apparently the government was aware of but chose not to put any evidence on.  At trial, you had evidence of WIAs, so dishonorable discharge it is!

  130. k fischer says:

    Tami, 
     
    I read (for the first time I am ashamed to say) the Article 32 report.  It has been reported that the PHO recommended no jail time, which I just took for granted, but he also recommended that Bergdahl be tried by a straight special, meaning there would not have been a punitive discharge at all.
     
    BUT, what I did not know is that he went on quite a bit about this recommendation being based on a lack of evidence that there were Servicemembers KIA or WIA while searching for him.  And, if there was evidence presented at the Article 32, then I think his recommendation would have been far different.  So, now I can understand a little better why expectations for confinement may have been raised so highly in this case.  The case gets referred and the evidence of two Servicemember WIA, one catastrophically, gets in. 
     
    So, now I really don’t understand the recommendation for a straight special with no jail time.  Why send it to a Court-martial at all, then?  What’s the point of having a straight special with no discharge or jail time?  To me, that sounds like an Article 15. 

  131. Tami a/k/a Princess Leia says:

    K fischer,
     
    A “straight special” still results in a federal conviction, and a fine is an option.  And it’s not like BB could say, “thank you very much but no, I don’t feel like getting court-martialed.”

  132. Tami a/k/a Princess Leia says:

    Interestingly enough, I had a conversation with a couple of Vietnam War veterans about BB’s case, I asked what they thought of the sentence.  Not surprisingly, they said he should’ve gotten the firing squad.  But when I explained BB getting kicked out of Coast Guard for mental health, Army waived and deployed him into heart of enemy territory, and desertion was only 1 day instead of 5 years, and I’m talking to guys who appreciate the consequences of a dishonorable discharge, their reactions were completely different!  Ultimately they decided they weren’t in any position to judge, as they obviously didn’t know all the facts, so they were going to check out the Bergdahl Docket to get more info.
     
    K fischer, there was no evidence of KIA or WIA because the government affirmatively chose not put on any evidence.  The WIA at trial, for me that was the game-changer from the Article 32 recommendation and why I don’t think Trump’s comments really made an impact.  The other thing the Article 32 noted was if he was operating under the previous version of Article 32, he would’ve investigated whether there were WIA or KIA.  Way to go Congress!