In 2009, then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan. He was captured by the Taliban and held in captivity for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees. Ten months later he was charged with desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and with misbehavior before the enemy in violation of Article 99.

Bergdahl eventually pleaded guilty to both offenses without a pretrial agreement. In sentencing his defense counsel specifically requested that the military judge sentence him to a dishonorable discharge, and Bergdahl made it clear that he personally believed that a dishonorable discharge was the appropriate punishment. The military judge gave him that and little more, adjudging a sentence of reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge. The convening authority approved the sentence after Bergdahl elected to not request clemency.

Nevertheless, having pleaded guilty, requested a dishonorable discharge, made clear that a dishonorable discharge was appropriate, and not requested clemency, on appeal Bergdahl claimed that endemic unlawful command influence (UCI) denied him a fair trial, fair post-trial processing, or the appearance thereof, and sought dismissal of the charges. The Army CCA rejected the claim and affirmed the findings and sentence in a published decision discussed here. Bergdahl then petitioned CAAF for review (discussed here).

Yesterday, CAAF granted that review:

No. 19-0406/AR. U.S. v. Robert B. Bergdahl. CCA 20170582. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:

WHETHER THE CHARGES AND SPECIFICATIONS SHOULD BE DISMISSED WITH PREJUDICE OR OTHER MEANINGFUL RELIEF GRANTED BECAUSE OF APPARENT UNLAWFUL COMMAND INFLUENCE.

Briefs will be filed under Rule 25.

9 Responses to “CAAF grants review in Bergdahl to determine if an accused who pleads guilty to serious offenses, receives the punishment he requested, and does not seek clemency is entitled to relief from an appearance of unlawful command influence”

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

    Well, he certainly didn’t waive the issue, it was thoroughly litigated multiple times.  I think this is a case where CAAF (at least majority) would say they’re satisfied there’s no prejudice.  At worst, disapprove the forfeiture.

  2. Zachary D Spilman says:

    . . . DISMISSED WITH PREJUDICE OR OTHER MEANINGFUL RELIEF . . .

  3. Kafka, Esq. says:

    Seems to me that, due to apparent UCI, not having a meaningful opportunity to defend oneself, not having a meaningful opportunity to obtain a fair sentence, and not having a meaningful opportunity for clemency are all quite prejudicial.  

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

    Kafka, he pled guilty to a one day desertion, government tried to prove up the longer term, was found not guilty.  The record is clear his plea was voluntary, and I would say a smart strategy.  He had some great lawyers.  He went judge alone (smart strategy) and aside from the forfeitures, got the sentence he requested, which I thought was also an appropriate sentence.  The judge made it clear he wasn’t influenced. He had a meaningful opportunity to request clemency.  Even assuming Trump’s remarks during his Presidency were UCI, what would’ve been different from the outcome we have here?

  5. Vulture says:

    It’s kind of like admitting that you had a quid pro quo for aid to a foreign country, you admit it, and then it’s not really an admission.
     
    I don’t remember Bowie Bergdahl ever saying that he was giving up his right to an appeal.  Let the CAAF do its job.  It’s simple.  It’s  MET-L Paragraph one for the court:  Act as a check on executive abuse of power in the UCMJ.  It’s not about what BB did or didn’t do.  It’s about what others did or didn’t do.
     
    Perhaps D. Sullivan was on to something when he rendered the question of etymology.  Is the appearance of unlawful command influence the specter of UCI, or is the revelation of UCI?  IMHO Command, by rendition of willful neglect, has forfeited the question.

  6. stewie says:

    Tami, a potential different outcome might be the one recommended by the IO for example. One can pretty easily make a good faith argument that the notoriety from Trump didn’t help that potential different outcome. Will CAAF agree? No, probably not. The ultimate result wasn’t unfair. But given that he’s clearly a guy who could probably benefit from some VA benefits, I can see taking a swing at getting the DD reduced. What’s the harm in trying?
     
    I will agree with Vulture, I don’t get the outrage some folks appear to have for him simply exercising his appellate rights. If it’s so outrageous, guess what, he won’t get any relief. So what?

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

    I don’t have an issue with Bergdahl appealing, of course it is worth a try.  But the reality is that he got the sentence he asked for, and the suggestion he didn’t get to defend himself because of Trump’s comments is just over the top.  This was a high profile controversial case before Trump.  Seemed like there was a fair amount of outrage over his “lenient” sentence when first announced, now it’s too severe?

  8. Kafka, Esq. says:

    This was a high profile controversial case before Trump. 

    All the more reason for the CinC to keep his mouth shut.

     the reality is that he got the sentence he asked for

    This is a bit like saying the New Orleans Saints got what they asked for — a field goal — after the referees ignored blatant pass interference the play before during the 2019 NFC Championship Game.  Sure, the Saints made the field goal … but they lost the game, thanks in large part to one of the worst blown calls in NFL history: https://www.cbssports.com/nfl/news/rams-saints-ends-with-ugly-pass-interference-no-call-heres-the-simple-fix-for-the-nfl-going-forward/
    Of course, unlike the NFL, the UCMJ has a mechanism to reverse blatant interference no-calls.  

  9. stewie says:

    What he originally asked for was an admin separation Tami, after that, he did what he could to minimize the damage, and saying now, well, you asked for that damage is a bit weird from a board that is usually very pro-accused/defense.

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