In a published decision issued yesterday and available here, a three-judge panel of the Army CCA affirms the findings and sentence in the Bergdahl case.
In 2009, then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan, and 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, in March of 2015, Bergdahl (then a Sergeant) was charged with desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and misbehavior before the enemy in violation of Article 99.
Bergdahl’s case made our top ten list two years in a row, as the #8 Military Justice Story of 2015 and 2016, and the processing of the case through the military justice system was bizarre: A protective order prohibited Bergdahl’s defense team from releasing information to the press before trial, Bergdahl confessed to desertion, his recorded conversations with filmmaker Mark Boal were the nucleus for season 2 of NPR’s Serial podcast (and Boal sought to avoid a subpoena), Bergdahl’s defense team went 0-7 at CAAF, and motions to dismiss were filed over and over and over again.
Eventually, however, Sergeant Bergdahl pleaded guilty to both offenses without a pretrial agreement. Then, in sentencing, the defense specifically requested that the military judge sentence Bergdahl to a dishonorable discharge, and the CCA’s opinion noted that Bergdahl “made clear to the court that he believed the appropriate punishment was a dishonorable discharge.” Slip op. at 6. The military judge sentenced Bergdahl to reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge.
During that time, Bergdahl’s case captured the attention of the late Senator John McCain, and of then-candidate and later-President Donald Trump. Specifically, Senator McCain threatened hearings if Bergdahl received no punishment, and President Trump made numerous statements and tweets about the case, both before and after his election, including calling Bergdahl a traitor and calling the adjudged sentence “a complete and total disgrace to our Country and to our Military.” Slip op. at 6 (punctuation in original).
After Bergdahl was sentenced, the defense matters to the convening authority that included a post-sentencing tweet from President Trump but requested only that the case be sent to a different convening authority for possible clemency. The defense did not request sentence reduction. The convening authority did not transfer the case, and approved the findings and sentence as adjudged.
Nevertheless, having pleaded guilty, requested a dishonorable discharge, made clear that a dishonorable discharge was appropriate, and not made any request for clemency, on appeal Bergdahl “contend[ed that] unlawful command influence [UCI] was so endemic to [his] trial and the post-trial processing that [he] was denied a fair trial, or fair post-trial processing, or the appearance thereof.” Slip op. at 1.
The CCA rejected the claim in yesterday’s decision, with a majority of the panel reaching the unsurprising conclusion that, even considering the cumulative impact of all of the potential UCI:
the cumulative effect could not reasonably be perceived by a disinterested member of the public as improper command influence or otherwise indicative of an unfair proceeding.
Slip op at 18-19.
One judge dissents, however, writing that:
The active duty Lieutenant Colonel Judge Advocate Preliminary Hearing Officer, who presided over appellant’s extensive Article 32 proceeding, recommended referral of appellant’s case to a “straight special” court-martial not empowered to adjudge any discharge, and further recommended no jail time. Major General Dahl, who led a team of over twenty investigators and lawyers during the pretrial AR 15-6 investigation into appellant’s case likewise indicated that jail time would be “inappropriate.” In light of these recommendations from senior leaders who looked closely at appellant’s case, the military judge’s ultimate sentence was hardly a windfall, and it would have been conceivable that the convening authority could have provided additional clemency. Contrary to the majority’s holding, I find that UCI infected that critical post-trial process.
Slip op. at 28-29. Accordingly, and despite the fact that Bergdahl specifically requested a dishonorable discharge, agreed that a dishonorable discharge is appropriate, and did not request mitigation of the dishonorable discharge from the convening authority, the dissenting judge believes that:
Setting aside appellant’s dishonorable discharge would bring his current sentence into line with these two recommendations, and thus purge the taint of post-trial UCI that emanated from the President’s day-of-sentencing tweet.
Slip op. at 29.