Going against the advice of the preliminary hearing officer who recommended no jail time for Bowe Bergdahl, the army announced that Bergdahl will face trial by general court martial on charges of desertion and misbehavior before the enemy.
Bergdahl could get life in prison.
In October, the preliminary hearing officer recommended that Bergdahl’s case proceed to a lower-level court martial where the most jail time he could have received would have been one year:
Bergdahl’s civilian attorney Eugene Fidell confirmed to ABC News that Lt. Col. Mark Visger “recommended that the charges be referred to a special court-martial and that a punitive discharge and confinement would be inappropriate given all the circumstances.”
Special Court Martials review cases that would equate to misdemeanors in the civilian system and limit maximum punishments to one year of jail time, a reduction in rank and a bad conduct discharge. Under a general court martial Bergdahl could face a maximum life sentence for the charge of misbehavior before the enemy and five years jail time if convicted of desertion.
Visger’s recommendations have not been made public but a filing released Friday night by Bergdahl’s defense team indicated what Visger had recommended.
In the filing, Lt. Colonel Franklin D. Rosenblatt, Bergdahl’s military attorney wrote, “Given your conclusion — with which we agree — about whether confinement or a punitive discharge are warranted, and the factors you cited in support of that conclusion, nonjudicial punishment under Article 15, UCMJ, is the appropriate disposition.”
Experts say it’s not unusual to have the preliminary hearing recommendation disregarded. But perhaps, in this case, it was unexpected for some. Many believed the Army (via pressure from the White House) would just want this affair to go away and adjudicate the case at a lower level. But with the announcement today, the Army shows how seriously it is taking these charges.
In his report, the investigating officer for the Article 32 recommended Bergdahl avoid jail time, Fidell previously told the media. Lt. Col. Mark Visger’s report to Abrams also recommended the case be decided at a special court-martial.
Soldiers facing special courts-martial can receive no more than a year in jail and no worse than a bad-conduct discharge; punishments regarding hard labor and pay forfeiture have similar restrictions.
Visger also recommended Bergdahl not face a punitive discharge for his alleged actions, Fidell said at the time.
In addition to Visger, Maj. Gen. Kenneth Dahl, who was charged with investigating Bergdahl’s 2009 capture, testified during the Article 32 that the soldier should not be imprisoned for his actions.
On Monday, as the Army announced Abrams’ decision regarding the case, Fidell again called on Republican presidential candidate Donald Trump to “cease his prejudicial months-long campaign of defamation against our client. We also ask that the House and Senate Armed Services Committees avoid any further statements or actions that prejudice our client’s right to a fair trial.”
In August, Trump called Bergdahl “a dirty, rotten traitor” during a town hall meeting in New Hampshire. At the time, Fidell fired back, calling the candidate’s remarks “contemptible and un-American” and “a call for mob justice.”
Fidell in September railed against what he called “open season” on his client as he pushed for the public release of parts of the Army’s investigation into the soldier’s disappearance.
“It is an understatement to observe that Sgt. Bergdahl’s case has been and continues to be the subject of intense and highly politicized media interest,” Fidell wrote in a document submitted to the Army Professional Conduct Council.
The desertion charge, which falls under Article 85 of the Uniformed Code of Military Justice, carries a maximum punishment of five years confinement, a dishonorable discharge, reduction to the rank of E-1, forfeiture of all pay and allowances.
The misbehavior before the enemy charge, which falls under Article 99 of the UCMJ, carries a maximum punishment of confinement for life as well as a dishonorable discharge, reduction in rank to E-1, and forfeiture of pay and allowances.
“Misbehavior before the enemy” is a deliberately nebulous charge unique to the military. In this 2013 article in Army Times, a military lawyer gives some examples:
The misbehavior in question is not just about goofing off on the front lines. Under Article 99, there are multiple ways service members can misbehave before the enemy. A few of those ways are running away; shamefully abandoning, surrendering or delivering up a command, place, unit or military property; casting away arms and ammunition; and cowardly conduct.
In Bergdahl’s case, you can see the charge fits in several instances, including “abandoning his post” and “casting away his arms and ammunition.”
But will he get life? After spending five years in captivity, it would be surprising if the military wouldn’t give him close to the minimum sentence. This would be in line with thinking from the White House who will have their fingerprints all over these proceedings.
A date for his arraignment hearing has not been set. The hearing is expected to take place at Fort Bragg, North Carolina, where Force Command has its headquarters.