Sgt. Bowe Bergdahl spared prison time for deserting Afghanistan post

[Rams]

FORT BRAGG, N.C., Nov 3 (Reuters) - U.S. Army Sergeant Bowe Bergdahl on Friday was spared prison time for endangering fellow troops when he deserted his post in Afghanistan in 2009, but a military judge ordered he should be dishonorably discharged from the service.

https://www.aol.com/article/news/2017/11/03/sgt-bowe-bergdahl-spared-prison-time-for-deserting-afghanistan-post/23265963/

 

[Gavin_Sons]

What a crock of crap. That guy needs hung. People got hurt looking for him. And they just slap him on the wrist and say bad boy.  He will be the next mass shooter.

[Rams]

Just a guess but, I'm thinking that sentence or lack there of is a direct result of Candidate and President Trumps statements and tweets.

Admittedly, I could be wrong but, they give his defense team a lot of ammunition for appeals.
While President Trump has every right to espouse his opinion, he needs to realize that his words do affect a lot of things.   He is Commander and Chief.

Yeah, Bergdahl should have gotten prison time in my opinion.   For this one, I'll blame President Trump.

[specialdose]

    What a slap in the face to all that serve and have served honorably and their families......What a sad day for this wonderful country we live in......

[solo1]

I agree with Rams.  While I believe that Trump is on the right track, he still doesn't realize just how much weight his opinion carries (good or bad) because of the office of the presidency.

Maybe he should take a lesson from Silent Cal (Coolidge) and quit the off the cuff crap and tweeting.

[old2soon]

Life without parole was what I wuz hopin for. The Only other alternative-I M H O-firing squad. While a D H will slow him down here in CONUS it might git him elected in some country other than here. Maybe he'll mouth off in the wrong place at the wrong time and find some "justice" on civvy street. RIDE SAFE.

[Jess from VA]

Ron, as a former Judge Advocate I'm afraid I agree with you.  Unlawful command influence is a serious issue (and is certainly not finalized by the trial judge's initial review and findings).  But his five years of harsh captivity can also be considered as time served, as can his satisfactory conduct during the extremely lengthy period before trial.  I would not have expected a life sentence or an extremely long tern, but a DD (dishonorable discharge) almost never comes without any term of confinement.

The judge's sentence must be approved by the GCM convening authority (who can also mitigate, but not increase sentence), and thereafter an automatic appellate review by the Army Court of Military Review.  I think the sentence must be viewed as an attempt to put this case behind them and keep it out of the continuing news cycle (and appellate reviews).    

[f6john]

He is a lucky guy, but wouldn't want to be him. His actions and his discharge will haunt him the rest of his life. Given the state of our society, nothing surprises me. Since they have been talking about mental issues and ptsd I would have not been surprised if he had been awarded full benefits.

[czuch]

7 good men were unavailable for comment.

[Savago]

Shameful, I expected him to do some serious jail time.

[The emperor has no clothes]

7 good men were unavailable for comment.

https://serialpodcast.org/posts/2016/10/was-anyone-killed-looking-for-bowe-bergdahl-some-hard-evidence-at-long-last

[¿spoom]

I'm stunned, can only hope for street justice now, I suppose. While it's easy to blame it on Trump, that would require me to believe the persons who decided the sentence actually let a traitor go free to "teach the President a lesson"? I expect that from TBS or Comedy Central, not the Army. I'm too shocked to say much else.

[Jess from VA]

He wasn't let go (without jail) to teach Trump a lesson (though there is that), I think the judge wanted to head off near-certain appeals of sentence for unlawful command influence, and likely other things.  

When I think of a command influence appeal, I think of a decision that tries to split the baby in two; IE,  OK, he got 20 years, so we'll cut it in half and give him 10.  On the next  (or subsequent) appeal, the court says, Well, if you thought there was command influence sufficient to reduce to half sentence, so you believed there was in fact unlawful command influence, so why did you not find any prejudice for the remaining 10 years?   Conversely, to try to avoid a big appeal on command influence, the trial judge could have come back with at least say 5 years.  But I think, to many, a 5 year sentence would leave a worse taste in your mouth, than no time at all.  

Whatever our president continues tweeting and talking about (that seems a certainty), I doubt he will comment on any pending courts-martial again.  When he did, he simply had no idea of the issue, I'm sure of that.  He was ignorant, not stupid.

Bergdahl's story is only one of many sad stories of our decades in the Middle East.  Not forgetting there are also many triumphs.

A Dishonorable Discharge is not no sentence.  It is the most severe punitive criminal discharge available.  And I think it very likely that had there been any deaths or serious injuries directly attributable to searches for him, he would have been given jail time.  Such proof was apparently lacking.  

I am not trying to justify the sentence.  I do not support the sentence.   I am only trying to put it in perspective.

[Pappy!]

Shameful!         That word is not even adequate in this case.

[The emperor has no clothes]

He wasn't let go (without jail) to teach Trump a lesson (though there is that), I think the judge wanted to head off near-certain appeals of sentence for unlawful command influence, and likely other things.  

When I think of a command influence appeal, I think of a decision that tries to split the baby in two; IE,  OK, he got 20 years, so we'll cut it in half and give him 10.  On the next  (or subsequent) appeal, the court says, Well, if you thought there was command influence sufficient to reduce to half sentence, so you believed there was in fact unlawful command influence, so why did you not find any prejudice for the remaining 10 years?   Conversely, to try to avoid a big appeal on command influence, the trial judge could have come back with at least say 5 years.  But I think, to many, a 5 year sentence would leave a worse taste in your mouth, than no time at all.  

Whatever our president continues tweeting and talking about (that seems a certainty), I doubt he will comment on any pending courts-martial again.  When he did, he simply had no idea of the issue, I'm sure of that.  He was ignorant, not stupid.

Bergdahl's story is only one of many sad stories of our decades in the Middle East.  Not forgetting there are also many triumphs.

A Dishonorable Discharge is not no sentence.  It is the most severe punitive criminal discharge available.  And I think it very likely that had there been any deaths or serious injuries directly attributable to searches for him, he would have been given jail time.  Such proof was apparently lacking.  

I am not trying to justify the sentence.  I do not support the sentence.   I am only trying to put it in perspective.

I think you have laid it out pretty well. I also think his flunking out of Coast Guard boot camp may have been a mitigating factor.

[MP]

Jess

No serious injuries?

Were the men missing limbs who testified all lying?

Is not losing limbs serious?

At least it was reported they testified.

And I am leaving out the reported deaths.

[old2soon]

this turds lawyer now complaining with the dishonorable he will not be able to access any of the V A benefits he needs.  Well duh! I receive my V A benefits because I served Honorably. Jess-with respect he-bergdahl-should be incarcerated. And be taking really huge rocks and making pea gravel outa the huge rocks. RIDE SAFE.

[scooperhsd]

Well - if he "needs" access to VA hospitals for his problems - he can find a way to pay for them on his own dime for equivalent.

[Jess from VA]

Jess

No serious injuries?

Were the men missing limbs who testified all lying?

Is not losing limbs serious?

At least it was reported they testified.

And I am leaving out the reported deaths.

Mel, I confess I did not follow the trial in any detail.  I just read the posted link above to an article that said death and injury of searchers was not proven.  Again, I do not support this sentence to no confinement, I'm just discussing it.

[Robert]

He will never be free, his name will always be recognized as a deserter who got men killed. Jane Fonda has never lived down her actions and they have plagued her all the time. Sometimes there are things worse than death, the final release.

Jess, I thought justice was supposed to be based on the case decided by a judge and the comments of anyone were not to be considered unless it was directly made to the courts through formal channels, even the commander and chief. I look at the decision as abdication of responsibility based on political views, a situation similar to what started this whole mess.

I think worse than this latest development though is this original decision, its like a wound that festered and even today never closed. A decision and show made by a  president wounding the country he is supposed to serve. Usurping Congress, trading valuable assets for a traitor.

President Obama Speaks on the Recovery of Sgt. Bowe Bergdahl
https://www.youtube.com/watch?v=dm6u4voY44g

[scooperhsd]

For those of you who may have forgotten, a General Court Martial panel is made up of at least 5 or 7 officers ( I don't remember specifically), with an enlisted defendant having the option of up to 1 less enlisted members. Jess has discussed before that this is often  not  done  (said enlisted panel members tend to be even less forgiving than the other panel members).  Given the type of case and the pool available at Ft Bragg - I would tend to think the panel's junior members were no less than O-3's who have done a couple tours each over there  - and an entire panel of field grade officers would not surprise me.

I'm not going to pretend to know anything about the specifics of the case, only that I would not want to be there. Yes, he's guilty  - the question is what is the appropriate punishment.

[old2soon]

While it has been  a day or three since I served I KNEW who had my back. I KNEW who was on watch while I slept and when I had the watch while others slept they KNEW I had their back. That "TRUST" is NOT built overnight BUT can be lost in a heartbeat. I served with one or two who would be considered mentally deficient these days but those Sailors were cursed good at their respective jobs-or M O S. We here as a group have ZERO influence on his sentencing and I do In fact git that. BUT I have served and I are very dismayed with the supposed "sentence" and it was spelled out quite clearly what a dishonorable would do to our future. I cared Not to find out That particular truth. RIDE SAFE.

[The emperor has no clothes]

He will never be free, his name will always be recognized as a deserter who got men killed.

Why some continue to say this despite the Army's investigation saying the contrary is beyond me. According to the Army investigators none were killed as a result of his desertion. It's pretty easy to look up. He was a deserter. As Jess said he likely would have gotten a different punishment were it not for some things being said.

[Patrick]

There were numerous reports from May-July 2014 of the deaths of 6 soldiers while searching for Bergdahl.
Why things have changed over the past 2-3 years, I don't know. I have not yet read any of these new reports. I doubt there is much sense now since this is a done matter. But, maybe I'll get curious someday.

[MarkT]

I wouldn't be surprised if - after the smoke settles - he wouldn't quietly change his name and appearance. Move a couple times, change it again.  Eventually he would be able to resume a normal life.  The DD will follow him through his life.  It's on a lot of government forms which I'm pretty sure makes that a disqualifier.  On the 4473 - though he's not a felon (I think) or a domestic abuser (AFAIK) does that mean no guns for him?

[PAVALKER]

I wouldn't be surprised if - after the smoke settles - he wouldn't quietly change his name and appearance. Move a couple times, change it again.  Eventually he would be able to resume a normal life.  The DD will follow him through his life.  It's on a lot of government forms which I'm pretty sure makes that a disqualifier.  On the 4473 - though he's not a felon (I think) or a domestic abuser (AFAIK) does that mean no guns for him?

That "other than honorable discharge" question is on the firearms paperwork, but I don't know if it is a disqualifier in itself.    But maybe the claims of mental issues used in his defense or otherwise could be the final nail.

[Jess from VA]

A few points.

First, Bergdahl (likely on advice of counsel) went judge alone for his guilty plea (and sentence). That was a pretty good idea (considering the sentence he got).  There was no panel of officers (or enlisted) members.  And, generally speaking, not asking for a jury (panel) usually earns you a few small brownie points at sentence.  After all, all those officers are away from their day jobs all during the trial, and going through the selection process is time consuming.  A panel might have really thrown the book at him (literally).

Second, I have still not done a bunch of research (or read the transcript), but there seems to have been direct evidence at sentence of members injured while searching for him at sentence (not killed, but wounded with permanent loss of functions).  With that, it is even harder to understand no confinement.

His DD (dishonorable discharge) (not a UOTHC or OTH, which is an administrative not criminal discharge) and plea of guilty to two felony offences (under the UCMJ) is indeed a federal felony conviction (X2) on his record for life, and loses him all VA benefits (except any insurance he may have paid for, but which will disappear at the time the DD is enforced (and he is finally separated from the military), after GCM convening authority and automatic Army Court of Military Review appellate review.  It also disqualifies him from owning any firearms for life, although he is eligible to petition for a restoration of that right in court (like any other felon)

Unlawful Command Influence need not be brought directly/personally to any judge or jury member or witness.  It is enough that any higher authority in the Courts Martial chain of command (ending at the president) goes public with comments about what he thinks should happen to the defendant (bad things, not good things).  For instance, a commanding Col or General periodically holds Officer's Calls where all jr officers are expected to appear.  If he stands up at an officer's call and says he want's blood, or he wants a conviction and harsh punishment, or in any way tries to exert influence on the outcome of the trial, that is unlawful command influence.  Even if no one is influenced at all, and actual proof of actual negative influence is unnecessary.   It is the kind of thing that gets an entire trial and verdict set aside, and if jeopardy is found to have attached (it certainly has), may bar any further prosecution on double jeopardy grounds (even with a new convening authority).  This is very likely why a naked DD was given with no jail.  The military does not have a reputation for putting dummies on the military bench as judges.

I would point out that decades ago, the USAF pioneered the concept of establishing an independent  military judiciary command for all military defense counsel and military judges (not prosecutors), simply to head off even the appearance of impropriety (command influence) under the former setup where the defense counsel or even judge might happen to be under the command of the Col or General who is the convening authority for the Court martial in question.  After all, if you do a great job as defense counsel or give an acquittal or too light a sentence as judge, that commander could conceivably give you a performance report that would ruin your military career in retribution.  Studies at the time did not show that this had been a problem, but it was a damn good idea anyway, and all other branches of military service followed suit and established independent military judicairy commands in the following years.

When I was defense counsel in Turkey, my boss was a Lt Col at Rhein Main GE, and his boss was a bird Col at HQ USAF Judiciary at Bolling AFB DC.  When the wing commander at my base mistakenly made a public statement that all lawyers on base worked for him, I politely (in private) informed him this was not so.  Nonetheless, throughout my time a defense counsel, I had to spend a good deal of time trying to convince my (mostly) jr enlisted member clients, that I only worked for them and was not working for any base commanders or the base legal office.  They just don't believe you or trust you.  It took many months of hard work, before I got a reputation of going to bat for my guys (and even a couple gals, and two or three officers), against everyone.  

[Rams]

Nonetheless, throughout my time a defense counsel, I had to spend a good deal of time trying to convince my (mostly) jr enlisted member clients, that I only worked for them and was not working for any base commanders or the base legal office.  They just don't believe you or trust you.  It took many months of hard work, before I got a reputation of going to bat for my guys (and even a couple gals, and two or three officers), against everyone.  

Jess,
Appreciate the excellent information you have provided.

Reference the trust issue:   Have you looked into a mirror recently?      

[Jess from VA]

Nonetheless, throughout my time a defense counsel, I had to spend a good deal of time trying to convince my (mostly) jr enlisted member clients, that I only worked for them and was not working for any base commanders or the base legal office.  They just don't believe you or trust you.  It took many months of hard work, before I got a reputation of going to bat for my guys (and even a couple gals, and two or three officers), against everyone.  

Jess,
Appreciate the excellent information you have provided.

Reference the trust issue:   Have you looked into a mirror recently?      

Well, no (real) offense intended.... blow me.   

As I'm sure you know Ron, the issue wasn't so much trusting a defense counsel, it was trusting an officer. 

[Rams]

Nonetheless, throughout my time a defense counsel, I had to spend a good deal of time trying to convince my (mostly) jr enlisted member clients, that I only worked for them and was not working for any base commanders or the base legal office.  They just don't believe you or trust you.  It took many months of hard work, before I got a reputation of going to bat for my guys (and even a couple gals, and two or three officers), against everyone.  

Jess,
Appreciate the excellent information you have provided.

Reference the trust issue:   Have you looked into a mirror recently?      

Well, no (real) offense intended.... blow me.  

As I'm sure you know Ron, the issue wasn't so much trusting a defense counsel, it was trusting an officer.  

 

Now, please see the Ugly Christmas Sweater thread, really depending on your "trusted" advice on this one.   

[scooperhsd]

A few points.

First, Bergdahl (likely on advice of counsel) went judge alone for his guilty plea (and sentence). That was a pretty good idea (considering the sentence he got).  There was no panel of officers (or enlisted) members.  And, generally speaking, not asking for a jury (panel) usually earns you a few small brownie points at sentence.  After all, all those officers are away from their day jobs all during the trial, and going through the selection process is time consuming.  A panel might have really thrown the book at him (literally).

Second, I have still not done a bunch of research (or read the transcript), but there seems to have been direct evidence at sentence of members injured while searching for him at sentence (not killed, but wounded with permanent loss of functions).  With that, it is even harder to understand no confinement.

His DD (dishonorable discharge) (not a UOTHC or OTH, which is an administrative not criminal discharge) and plea of guilty to two felony offences (under the UCMJ) is indeed a federal felony conviction (X2) on his record for life, and loses him all VA benefits (except any insurance he may have paid for, but which will disappear at the time the DD is enforced (and he is finally separated from the military), after GCM convening authority and automatic Army Court of Military Review appellate review.  It also disqualifies him from owning any firearms for life, although he is eligible to petition for a restoration of that right in court (like any other felon)

Unlawful Command Influence need not be brought directly/personally to any judge or jury member or witness.  It is enough that any higher authority in the Courts Martial chain of command (ending at the president) goes public with comments about what he thinks should happen to the defendant (bad things, not good things).  For instance, a commanding Col or General periodically holds Officer's Calls where all jr officers are expected to appear.  If he stands up at an officer's call and says he want's blood, or he wants a conviction and harsh punishment, or in any way tries to exert influence on the outcome of the trial, that is unlawful command influence.  Even if no one is influenced at all, and actual proof of actual negative influence is unnecessary.   It is the kind of thing that gets an entire trial and verdict set aside, and if jeopardy is found to have attached (it certainly has), may bar any further prosecution on double jeopardy grounds (even with a new convening authority).  This is very likely why a naked DD was given with no jail.  The military does not have a reputation for putting dummies on the military bench as judges.

I would point out that decades ago, the USAF pioneered the concept of establishing an independent  military judiciary command for all military defense counsel and military judges (not prosecutors), simply to head off even the appearance of impropriety (command influence) under the former setup where the defense counsel or even judge might happen to be under the command of the Col or General who is the convening authority for the Court martial in question.  After all, if you do a great job as defense counsel or give an acquittal or too light a sentence as judge, that commander could conceivably give you a performance report that would ruin your military career in retribution.  Studies at the time did not show that this had been a problem, but it was a damn good idea anyway, and all other branches of military service followed suit and established independent military judicairy commands in the following years.

When I was defense counsel in Turkey, my boss was a Lt Col at Rhein Main GE, and his boss was a bird Col at HQ USAF Judiciary at Bolling AFB DC.  When the wing commander at my base mistakenly made a public statement that all lawyers on base worked for him, I politely (in private) informed him this was not so.  Nonetheless, throughout my time a defense counsel, I had to spend a good deal of time trying to convince my (mostly) jr enlisted member clients, that I only worked for them and was not working for any base commanders or the base legal office.  They just don't believe you or trust you.  It took many months of hard work, before I got a reputation of going to bat for my guys (and even a couple gals, and two or three officers), against everyone.  

Thank you for the clarifications and corrections.

[Jess from VA]

I would like to make a correction to my last post.... about VA benefits.

As you know, enlisted men serve enlistments (which are like contracts of employment, for set time periods), where officers serve for indefinite periods under an up or out promotion system, with slightly different rules for reserves and regulars.  

I do not know Bergdahl's service history, other than he entered the Army in 2008, and that he made sergeant while in captivity (in accord with rules for all POWs).  Based only on passage of time, I therefore assume he had more than one enlistment.  

If an enlisted man serves one or more entire enlistments honorably, but during a subsequent enlistment he is separated administratively UOTHC, or criminally with a punitive discharge of BCD or DD, then he is only barred from VA benefits for any disease or injury (disability, or other benefits) incurred during the enlistment that ended dishonorably.  So here's the correction: Bergdahl would be entitled to VA benefits for any disease or injury incurred during the period of any earlier enlistment that ended honorably.  

Officers, who serve continuously, can never get this deal.  If their service ends dishonorably, they are out.  (unless they served, then got out honorably, then served again later and got in trouble)

But, even if a man (officer or enlisted) served honorably during an enlistment/period, but the disease or injury he incurred was determined under a Line of Duty Investigation to be Not In Line of Duty - Due To Own Misconduct, then he still is not entitled to VA benefits for that particular disease or injury.  (IE, you get in an a car accident because you were DWI, and lose a leg, you cannot get VA service connected benefits for the leg, including a prosthetic)  

[Rams]

Jess,
Appreciate the updated information.   I already knew some of it but, not all.

As a former enlisted Marine and as a former Army Officer, I (apparently) am entitled to VA coverage.   But, I have never looked into it.   Though that may be changing.   As I near the age of Medicare, I will need additional coverage that won't be covered (as I understand it).  

Although I've never made any VA claim, my hearing issues are directly related to my service occupations.   Yeah, even when I was a desk jockey, I got yelled at a lot.     It wasn't just my ass that needed medical assistance..............  

I guess we'll see if I qualify.   I'm told by others that much depends on whether or not one served in combat and apparently one's income.

[The emperor has no clothes]

Jess,
Appreciate the updated information.   I already knew some of it but, not all.

As a former enlisted Marine and as a former Army Officer, I (apparently) am entitled to VA coverage.   But, I have never looked into it.   Though that may be changing.   As I near the age of Medicare, I will need additional coverage that won't be covered (as I understand it).   

Although I've never made any VA claim, my hearing issues are directly related to my service occupations.   Yeah, even when I was a desk jockey, I got yelled at a lot.      It wasn't just my ass that needed medical assistance..............   

My FIL uses both. They don't even make him go to the VA hospital anymore.

[¿spoom]

Thanks for the info, Jess.

[Jess from VA]

Jess,
Appreciate the updated information.   I already knew some of it but, not all.

As a former enlisted Marine and as a former Army Officer, I (apparently) am entitled to VA coverage.   But, I have never looked into it.   Though that may be changing.   As I near the age of Medicare, I will need additional coverage that won't be covered (as I understand it).  

Although I've never made any VA claim, my hearing issues are directly related to my service occupations.   Yeah, even when I was a desk jockey, I got yelled at a lot.     It wasn't just my ass that needed medical assistance..............  

I guess we'll see if I qualify.   I'm told by others that much depends on whether or not one served in combat and apparently one's income.

Ron, so much has changed since I got out of service ('92) and the VA (2010), and obamacare, I have no idea whatsoever about the rules for getting into VA healthcare at present (beyond service connected disability). 

I also never filed any claim, and had none to file.  In the old days I would be out, but I have no clue about now.  I took my federal civil service (combined with military time) retirement BC/BS into retirement, and now have to make my Medicare elections before this March.  Oh joy.

I doubt it requires combat, but it likely does have to do with income (or other possible coverages).  In addition to healthcare for service members injured during service, I think VA healthcare morphed into a part of the grand failure of US socialized medicine.

[scooperhsd]

Jess,
Appreciate the updated information.   I already knew some of it but, not all.

As a former enlisted Marine and as a former Army Officer, I (apparently) am entitled to VA coverage.   But, I have never looked into it.   Though that may be changing.   As I near the age of Medicare, I will need additional coverage that won't be covered (as I understand it).  

Although I've never made any VA claim, my hearing issues are directly related to my service occupations.   Yeah, even when I was a desk jockey, I got yelled at a lot.     It wasn't just my ass that needed medical assistance..............  

I guess we'll see if I qualify.   I'm told by others that much depends on whether or not one served in combat and apparently one's income.

I would like to remind everyone who is honorably discharged that starting Veterans Day (Nov 11), you will be able to use the online version of the exchanges. You do need to get verified (probably with a copy of your DD214) at https://www.vetverify.org/ . I'm supposed to be a beta tester, but I haven't had anything that I needed / wanted to order yet.