Armed Forces News

Robert B. “Bowe” Bergdahl, the Army sergeant who was convicted at court-martial for desertion, has lost his legal appeal. In an Aug. 27 opinion, a panel of judges with the U.S. Court of Appeals for the Armed Forces (CAAF) decided that Bergdahl’s trial was not unduly affected by unlawful command influence.

Bergdahl had contended that critical remarks by President Trump and Sen. John McCain, R-Arizona, met the legal definition of unlawful command influence because they placed a strain on the public’s ability to perceive the trial objectively.
Trump made his remarks on two occasions – once while he was running for president and again after he was elected. McCain made his while serving as chairman of the Senate Armed Services Committee.
Trump referred to Bergdahl as a “dirty rotten traitor,” among other things, during speeches. McCain promised to hold Senate hearings if Bergdahl were acquitted.

During his 2017 court-martial, Bergdahl pleaded guilty to the charges he faced – desertion with intent to shirk hazardous duty and misbehavior before the enemy. He was given a dishonorable discharge, reduced to pay grade E-1 and fined $10,000, but received no prison sentence. Because of Trump’s and McCain’s comments, Bergdahl sought outright dismissal of the charges he faced, or “other meaningful relief,” such as approving a sentence of no punishment. He appealed the case to the CAAF – the highest venue of appeal for a military trial – after losing both at his criminal trial and initial appeal before the U.S. Army Court of Criminal Appeals.

In CAAF majority opinion, Judge Kevin A. Ohlson outlined how Bergdahl “intentionally walked away from his combat observation post” in 2009, because he wrongly believed his commanders were planning to send his platoon on a suicide mission. Ohlson described how Bergdahl knew his disappearance would trigger a search effort. Once his comrades found him, Bergdahl believed he would be able to talk directly with a senior officer about his concerns, Ohlson wrote. The opinion noted that Bergdahl’s plan went awry when he was captured by Taliban, who mistreated and tortured him until he was released in a prisoner exchange five years later.

Ohlson, who was nominated for his position on the court by President Obama in 2013, acknowledged that Bergdahl’s team of defense attorneys “submitted substantial mitigating evidence for consideration,” but went on to say it was not enough to supersede the charges he faced.

“The conduct [Bergdahl] engaged in, and the charges to which he pleaded guilty, were very serious offenses for which either a life sentence or the death penalty were authorized punishments,” Ohlson wrote. “Moreover, these offenses were anathema to the military and its mission. And importantly, as a direct and foreseeable of [Bergdahl’s] misconduct, other members of the armed forces were injured – some severely – while seeking to find and rescue [him].”
Ohlson wrote that Bergdahl “chose to plead guilty” to the charges he faced.

“In doing so, he explicitly agreed in open court that he was voluntarily pleading guilty because he was in fact guilty and not for any other reason.”
Ohlson also noted that even though Bergdahl had a history of mental health-related issues, he knew and understood the gravity of the actions he took when he left his post in 2009.
Additionally, the intelligence “goldmine” that Bergdahl provided military leadership upon his return was not enough to sway the court in his favor, Ohlson wrote.
Bergdahl now could ask the Supreme Court to consider his case.