Robert Bowe Bergdahl believed that his battalion had poor leadership in 2009. After talking to his father, Bergdahl decided to hike to FOB Sharana in order to alert a general that his platoon could be ordered to a suicide mission. It was all nonsense. It was all fantastic fiction.
Private Bergdahl left his platoon and went AWOL. A massive search and rescue operation ensued. The Taliban were the first to find him. Bergdahl’s father grew a beard while Bergdahl remained with the Taliban. He also tweeted pro-Taliban remarks ending in “Amen.”
Bergdahl’s exchange for five terrorists took place in 2014. It was illegal, because Congress was not notified. However, the swap had already been done. Susan Rice said that he “served honorably and with distinction.” The Army knew he hadn’t. Bergdahl was in uniform, wearing “Sgt.” strips, and back at base. The Army decided what charges, if any, would be brought against him.
Article 32, the preliminary charging document, explains in detail how Bergdahl knew exactly what he did despite being naive. All charges were found to be probable, but the most serious was Misbehavior Before Enemy. Bergdahl was not recommended to be jailed, but mitigation was taken into consideration.
The case was then assigned to Col. Jeffery Nance. Col. Nance, a “terminal Colonel” on the verge of forced retirement, was assigned to his case. Nance, whose retirement was looming, wanted to continue working. In 2017, while still assigned to Bergdahl, he applied to be an immigration judge in the newly-elected Donald Trump administration.
Bergdahl’s legal team filed several motions in his court case, alleging, among others, “Unlawful Command Influence” (UCI). Unlawful Command Influence occurs when a commander or official (usually a President) does or says something that could influence a court case. The defense in this case claimed that Sen. John McCain’s statements as Chairman of the Armed Services Committee, and those made by Donald Trump when he was a candidate for President had an undue impact on the court.
The candidate Trump called Bergdahl multiple times a traitor. Trump was asked by reporters about Bergdahl after he was elected. Trump didn’t reiterate his label of “traitor”, but he implied in essence that he was incorporating previous remarks.
Bergdahl was now ready to plead guilty. He agreed to a dishonorable discharge and a reduction of rank to private.
Bergdahl then filed a second motion for Unlawful Command Influence after Trump’s remarks. Col. Nance rejected it after careful consideration. Nance did give Bergdahl an option to withdraw his guilty plea and proceed to trial. Bergdahl chose to remain guilty and refused that option.
After losing his appeals in 2021 at the Court of Appeal for Armed Forces, Bergdahl appealed to Federal Court. Bergdahl won this time. In a 63-page opinion (which is a regurgitation as to why Bergdahl’s UCI motions had been properly rejected), Federal D.C. district Judge Reggie Walton decided in Bergdahl’s favor regarding his claim that Col. Nance was involved in an undisclosed relationship.
Walton, despite the fact that the majority of Walton’s decision and order emphasized that Col. Nance was not biased or unfair and that Nance gave Bergdahl a chance to withdraw Bergdahl’s voluntary guilty plea – Walton nevertheless vacated Bergdahl’s conviction. The case was not dismissed.
The Army can retrial Bergdahl if it wants. Walton’s choice seems internally conflicted to me. Walton admitted that Nance’s application to be a judge was not disclosed, but it should have been. It is clear from Walton’s own admissions that Nance’s application had no impact on Bergdahl pleading guilty voluntarily.
Walton also notes that the Unlawful Command Influence claims were not improperly denied. So why is Bergdahl now back as Sgt? Bergdahl? Judges must declare conflicts, recuse themselves or reveal the appearance or potential of a conflict. Col. Nance did not do that. Here’s the problem: It appears to have been a “harmless mistake.”
Will Bergdahl be back in court after this vacation? The Army should bring him to trial on all charges. But it won’t. I don’t believe that the Army Command today has the guts to retry Bergdahl. It’s because of this that his lawyers have spent six years filing their CAAF appeals, which culminated on July 25, with Judge Walton siding with Bergdahl. Bergdahl was released from prison six years ago with a dishonorable dismissal and no jail time. But he wants to do more.
I bet that his attorneys will request – and receive – a discharge general and the rank of “Sergeant”, with back pay. I hope I’m wrong.
No matter what the New York Times says, at least one person died as a result of injuries he sustained in his search for Bergdahl. Bergdahl doesn’t deserve sympathy. He returned with all of his pieces still attached. He went AWOL and pleaded guilty. Many brave men searched for him and will be scarred for life by their search. Bergdahl was able to walk away from prison with no jail term.
Bergdahl walking away free or getting a better deal will be the last insult from Afghanistan’s debacle.