Bergdahl Should Avoid Prison Time, Another Army Official Says

This photo provided by Eugene R. Fidell shows Sgt. Bowe Bergdahl preparing to be interviewed by Army investigators in August, 2014. (AP Photo/Eugene R. Fidell)

The U.S. Army officer charged with recommending how to deal with desertion and misconduct charges against Sgt. Bowe Bergdahl has recommended that Bergdahl be spared both jail time and a punitive discharge, according to Bergdahl's defense.

Lt. Col. Mark Visger recommended that Bergdahl's case proceed not to a general court-martial, where Bergdahl if found guilty could have been subject to life in prison and a dishonourable discharge. Instead, Visger recommended that the case be tried at a lower-level special court-martial, said Eugene Fidell, Bergdahl's lawyer on Saturday.

Sentences at special courts-martial are limited to a maximum of a year in jail and a bad-conduct discharge.

But Visger, who presided over Bergdahl's preliminary hearing last month on charges stemming from Bergdahl's leaving his post in Afghanistan in 2009, recommended no jail time, and no punitive discharge in the report he sent sent on Oct. 5 to officials deciding the matter.

In a letter, Bergdahl's defense team sent to Visger in repsponse to the lieutenant colonel's report, the defense praised Visger's "balanced, judicious, and humane approach," referred to his conclusion, and suggested that even a special court-martial was too severe.

"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," Bergdahl's defense wrote in the letter released Friday, nonjudicial punishment under Article 15 of the Uniform Code of Military Justice would be the appropriate case disposition.

Army officials couldn’t immediately be reached for comment Saturday. But if Visger's recommendations were adopted, experts said, Bergdahl could be administratively separated. His defense has argued that he be medically discharged with an honourable discharge.

Visger is the second Army official to say that imprisoning Bergdahl, who underwent five years of torment in captivity, should not face prison time. Maj. Gen. Kenneth Dahl, who conducted the command investigation into Bergdahl's disappearance after he was freed last year in a controversial prisoner swap, testified at the hearing that he believed prison for Bergdahl would be "inappropriate."

Dahl testified that his investigation found no evidence that soldiers had been killed as a result of the search for Bergdahl.

But Visger's report to Gen. Robert Abrams, commander of the Army Forces Command at Fort Bragg, N.C., and the case convening authority, "suggested further factual development on the question of death or injury," according to the defense letter.

The defense was against that. "This would require re-opening the preliminary hearing and affording SGT Bergdahl the full panoply of procedural rights. Doing so would materially delay completion of the case," the letter said.

In recommending Bergdahl not be given a punitive discharge, Visger seemed to agree with the defense position that Bergdahl should not be denied disability and other benefits. According to Fidell, Visger recognised that Bergdahl will need health care "for the foreseeable future."

The ultimate decision on how to proceed with the case rests with Abrams. He may disregard Visger's recommendation, although experts say that would be unusual. A convening authority is prohibited from going forward with charges, however, if his or her staff judge advocate advises against it.

It's unclear when Abrams will make his decision.

Bergdahl was charged by a previous convening authority, Gen. Mark Milley, now Army chief of staff, with a rare type of desertion and an obscure misconduct charge called misbehavior before the enemy. Both are serious charges based on misconduct in combat zones, and they carry potential penalties of, respectively, five years, and life in prison, as well as dishonourable discharge and total pay and benefit forfeitures.

During the September hearing, Army prosecutors said Bergdahl, then a private just weeks into his deployment in eastern Afghanistan, walked off his observation post knowing his absence would create a crisis, one he hoped to leverage into an audience with a general officer at a larger base some 19 miles away. They argued he'd neglected his duty to defend his post and unit and had endangered thousands of U.S. soldiers who spent dangerous, dispiriting weeks searching for him The search, they said, had changed the mission of U.S. forces in Afghanistan at the time.

Bergdahl’s defense team argued that he had been a conscientious but troubled soldier who suffered from an undisclosed mental disease or defect, and that his intentions to speak with a general officer, however misguided, had based on a sincere belief that he needed to discuss dangerous problems with his command.

According to military law, "an understandable or laudable motive to desert is not a defense," according to experts.

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