Appeals Court Affirms Bergdahl Conviction, Finds No Unlawful Command Influence

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Army Sgt. Bowe Bergdahl leaves a motions hearing during a lunch break in Fort Bragg, N.C., on Sept. 27, 2017. (AP Photo)
Army Sgt. Bowe Bergdahl leaves a motions hearing during a lunch break in Fort Bragg, N.C., on Sept. 27, 2017. (AP Photo)

The Army Court of Criminal Appeals has upheld the guilty plea and sentence for former Sgt. Bowe Bergdahl, finding that President Donald Trump's comments about the case did not constitute unlawful command influence.

But not all the judges agreed, with one suggesting that Bergdahl's dishonorable discharge be "set aside."

In a ruling issued Tuesday, a three-judge panel found that, while some of the comments by Trump, as well as those by former Sen. John McCain, may have been improper, the government met its burden to show the proceedings were fair and unprejudiced.

The decision means that Bergdahl's sentence stands, including a dishonorable discharge that he requested, reduction in rank and forfeiture of $10,000 in pay.

Bergdahl's defense team, however, is not abandoning the case.

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"We are planning to take it before the Court of Appeals for the Armed Forces as soon as possible," attorney Eugene Fidell told Military.com.

Bergdahl, an infantryman, left his post in Paktika province, Afghanistan, in 2009. He was captured by a Taliban affiliate and held for five years, where he was caged and tortured. His desertion launched a massive manhunt that a military judge determined caused serious injuries to several service members during the search.

He was repatriated in 2014 during a trade for five Taliban members held in the military detention center in Guantanamo Bay, Cuba, and later told filmmaker Mark Boal that he left to call attention to his unit, which he felt was poorly managed. His story was chronicled in the second season of the "Serial" podcast.

Berghdahl was charged with desertion with the intent to shirk important service and avoid hazardous duty and misbehavior before the enemy. He pleaded guilty in 2017 and received no additional confinement, a condition that outraged Trump who, as a candidate for president, referred to Bergdahl as a "dirty rotten traitor" who should be sent back to the Taliban.

Based on references Trump made to those comments after he became president, as well as those by McCain, who threatened hearings if the soldier received no punishment, Bergdahl's defense team appealed, charging that the comments constituted unlawful command influence that was so pervasive, Bergdahl didn't receive a fair trial or post-trial processing.

In their ruling, the judges agreed "there was some evidence of unlawful command influence adduced at trial and in the post-trial process," but not to an extent that rose to the level of "intolerable strain" on the justice system.

"The [previous] military judge was correct in the finding there was not an intolerable strain on the public's perception of the military justice system because a fully informed observer would not harbor a significant doubt as to the fairness of the proceedings," wrote Judge Paula Schasberger.

But the decision was not unanimous. Judge James Ewing said that, while he agreed with the majority that President Trump's tweet on the day of sentencing -- "The decision on Sgt. Bergdahl is a complete and total disgrace to our country and to our military" -- raised some evidence of unlawful command influence, he didn't believe the government had met the bar for proving without a doubt that the UCI did not taint the proceedings.

"Contrary to the majority's holding, I find that UCI infected that critical post-trial process," Ewing wrote.

He added that he believes negating Bergdahl's dishonorable discharge would "bring his current sentence in line ... and thus purge the taint of post-trial UCI that emanated from the president's day-of-sentencing tweet."

-- Patricia Kime can be reached at Patricia.Kime@Military.com. Follow her on Twitter at @patriciakime.

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