Bowe Bergdahl’s Sentence Is Thrown Out by Judge as Case Takes New Turn

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July 25, 2023
Bergdahl The Wounded

A federal judge has voided former Army Sgt. Bowe Bergdahl’s court-martial sentence and subsequent rulings on the case by military judges, setting up the possibility that he could request a reinstatement of rank or change of status for his dishonorable discharge.

Senior Judge Reggie Walton, of the U.S. District Court in Washington, D.C., issued an order Tuesday that partially granted the federal government’s motion to dismiss the Bergdahl case. But Walton ruled in favor of Bergdahl’s argument that the Army judge in his case failed to disclose a possible conflict of interest — that he had applied for a civilian position at the Justice Department while presiding over the court-martial.

As a result of his decision, Walton decided to vacate all orders and rulings issued by the judge, Col. Jeffery Nance, as of Oct. 16, 2017 — the day Bergdahl pleaded guilty to charges of desertion and misbehavior before the enemy and the day Nance applied for a position as a federal immigration judge.

Walton also vacated all subsequent decisions by appellate military courts in the case.

“Consequently, the judgment of the military judge regarding the plaintiff’s court-martial is rendered void,” Walton wrote.

Bergdahl pleaded guilty in 2017 to all charges and requested a dishonorable discharge in lieu of prison time. He received that dishonorable discharge, but also was sentenced to reduction to the rank of private and forfeiture of $10,000 in pay.

He appealed his case through the military court system based on an argument that President Donald Trump and the late Sen. John McCain exerted unlawful command influence in the case by making comments and statements about him and publicly impugning him and declaring his guilt.

The Court of Appeals for the Armed Forces rejected Bergdahl’s unlawful influence argument and upheld his conviction in a 3-2 decision, with the majority saying that Bergdahl’s choice to plead guilty in his court-martial weighed heavily on their ruling.

Bergdahl’s attorneys then filed a suit in civilian federal court arguing he was denied a fair trial as a result of Nance’s failure to disclose his future employment aspirations, as well as the alleged unlawful command influence.

In his decision, Walton said Nance’s actions mirrored the actions of Col. Vance Spath, a military judge at Guantanamo Bay, Cuba, whose decisions across four years — including the case of one of the organizers of the bombing of the USS Cole in 2000 — were nullified because he failed to disclose his application for a civilian immigration judge position.

When Nance was asked on Oct. 17, 2017, during proceedings whether he had any reasons why he might not be impartial in the case, he replied that he was a “terminal colonel” and said he wasn’t heading anywhere but “to retirement pastures.”

But Nance had, in fact, applied for the judgeship by then.

“He should have disclosed his job application as a potential ground for his disqualification,” Walton wrote. “In reaching this conclusion, the court does not mean to opine that there was actual bias in this case or that the military judge’s orders were not the product of his considered and unbiased judgment. … Rather, the facts in this case present an appearance of partiality and, while appearance may be all there is, that is enough.”

Regarding the unlawful command influence allegations, Walton rejected Bergdahl’s claims, agreeing with previous military judges who said that, while the comments made by McCain and Trump regarding Bergdahl were disturbing, their pronouncements on how he should be judged and sentenced did not influence the outcome.

“Despite Sen. McCain’s threat that he would hold a hearing if [the plaintiff] did not receive a sentence to his liking, and despite the commander in chief’s ratification of his statements that [the plaintiff] was a traitor who should be severely punished, the military judge imposed no prison time whatsoever,” Walton wrote, citing the Court of Appeals for the Armed Forces’ decision.

Bergdahl deserted his post in Afghanistan in June 2009, saying later that he did it to call attention to problems at his unit, 1st Battalion, 501st Parachute Infantry Regiment. He was captured, tortured and held by the Taliban for five years, setting off a massive manhunt that involved hundreds of U.S. troops.

The monetary and human cost of the search — the death of a soldier 10 years later from injuries sustained as a result of being shot in the head during the mission, injuries to four others troops, and a trade for five members of the Taliban for his repatriation in 2014 — touched off a firestorm in national politics and within the ranks.

Throughout Bergdahl’s judicial proceedings, Trump, then a presidential candidate and later president, described or referred to him as a “dirty rotten traitor.” McCain threatened congressional hearings if Bergdahl received no punishment.

Eugene Fidell, an attorney with Feldesman Tucker Leifer Fidell, the firm representing Bergdahl, said Tuesday that the team is studying the opinion. He added that Bergdahl would not be making a statement.

Army officials and the Justice Department did not immediately respond to a request for comment.

Given the split decision, both Bergdahl and the Justice Department have a right to appeal the decision. Dismissal of the verdict may also give the Army the chance to retry the case, which would provide Bergdahl an opportunity to submit a different plea than his original choice of guilty.

— Military.com reporter Steve Beynon contributed to this report.

— Patricia Kime can be reached at Patricia.Kime@Military.com.

 

 

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