According to Bowe Bergdahl’s attorneys, the presiding officer at the his recent Article 32 hearing, Lieutenant Colonel Mark Visger, has recommended that the soldier only face a Special Courts Martial for abandoning his post in Afghanistan and not be given jail time.  A Special Courts Martial also would take away the possibility of a dishonorable discharge. Bergdahl’s attorneys, clearly cheered by the tepid recommendation, are now calling for the convening authority (General Robert Abrams) to proceed with nothing stronger than non-judicial punishment (Article 15 in Army parlance.) Either result would likely allow Bergdahl to escape any time in jail, avoid a dishonorable discharge, and perhaps most importantly to both him and his attorneys, retain his benefits and collect his back pay. 

This is a predictable result given the extremely weak performance of the prosecution at the Article 32 hearing itself. In the hearing, the government presented relatively innocuous testimony from Bergdahl’s immediate chain of command, and failed to prove anything other than that Bergdahl left his post, to which he apparently admits.  However the government did nothing to counter Bergdahl’s assertion that he did not desert, but intended to walk to another combat post nearly 20 miles away, to complain about his immediate superiors to higher level officers there. This was conveyed to Lt. Col. Visger through the testimony of Major General Kenneth Dahl who investigated the case. Thus, Bergdahl got to testify without being subject to cross-examination. This unrebutted evidence that the soldier was guilty of nothing more than a 24-hour AWOL (since the Taliban captured him shortly after he left his position preventing him from reporting at the other post) almost guaranteed the weak recommendation duly delivered by Visger.  The government did not call any of Bergdahl’s platoon mates (who had a different view of the soldier from his immediate superiors), enter into evidence his emails or correspondence (which showed his disenchantment with the Army and the Afghan campaign) or present any evidence that demonstrated the costs suffered in searching for him (other than his immediate superiors’ testimony that they spent a lot of extra time on patrol.) At least one of those officers also opined that if Bergdahl had a fault it was that he was too gung ho. 

Now General Abrams must decide whether to accept the recommendation of the hearing officer, or proceed to a General Courts Martial anyway. While many might cheer Abrams were he to disregard the hearing officer’s recommendation, he does so at his own peril, since unless the government is prepared to do more at a full trial, it seems unlikely that Bergdahl is in much further jeopardy. 

Plus, the recent history of convening authorities pressing forward against the recommendation of the Article 32 officer is not good. In the infamous Naval Academy sexual assault cases concluded in 2014, the convening authority rejected the hearing officer’s recommendation against proceeding to courts martial for all three accused midshipmen. The case had strong political overtones on the issue of whether the Navy was taking sexual assault allegations seriously, and treating female midshipmen fairly. Because of those pressures, the Naval Academy superintendent chose to prosecute two of the accused midshipmen against the recommendation.  One case was eventually dropped anyway, and the other went to trial resulting in an embarrassing acquittal. 

Apart from the danger of another awkward g acquittal (or a conviction on a minor charge) going against the hearing officer’s recommendation further undermines the military justice system, as it inevitably leads to accusations that the convening authority is acting for political rather than judicial purposes. Certainly, that will be the judgment of most of the mainstream media and chattering classes if Abrams proceeds to a General Courts Martial, who will see aggressive prosecution of Bergdahl, following Dahl’s exculpatory testimony and the hearing officer’s recommendation, as right-wing persecution. 

Of course, there has long been a strong conviction among many conservatives, veterans, and active duty service people that this case has been political from the start, but leaning the other way, to excuse Bergdahl and save President Obama embarrassment, ever since the Obama administration declared Bergdahl a hero, to justify exchanging him for five Taliban terrorists.  When the prosecution seemed to almost deliberately blow the case at the Article 32 hearing, these suspicions got a boost.  The hearing officer’s recommendation itself is not suspect, since he had to act on what was presented to him, which was not much. As a set-up or fix -- and it certainly seems to be -- it is a well thought out one, thick with protective legal proceedings and judgements which have only gently undercut the administration’s somewhat heroic depiction of Bergdahl, by making him out to be a victim and a knave. 

The stage is now set for the end game. General Abrams is the son of former World War II hero and Vietnam era Army Chief of Staff Creighton Abrams.  I served as a JAG officer in the 11th ACR under his older brother John N. Abrams who also went on to become a full general. This family of generals is as loyal to the Army and politically savvy Army as brass can get.  Of three commanding officers I served under in the 11th ACR, John Abrams was by far the most careful and politically minded, and also went on to the highest rank. 

Robert Abrams will likely do whatever he thinks is in his and the Army’s immediate best interest.  This is likely to be a referral to a Special Courts Martial, followed by a plea agreement.  It is doubtful that the defense will again be able to use Dahl to convey Bergdahl’s side of the story at an actual trial as it is hearsay -- admissible at the hearing officer’s discretion at an Article 32 but likely not an actual trial.  They will not want to risk that, putting pressure on Bergdahl to testify and subjecting him to damaging cross-examination, assuming the Army can produce a halfway competent prosecution team. For the Army’s part, they will not want to risk a humiliating loss, bad press, or Obama’s ire.  The likely outcome:  Bergdahl will admit to going AWOL, be separated administratively with nothing worse than a general discharge, and receive his back pay and benefits.