Army officer recommends no jail time for Bergdahl

AUSTIN, Texas — An Army officer is recommending that Sgt. Bowe Bergdahl face a lower-level court martial and be spared the possibility of jail time for leaving his post in Afghanistan, his lawyer said Saturday.

Bergdahl was captured by the Taliban after leaving his post on June 30, 2009, and held until last year, when he was exchanged for five Taliban commanders. His commanding officers in Afghanistan say a 45-day search for Bergdahl put soldiers in danger.

Military prosecutors charged Bergdahl in March with desertion and misbehavior before the enemy, a charge that could carry a maximum penalty of life imprisonment.

But defense attorney Eugene Fidell said Lt. Col. Mark Visger has recommended that Sgt. Bergdahl’s case be referred to a special court martial, which is a misdemeanor-level forum. It limits the maximum punishment to reduction in rank, a bad-conduct discharge and a term of up to a year in prison.

Fidell also said that Visger recommended that there be no prison time or punitive discharge against Bergdahl. In light of Visger’s recommendations, the defense is asking that the case be disposed of non- judicially, rather than by any court martial.

Visger presided over last month’s Article 32 hearing in Texas that reviewed evidence against Bergdahl. Visger submitted a report with his recommendation on Monday, but the Army hadn’t said what Visger recommended.

Gen. Robert Abrams, the commanding general of U.S. Army Forces Command, will ultimately decide whether the case should be referred to a court-martial. No timeline has been given for a decision from Abrams.

“These are highly discretionary matters and, needless to say, I hope General Abrams does the right thing, but it’s his call,” Fidell said by phone Saturday.

The Obama administration’s prisoner swap was sharply criticized by many Republicans and some Democrats, who said it was politically motivated and counter to the U.S. policy against negotiating with terrorists.

Republican presidential front-runner Donald Trump said Thursday that Bergdahl should have been executed for leaving his post in Afghanistan and called him a “no-good traitor,” which he also said in August.

Paul Boyce, a spokesman for the U.S. Army’s Force Command, released a state- ment Saturday that didn’t confirm Visger’s decision.

“As legal action is ongoing, we continue to maintain careful respect for the military-judicial process, the rights of the accused, and ensuring the case’s fairness and impartiality,” Boyce said.

Philip Cave, a retired Navy judge advocate now in private practice in Virginia, said commanders often follow the officer’s recommendation.

“The real issue here is the politics. That’s the elephant in the room. How much is Abrams going to be affected by the politics?” Cave said. “I think the answer is, fairly little at this point.”

Fidell released a memorandum addressed to Visger. It said the defense team is “grateful for the balanced, judicious, and humane approach you have taken to this complex case, and for the evenhanded way you conducted the public hearing.”

It added that Visger’s report should be made public “so the American people can be fully informed of your findings.”

“The pity is, there’s no reason for not having transparency,” Fidell said Saturday, adding that Bergdahl’s defense team planned to file a written appeal next week seeking to have the full report released. “It’s a self-inflicted wound for the Army.”