Was the sentence handed to Bowe Bergdahl disgraceful as Donald Trump claims?

Colonel Jeffrey Nance is the military judge presiding over the court-martial of Bowe Bergdahl.  On November 3, 2017, he sentenced Bergdahl to be reduced in rank from SGT to PVT, to forfeit $10,000 in military pay and to be dishonorably discharged from the Army.  General Robert B. Abrahms, the commander of the Army's Forces Command will review the sentence.  He can reduce any portion of the sentence, but he cannot impose more severe punishments.  If his name is familiar that may be because his father was General Creighton Abrams, who succeeded General William Westmoreland as the Commander of the Military Assistance Command in Vietnam.

Not long after the sentence was announced, Donald Trump took to Twitter, saying:

"The decision on Sergeant Bergdahl is a complete and total disgrace to our Country and to our Military."

If the Liar-in-Chief wants to place the blame on Bergdahl escaping prison time, he needs to look at his own orange visage in the mirror.  Colonel Nance made it clear that he would consider Trump's earlier comments about Bowe Bergdahl in mitigation when imposing sentence.  Those earlier comments came during the presidential campaign.  At a rally in Alabama during his campaign, candidate Trump said:

"Has anybody heard of Sergeant Bergdahl? The traitor, no, no, the traitor. I call President Obama the five-for-one president. We get Sergeant Bergdahl, a traitor who, by the way, six people, at least, that we know of, six people were killed trying to get this guy back. Six people, they went after him. They wanted to get him back. So we get Sergeant Bergdahl and they get five people --"

This statement would be extremely prejudicial if made by a sitting president.  As a candidate, Trump can and did say a lot of things, but were he to be elected, these comments presented a potential problem.  In fact, after his inauguration, Bergdahl's defense team filed a motion to dismiss the charges against their client, arguing that these commands were an example of unlawful command influence.  Colonel Nance denied that motion.

Article 37 of the Uniform Code of Military Justice makes it clear that commanders cannot attempt or even appear to attempt to influence a court-martial.

"(a) No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercise of its or his functions in the conduct of the proceeding. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. The foregoing provisions of the subsection shall not apply with respect to:

(1) general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of courts-martial, or
(2) to statements and instructions given in open court by the military judge, president of a special court-martial, or counsel."

When President Obama made some comments regarding sexual assault in the military it did not appear that his intent was to exercise this type of unlawful command influence.  But that's how military judges ruled.  In 2013 a military judge ruled that in two cases involving sexual assaults by military personnel, President Obama's comments constituted undue command influence and therefore the two men accused could not be punitively discharged from the military.

So when Trump was sworn in, he should have just shut his mouth about the Bergdahl case.  Instead he tried to dance around the issue of command influence by saying, "I think people have heard my comments in the past."

Colonel Nance's response was firm.  "I will consider the president's comments as mitigation evidence as I arrive at an appropriate sentence."

The Liar-in-Chief has no one to blame but himself for Bergdahl avoiding prison.

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Personally, I think some prison time was warranted in the Bergdahl case.  Not the 14 years that the prosecution was seeking, but five years or so would have been warranted.   The judge probably took into account the fact that this man spent five years in captivity during which he claimed he was tortured.

As to Trump's comments on what Bergdahl did and didn't do, does someone who has no morals regarding the behavior of himself and his minions, who took the coward's way out by claiming to have bone spurs in his heels and who claims that his limited years in a military high school made him more qualified militarily than those of us who have served; deserve to pass judgment?  I think not.

The problem of unlawful command influence cannot be overstated.  On every military base where I was stationed, there was a unit known as the Area Defense Counsel.  This was a team of military attorneys who were not part of the base's chain of command.  

Court-martials are prosecuted by military lawyers who ARE in the chain of command of the convening authority of the court-martial.  They represent the command structure.  If that same convening authority were to be able to exercise influence over the military lawyers who are defending the accused, then that attorney might not be able to give their client the zealous representation they deserve.

I read a terrific novel by Harold Coyle, a former Army officer.  It is titled Code of Honor and it gives an excellent portrayal of how unlawful command influence can work.  An incompetent general is exposed as such and he demands the head of the officer who exposed him.

We have the same system in the civilian courts.  The office of the Public Defender does not work for the District Attorney to provide the accused with attorneys who will not be influenced by people higher up on their organizational chart who have an agenda to convict a suspect.

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The "comment commandos" are out in force on both sides of this issue.  Some are calling Colonel Nance a traitor for not sending Bergdahl to prison.  Some say he's suffered enough.

Some are repeating the now debunked claim that men died searching for Bergdahl after he deserted his post.  You can read the evidence of this false claim being disproven here. 

Yes, all soldiers had been told to be on the lookout for then PFC Bergdahl.  But that doesn't make every single military operation in the area a search for the man.  There were specific missions that were not related to the search for the missing Bergdahl on which these six men were tragically killed.  What frightens me is that in spite of conclusive evidence (the Army's own investigations into their deaths), the lie that they died as part of a search for Bergdahl continues.

One comment that caught me eye called on the Army to revoke the award of the Combat Infantry Badge to now PVT Bergdahl.  The Army regulations on the subject do allow for the revocation of awards and badges in the wake of a dishonorable discharge.  Seems appropriate.