Col. Jeffery Nance sentenced Pvt. Bowe Bergdahl to a dishonorable discharge, demotion to E-1 from his rank of E-5 and forfeiture of $1,000 a month for 10 months for desertion and misbehavior before the enemy.
The judge’s sentence came after two weeks of sentencing hearings that included over a dozen witnesses. The hearings began Oct. 23, when Nance heard an unlawful command influence motion from Bergdahl’s attorneys, who argued that the case should be dismissed, based on comments by President Donald Trump after Bergdahl pleaded guilty. After remarks by both the prosecution and defense, Nance said he would consider the motion and render his decision at a later date.
Nance explained the importance of ensuring that an objective observer, aware of all the facts in the case, would believe that Bergdahl received a fair trial. He also said he had to take into account the public’s perception of the military justice system.
Sentencing hearings continued on Oct. 25, when the prosecution team brought their first witness. Retired Navy Chief Petty Officer James Hatch took the stand to recount a rescue mission for Bergdahl during which he was shot in the leg and his canine was killed. He was originally in Afghanistan during the summer of 2009 as part of a special operations team pursuing high-value targets, but Hatch said their mission changed after Bergdahl left his post.
“The priority was that if the opportunity arose to rescue the hostage came, take it,” he explained.
Hatch then walked the court through a mission to rescue Bergdahl. He said hostage situations can make operations more tenuous because rescuers have to be more discriminatory with fire to ensure they do not endanger the life of the hostage.
Hatch, his teammate and the military working canine Remco took off across a field in pursuit of two individuals. After the individuals took cover in the middle of the field, the service members sent Remco to track them, Hatch explained.
Eventually, the trio found their target, but they were armed. Remco was shot in the jaw and Hatch sustained injuries after one of the men “sprayed” gunfire, he said.
“I really thought I was dead,” Hatch told the court.
When asked by the prosecution where his sense of duty came from on the rescue mission, Hatch paused before responding.
“He was a U.S. service member. And he had a mom.”
After Hatch concluded his testimony, the court heard from two members of Bergdahl’s unit about their experiences during the duty status—whereabouts unknown (DUSTWUN) search operation for the missing Soldier.
Capt. John Billings, Bergdahl’s platoon leader, outlined the day he went missing, and the search and rescue missions executed after the disappearance.
“The op(erational) tempo was nonstop. It went from predictable to not knowing what you were doing the next five to six hours.”
He said the level of risk increased because of the elevated operational tempo and described the physical effects of the searches.
“There was nonstop pounding of the body, carrying your rucksack in 100 degree heat,” Billings said.
There was one reason his team kept pushing through these and other physical maladies, he explained.
“It’s the motto of the infantry, Army, Rangers – leave no man behind … we’ll scrape the earth by any means necessary.”
The day concluded with additional testimony from Evan Buetow, Bergdahl’s team leader, Col. Clint Baker, the battalion commander, and Retired Col. John White, who led an aviation unit station in eastern Afghanistan, all at the time of Bergdahl’s disappearance.
All three reiterated the pressure of the increased operational tempo and further described search and rescue missions in the weeks after Bergdahl left his duty post.
“We did everything we could … the best we could,” explained Baker.
Witnesses for the prosecution continued testimony on Oct. 26, led by Col. Robert Campbell, a battalion commander in Afghanistan during the DUSTWUN search for Bergdahl. His unit was moved closer to support Baker and the large amount of military resources sent into the area as part of the search.
Testimony from Air Force Lt. Col. John Marx included a description of a mission in July 2009 to integrate into local Afghan villages with the goal of learning intel about Bergdahl’s location. Marx said he was tasked with leading a team that included Afghan National Army Soldiers and members of the U.S. National Guard. During the mission, Marx said, his team spotted two motorcycles with Taliban flags leaving the first village they entered. They later departed for a more southern village and set up camp while waiting for a water resupply.
Eventually, Marx said the sound of motorcycles woke him up and “something just didn’t feel right.” He was lying in a protective berm with Master Sgt. Mark Allen, and Marx said both scrambled up the bank to reach the radio and call for help. Allen got there first, and was shot in the head by a member of the Taliban during a firefight.
“That’s probably one of the hardest things I’ve had to do in my life is get Sgt. Allen to that helicopter,” Marx said. “It was hot, we were dehydrated, we had to carry his limp body – it was just tough.”
According to prosecution attorneys, Allen suffered a traumatic brain injury as a result of his head wound, and is now confined to a wheelchair without the ability to communicate or care for himself.
During the firefight, Jonathan Morita also sustained wounds from Rocket Propelled Grenades that landed on and around him. Morita was a rifleman from the National Guard tasked with protecting the unit from enemy fire. In his testimony, Morita described details of the firefight and the resulting injuries, including a mangled hand and shrapnel in his elbow.
“I accepted my fate, picked up a Bible, read a quick verse and then picked up my nine mil(limiter) and continued to engage,” he said.
Morita still does not have full use of his right hand even after months of treatment at Walter Reed Medical Center.
Staff Sgt. Jason Walters also testified about his experience as a member of Marx’s team on the day of the firefight. He described watching Allen get shot in the head and the immediate treatment of his comrade after the injury.
“Seeing him like that is something I don’t wish anyone would have to see,” Walters said. “Seeing a friend like that is painful.”
The defense team questioned Walters about the team’s lack of resources during the mission and communication between the team and senior leaders before he concluded his testimony.
The prosecution presented their final witnesses on Oct. 30.
The morning began with Nance’s ruling on the UCI motion. The judge dismissed the motion, saying he could be impartial.
“My only motivation as a military judge is, and always has been, justice,” Nance explained.
Although he did not accept the defense’s UCI motion, Nance said he would consider it as mitigating evidence when determining an appropriate sentence for Bergdahl.
After Nance concluded his ruling, the prosecution called Dr. Rafael Mascarinas, a physiatrist who treated Allen from August 2009 to December 2011 at a rehabilitation facility in Tampa, Florida.
Mascarinas testified that when Allen first arrived at the facility, he was in a complete vegetative state, which meant that his eyes were open but he had no awareness of his environment. After extensive physical, occupational and cognitive therapy, Allen regained consciousness, but still has very little awareness of his environment and condition, Mascarinas said.
Mascarinas also described details of Allen’s surgeries, including a craniotomy that removed both frontal lobes. He said Allen can still feel pain and is in a state of chronic pain as a result of his injuries.
The prosecution’s testimony concluded with Shannon Allen, wife of the injured service member. Shannon explained Allen’s demeanor before his deployment, describing him as “loud, outgoing” and someone who loved to be the center of attention. She said he was previously a very active father, but his current involvement with his children is passive because of his injuries.
Shannon also outlined the Family’s daily life and explained the care required for Allen throughout the day.
During her testimony, the court watched a video of Shannon and a nurse getting Allen out of bed using a ceiling lift. She said the entire process of getting him out of bed in the morning, showering him and getting him ready for the day can take over an hour.
Allen has a feeding tube, Shannon said, through which he receives all his meals and medications. He requires care 24 hours a day.
“He’s lost me as a wife, essentially, because instead of being his wife, I’m his caregiver,” she said.
After the court returned from a lunch break, Bergdahl took the stand as the defense’s first witness. He began his testimony by reading a handwritten apology.
“It was never my intention for anyone to be hurt … I am admitting that I made a horrible mistake,” Bergdahl tearfully testified. “I was trying to help and knowing I didn’t breaks my heart.”
He continued by saying that he knew the words “I’m sorry” couldn’t take away the pain of those who were injured, but he hoped that by taking responsibility for his actions, they understood his remorse.
The defense asked the judge to review Bergdahl’s statements to Maj. Gen. Kenneth Dahl with regards to the reasons he left his duty station at OP Mest on June 30, 2009.
Bergdahl then began lengthy testimony about his experience as a prisoner of the Taliban, including escape attempts and the conditions of his imprisonment.
A few hours after leaving his post, Bergdahl said he was hiking through the desert when he saw five or six motorcycles.
“I tried not to bring any attention to myself by making any sudden movements, but they turned and came directly toward me.”
He said the men had AK-47 assault rifles and seemed to be asking him questions in a language he did not speak. They eventually blindfolded him, tied him up with cargo straps and put him on the front of a motorcycle for transport to a nearby tent. Bergdahl then described an unsuccessful attempt to run away that resulted in the Taliban constantly moving him for the first few days of his capture.
His captors finally settled on a location where he was placed, still chained and blindfolded, in a room with a low ceiling, no windows and a bathroom in the corner. Bergdahl said he attempted to escape from this location, and described running through a nearby village and onto a rooftop where he was discovered and recaptured.
Upon his return to the prison room, the Taliban all took turns beating him, Bergdahl said. They then moved him to a different location with a bigger room. He testified that he was tied to a bed, with his hands shackled to the headboard and his feet cuffed to the footboard, so he was constantly spread eagle.
During this three month period of his captivity, Bergdahl said he was only moved from this position to eat and go to the bathroom. He eventually developed bed sores and was barely able to stand and support himself. While Bergdahl was chained to the bed, he said his captors whipped him with copper cables, burned his feet with matches and threatened to shoot him in the head.
“The sickness was becoming more constant,” Bergdahl testified.
He had unstoppable diarrhea and open sores around his ankles and forehead. The sores on his forehead became so unbearable he eventually cut them open with a razor meant to shave his face.
Bergdahl described his captor’s anger at his constant state of stomach duress.
“They threatened to cut off my nose and ears for it.”
He testified to multiple escape attempts, including digging holes in the walls of his room, which were made of mud. Bergdahl figured out how to break his handcuffs and said he used all the effort had had to try to defeat his restraints. He was never successful.
After about a year, Bergdahl said the Taliban moved him to a mountain fortress with similar conditions. It was during this period of captivity that Bergdahl began to plan a more daring escape attempt.
Over the course of a few months, Bergdahl said he practiced his escape plan at night and collected materials like a nail and PVC pipe to assist in the getaway. He said his hand was forced when a local child saw him standing at the window, somewhere he shouldn’t have been able to reach with his chains on.
That night, Bergdahl climbed out the fortress’s second story window using his chains and a PVC pipe. As he was making his way through the dark, foreign territory, Bergdahl said he fell off a cliff. This resulted in injuries to his left side, including severe pain in his shoulder and hip that he said still affect him today.
As a result of his fall, Bergdahl testified that he was disoriented, and spent the remainder of his eight-day escape living off small grass patches and whatever water he could find. One day, Bergdahl was trying to put a splint on his leg in the daylight hours when the Taliban spotted him. He said he was terrified.
“They said next time they’d try to kill me,” Bergdahl explained.
When asked by his attorney why he still tried to escape after that dire warning, Bergdahl was direct.
“That’s just what you do. You have to try.”
When the Taliban returned him to the mountain prison, they subjected Bergdahl to a severe beating, including attempts to rip his hair out, spitting on him and kicking him. After this, they threw him in a truck and drove the Soldier to another location, where he would spend the next four years.
“It was horrible,” Bergdahl testified. “I was burned out completely.”
The Taliban then put Bergdahl in a 7 foot by 6 foot by 6.5 foot cage with bigger chains and thicker leg shackles. The cage consisted of iron bars welded across an iron cage and was about eight inches off the ground, Bergdahl explained.
“It was impossible to move around,” he said. “The floor was extremely painful.”
At first, the Taliban permitted Bergdahl to use the toilet twice a day, but they eventually dug a toilet under the cage and he was not permitted to leave it. He explained the difficulty of sleeping in this prison to the court.
“There was never a point when the pain wasn’t there; you just kept moving until you were too exhausted to stay awake,” he testified.
His captors continued to torture him while he was confined, forcing him to watch beheadings and throwing firecrackers in the cage, Bergdahl said. There were very few English speakers, so he rarely communicated with anyone around him.
“There were moments I lost all understanding of what I was,” Bergdahl told the court.
He said the worst part of his captivity was the “constant deterioration” of his body, senses and mind.
“It was years of nothing but waiting to see whether the next person to come in the door would be the person to execute you.”
Bergdahl said he still thinks about what happened in captivity, and gets only four of five hours of sleep a night, which is interrupted by flashbacks and dreams.
The defense presented additional witnesses, Oct. 31, who testified to Bergdahl’s character, progress and work ethic. Agent Greg Leatherman was a weapons squad leader who spent time with Bergdahl before his desertion. Leatherman said Bergdahl was a model Soldier in terms of cleaning his weapon, performing details efficiently and studying infantry materials.
According to Leatherman, it seemed like Bergdahl did not adjust to the deployment as quickly as other Soldiers in his platoon.
Testimony from Terrence Russell, who debriefed Bergdahl as part of the Joint Personnel Recovery Agency, said Bergdahl was “extremely cooperative” and provided a large amount of information for Survival Evasion Resistance and Escape training.
Russell provided additional details about Bergdahl’s time in captivity and said the intel gleaned from Bergdahl is critical for training future forces.
Amber Dach, an intel analyst who met with Bergdahl immediately after his return, described his actions and attitude after returning to freedom. She praised his willingness to help and provide information, which she described as a “gold mine.”
The court then heard testimony from Lt. Col. Dr. Alan Larson, a neurologist and battalion surgeon in Afghanistan, and Curtis Aberle, a Family nurse practitioner and Bergdahl’s primary care manager since 2014. Both described the neurological damage he suffered during his time in captivity and how it affects his daily life.
The day concluded with remarks from Audry Ellingson, who supervised Bergdahl during his time at Fort Sam Houston, Texas. She said the Soldier had a good attitude and praised his work ethic as “outstanding.”
The final day of testimony, Nov. 1, began with an anonymous witness who described Bergdahl’s work with her animal rescue. She said he has a special gift for rescuing feral cats, even building a unique trap to catch them and transport them to a new, safer location. The witness told the court she offered Bergdahl a position as caretaker at the sanctuary and described him as “the cat whisperer.”
Dr. Craig Morgan, forensic psychiatrist, was the last witness to testify for the defense. He outlined a series of psychological tests he administered to Bergdahl and said the Soldier suffers from schizotypal personality disorder, post-traumatic stress disorder, social phobia and cognitive defects.
Morgan testified that, based on his research and testing, Bergdahl suffered from SPD and PTSD when he left OP Mest. He said one side effect of SPD is an inability to understand second- and third-order effects as they relate to people, which makes it difficult for Bergdahl to understand and anticipate how others will react to his actions.
“He didn’t always sound everybody else out when he came up with a plan,” Morgan explained.
Morgan testified about the myriad of PTSD triggers Bergdahl may experience if sentenced to prison time.
“What helps people with mental illness is being in a supportive environment where they can develop active coping skills,” he said.
The next day, Nov. 2, the prosecution called two surrebuttal witnesses to close the hearings. Dr. Gregory Saathoff, a psychiatrist, testified about SPD. He said he had treated several service members with the disorder when he was a military psychiatrist, and was never concerned about sending them overseas. He explained that the only patients he treated who could not appreciate second- and third-order effects were those who had reached a psychotic breaking point.
The final witness was Lt. Col. Gregory Wilson, the director of treatment programs at a military confinement facility. Wilson described the physical, mental, occupational and educational programs available at the facility, as well as a prisoner’s daily schedule.
The court then heard closing arguments from the prosecution and defense.
In his remarks, prosecuting attorney Maj. Justin Oshana, reiterated the injuries sustained by service members as a result of Bergdahl’s desertion and misbehavior. He described the “desperate attempt to put as many forces in the field as possible” to keep the Taliban from taking Bergdahl over the border into Pakistan.
“The actions of all of these people were based off one principle: He’s an American, and that’s what we do,” Oshana said.
The prosecution played portions of Bergdahl’s interview with Dahl during their argument, and reminded the court that Bergdahl made the choice to leave his post that summer day. They asked the judge to sentence Bergdahl to 14 years in confinement, demotion to E-1 and a punitive discharge.
Capt. Nina Banks delivered closing arguments for the defense. She emphasized the importance of justice when considering a sentence for the accused and explained the impact of Bergdahl’s SPD on his decision to leave OP Mest.
“He didn’t view the world like most people see it,” Banks explained. “He tearfully expressed remorse … he has a better understanding now than he did then of the repercussions.”
She said Bergdahl also understands the sacrifices made by other service members during the DUSTWUN search for him.
“The courage and bravery of Chief Petty Officer Hatch, Spc. Morita, Master Sgt. Allen and other Soldiers who looked for Sgt. Bergdahl doesn’t go unnoticed,” Banks said. “They gave a lot and Sgt. Bergdahl recognizes that.”
The defense requested a dishonorable discharge and appropriate characterization for Bergdahl’s service as his sentence for desertion and misbehavior before the enemy.
Nance deliberated for several hours on Nov. 2 and 3 before administering the sentence, which is not finalized until confirmed by Gen. Robert Abrams, commanding general, U.S. Army Forces Command and convening authority in the case. Bergdahl’s civilian attorney, Eugene Fidell, said his team will appeal the dishonorable discharge.