Eight years after he left his post at a forward operating base in Afghanistan, admitted deserter Bowe Bergdahl will be back in a courtroom at Ft. Bragg North Carolina today for what promises to be a dramatic multi day sentencing hearing, News Radio 1200 WOAI reports.
The Uniform Code of Military Justice calls for a 'pre sentence hearing' even when a defendant has pleaded guilty, according to Richard Rosen, a long time military prosecutor who is now a professor of law at Texas Tech Univesity.
Rosen tells News Radio 1200 WOAI that Bergdahl, who was held captive by the Taliban for five years and was tortured for much of that time, will want to make sure the military judge who will decide his sentence knows all about the impact the experience had on him.
"He will try to show that he was imprisoned under harsh conditions and he has already been subjected to fairly severe punishment," Rosen said.
He says defense lawyer Eugene Fidell is expected to demonstrate that two years being held in a tiny 'tiger cage' shows that the sergeant, who is still technically stationed at Ft. Sam Houston with Army North, has already been the recipient of enough punishment to understand his actions were wrong.
Bergdahl has said he 'naively' left the post in an attempt to get to another U.S. military base to complain about mismanagement of his unit. But in recent days, he has also made very aggressive comments criticizing military justice as a 'kangaroo court' and claiming that being captured by the Taliban was better than facing justice in the U.S.
Rosen says those comments can be used against him at his sentencing hearing, as evidence that he doesn't understand the seriousness of his offense.
He says the Army will also place potentially dramatic testimony on the stand from members of units were were sent to search the rugged Afghanistan countryside looking for Bergdahl.
"The Army is going to be permitted to bring in some of the soldiers who went out to look for him, to demonstrate that people were injured in the effort to find him."
One of the soldiers who was looking for Bergdahl suffered permanently crippling injuries. Fidell will argue that Bergdahl should not be punished for decisions that were made by others.
The UCMJ, unlike civilian law, doesn't have 'minimum sentences' for crimes. Bergdahl can be sentenced to anything from no punishment, simply an 'Article 15' discharge, all the way up to life in prison. He is not facing the death penalty.
"I think a dishonorable discharge is certainly in the works," Rosen said. "I think the big question is, how much time is he going to get."
Rosen says a dishonorable discharge is a very serious punishment in and of itself, and is referred to in veterans circles as a 'punitive discharge.' Perhaps more seriously, it would deny Bergdahl any access to Veterans Administration medical benefits to treat the serious physical and emotional injuries Bergdahl suffered in his five years of incarceration.
Several former military lawyers who spoke with News Radio 1200 WOAI say the UCMJ does not allow 'overly harsh sentences,' and military juries are even instructed to return with the least harsh sentence that still protects 'good order and disclipline.
Most of the experts say a dishonorable discharge and 3 to 5 years in prison is the most likely result.