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July 19, 2019

The Army Court of Criminal Appeals (CCA) recently affirmed the sentencing of Private First Class Bergdahl, who was charged with “desertion with the intent to shirk important service and avoid hazardous duty” and “misbehavior before the enemy” in 2015. The desertion case was unique and reached headlines in that President Trump tweeted to the masses his own detestation of Bergdahl for deserting his post. The defendant would later claim the President’s tweets to the public constituted unlawful command influence (UCI) and corrupted the validity of his trial and the opinion of the military judge who sentenced him. The Army CCA’s affirmation establishes otherwise, and the sentencing he received stands, including a dishonorable discharge.


In 2009, Bergdahl left his combat outpost in Afghanistan. Shortly after, he was captured by the Taliban, who held him captive for more than five years. Only in 2014 was he rescued from enemy capture by exchanging five suspects detained in Guantanamo Bay.

In early 2015, Bergdahl was officially charged with desertion and misbehavior before the enemy. In addition to the case being complex due to numerous defense motions to dismiss it without success, it was further complicated by the late Senator John McCain and then-Presidential-candidate Donald Trump publicly speaking negatively of Bergdahl. McCain had threatened to begin hearings if his punishment did not include dishonorable discharge, and Trump took to Twitter to decry Bergdahl as a traitor.

Despite the controversy surrounding his case, Bergdahl admitted that dishonorable discharge and other punishments would be reasonable. Before any trial, he pleaded guilty to both charges and was sentenced to rank reduction, pay forfeiture, and a dishonorable discharge.

It was not until a later appeal to the Army CCA that Bergdahl seemed to take issue with President Trump’s tweets about his actions, character, and case. He and his defense team claimed the tweets constituted unlawful command influence, which involves someone of a higher rank unjustly impacting the decisions or rulings of another in a position below them. That is to say, since the President is also the Commander-in-Chief, any of his actions or opinions could influence anyone within the United States Armed Forces.

However, the Army CCA opinion that affirmed his sentencing did not find ample reasoning to believe that the President’s tweets actually influenced the military judge that sentenced Bergdahl. The most damaging evidence against Bergdahl’s arguments were his very own admission of guilt and statements that dishonorable discharge would be appropriate penalty for what he had done. There was a single dissenting judge, though, who found the President’s public communications about Bergdahl to undermine his chances of ever receiving a fair trial.


The key takeaway of Bergdahl’s desertion case is to always watch what you say when you are accused of a military crime or facing court-martial. A single admission of guilt or apparent approval of sentencing from yourself will hang heavily over you. In fact, it will likely sway a military judge more than statements from the POTUS. In other words, even if the Commander-in-Chief allegedly interferes with your case and pending trial by publicly condemning you, the more damaging offense to your defense comes if you condemn yourself.

If you stand accused of or charged for a Uniform Code of Military Justice (UCMJ) violation or another serious crime and do not know who to trust, what to say, or what to do, know that Military Criminal Defense Attorney Joseph L. Jordan can help. For years, Attorney Jordan has built his reputation as one of the most reliable and steadfast defense lawyers in the world who offers his services to active military service members. Whether you are posted nationally or abroad, a Marine or soldier, a Private or General, he and his legal team are ready to defend you, your rights, and your military career.

Call (866) 624-7503 or contact his firm online to begin your military defense case the right way.


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