Appeals court reinstates soldier’s desertion conviction

A federal appeals court ruled on Tuesday to restore a former soldier’s conviction for desertion, overruling a federal judge’s previous ruling to dismiss the conviction. The military dishonorably discharged former Army Sgt. Robert “Bowe” Bergdahl for deserting his unit in 2009 while deployed in Afghanistan. A Taliban-allied group captured Bergdahl soon after his desertion and held the soldier captive for five years.

The then-23-year-old was repeatedly tortured until he was released during a 2014 prisoner exchange involving five Guantanamo Bay detainees. Bergdahl pleaded guilty to desertion and misbehavior before the enemy court-martial charges in 2017. Prosecutors sought a hefty prison sentence for Bergdahl, while Bergdahl’s team argued that the soldier suffered enough during his time in captivity and his previous military contributions should temper the sentence. Bergdahl received a dishonorable discharge and a rank reduction to private, but no prison time.

How can Bergdahl fight the desertion charge? The former soldier sued against the conviction in 2021, arguing that the court-martial violated his Fifth Amendment rights to due process and a fair trial. U.S. District Judge Reggie Walton ruled in 2023 to overturn Bergdahl’s military conviction, arguing that the military judge who presided over Bergdahl’s failed to disclose a possible conflict of interest within the Department of Justice.

The latest ruling criticized Walton’s authority to rule, rather than the rationale for his ruling. Only a military tribunal had the authority to overturn a military court-martial ruling, not a federal judge, according to the Tuesday ruling.

The DOJ’s Assistant Attorney General Brett Shumate released a Wednesday statement reaffirming the appeal court’s ruling. Federal district judges have no authority to review military judgments, he wrote.