Bergdahl's Defense Questions His Army Enlistment After CG Dismissal

Bowe Bergdahl's defense lawyer has raised questions with the Army on why the 28-year-old sergeant was allowed to enlist despite having been separated from the Coast Guard after only 26 days.

Eugene Fidell, Bergdahl's lead lawyer, also noted Bergdahl's cooperation with the FBI since his release in efforts to "identify, capture and bring to justice" his captors as part of the argument to permit Bergdahl to leave the Army with an honorable discharge and veterans benefits.

The defense cited the Army's award last August of Bergdahl's second Good Conduct medal. The award covered the period from June 12, 2011, to June 11, 2014, shortly after Bergdahl was released, and cited him for "exemplary behavior, efficiency and fidelity in active federal military service."

The statements were made in a lengthy March 2 letter by Fidell. Three military lawyers from the Judge Advocate General corps have also been assigned to Bergdahl's defense.

The letter was sent to Gen. Mark Milley, commander of Army Forces Command, who last week authorized charges of one count of desertion and one count of misbehavior before the enemy against Bergdahl. The maximum penalty for misbehavior before the enemy is life imprisonment.

Bergdahl, who went missing from his post in Afghanistan in June 2009, was released last May after nearly five years in captivity in a controversial deal that resulted in the transfer of five Taliban prisoners from the Guantanamo Bay, Cuba, detention facility to the Gulf state of Qatar.

Members of Bergdahl's unit have charged that he was a poor soldier who left Combat Outpost Mest-Lalak voluntarily in June 2009. Bergdahl's defense has maintained that he walked away intending to report to a commander at another base on alleged wrongdoing in his unit.

The next step in the case for Bergdahl is an Article 32 preliminary hearing under the Uniform Code of Military Justice to decide whether there is sufficient evidence to proceed with a court-martial, but it was unclear when the Article 32 hearing might begin.

Last week, Fidell told Military.com that he expected the hearing to begin on April 22 at Joint Base San Antonio-Fort Sam Houston, where Bergdahl has been assigned to administrative duties. However, Fidell later said that he would be out of the country on April 22 on other commitments.

The Pentagon said last week that no date has been set for when the Article 32 hearing would begin.

In his letter to Milley, Fidell noted that a fact-finding investigation by Maj. Gen. Kenneth Dahl concluded that Bergdahl's enlistment did not violate any service regulations.

However, Fidell said that "given the circumstances surrounding Sgt. Bergdahl's entry-level separation from the U.S. Coast Guard, the Army's subsequent decision to enlist him with a waiver was improvident."

Bergdahl was discharged from the Coast Guard in 2006 after only 26 days in basic training, reportedly because of his psychological state. In his letter, Fidell described Bergdahl as "naïve and at times unrealistic."

Bergdahl joined the Army in 2008 at the height of the wars in Iraq and Afghanistan. In that same year, the Army War College reported that as many as one in five recruits was allowed to enlist with a waiver for health or other reasons, including arrest records.

The Washington Post last June, citing a senior Army official, reported that the Army was aware of Bergdahl's previous administrative discharge from the Coast Guard when he joined.

Among the factors that Fidell argued "should play no role" and have no influence in the case were President Obama's decision to exchange Bergdahl for the five Taliban prisoners, and whether Obama should have announced his release in a Rose Garden ceremony with Bergdahl's parents.

The factors include whether "President Obama should have insisted on different terms for the prisoner exchange that led to Sgt. Bergdahl's liberation," Fidell wrote.

Last August, the non-partisan Government Accountability Office said that the prisoner exchange violated a statutory requirement to give Congress 30 days of notice.

-- Richard Sisk can be reached at Richard.Sisk@military.com.