U.S. v. Bergdahl, 80 M.J. 230

First Principles: Constitutional Matters: Generally

1. the Constitution affords all accused the presumption of innocence

Military Justice Personnel: Convening Authority: Generally

1. there is no requirement that a convening authority adopt the recommendations of an Article 32, UCMJ, preliminary hearing officer

Trial Stages: Pretrial: Referral

1. there is no requirement that a convening authority adopt the recommendations of an Article 32, UCMJ, preliminary hearing officer

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court reviews allegations of unlawful command influence de novo
2. when employing de novo review, an appellate court uses the trial court’s record but reviews the evidence and law without deference to the trial court’s rulings
3. courts adhere to the plain meaning of any text—statutory, regulatory, or otherwise

Miscellaneous Matters: Command Influence: Generally

1. an appearance of unlawful command influence arises in a case when an intolerable strain is placed on the public’s perception of the military justice system because an objective, disinterested observer, fully informed of all the facts and circumstances, would harbor a significant doubt about the fairness of the proceeding
2. in this case, it was the totality of the circumstances surrounding Appellant’s very serious misconduct rather than any outside influences that foreordained the Army’s handling and disposition of the case; accordingly, an objective, disinterested observer would not harbor any significant doubts about the ultimate fairness of these court-martial proceedings, and there was no appearance of unlawful command influence
3. both Article 37, UCMJ, and RCM 104(a), prohibit unlawful command influence
4. there are two types of unlawful command influence that may arise in the military justice system: actual unlawful command influence and apparent unlawful command influence
5. based on the plain language of Article 2, UCMJ, Article 37, UCMJ, and RCM 104, a retired member of the United States Navy is capable of committing both apparent and actual unlawful command influence
6. based on the plain language of Article 22, UCMJ, Article 37, UCMJ, and RCM 104, a sitting president of the United States is capable of committing both apparent and actual unlawful command influence
7. in this case, a public threat by a Senator, who was also a retired member of United States Navy, to hold a hearing in the Senate Armed Services Committee if appellant received no punishment for desertion to shirk hazardous duty and misbehavior before the enemy provided some evidence of an appearance of unlawful command influence because it had the potential to appear to coerce or influence the outcome of appellant’s court-martial under Article 37, UCMJ, especially because he made them after learning that the preliminary hearing officer in appellant’s case recommended that the charges be referred to a SPCM not empowered to adjudge a BCD, and before the GCMCA made a referral decision
8. the prohibitions against unlawful command influence did not apply to a presidential candidate who was neither a person subject to the UCMJ as a retiree or otherwise nor a convening authority
9. in this case, the President’s public reference to and ratification of his inaccurate and inflammatory comments made as a candidate for President that appellant, prior to his conviction, was a deserter and traitor who should be severely punished provided some evidence of the appearance of unlawful command influence because his comments had the potential to appear to censure, reprimand, or admonish a court-martial or any member, military judge, or counsel thereof, with respect to any other exercise of the functions of the court-martial or such persons in the conduct of the proceedings
10. in this case, the President’s comment on a social networking website in which he referred to the military judge’s sentencing decision in appellant’s case as a complete and total disgrace to the country and military provided some evidence of the appearance of unlawful command influence because this statement appeared both to censure the court-martial with respect to the sentence and had the potential to appear to influence other subsequent functions of the court-martial, such as the convening authority’s review and action, along with the later appellate phases of the case
11. in this case, a finding of apparent unlawful command influence was not warranted because there was no intolerable strain on the military justice system where (1) compelling evidence was presented at a hearing held pursuant to Article 32, UCMJ, that appellant deserted his unit with intent to shirk hazardous duty and that he engaged in misbehavior before the enemy, and in light of both the severity of these offenses and the strength of the government’s evidence, an objective, disinterested observer clearly would have expected the Army to court-martial appellant for this conduct regardless of any public comments by the President or a Senator, who was also a retired member of United States Navy, (2) although the Article 32, UCMJ, preliminary hearing officer recommended that this case be referred to an SPCM not empowered to adjudge a BCD, the GCMCA in this case, who ultimately referred appellant’s case to a GCM that was empowered not only to adjudge a dishonorable discharge but also to impose a far longer term of imprisonment, stated unequivocally in a sworn affidavit that his decisions in this case were not impacted by any outside influence, he had access to casualty information relating to the military’s search and recovery efforts related to appellant’s disappearance that was not provided to the preliminary hearing officer, and he was aware that any other referral would have been devastating to military morale; (3) appellant chose to plead guilty even after he made aware of the issue of apparent unlawful command issue and the military judge offered him the opportunity to withdraw his guilty pleas, (4) where during sentencing, appellant presented significant mitigation evidence, to include evidence that at the time of the offenses, he likely suffered from several severe preexisting psychiatric conditions such as schizotypal personality disorder that likely contributed to his misconduct and explained in part his exceptionally poor judgment in deserting his post in a combat zone, evidence of the five year torture he endured at the hands of the Taliban, and evidence that upon his return to military custody, he provided significant intelligence to the Army about hostage-taking, (5) where at his sentencing hearing after his guilty plea, and fully aware of his own case in mitigation, appellant specifically recognized that he was deserving of punishment and asked to have a dishonorable discharge imposed upon him, and (6) despite the sensational nature of this case and despite the comments of the President and a Senator advocating for a severe sentence, appellant received no prison time whatsoever
12. in this case, where appellant pleaded guiltyto deserting his unit with intent to shirk hazardous duty and of engaging in misbehavior before the enemy, where American servicemembers were injured searching for appellant after he chose to desert his post in a combat zone, where the United States government was required to exchange five members of the Taliban who had been held at the US detention facility in Guantanamo Bay, Cuba, in order to secure appellant’s release, and yet the military judge imposed as a sentence only a dishonorable discharge, a reduction in rank, and partial forfeitures of pay after appellant specifically asked to receive a dishonorable discharge, an objective, disinterested observer would decide that the convening authority’s decision not to exercise his discretionary clemency authority on behalf of appellant was a foregone conclusion unaffected by any public comments made about the case by the President and a Senator; furthermore, appellant’s post-trial matters submitted to the convening authority were absent of any formal request for clemency in the form of a sentence reduction; and similarly, in light of these facts, there would be no basis for an impartial observer to believe that the decision by the CCA to affirm the findings and sentence was in any way unfair
13. in this case, the totality of the circumstances made it clear beyond a reasonable doubt that the comments made by the President and a Senator McCain about appellant, regardless of how troubling, disturbing, disappointing, inaccurate, inappropriate, and ill-advised they were, did not place an intolerable strain upon the public’s perception of the military justice system; rather, the record reflected that the decision-making at each stage of appellant’s court-martial proceedings was unaffected by any outside influences; therefore, an objective, disinterested observer, fully informed of all the facts and circumstances, would not have harbored a significant doubt about the fairness of these proceedings

Miscellaneous Matters: Command Influence: Burdens

1. to make a prima facie case of apparent unlawful command influence, an accused bears the initial burden of presenting some evidence that unlawful command influence occurred; this burden on the defense is low, but the evidence presented must consist of more than ‘mere allegation or speculation
2. once an accused meets the some evidence threshold for a prima facie case of apparent unlawful command influence, the burden shifts to the government to prove beyond a reasonable doubt that either the predicate facts proffered by the appellant do not exist, or the facts as presented do not constitute unlawful command influence; if the government cannot succeed at this step, it must prove beyond a reasonable doubt that the unlawful command influence did not place an intolerable strain upon the public’s perception of the military justice system and that an objective, disinterested observer, fully informed of all the facts and circumstances, would not harbor a significant doubt about the fairness of the proceeding

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: Generally

1. courts adhere to the plain meaning of any text—statutory, regulatory, or otherwise