Navy SEAL, Soldier Claim They Sustained Career-Ending Injuries During Search For Bowe Bergdahl


Prosecutors want to present evidence that a soldier and a Navy SEAL suffered grievous injuries on separate missions to find Army Sgt. Bowe Bergdahl if the accused deserter is convicted later this year, recent court documents show.

The judge overseeing Bergdahl’s case, Army Col. Jeffery R. Nance, is expected to hear arguments about the admissibility of those injuries when Bergdahl returns to a Fort Bragg, N.C., courtroom for a pretrial hearing. The 31-year-old’s court-martial is scheduled for October.

Nance barred prosecutors from presenting evidence that service members were injured searching for Bergdahl in the days after he left his small outpost in eastern Afghanistan in June 2009 and was captured by the Taliban. Nance ruled in December that the injuries could unfairly influence jurors to convict Bergdahl, who is charged with deserting his post and misbehavior that endangered his unit. He is not charged with causing injuries.

Prosecutors, however, argued that those injuries demonstrate the impact of Bergdahl’s alleged crimes and should be included for jurors to weigh before sentencing him. Bergdahl faces up to life in prison if convicted of the more serious misbehavior charge.

“All of the injuries occurred on missions that would not have happened were it not for the manufactured and unnecessary crisis,” lead prosecutor Army Maj. Justin C. Oshana wrote in a court briefing this month. “Their injuries are directly relating to and resulted from the accused’s misconduct, and, as such, the evidence is admissible at sentencing.”

Army National Guard Sgt. 1st Class Mark Allen was shot in the head July 8, 2009, while on a mission in Paktika province to find Bergdahl.

Navy Senior Chief Petty Officer Jimmy Hatch, a Navy SEAL, was shot through the leg a day later on a special operations mission to locate the captured soldier. Their injuries left both men unable to continue their military careers; Allen remains wheelchair-bound, unable to communicate and entirely dependent on others.

Bergdahl’s defense attorneys want Nance to bar prosecutors from presenting the injuries before sentencing. The injuries were not directly caused by Bergdahl, they argue in court documents, and were the result of a variety of factors including hasty planning and a determined enemy.

In a briefing to the court filed this month, prosecutors included Hatch as a potential witness who could testify about his mission this week, but it was not clear whether he would appear at the hearing. Defense attorneys advised Nance they would not be prepared to question Hatch this week.

Bergdahl’s lawyers wrote June 12 that they have just begun investigating the mission where the SEAL was injured and have outstanding requests for evidence about that operation, including a copy of a book Hatch is writing and outtakes from an interview he gave to a cable news network.

Bergdahl’s lawyers have also asked Nance to bar prosecutors from using information from an interview their client gave an Army investigator after he was returned to American custody in May 2014 in a controversial swap for five senior-level Taliban commanders held at Guantanamo Bay in Cuba. The attorneys, in a motion filed Monday, wrote that prosecutors should not be able to use Bergdahl’s interview with now-Lt. Gen. Kenneth Dahl without “independent evidence” to corroborate the statements as facts.

In that 371-page sworn statement, Bergdahl told Dahl he had willingly left Observation Post Mest to cause a disturbance that would place him in front of a general officer to express concerns about his unit’s leadership. He said he had no intention of deserting the Army.

The Army charged Bergdahl with “misbehavior before the enemy by endangering the safety of a command, unit or place” and “desertion with intent to shirk important or hazardous duty” in March 2015.

He has yet to enter a plea to those charges. Bergdahl remains on active duty in a clerical job at Joint Base San Antonio in Texas and has not been held in pretrial confinement.


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NAVAL BASE SAN DIEGO — A Navy SEAL sniper on Wednesday contradicted earlier testimony of fellow SEALs who claimed he had fired warning shots to scare away civilian non-combatants before Chief Eddie Gallagher shot them during their 2017 deployment to Mosul, and said he would not want to deploy again with one of the prosecution's star witnesses.

Special Operator 1st Class Joshua Graffam originally invoked his Fifth Amendment privilege before Navy Judge Capt. Aaron Rugh gave him immunity in order to compel his testimony.

Graffam testified that Gallagher was essentially justified in the shooting of a man he is accused of unlawfully targeting, stating that "based off everything i had seen so far ... in my opinion, they were two shitheads moving from one side of the road to the other."

Spotting for Gallagher in the tower that day, Graffam said, he called out the target to him and he fired. He said the man was hit in the upper torso and ran away.

Graffam, who joined the Navy in 2010 and has been assigned to SEAL Team 7's Alpha Platoon since September 2015, deployed alongside Gallagher to Mosul in 2017, occasionally acting as a spotter for Gallagher when the SEALs were tasked with providing sniper support for Iraqi forces from two towers east of the Tigris River.

Another SEAL, Special Warfare Operator 1st Class Dalton Tolbert, had previously testified under direct examination by prosecutors that, while stationed in the south tower of a bombed-out building in June 2017, he had observed Gallagher shoot and kill an elderly civilian.

"He ran north to south across the road," Tolbert testified on Friday. "That's when I saw the red mark on his back and I saw him fall for the first time. Blood started to pool and I knew it was a square hit in the back." Over the radio, he said he heard Gallagher tell the other snipers, "you guys missed him but I got him."

Former SO1 Dylan Dille, who was also in the south tower that day, testified last week that he watched an old man die from a sniper shot on Father's Day. He said the date stuck out in his mind because he thought the man was probably a father.

Later that day, after the mission, Graffam said he spoke with Dille about the shooting and they disagreed about the circumstances. Dille, he said, believed the man was a noncombatant.

"I, on the other hand, was confident that the right shot was taken," Graffam said, although he said later under cross-examination that the man was unarmed. Dille previously testified that the SEALs were authorized to shoot unarmed personnel if they first received signals intelligence or other targeting information.

Photo: Paul Szoldra/Task & Purpose

Graffam described the man as a male between 40 and 50 years old wearing black clothing, giving him the impression of an ISIS fighter who was moving in a "tactical" manner. He testified that he did not see anything like Dille had described.

Graffam further testified that he didn't see Gallagher take any shots that he shouldn't have on that day or any other.

Although Graffam said he did not hear of allegations that Gallagher had stabbed a wounded ISIS fighter on deployment, he testified that he started to hear rumblings in early 2018. Chief Craig Miller, he said, asked him at one point whether he would "cooperate" with others in reporting him.

When asked whether he would like to serve with Miller again in a SEAL platoon, Graffam said, "I don't feel as confident about it." A member of the jury later asked him why he'd feel uncomfortable deploying with Miller and he responded, "I just wouldn't."

Graffam said he would serve with Gallagher again if given the chance.

Under cross examination by prosecutors, Graffam said he couldn't say whether there were warning shots fired that day, though Dille and Tolbert both said happened. "There were multiple shots throughout the day," Graffam said.

Prosecutors also asked him about his previous statements to NCIS, in which Graffam said of Miller that "he has good character" and was "a good guy." Graffam confirmed he said just that.

Defense attorney Tim Parlatore, however, said those statements were back in January and "a lot had happened since then." Parlatore said Graffam had also said at the time that Gallagher was a good leader.

"That part remains unchanged, correct?" Parlatore asked.

"Yes," Graffam said.

The defense is expected to call more witnesses in the case, which continues on Thursday.

(U.S. Air Force photo by Airman 1st Class Alexi Myrick)

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