Evidence that a soldier and a Navy Seal who were injured on missions to search for Sgt. Bowe Bergdahl will be permitted during the sentencing portion of his court-martial, according to a ruling from the military judge on Friday.
Col. Jeffery Nance, the military judge overseeing the court-martial, ruled that evidence of injuries to Sgt. 1st Class Mark Allen and retired Senior Chief Petty Officer James Hatch, a Navy SEAL, will be allowed during sentencing if Bergdahl is convicted of misbehavior before the enemy.
“Neither Allen nor Hatch would have been where they were doing what they were doing but for the actions of the accused, assuming he is found guilty of (misbehavior before the enemy),” Nance wrote.
In March 2015, Bergdahl was charged with misbehavior before the enemy by endangering the safety of a command, unit or place and desertion. If convicted of misbehavior before the enemy, Bergdahl could be imprisoned for life.
Bergdahl walked off a remote post in Afghanistan in 2009 and was subsequently held by the Taliban for five years.
His disappearance triggered a DUSTWUN, or “duty status-whereabouts unknown,” which is an alert that would have been widely distributed.
Bergdahl has said he wanted to catch the attention of military brass to warn them about what he believed were serious problems with leadership in his unit.
The court-martial is scheduled to begin Oct. 23 at Fort Bragg.
Eugene Fidell, Bergdahl's lead civilian lawyer, said he's studying the judge's ruling.
"It affects only the sentencing phase," Fidell said. "Of course, if Sgt. Bergdahl is acquitted, as we believe he should be, there will be no sentencing phase."
Defense lawyers have said hastily-planned missions contributed to the injuries of service members searching for Bergdahl. They said the soldier can’t be responsible for decisions made by others and action that continued long after his disappearance.
Allen was shot in the head when he and his embedded training team consisting of six Americans and 48 Afghan National Army were searching in a village for Bergdahl. Allen suffered a traumatic brain injury stroke and is confined to a wheelchair and unable to communicate.
On a separate mission, Hatch suffered a broken femur when he was hit by enemy fire on a mission to search for Bergdahl. The injury ended his naval career.
©2017 The Fayetteville Observer (Fayetteville, N.C.). Distributed by Tribune Content Agency, LLC.