The Army officer who presided over Sgt. Bowe Bergdahl's preliminary hearing last month has recommended that he should not face any jail time or a punitive discharge for charges of desertion and misbehavior before the enemy, the sergeant's lawyers said.
According to Bergdahl's defense team, the officer has also recommended that Bergdahl's case should proceed to a lower level court martial that limits a maximum penalty for convictions to a year in prison. A four star general will review the officer’s recommendation and determine how Bergdahl's case will be handled.
Bergdahl's civilian attorney Eugene Fidell confirmed to ABC News that Lt. Col. Mark Visger "recommended that the charges be referred to a special court-martial and that a punitive discharge and confinement would be inappropriate given all the circumstances."
Special Court Martials review cases that would equate to misdemeanors in the civilian system and limit maximum punishments to one year of jail time, a reduction in rank and a bad conduct discharge. Under a general court martial Bergdahl could face a maximum life sentence for the charge of misbehavior before the enemy and five years jail time if convicted of desertion.
Visger’s recommendations have not been made public but a filing released Friday night by Bergdahl’s defense team indicated what Visger had recommended.
In the filing, Lt. Colonel Franklin D. Rosenblatt, Bergdahl’s military attorney wrote, "Given your conclusion -- with which we agree -- about whether confinement or a punitive discharge are warranted, and the factors you cited in support of that conclusion, nonjudicial punishment under Article 15, UCMJ, is the appropriate disposition."
UCMJ refers to the Uniform Code of Military Justice, which are regulations for the military’s criminal justice system. Non-judicial punishments can take the form of a reprimand, a reduction in rank or pay or restrictions to base.
Visger presided over Bergdahl’s Article 32 hearing that heard evidence from prosecution and defense witnesses as to whether Bergdahl’s case should go to a court martial.
His recommendation will be reviewed by Gen. Robert Abrams, the commander of U.S. Army Forces Command (FORSCOM), who is the convening authority in charge of Bergdahl’s case. Abrams will ultimately decide whether the case should go to a court martial and if so whether it should be a general court martial or a special court martial. Under military rules convening authorities can disagree with a recommendation made by Article 32 presiding officers, though it is not a common occurrence.
"As legal action is ongoing, we continue to maintain careful respect for the military-judicial process, the rights of the accused, and ensuring the case's fairness and impartiality," FORSCOM spokesman Paul Boyce said when asked to comment on Visger's recommendation. "We will notify the public and interested news media when further information about this ongoing legal action potentially is available."
During the Article 32 hearing, Maj. Gen. Kenneth Dahl, who led the exhaustive investigation of Bergdahl’s case, testified that he did not believe Bergdahl deserved jail time if the case went to a court martial and resulted in a conviction.
"I do not believe that there is a jail sentence at the end of this process," Dahl said. "I think it would be inappropriate."
In June 2009, Bergdahl walked away from his unit's remote outpost in eastern Afghanistan and was quickly captured by the Taliban who held him captive for nearly five years. He was freed in May 2014 in a controversial exchange for five Guantanamo detainees who had been Taliban leaders.
Bergdahl did not testify at the Article 32 hearing, but evidence presented at the hearing indicated Bergdahl had left his post in a bid to highlight problems in his unit to a general located 19 miles away.
Dahl described Bergdahl as "young, naive, and inexperienced" and that after five years of captivity "I believe he is remorseful."