SAN ANTONIO (CN) – Attorneys for Sgt. Bowe R. Bergdahl, the Army soldier facing life in a military prison for deserting his post shortly before falling into Taliban hands in 2009, filed an appeal Friday seeking to disqualify the convening authority presiding over his Article 32 hearing.
Eugene R. Fidell, Bergdahl’s lawyer, argued in a petition filed with the U.S. Court of Appeals for the Armed Forces that Gen. Mark A. Milley “is statutorily disqualified” as convening authority because he “has an interest other than official” given his pending nomination to become the Army’s next chief of staff.
Secretary of Defense Ashton B. Carter announced May 13 that President Barack Obama selected Milley as his pick for the position. No date has been set for the required confirmation hearing before the Senate Armed Services Committee or a floor vote by the full Senate.
Fidell argued in Friday’s petition that “the extraordinary interest” the Senate has expressed in the Bergdahl matter “deprives him of the right to discretionary general court-martial convening authority decision-making that is (and appears to be) based solely on the facts and circumstances of the case, without regard to the personal interest of that official in being confirmed for higher office.”
As general court-martial convening authority, Milley has the authority to dispose of the charges or enter into a pretrial agreement.
Earlier last month, Milley denied a defense request to recuse himself as convening authority without explanation, according to the 15-page petition.
“There are no other non-judicial remedies to exhaust,” the petition says.
The appeal was filed a day after Army officials announced Bergdahl’s Article 32 hearing had been rescheduled, at the request of the defense, to Sept. 17. The hearing, similar to a grand-jury proceeding in civilian court that is open to the public, was originally scheduled for July 8.
It will still be held at Joint Base San Antonio-Fort Sam Houston, Texas, where Bergdahl is stationed as an active-duty sergeant.
Bergdahl, 29, fell into Taliban hands in Afghanistan shortly after leaving his combat post in the Paktika province on June 30, 2009. He was held captive from June 2009 to May 2014, when he was freed in a prisoner exchange.
On March 25, the U.S. Army charged Bergdahl with desertion and misbehavior before the enemy “by endangering the safety of a command, unit or place.” The charges carry the possibility of a maximum of five years and life in a military prison.
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