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Hearing Officer Seeks|No Jail Time for Bergdahl

(CN) - A preliminary hearing officer recommended that Sgt. Bowe Bergdahl's case be referred to a special court-martial but that the former Taliban prisoner receive no jail time, defense attorneys said Friday.

Lt. Col. Mark A. Visger handed in his recommendation to the convening authority on Oct. 5 but the Army has not made the report public.

Bergdahl's attorneys shed light on the report Friday when they released a memo to Visger saying they agree with his conclusion "that Sgt. Bergdahl receive neither jail time nor a punitive discharge," but that the charges should be disposed of "not by court-martial, but by non-judicial punishment."

"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, non-judicial punishment under Article 15, UCMJ, is the appropriate disposition," Bergdahl's military attorney wrote.

As convening authority, Gen. Robert Abrams has the final decision on whether to bring Bergdahl, 29, to trial by court-martial on charges that could send him to a military prison for 5 years to life.

"It is unfortunate that the government has not simply released Lt. Col. Visger's report, which is unclassified," defense attorney Eugene Fidell said in a statement Sunday morning.

The government began building its case against Bergdahl at a two-day preliminary hearing in September, during which details of his disappearance, capture and captivity emerged.

Bergdahl was charged in March with desertion and misbehavior before the enemy for walking away from his post in Afghanistan's Paktika province. Within hours of going AWOL in the early morning of June 30, 2009, the Taliban-linked Haqqani network captured him.

He was held prisoner for five years, wasting away in brutal conditions that almost killed him, and released in a swap for five Taliban prisoners at Guantanamo Bay.

Accusations have deeply divided the American public. Bergdahl has been portrayed as a traitor, and his May 2014 return to the United States was overshadowed by backlash at the prisoner exchange.

Bergdahl, now on active duty in San Antonio, did not speak in his own defense. He was represented by two military attorneys and Fidell, a civilian attorney and lecturer at Yale Law School.

A military expert who debriefed Bergdahl testified at the hearing that the soldier's five years of captivity with the Taliban were the worst a U.S. prisoner of war has suffered in 60 years. He endured endless beatings which became worse after failed escape attempts, suffered through years of uncontrollable diarrhea and spent three years trapped in a 7-foot metal cage.

Prosecutors conceded during closing arguments that Bergdahl "suffered greatly" but insisted that he be held accountable for walking away from his duties and single-handedly altering U.S. operations in Afghanistan.

Visger is the second Army official with deep knowledge of the case to recommend against jail time.

The Army's lead investigator, Maj. Gen. Kenneth Dahl, testified during the September hearing that sending Bergdahl to prison "would be inappropriate."

Since the hearing, Bergdahl's attorneys have sought the release of Dahl's executive summary, written after a two-month investigation. They also want the soldier's 371-page sworn statement made public.

Last week a military appellate court rejected that request, saying it lacked jurisdiction and that the request might be more appropriately addressed through a Freedom of Information Act request.

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