Appeals Court Reinstates Bergdahl's 2017 Conviction and Dishonorable Discharge

Q: What undisclosed conflict of interest almost cleared a notorious soldier's record before an appeals court intervened?

The conflict was military judge Col. Jeffrey Nance’s undisclosed application for a Justice Department job as an immigration judge while he was presiding over Bowe Bergdahl’s 2017 court-martial. That issue nearly wiped out Bergdahl’s conviction because U.S. District Judge Reggie Walton ruled in 2023 that Nance’s failure to disclose the job application created a potential conflict of interest and undermined the fairness of the proceedings. Walton then vacated the conviction and sentence. The federal appeals court did not endorse the conviction on the merits of that ethics issue. Instead, it said the district court had no power to overturn a court-martial judgment in the first place. The D.C. Circuit held that only the military appellate system, exercising direct review, can set aside a court-martial conviction. As a result, the ruling restored Bergdahl’s 2017 punishment, including his dishonorable discharge. Bergdahl’s lawyers can still seek further review, including rehearing or a possible appeal to the Supreme Court, but the undisclosed job application by the military judge was the conflict that almost cleared his record.

3 articles · Updated · The New York Times · Sep 2

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled that a lower judge lacked jurisdiction to erase Bowe Bergdahl’s military conviction, restoring his punishment.
The decision revives the former Army sergeant’s 2017 sentence, including a dishonorable discharge, in the long-running case stemming from his 2009 departure from an Afghanistan base.
Bergdahl, now 40, was captured by the Taliban hours after leaving and held for five years; an Army investigation later said he meant to report problems in his unit, and a sanity board found severe mental illness at the time.
His lawyer said Bergdahl may seek rehearing from the same panel, review by the full appeals court, or appeal to the U.S. Supreme Court.