Lawyers for Sgt. Bowe Bergdahl have filed a motion to have Gen. Robert Abrams, the commanding general of Forces Command, removed from the case.
The motion, filed Aug. 12, calls for Abrams to be disqualified as the general court-martial convening authority because of his "substantial prior involvement" in the case.
The motion also states Abrams referred charges against Bergdahl "without considering defense objections to and comments on the report of the preliminary hearing officer," and burned letters of support he received that would have been "evidence favorable to the defense."
In addition to disqualifying Abrams as the convening authority, the motion also asks that the charges against Bergdahl be dropped. And if any charges are "re-referred" against Bergdahl, he should not face any punishment if he’s found guilty, according to the motion.
"This motion is part of an ongoing series of legal motions by defense counsel and trial counsel," said Paul Boyce, a spokesman for FORSCOM, in a statement to Army Times. "We continue to maintain careful respect for the military judicial process, the rights of the accused, and ensuring the case’s fairness and impartiality during this ongoing legal case."
The next hearing in the case, an Article 39a legal motions hearing, is scheduled for Aug. 22 at Fort Bragg, North Carolina, Boyce said.
The court-martial is scheduled to begin Feb. 6 at Fort Bragg.
Bergdahl disappeared from Combat Outpost Mest-Lalak in Paktika province, Afghanistan, on June 30, 2009. He has been accused of leaving his patrol base alone and intentionally before he was captured by Taliban insurgents.
He spent five years as a captive under the Taliban before he was freed in a May 31, 2014, prisoner swap that also freed five Taliban leaders from the U.S. military prison at Guantanamo Bay, Cuba.
He is now assigned to a desk job at U.S. Army North at Joint Base San Antonio-Fort Sam Houston, Texas.
Bergdahl is charged with one count of desertion with intent to shirk important or hazardous duty, and one count of misbehavior before the enemy by endangering the safety of a command, unit or place.
The charges initially were referred against Bergdahl by Gen. Mark Milley, who was the convening authority and FORSCOM commander until he became the Army chief of staff last fall. Abrams inherited the case when he succeeded Milley at FORSCOM.
This is the second time Bergdahl’s legal team has petitioned to have a convening authority removed from the case. His lawyers called for Milley to be removed after he was nominated to be the Army's top officer.
In this latest motion, Bergdahl’s lawyers wrote that Abrams has "extensive prior personal involvement in a politically-charged controversy" and should not serve as a convening authority.
In that capacity, Abrams "provided daily updates to the secretary, prepared and advised him regarding military matters, and attended most of his meetings," according to the motion. He also had "first-hand knowledge of planning for the recovery of Sgt. Bergdahl," the motion states.
After Bergdahl was freed, Abrams was "in charge of receiving all updates regarding his health status and the reintegration process and updating Secretary Hagel on those matters," according to the motion.
"There is no way to know how the classified and unclassified information on which Gen. Abrams briefed the secretary shaped Gen. Abrams’ opinion of the case and its proper disposition before he assumed command at FORSCOM," the motion states. "What we do know is that he saw reams of evidence before anyone thought Gen. Milley would leave FORSCOM to become Chief of Staff and be succeeded by Gen. Abrams at Fort Bragg."
In addition to his extensive inside knowledge of the case, Bergdahl’s lawyers also said Abrams did not consider their "timely objections to and other comments" on the report from Bergdahl’s Article 32 hearing.
The Article 32 took place Sept. 17-18 at Fort Sam Houston and was conducted by Lt. Col. Mark Visger.
Visger recommended the case against Bergdahl be referred to "a special court-martial not authorized to adjudge a punitive discharge and that Sgt. Bergdahl not receive any jail time," according to the motion.
The defense submitted four pages of objections and comments on Visger’s report, according to the motion.
The motion states Abrams did not review the information; Abrams ultimately referred the case to a general court-martial, which can mete out much harsher punishment if a defendant is found guilty.
"That Gen. Abrams chose to ignore the defense submission is disturbing evidence that he was not impartial, or, in the alternative, that he could not be bothered to hear from the defense when exercising a critical quasi-judicial function," according to the motion. "Neither is acceptable."
Abrams also received "over 100 letters" concerning the Bergdahl case, but he "cannot provide the letters to the defense because he burned them," according to the motion.
The letters spanned the "full spectrum of opinion," Bergdahl’s lawyers wrote.
"There is no substitute for the letters Gen. Abrams destroyed," the motion states. "The spoliation prevents both the court and the defense from knowing precisely how many such letters there were, what they actually said, and, importantly, who wrote them and how we might get in touch with those individuals. This damage is irreparable."
The motion goes on to call Abrams’ behavior "inexcusable and baffling," and enough to disqualify him from serving as the convening authority.
The defense team then calls for the case to be sent to the Air Force secretary for "transmission to a proper Army [convening authority] … for a fresh disposition by some officer who has not had any previous involvement in the case."
Michelle Tan is the editor of Army Times and Air Force Times. She has covered the military for Military Times since 2005, and has embedded with U.S. troops in Iraq, Afghanistan, Kuwait, Haiti, Gabon and the Horn of Africa.
