gettyimages 862002370 e1508336259777 Former JAG believes Bergdahl may see little to no time behind bars

FORT BRAGG, NC – U.S. Army Sgt. Robert Bowdrie “Bowe” Bergdahl, (L), is escorted to the Ft. Bragg military courthouse following a lunch recess after pleading guilty to desertion and misbehavior before the enemy. (Photo by Sara D. Davis/Getty Images)

By Eric Dehm

Bowe Bergdahl plead guilty to desertion and misbehavior on Oct. 16th, but there are still tons of unanswered questions circling around. Was the guilty plea expected? Why didn’t he fight the charges? What kind of penalty is he likely to receive from the judge?

Instead of putting our own sea/barracks lawyer “expertise” to use, we decided to get an expert’s opinion on the matter. reached out to former Navy Lt. Cmdr. and JAG officer Brian Bouffard of Bouffard currently practices criminal defense law both in the state of Texas and in military courtrooms around the world.

bouffard Former JAG believes Bergdahl may see little to no time behind bars

Brian Bouffard served in the Navy JAG Corps and is currently licensed to practice law both in Texas and military courtrooms. (Photo courtesy

Was the Bergdahl guilty plea a surprise to the JAG community?

Bouffard: “Honestly I was a little bit surprised by it. They had made such strong efforts to fight this case, I thought they were really intending to take it to trial.”

Why do you think he entered a guilty plea?

Bouffard: “It was gonna be a hard road for him and I think the danger of getting a much more lengthy sentence, I think that they probably reduced that danger significantly by accepting some responsibility here.”

One way to reduce that is a plea bargain, but there isn’t one in place for Bergdahl. Why might that be?

Bouffard: “Could be a number of reasons. They may have gotten nothing from the government that in terms of an offer that they were willing to accept. The government may have made no offer at all. Or, there can actually be some instances in which going in without a pre-trial agreement certainly sends the message to the judge because I’m truly accepting responsibility and not because I’m getting some kind of benefit from the government.”

Does misconduct before the enemy mean that the rumors of him having helped the Taliban, or even defected to them originally, have merit?

Bouffard: “I don’t think that he has admitted anything to trying to help or aid the Taliban. I think what he admitted to is that by his actions he put his unit at some risks. That involves a couple of things. Number one, the likelihood, whether he realized it at the time or not, but the likelihood that they’d send out other soldiers to search for him, some of whom could be wounded or killed.”

What about an insanity defense? Walking outside the wire, alone and unarmed, in Afghanistan? To other service members, that seems pretty insane.

Bouffard: “He was examined and I believe he was determined to have a personality disorder and there’s also evidence that he washed out of the Coast Guard for an adjustment disorder back in 2006 before his Army recruiter decided it’d be a good idea to access Bowe Bergdahl into the Army. But in terms of a formal insanity defense, that’s not happening… you can’t plead guilty and do that… as far as just generally ‘it’s insane to do that’? yeah, I tend to agree but not necessarily in the legal definition of insanity.”

What type of sentence do you think he’s likely to receive?

Bouffard: “Even among legally trained folks, there’s a huge disparity in what we think is gonna happen. Personally, I think there’s no question that Colonel Nance (the presiding judge) is going to take into account the fact that he was imprisoned for five years by a very brutal enemy. He’s going to take into account how he was treated… I think that is going to seriously reduce the amount of potential confinement he is going to get. I’ve heard people say anywhere from 10 years at the high end to no confinement at the low end. I, personally, am on the low end. I think if he gets any confinement at all I think it is measured in months, not in years. I think they’re just gonna kick him out and let him get on with whatever life he has in store for him.”

You can hear the full interview with Brian Bouffard below. To download and listen later, click on the “share” button and select download.

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