Bergdahl's desertion charge focused on shirking hazardous duty, important service
By NANCY MONTGOMERY | STARS AND STRIPES Published: April 9, 2015
Whether Sgt. Bowe Bergdahl planned to return to his combat outpost is irrelevant, according to the desertion charge the Army has brought against him.
Whether he left to report misconduct to the nearest four-star general, as a letter from his lawyer seems to indicate, also probably doesn’t matter from a legal point of view, according to military justice experts.
Bergdahl, who spent five torturous years held captive in Afghanistan after disappearing from his post in Paktika province in June, 2009, is charged under Article 85 of the Uniform Code of Military Justice with desertion with “the intent to shirk important service and avoid hazardous duty.” It carries a potential penalty of up to five years in prison, dishonorable discharge and forfeiture of all benefits.
Winning a conviction would require a prosecutor to prove the duty that Bergdahl missed by his absence was in fact hazardous or important, and that he missed the duty with intent. On the face of it, experts said, it looks like the government has a pretty good case.
The charge sheet — excerpts of which are posted on the National Institute of Military Justice’s CAAFLOG website — specifies that Bergdahl quit his post with the intent to avoid combat operations, guard duty and combat patrol duties in Afghanistan. Those three things would appear to be “hazardous duty and important service,” as defined by military courts.
Hazardous duty is defined in military law books as one that involves danger, risk, or peril to the individual performing it. Important service is defined as that which is more significant than the ordinary, everyday service.
Hazardous duty can be difficult to prove because not everyone in a combat zone performs it. But almost any duties performed in combat zones count as important service, the courts have found.
There are two more “conceptual hurdles” prosecutors must clear to win convictions in such cases — most often brought when a servicemember overstays an authorized absence — according to a 2012 Army Lawyer article by Capt. Joseph D. Wilkinson II.
One is explaining the difference between an unauthorized absence and a desertion. Many people incorrectly believe that AWOL troops become deserters after 30 days, when they’re dropped from the rolls.
But the distinction between AWOL and desertion is a servicemember’s intent.
“A soldier could be absent for only three hours, but if he intended to shirk important service or remain away permanently, he would still be guilty of desertion, even if he changed his mind or turned himself in afterwards,” according to Wilkinson. “On the other hand, a soldier could be gone for eight months, but if he never had the intent to shirk important service or to remain away permanently, he would not be guilty of desertion.”
But what is intent?
According to a letter released last month by Bergdahl’s lawyer, Eugene Fidell, a command investigation into the soldier’s disappearance “…concludes that his specific intent was to bring what he thought were disturbing circumstances to the attention of the nearest general officer.”
But that scenario probably makes no difference to the charge. Such a plan is motive, not intention, the courts have found.
“The defense may wish to argue that the soldier’s intent was not to shirk important service, but to nurse the sick and do community service,” Wilkinson writes. “However, case law distinguishes between intent and motive.”
One such case from the Vietnam era, according to Wilkinson, involved a soldier who missed several weeks of pre-deployment training, which counted as “important service.” He said missing important service was not his true intent, that he’d had to visit his dying grandmother and resolve a problem with his citizenship.
“Appellant’s actual motivation for leaving his unit is unimportant, if as a consequence of that unauthorized absence appellant had reasonable cause to know that he would avoid important service,” The Army Court of Criminal Review said in upholding the conviction.
“The intent to stay away, combined with the knowledge that he was missing important service by staying away, was enough to establish his intent to shirk important service,” said Wilkinson, “This is true regardless of what else he intends to do or what motivates him to stay away, and even if he means to return to his unit later on.”
According to Wilkinson, however, despite the court opinion’s use of the term “reasonable cause” to know, to be found guilty, the accused must have “actual knowledge” of the hazardous duty or important service.
That idea was also upheld in the case of an Army Reserve captain, a doctor, who declined to mobilize with the rest of her unit at the beginning of the Gulf War. The captain’s defense was to be that she’d stayed away because of her belief that the war would be unlawful; that she had a good-faith belief that war crimes would be committed, and that she believed she was authorized under the Nuremburg Principles and Law of Land Warfare to refuse to participate.
But the military judge didn’t allow most of that defense to even be presented to the jury. The judge ruled it was evidence of motive, not evidence of intent. The captain was convicted and sentenced to 30 months in prison, total forfeitures, and dismissal from the service.
The military’s highest appellate court affirmed the conviction, finding that all of the captain’s reasons for refusing to deploy were irrelevant.
Fidell declined to comment on the charges against Bergdahl and what defense he might propose. But in the letter he wrote to the commander in charge of the case, he discussed the idea of “constructive condonation.”
That concept, sometimes used in desertion cases, and also in divorce cases, is that if a wrong appears to be forgiven or forgotten — by reinstating a deserter to duty or sleeping with an unfaithful spouse — it is condoned and may be dismissed.
‘’Cognizant (general court-martial convening authorities) have had ample reason to believe Sgt. Bergdahl had deserted by the time he resumed regular duty on July 14, 2014,” Fidell’s letter said, yet an Army spokeswoman told the media that Bergdahl would ‘return to regular duty...,’ ” Fidell wrote.
Fidell’s letter also addressed the unique situation in Bergdahl’s case. If Bergdahl were seized by the Taliban shortly after he left the post, he would not have been voluntarily absent. “There is no case law squarely on point but it would be preposterous to in effect penalize him for the fact that he was held illegally by the Taliban for five years,” Fidell wrote.
Bergdahl is also charged with misbehavior before the enemy. That charge, which carries a potential maximum penalty of life imprisonment, contends that Bergdahl’s absence was misconduct that endangered his unit.
At this point, the future of the highly politicized case is far from clear. Whether enough evidence against Bergdahl exists to proceed in his prosecution at court-martial will be examined at a July preliminary hearing at Fort Sam Houston., Texas.