Army charges Sgt. Bowe Bergdahl with desertion
By JON HARPER | STARS AND STRIPES Published: March 25, 2015
WASHINGTON — The Army announced Wednesday that Sgt. Bowe Bergdahl, who disappeared from his unit in Afghanistan in 2009, has been charged with desertion and misbehavior before the enemy, offenses which could send him to prison for life.
Bergdahl is charged with one count of Article 85 and one count of Article 99 under the Uniform Code of Military Justice, U.S. Army Forces Command Col. Daniel King said in a statement delivered at Fort Bragg, N.C.
Article 85 is "desertion with intent to shirk important or hazardous duty.” It carries a maximum potential punishment of a dishonorable discharge, reduction to the rank of private, total forfeiture of all pay and allowances, and five years in prison.
Article 99 is "misbehavior before the enemy by endangering the safety of a command, unit or place." It carries a maximum potential penalty of dishonorable discharge, reduction to the rank of private, total forfeiture of all pay and allowances, and life in prison.
Bergdahl, who turns 29 Saturday, spent almost five years in captivity after walking off his post in eastern Afghanistan in June 2009 and falling into the hands of insurgents.
Fellow soldiers have accused Bergdahl of deserting his unit at Combat Outpost Mest-Lalak in Paktika province, and some have said that servicemembers died while searching for him.
At Fort Shafter, Hawaii, some soldiers said they’d barely followed the Bergdahl saga. But others offered little sympathy for him.
“He knew what he was getting into when he signed up. Since he deserted, yeah, he should get what’s coming to him,” said Sgt. 1st Class Donald Stenger with 311th Signal Command.
He said when news broke of Bergdahl’s return from captivity last year, there was plenty of discussion about him among the soldiers with whom he works.
“The general consensus seemed to be, ‘Damn traitor jumped ship. Get rid of him.' ”
Spc. Bryce Beauchamp said he’d come to believe Bergdahl was a deserter based on statements made by men from Bergdahl’s platoon, “and just the way he’s behaved since he got back,” Beauchamp said. “He won’t even go see his family. He won’t go meet his parents face to face.”
Asked what he thought would be a fair punishment, Beauchamp said without hesitation, “Death penalty.”
A prolonged Army investigation and review process began in June 2014, just weeks after Bergdahl was freed.
King said Army officials associated with Bergdahl’s legal case cannot discuss or disclose the findings of the 2014 investigation while legal actions are pending “out of respect to the judicial process, the rights of the accused and to ensure the proceeding's fairness and impartiality.”
The investigation into the circumstances of Bergdahl’s disappearance and capture is currently being treated as potential evidence in the pending Article 32 preliminary hearing, which will take place at Fort Sam Houston, Texas, King said.
The date of the hearing has not been announced.
An Article 32 preliminary hearing is similar to a civilian grand jury inquiry. It is designed to determine whether there is sufficient evidence to merit a court-martial. Based on the outcome of the hearing, a general court-martial convening authority will decide whether to refer charges to a general court-martial, refer the charges to a special court-martial, dismiss the charges, or “take any other action deemed appropriate,” according to King. One important difference in the military process is that the defendant and defense counsel are present for the hearing and can cross-examine witnesses.
Sen. John McCain, R-Ariz., who spent more than five years as a prisoner of war in North Vietnam, praised the decision.
“This is an important step in the military justice process towards determining the accountability of Sgt. Bowe Bergdahl,” he said in a statement. “I am confident that the Department of the Army will continue to ensure this process is conducted with the utmost integrity under the Uniform Code of Military Justice.”
The UCMJ defines desertion as intent to leave a unit “permanently.” Walter Huffman, a former judge advocate general of the Army, explained that the legal threshold for proving that degree of intent is extremely high.
“Sometimes the military eventually opts out of pursuing a desertion charge because they don’t think they can show that there was intent to stay away permanently,” said Huffman, a retired Army major general.
John Altenburg Jr., who served as the Army’s deputy judge advocate general from 1997 to 2001, added that proving intent is “a matter of getting inside the person’s head. How do you prove that a person was going to stay away permanently instead of five or even 10 years? That’s a difficult thing to do.”
Without a confession from Bergdahl, military lawyers would need to rely on circumstantial evidence to prove his intent, including statements from members of his unit and Afghan villagers who may have come in contact with him after he left the U.S. base.
Depending on the outcome of the Article 32 hearing, Eugene Fidell, Bergdahl’s attorney, could request an administrative solution to his client’s case by requesting that the military discharge Bergdahl in lieu of a court-martial.
“But given the amount of time spent on this case and the sensitivity of it,” Huffman said, “I’m not sure the military would agree to do that. Part of the reason for seeking a court-martial would be to deter others from this kind of behavior, if he acted as charged.”
Bergdahl remains on active duty and has been working in an administrative position at Fort Sam Houston since he transitioned out of medical observation last year.
Prior to the Army’s decision, Bergdahl faced a wide spectrum of possible outcomes, ranging from no legal action and an honorable discharge, to being charged for desertion in a warzone.
Some officials have suggested that the Army should not bring the hammer down on Bergdahl, arguing that his years spent as a militant prisoner were punishment enough.
Bergdahl’s legal situation and the circumstances surrounding his disappearance from his unit aren’t the only sources of controversy in his case. The way the Obama administration secured his release from militant captivity also drew criticism.
The soldier was being held by the Taliban-affiliated Haqqani Network, which had been designated a terrorist organization by the State Department. In exchange for his freedom, the Obama administration released five Taliban detainees from the U.S. military prison at Guantanamo Bay, Cuba.
Bergdahl was handed over to American special operations forces in Afghanistan in May 2014.
Republican lawmakers and other observers accused President Barack Obama of jeopardizing national security by releasing people who could rejoin the battlefield and take up arms against the United States.
Obama and the Pentagon brass defended the swap, saying that the U.S. government does not leave men and women in uniform behind, regardless of the circumstances of their capture.
Obama administration officials also denied that they broke the long-standing U.S. policy of negotiating with terrorists, saying negotiations with Bergdahl’s captors were conducted through intermediaries, including the government of Qatar.