Judge won’t drop rare misbehavior charge against Bergdahl
By COREY DICKSTEIN | STARS AND STRIPES Published: June 30, 2017
WASHINGTON — The Army judge overseeing Sgt. Bowe Bergdahl’s court-martial declined to drop the rare misbehavior charge that could land the former Taliban captive in prison for the rest of his life.
That judge, Col. Jeffery R. Nance, ruled Thursday against a motion by defense attorneys to drop the rarely tried misbehavior before the enemy charge that asserts he endangered the soldiers in his unit by leaving his combat outpost in eastern Afghanistan in June 2009. Bergdahl’s lawyers had argued prosecutors failed to name a specific offense in the misbehavior charge and wrongly used it to seek a more serious punishment than a desertion charge carries.
Nance wrote in his decision that the charge does state an offense and added the Bergdahl would have known he would be punished for leaving his post in a war zone without authorization.
“There is simply no way the accused could not reasonably have understood that his conduct was proscribed,” Nance wrote. “The government avers that the accused left his combat outpost intentionally, without authority and for the purpose of causing search and recovery operations, which he ultimately did cause… How could such alleged conduct be characterized as anything other than misconduct under any definition of the word?”
Bergdahl, 31, has admitted to Army investigators that he intentionally left Observation Post Mest to cause a disturbance that he hoped would ultimately place him in front of military brass. He said he hoped to air grievances to high ranking officers about his unit’s commanders and had no intention of deserting the Army.
The soldier was captured by Taliban fighters within hours of leaving the post and transferred to the terrorist Haqqani network, which held him in Pakistan for five years. In May 2014, Bergdahl was released in a controversial exchange for five senior Taliban commanders who had been held in the U.S. detention facility at Guantanamo Bay in Cuba.
The Army charged Bergdahl with “misbehavior before the enemy by endangering the safety of a command, unit or place” and “desertion with intent to shirk important or hazardous duty” in March 2015. The desertion charge carries a maximum sentence of five years in prison, while the misbehavior charge carries a possible life sentence.
Bergdahl has yet to enter a plea to those charges. He remains on active duty in a clerical job at Joint Base San Antonio in Texas and has not been held in pretrial confinement. His court-martial is set to begin Oct. 23 at Fort Bragg in North Carolina.