If the reports we have posted from members of Sgt. Bowe Bergdahl’s platoon in the 25th Infantry Division in Afghanistan are any indication, he could, upon investigation, be subject to possible charges of desertion. The Los Angeles Times reported Facebook posts by Chairman of the Joint Chiefs of Staff, Gen. Martin Dempsey, that could make this be a distinct possibility, “Gen. Dempsey: Army may still pursue desertion charge for Bowe Bergdahl”.
Dempsey wrote on his Facebook page:
Like any American, he is innocent until proven guilty. Our Army’s leaders will not look away from misconduct if it occurred.
Any decision on disciplinary measures will be up to the Army, Dempsey said in the interview. He said he does not want to pre-judge Bergdahl or say anything that might influence Army commanders.
In the Facebook post, Dempsey said in response to “those of you interested in my personal judgments about the recovery of SGT. Bowe Bergdahl, the questions about this particular soldier’s conduct are separate from our effort to recover ANY U.S. service member in enemy captivity.”
He added: “This was likely the last, best opportunity to free him.”
Dempsey said: “I want to thank those who for almost five years worked to find him, prepared to rescue him, and ultimately put themselves at risk to recover him.”
That last comment was perhaps an allusion to the six Army personnel from his unit who were killed while conducting a search for Sgt. Bergdahl. Article 85 of the Universal Military Code of Justice, Desertion, reads as follows:
(a) Any member of the armed forces who—
(1) without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently;
(2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or
(c) Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment, other than death, as a court-martial may direct.
That prospect could be what awaits Sgt. Bergdahl after he recovers from his ordeal and evidence is presented to have him charged and brought before a courts martial proceeding.
The Los Angeles Times report cites Yale Law School military law expert, Eugene Fidell, who reviewed the conditions under which evidence might lead to a desertion charge under Article 85 and what options the Army might have available.
Bergdahl could face court-martial if the Army uncovers sufficient evidence of desertion, said Fidell. The Army might also decide to separate Bergdahl from the service through administrative procedures.
Any physical or psychological trauma could make Bergdahl unfit for continued service, Fidell said. If so, the Army would likely begin the process of arranging for retirement, medical care and other benefits.
Because the U.S. is not formally at war with the Taliban — Congress authorized military force against terrorists — a soldier serving in Afghanistan would not face the death penalty if convicted of desertion, Fidell said. The maximum penalty under these circumstances is five years in prison and a dishonorable discharge for “intent to avoid hazardous duty or shirk important service,” Fidell said.
Fidell said the military may decide that, regardless of any offenses Bergdahl may have committed, he suffered nearly five years in enemy custody and should not be punished further.
The Obama Administration seized the opportunity to exchange Bergdahl for release of five Taliban commanders and war criminals to the custody of the Emir of Qatar for a year to reduce Guantanamo’s last contingent of hard core Jihadist detainees. That has been strenuously objected to by both the Chairmen of House Intelligence and Armed services Committees and several Ranking members of similar committees in the Senate. They are calling for a investigation followed by hearings on the release of these Taliban commanders who might organize capture of other US and ISA coalition forces before the conflict in Afghanistan winds down.
Any actions against the 28 year old Army sergeant may be unlikely to come to the fore because of the objective of extracting virtually all US? ISA troops from combat operations before election day in 2016. That is, unless Congress weighs in with investigative hearings.
Brett Stephens in a Wall Street Journal op ed, The Bergdahl Dishonor, quoted a White House official saying “Frankly we don’t give a sh-t why he left”. “He’s an American soldier. We want to bring him home.” A point also made by General Dempsey. That comment came n from the June 2012 Rolling Stone piece on the Bergdahl desertion controversy written by the late Michael Hastings, “America’s last Prisoner of War.
But that belies the fact that others died trying to secure his freedom from the Jihadists, while he forsook his oath upon enlistment in the Army:
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.
Moreover, the capture of Bergdahl may have emboldened the Taliban to undertake murderous attacks using I.E.D’s and other means resulting in casualties to other US ISA troops operating in the same province. Those issues were sharpened in a Weekly Standard piece, contrasting remarks by Susan Rice, National Security Adviser, with a soldier in Bergdahl’s unit, ‘We Swore to an Oath and We Upheld Ours. He Did Not.’
In an appearance on ABC’s This Week on Sunday June 1, 2014, National Security Adviser Susan Rice claimed that Bergdahl “wasn’t simply a hostage, he was an American prisoner of war, taken on the battlefield.” She added: “He served the United States with honor and distinction.”
“That’s not true,” says Specialist Cody Full, who served in the same platoon as Bergdahl, and whose tweets over the weekend as @CodyFNfootball offered an early firsthand account of Bergdahl’s departure. “He was not a hero. What he did was not honorable. He knowingly deserted and put thousands of people in danger because he did. We swore to an oath and we upheld ours. He did not.
US Troops who served with Abdullah Bergdahl feared he was giving Taliban intel: “IEDs Started Going Off Directly Under The Trucks, They Were Getting Perfect Hits Every Time”
Special forces found Bergdahl and captors but wouldn’t risk rescue for “deserter”
Col. David Hunt: Bergdahl Called Unit The Day After He Walked Away Saying ‘I’ve Deserted’
Bergdahl Left Note Saying He Wanted to Renounce His American Citizenship and Go Find the Taliban