Update: According to this Military Times report by Michelle Tan and Andrew Tilghman, “the Army says there is no truth to media reports claiming a decision has been made to charge Sgt. Bowe Bergdahl with desertion.”

A number of news outlets are reporting that Army Sergeant Bowe Bergdahl, who was held by the Taliban for a half-decade before being released in exchange for five Guantanamo prisoners, has been charged with offenses related to his capture.

According to this Reuters / NBC report:

U.S. Army Sergeant Bowe Bergdahl, who disappeared from his base in Afghanistan in 2009 but was released last year in a prisoner swap with the Taliban, will be charged with desertion, according to NBC.

The television network, citing senior defense officials, said the charges could come within a week.

Reuters could not immediately confirm the report, and Bergdahl’s attorney was not immediately available for comment.

But according to this report from the UK’s Daily Mail, Sergeant Bergdahl has already been charged:

Speaking on Fox News’s The O’Reilly Factor, [retired Lieutenant Colonel Tony Shaffer] said: ‘His attorney was given what we call a charge sheet. A charge sheet is results of the investigation listing out the articles of the Uniform Code of Military Justice that have been violated. The key violation is desertion. And this has been done. The decision has been made. Let me be very clear. As a corporate entity, the Army has decided that they want to pursue Bergdahl for this violation.’

Sgt. Bergdahl was captured by the Taliban after he left his unit without permission in 2009. 

And here is the video of the report on The O’Reilly Factor:

You can read all of our coverage of the Bergdahl case here.

23 Responses to “Bergdahl to be (or already is) charged with desertion”

  1. DCGoneGalt says:

    It is possible that the Daily Mail article and the video interview refer to an advance charge sheet being provided to the defense.  Based on the multiple reports on whether charges have been preferred or not, I think that is the most likely scenario. 

  2. stewie says:

    I think a conviction is likely (not knowing what docs will say about Bergdahl’s mental culpability).
     
    But one wonders if a discharge is as likely.  Some panel members are going to think he’s been punished enough for his actions, and they aren’t going to want him to be without resources, and they know he’ll be administratively separated anyways.

  3. Sea Lawyer says:

    Hmmm.  Now the question must be asked: was it worth five TB Commanders to bring this Soldier to justice?  
     
    Interesting that the Army is not charging him with intent to remain away permanently. According to the NBC report, he’s being charged with intent to avoid hazardous duty or shirk important service.
     

  4. stewie says:

    Well, it’s a lot easier to prove in this case I think.

  5. DCGoneGalt says:

    Stewie:  Based on the evidence we have seen discussed thus far I would agree with you.  However, I would imagine much of any trial would be closed due to the classified evidence that would be necessary to convict/defend.  That is even more important in sentencing where I would imagine much of the evidence Pvt Bergdahl (and perhaps the Government) would want to put on may have its’ release refused by the classification authority.  I may be wrong (please discuss if you know) but if that is the case then no punishment would be the result.  (For those familiar with a high-profile AF court-martial of a JAG in 2009, although that involved a White House non-disclosure agreement).

  6. stewie says:

    I don’t know.  I would assume that the issue in sentencing would be the conditions he faced.  Why wouldn’t Bergdahl be allowed to talk about those conditions? I don’t think what was done to him would be considered so highly classified that he couldn’t even tell the fact-finder, in a closed hearing with a sealed transcript.
     
    I suppose the rescue part might be at issue, but not sure that part really is so fundamentally necessary that it would result in no punishment or the sentencing being abated. I also wonder if the government might not take, and the defense would probably offer, a deal to plead to something, in exchange for no kick.  I don’t think he would get jail time, even from a panel that is angry at him, given he’s served five years effectively in conditions much worse than confinement.

  7. TBeckett says:

    Based on reports, they could charge him with holding correspondence with the enemy.

  8. Joseph Wilkinson says:

    …and they aren’t going to want him to be without resources…
     
    If he’s separated for desertion, even administratively, he’s not getting VA benefits.  Though that may not have been the resources you meant.

  9. stewie says:

    Yeah, I had a more expansive view of benefits than just VA benefits.  Lot of bad baggage comes with a BCD/DD that doesn’t come with a general under honorable conditions (which is what he would likely be limited to if the court doesn’t discharge him).

  10. Joseph Wilkinson says:

    The Army now claims the decision hasn’t actually been made yet.

  11. Some Army Guy says:

    “As a corporate entity, the Army has decided that they want to pursue Bergdahl for this violation.”
     
    The Army “as a corporate entity” forwarded the case to the FORSCOM CG to take action as he deemed appropriate.  If the Army “as a corporate entity” decided to prefer charges, it would be quite the UCI bomb.
     
    From a practical standpoint, charging these cases can be quite difficult.

  12. DCGoneGalt says:

    Tin Foil Hat On:  Perhaps the appropriate Army commander (not the Army as a “corporate entity”) wants to prefer and many in uniform within the Army leadership are supportive of that decision.  The leaks on a pending preferral could be designed to limit the wiggle room of civilian DOD leaders and/or White House staffers to “manage” the disposition.   

  13. Charlie Gittins says:

    OK, dumb question.  The DP is authorized for desertion in “time of war” which would exempt the charge from statute of limitations of 5 years.  But it does not sound like they have chared with the “in time of war” language, which makes it not a DP case and, therefore subject to the SOL.  I am guessing no one preferred charges and delivered them to the SCMCA on or around June 30, 2009, when he went missing.  5 years would have run on June 29, 2014.  If they are just now preferring charges, it seems to me the SOL has run against the Government.  Am I missing something?

  14. DCGoneGalt says:

    Mr. Gittins:  With a desertion/AWOL offense, would the SOL not begin to run until the Accused is back in custody/control of the Government?

  15. stewie says:

    Nope.
     
    Art 43(c) says you don’t count the time while the accused is absent without authority in the SOL computation.
    Art 43(d) says you don’t count the time while the accused is “absent from territory in which the US has the authority to apprehend him” or “in the hands of the enemy” in the SOL computation.
     
    Neither appear to require a time of war.

  16. Lieber says:

    besides 43(c) and (d), there’s also the possibility that there was a DFR charge sheet.  though I doubt it since his pay apparently wasn’t stopped.  which leads to a very interesting question as to how the charge sheet will read on the duration of the 85/86.  it could be as narrow as two days or as long as the entire duration of captivity or could last from the time he left until his escape attempt.  but getting that wrong could be a fatal error in charge sheet construction

  17. Joseph Wilkinson says:

    Lieber – but if they did a DFR charge sheet, there is no need to take that one to trial.  (A good thing too.  I’ve seen a “deserter warrant charge sheet” that was obviously drawn up by S-1 with the adjutant, instead of the JA, serving as notary.) 
    In fact, if there is a “DFR charge sheet,” it should be dismissed because it can count as a preferral for 707 speedy trial purposes.  See U.S. v. Young, 61 M.J. 501, 504-05 (Army Ct Crim App 2008).
     
     
     

  18. Lieber says:

    JW: oh, I know all about the effects of a DFR charge sheet.  I’ve seen multiple cases dismissed because of it.  I’m just saying it could solve the SoL issue if there was one.

  19. Charlie Gittins says:

    Well, it has been a long time since I had a SOL issue.  Quite a few changes to Article 43 since I last had a SOL issue, I see.  The last amendment I recall was the one that extended the SOL for child sex abuse, so I missed a few additional amendments, I guess.  THanks for the edu-ma-cation!
     

  20. Dew_Process says:

    Hypothetically, what about the defenses of “waiver” or “condonation?”  He was a PFC when he “went missing,” was promoted by the Army in absentia to Specialist [E-4] and again in absentia to Sergeant [E-5].  If there was a DFR charge sheet, that wouldn’t have happened.  But, if he was presumed to be a POW, it would have.
     
    What no one knows (other than the Army investigators and presumably his attorneys) is what Bergdahl told his “de-briefers” after his return . . . .  It may not be admissible other than potential impeachment, but that wouldn’t preclude preferral.

  21. stewie says:

    Hmmm…I don’t know.  Let’s propose an alternate scenario.  Someone goes AWOL, but while AWOL gets promoted because no flag was done.  (Let’s assume he’s already on the list, and it’s automatic).  In this case though, it might, because it certainly is evidence that at some point (the promotions) the government was not treating him as a deserter.
     
    But that’s ameliorated perhaps by the fact that the government didn’t know exactly how, or why he left, now they do.

  22. Charlie Gittins says:

    There is a specific statute that provides for non-competitive promotion of POWs.  McCain was shot down as LT and left N Vietnam a Commander and was later promoted to Captain following a tour as a CO of an attack squadron in Florida.  Because Bergdahl’s status was apparently listed as POW, he would have been promoted non-competitively with his peers.

  23. RS says:

    His prosecution will/would be a major black eye on the Obama administration – one that has not been above politics, hiding the ball, trickery, stonewalling, and other nefarious low-ball acts.  Given this, and the unusual months and months of delays, I would not be shocked if this gets slow-walked until Berghdal is ETS’d and no longer under UCMJ jurisdiction.  Nobody would complain of course… 
    What should happen is that he’s charged with desertion, and also charged with the deaths of those service members who died looking for him, as forseeable losses during the commission of his crime of desertion, required to repay all the ill-gotten income since his desertion, and charged with the cost of the searches for him and recovery of him in the form of massive fines for him or his estate.  In short, this turkey needs to face prosecution and conviction for what everyone knows really occurred from the open source information available.