Time has posted a cleansed copy of the Bergdahl charge sheet online: it’s available here.

The specifications read:

CHARGE I: VIOLATION OF THE UCMJ, ARTICLE 85
SPECIFICATION: In that Sergeant Robert (Bowe) Bowdrie Bergdahl, United States Army, did, on or about 30 June 2009, with the intent to shirk important service and avoid hazardous duty, namely: combat operations in Afghanistan; and guard duty at Observation Post Mest, Paktika Province, Afghanistan; and combat patrol duties in Paktika Province, Afghanistan, quit his place of duty, to wit: Observation Post Mest, located in Paktika Province, Afghanistan, and did remain so absent in desertion until on or about 31 May 2014.

CHARGE II: VIOLATION OF THE UCMJ, ARTICLE 99
SPECIFICATION: In that Sergeant Robert (Bowe) Bowdrie Bergdahl, United States Army, did, at or near Observation Post Mest, Paktika Province, Afghanistan, on or about 30 June 2009, before the enemy, endanger the safety of Observation Post Mest and Task Force Yukon, which it was his duty to defend, by intentional misconduct in that he left Observation Post Mest alone; and left without authority; and wrongfully caused search and recovery operations.

Our continuing coverage of the Bergdahl case is available here.

22 Responses to “The Bergdahl charges”

  1. Just Another ADC says:

    It will be interesting to see the evidence at trial concerning “intent to remain away,” considering the majority of the absence was due to captivity.  Additionally, w/r/t Charge II, “intentional misconduct” does not include a mere error in judgment. See MCM para. 23.c.(3).(b).  Also seems like there might be a decent argument that the conduct was not “before the enemy.”

  2. SgtDad says:

    Why does the charge sheet need to be “cleansed?”

  3. Zachary D Spilman says:

    That’s something of a technical term, SgtDad. A “cleansed charge sheet” is just the charges and specifications (it omits the personal data, accuser information, etc.). 

  4. Tom Booker says:

    Mr. Spillman and the lousy browser beat me to the punch on answering Sgt Dad; the “cleansed” charge sheet, also sometimes called the “flyer” (and which my principal court reporter, bless him, trained us all to call the “members’ charge sheet”) is presented to the members at the opening session and is frequently their first introduction to the charges.
    For Just Another ADC:  This is a different “flavor” of desertion from the typical desertion involving intent to remain permanently away from one’s unit.  The type of desertion with which SGT Bergdahl has been charged has as an element an intent to shirk important service or to avoid hazardous service.  Intent is almost always proven by circumstantial evidence, anyway, and for purposes of punishment, a one-day desertion is treated the same as a 5-year desertion, viz., confinement for 5 years and a DD for an 85(a)(2).  It’ll be interesting, though, if the members find merely UA instead of desertion, because length of absence does matter in those cases, and the circumstances leading to the long time away could have an impact on the maximum sentence.
    Respectfully, LTB

  5. SgtDad says:

    UA.  Is that term still used?   It was common in my time, the acronym “AWOL” being thought a Dogface abomination.  Then somone told me the naval service adopted it, too.

  6. Demosthenes says:

    The intent to remain away permanently seems like it will be a tough element to prove. If the members instead decide to convict on the LIO of absent without authority, what do you think the max punishment available for that charge would be? Could the DC successfully argue that surrender to the Taliban was a surrender to “any military authority” thereby terminating the absence at less than three days? In that case he’d only be on the hook for a month confinement and no punitive discharge available for that charge. Or does the “military” need to be one recognized under the Geneva Conventions or some similar classification that would not categorize the Taliban as an official military.

  7. Babu says:

    Article 99 is definitely in play with this fact pattern.  I would have added in “casts away his arms or ammunition” to the specification, as he left the FOB without his weapon.  That is a clear fact and a slam dunk conviction, without having to worry about proving up some of the other aspects of that spec–such as whether he really did endanger the post, and whether causing search operations should fall under Article 99.  Casting away arms is still an LWOP offense.  I think he is toast regardless, but I hate to see a case made more complex than it needs to be.  At a minimum, the PHO should recommend adding in “casts away arms” to the spec, so there are multiple theories to present at trial. When you have a talented and experienced defense counsel, complexity in charges can be leveraged into reasonable doubt.  

  8. Phil Cave says:

    SgtD, yes it’s still the appropriate term to describe the crime and it is used by the Navy, Marine Corps, Coast Guard, USPHS, and NOAA, correctly.
     
    The statute states, “Any member of the armed forces who, without authority,” not “without leave.”
    Now check the MCM for the sample specifications, which also allege “without authority,” not “without leave.”
     

  9. anon says:

    As Babu noted, there are facts that most are not privy to.  However, “presence of the enemy” element of Article 99 presents an complex question which I suspect could not be satisfied by simply demonstrating location on a FOB with possible insurgents in the general area.

  10. Lieber says:

    There is no way this is a members case.  (not that anyone takes a case to a panel in the Army anymore anyway.)

  11. stewie says:

    What if he’s tried in SA in front of a bunch of docs/nurses?  I’m not so sure it’s clear-cut that this is no way a panel case.  I’d want to know more about the potential panel and who the MJ is.

  12. DCGoneGalt says:

    Stewie makes a great point, never underestimate the wild card of a medical-heavy panel.

  13. Advocaat says:

    I’m sorry, I didn’t realize charges had been referred to trial.

  14. SgtDad says:

    There is no way this is a members case.  (not that anyone takes a case to a panel in the Army anymore anyway.)

    Could y’all explain this to dumb grunt like me?
    I have long thought Bergdahl suffers from a thought disorder, not that such a Dx exonerates him.  A panel full of docs & nurses would be far more open to letting him off the hook.

  15. stewie says:

    I agree, the mental health aspects of this will be very important to both sides.  It’s a wild card that only the participants know about and we are somewhat speculating on.  That along with how/if he testifies, whether the panel/MJ believes him, and what other evidence the government has will take this along a wide spectrum of possibilities.
     
    And yes to Advocaat’s point, there’s still the possibility of alternate disposition which is not completely out of the question.

  16. Lieber says:

    I could be wrong but I don’t believe it’s being tried at Sam Houston.

  17. stewie says:

    That was my understanding, but I have little to base that on.  Where is it being tried?  Bragg? If there, then yes, panel is a bad idea.

  18. Lyle Sanders says:

    In an earlier thread, wowzer asked why Fidell volunteered to represent Bergdahl. On the PBS Newshour, Fidell said he was asked to represent Bergdahl, but phrased it in a way that makes it sound like Bergdahl didn’t ask. On the NBC interview last year, Fidell said he was flattered to be asked to represent Bergdahl, but would not provide details. What third party would find it in their interest to have Fidell represent Bergdahl, let alone a third party that would “flatter” Fidell by asking him. Does this put Fidell in a position to serve interests other than his client? Does Bergdahl have a right to know who asked Fidell? Does the public have a right to know what third party might be influencing this case through back-channel confidential communications  with Fidell?

  19. JTS says:

    Here’s a very quick primer on the various types of desertion, specifically focusing on shirking important service, that I’ve had to rely on it in the past.  You can understand why the Government charged both shirking important service and avoiding hazardous duty  when you see the type of evidence they would need to prove it.  It also shows why Bergdhal’s lawyer is making such a big deal about the reason Berghdal intended to leave:
    https://www.jagcnet.army.mil/DOCLIBS/ARMYLAWYER.NSF/c82df279f9445da185256e5b005244ee/5596a10a4f7576e2852579e2005ba0ac/$FILE/Captain%20Joseph%20D.%20Wilkinson%20II.pdf

  20. dyskolos says:

    Word is that he will be tried at Fort Sam Houston. Contrary to popular belief, there are more than medical types assigned there. Still think it will be judge alone.

  21. k fischer says:

    First, should the language “wrongfully caused search and recovery operations” be excepted because such an operation is a collateral consequence to the Accused’s alleged desertion.  I guess the argument would be that the unit could have left him on his own and did not have to conduct search and rescue operations to find him, similar to the Government arguing that the administrative man hours involved in a court-martial was aggravation for the accused’s misconduct.  See US v. Fischer (No relation).  But, compare that to the Sailor who did a backflip off an aircraft carrier, thereby requiring the fleet to turn around to rescue him, and resulting in the Article 134, Jumping from a Vessel into the Water offense.
     
    Second, if it is, then wouldn’t the Article 99 charge be multiplicious with the Desertion charge?

  22. TBecket says:

    I agree with Babu’s thoughts about the charge sheet.  I think there will be problems with holding SGT Bergdahl accountable to the command’s decisions regarding rescue missions.  I hope the TCs are ready for a lot of motions practice.