Of the two charges preferred against Sergeant Bergdahl, the first is desertion. But the desertion charge against Bergdahl is special. It does not allege that Bergdahl left his unit with the intent to remain away permanently – a typical desertion charge and a violation of Article 85(a)(1). Rather, it alleges that he left his unit “with the intent to shirk important service and avoid hazardous duty” – a less common violation of Article 85(a)(2):
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.
Article 85 of the UCMJ is based in part on Article 28 of the Articles of War, which was modified in 1920 to include the language that is now found in Article 85(a)(2). See 41 Stat. 787 (1920). An early case decided by the Court of Military Appeals provides meaningful context:
Desertion with intent to avoid hazardous duty – by its very terms – connotes an absence without leave the prompting for which is a specific intent entertained by the offender to avoid the hazardous duty present or in prospect. As a matter of law, the offense is not committed by reason of a naked unauthorized absence, without more, from a unit engaged in hazardous duty. . . . In terms of legal distinction it is manifest that desertion with intent to avoid hazardous duty is not identical with absence without leave from a unit engaged in hazardous duty. Instead, the entertainment of a particular purpose lies at the very heart of the desertion offense.
United States v. Apple, 10 C.M.R. 90, 91 (C.M.A. 1953) (emphases omitted). And so, to convict Sergeant Bergdahl of the charged offense of desertion, the Government needs to prove that he had the specific intent to either avoid hazardous duty or to shirk important service, such duty or service being “combat operations,” “guard duty,” or “combat patrol duties.”
To this end, however, Bergdahl’s own words may doom him. This CNN report states that:
Sgt. Bowe Bergdahl told the military he left his unit in eastern Afghanistan in July 2009 intending to walk to the nearest U.S. military outpost to report wrongdoing, believing he could not trust his own commanders to deal with his concerns, according to sources familiar with the Army investigation.
And Bergdhal’s attorneys sent a letter on March 2, 2015, asserting that:
While hedging its bets (n.347), the [Army’s investigative] report basically concludes that SGT Bergdahl did not intent to remain away from the Army permanently, as classic “long” desertion requires. It also concludes that his specific intent was to bring what he thought were disturbing circumstances to the attention of the nearest general officer.
Letter at 7 (pages
unnumbered numbered at the top; see linked PDF at 8). Of course, it is meaningless that Bergdahl did not intend to remain away permanently. Bergdahl is charged with so-called “short” desertion, not “long” desertion. See Alfred Avins, A History of Short Desertion, 13 Mil.L.Rev. 143 (1961) (available here).
Yet if Bergdahl truly intended to make a report to the nearest general officer (after traversing southeastern Afghanistan alone, on foot, and seemingly unarmed), that doesn’t prevent a conviction for desertion. In fact, it might guarantee his conviction, because Bergdahl will be deemed to have intended the natural and probable consequences of his actions, and his ulterior motives are likely irrelevant.
Consider the prosecution of a Desert Shield era objector in United States v. Huet-Vaughn, 43 M.J. 105 (C.A.A.F. 1995), cert. denied, 116 S.Ct. 922 (1996). Captain Huet-Vaughn joined the Army Medical Corps in 1990. In December of that year she was informed of her impending deployment in support of Operation Desert Shield. But Captain Huet-Vaughn did not support American involvement in the Persian Gulf, and so she deserted. Specifically:
CPT Huet-Vaughn did not contest the fact that she intentionally quit her unit with knowledge that it was about to deploy to the Persian Gulf. The evidentiary contest arose from her desire to introduce evidence of her motives and reasons for refusing to support Operation Desert Shield. She tendered several reasons: that war crimes would be committed, that the war would be an environmental catastrophe, and that support of the war would be morally and ethically wrong. The defense conceded at trial that service in the Persian Gulf was hazardous duty and important service. The sole factual issue was CPT Huet-Vaughn’s intent when she went AWOL.
43 M.J. at 113. At trial, the military judge limited Captain Huet-Vaughn’s testimony about her motives; she was only permitted to testify:
[T]hat it was not her intent to avoid hazardous duty or shirk important service. On cross-examination she testified that she left her unit to “educate and expose the nature of what” was happening. On redirect, she testified that she “chose to–to perform what I considered a more important service to–to the American public and to try to educate it regarding the information that I had gathered and the catastrophic nature of what was happening.” Finally, she was allowed to testify that her “intent was to do what I could to prevent the war from starting.”
43 M.J. at 113. She was convicted of desertion and sentenced to confinement for 30 months, total forfeitures, and dismissal from the service.
Affirming that conviction, CAAF found that all of Captain Huet-Vaughn’s reasons for refusing to deploy were irrelevant:
To the extent that CPT Huet-Vaughn quit her unit as a gesture of protest, her motive for protesting was irrelevant. . . .
To the extent that CPT Huet-Vaughn quit her unit because of moral or ethical reservations, her beliefs were irrelevant because they did not constitute a defense. . . .
To the extent that CPT Huet-Vaughn quit her unit because she felt it was necessary to avoid a greater evil, the proffered evidence was irrelevant because it did not support a “necessity” defense. . . .
To the extent that CPT Huet-Vaughn’s acts were a refusal to obey an order that she perceived to be unlawful, the proffered evidence was irrelevant. . . .
Finally, to the extent that CPT Huet-Vaughn intended to contest the legality of the decision to employ military forces in the Persian Gulf, the evidence was irrelevant, because it pertained to a non-justiciable political question.
43 M.J. at 114-115. So too, one imagines, will be the case with Sergeant Bergdahl’s purported intent to report allegations of wrongdoing. His desire to make such a report (and its intended contents) is not evidence that he intended to avoid hazardous or important duty, nor is it evidence that he did not intend to avoid hazardous or important duty.
Notably, in affirming the conviction in Huet-Vaughn, CAAF noted that it is enough that a deserter knows or should have known that his absence would cause him to miss hazardous or important duty:
It is enough, we hold, that in a case of this nature a court-martial determine on the basis of substantial evidence that the duty was imminent, and that as a consequence of his unauthorized absence the accused in fact avoided it or had reasonable cause to know that he would do so.
Huet-Vaughn, 43 M.J. at 115 (quoting United States v. Shull, 2 C.M.R. 83, 80-89 (1952)). In Schull the court also noted that “one in the position of such an accused will be deemed to have intended the natural and probable consequences of his actions.” 2 C.M.R. at 89.
So too with Sergeant Bergdahl. It’s somewhat impossible to conclude that Bergdahl didn’t know that his departure would, naturally and probably (and even inevitably), result in him missing combat operations, guard duty, or combat patrol duties. One simply does not walk off into the Afghan wilderness, and then return to duty as if nothing happened (of course, Bergdahl’s capture intervened).
And so the question is: What did Sergeant Bergdahl actually tell the investigators? If he said that he left to find a general officer, and he acknowledged that he knew that his departure would cause him to be removed from further combat operations with his unit (such removal perhaps even forming the basis for seeking out a general officer), then that’s a confession to desertion. A strong confession, I think (though confessions are the least reliable form of proof known to the law).
Notably, Sergeant Bergdahl won’t be able to claim that he was just a whistleblower because of the element that he “quit his post.” Bergdahl’s admissions (as reported) concede that he actually did quit his post, and the letter from his attorneys doesn’t seem to dispute that point.
Perhaps we’ll get some answers at the Article 32.