Note: Later today I will be part of the a free webinar on the Bergdahl case presented by the Young Lawyers Division of the American Bar Association. You can register here.
The Army’s prosecution of Sergeant Robert Bowdrie (“Bowe”) Bergdahl (CAAFlog news page) for desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and misbehavior before the enemy in violation of Article 99, was our #8 Military Justice Story of 2015.
As the case progresses many wonder why Bergdahl faces prosecution after nearly five years of brutal captivity in the hands of insurgents. The facts of his capture are relatively undisputed – in a moment of severe naivete (or narcissism) he walked away from his combat outpost and into the Afghan wilderness – and the subsequent half-decade of maltreatment he suffered is undoubtedly a harsh price to pay for his terrible decision. Yet Bergdahl faces a general court-martial and the possibility of confinement for life without the possibility of parole. Why, one wonders, would the Army subject him to such a court-martial?
It’s because the Army has no choice.
Bergdahl was in captivity for so long that his enlistment in the Army expired. The Army can keep him on active duty past the expiration of his enlistment voluntarily (with his consent) for the purpose of medical treatment (10 U.S.C. § 507). It can also keep him on active duty involuntarily for the purpose of a court-martial prosecution (10 U.S.C. § 802(a)(1); United States v. Douse, 12 M.J. 473 (C.M.A. 1982)). But if it doesn’t keep him on active duty, then it must discharge him and give him a characterization of service.
And for a soldier who is discharged at the expiration of his enlistment, only an Honorable Discharge is authorized.
Army Regulation 635–200 regulates the administrative separation of enlisted soldiers (including upon completion of obligated service) and states in two places that the only kind of discharge Bergdahl may receive upon completion of his service obligation is an Honorable Discharge:
Only the honorable characterization may be awarded a Soldier upon completion of his/her period of enlistment or period for which called or ordered to AD or ADT or where required under specific reasons for separation, unless an entry-level status separation (uncharacterized) is warranted. (See para 3–9a and chap 11.)
AR 635-200, Chapter 3-7(a)(1) (emphasis added).
A Soldier being separated upon expiration of enlistment or fulfillment of service obligation will be awarded a character of service of honorable, unless the Soldier is in entry-level status and service is uncharacterized.
AR 635-200, Chapter 4-5 (emphasis added). The same rule applies in the Air Force (AFI 36-3208, Chapter 2.2). However, a less-favorable General Discharge is authorized at the expiration of an enlistment in the in the Navy (MILPERSMAN 1910-104), Marine Corps (MCO 1900.16, paragraph 1004.2(b)(1)), and Coast Guard (COMDTINST M1000.4, Chapter 1.B.11.l).
Simply discharging Bergdahl with an Honorable Discharge is the functional equivalent of finding that he did not commit serious misconduct. However, because there are numerous controversies surrounding his capture and the search and rescue operations that followed (particularly the claim that people died looking for him), and because his return received enormous publicity, the Army can’t make such a finding quietly or summarily.
Now the Army could administratively determine that Bergdahl’s capture was an unauthorized absence caused by his own misconduct (see Army Regulation 600-8-4), and therefore his enlistment obligation was tolled during his absence (see 10 U.S.C. § 972), making it possible to administratively separate him for misconduct and give him something other than an Honorable Discharge. However that would require finding that Bergdahl did commit serious misconduct (and would likely deprive him of significant veterans’ benefits) without affording him the protections of a trial.
Both options are bad, leaving the Army with only one choice: Trial by court-martial where Bergdahl will either be convicted (and receive an appropriate punishment) or acquitted (and subsequently honorably discharged).