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).

12 Responses to “The Army has no choice: Bergdahl must face a court-martial”

  1. Defense Wizard says:

    A finding of serious misconduct could also lead to a General Discharge, which would leave him with most of his benefits and still afford him due process. The separation process allows for rebuttal or even a hearing (if an OTH discharge is on the table or the Soldier has greater than six years TIS).
    I suspect that the magnitude of the misconduct is the true reason for the CM. Going AWOL is bad, but going AWOL in a combat zone is worse. That being said, I could see a judge giving him a reduction, discharge and no confinement, and letting the unit chapter him with no less than a GD.

  2. David Brahms says:

    They have a choice! We in the Navy/Marine Corps in 1973 decided not to prosecute returning POWs suspected of bad behavior while in captivity.  The world did not end. I believe we made the right decision. Yes, we took a lot of flack.

  3. Joseph Wilkinson says:

    A finding of serious misconduct could also lead to a General Discharge, which would leave him with most of his benefits and still afford him due process
     
    If he’s separated for desertion (which is the crime he committed), he’ll be barred by statute from most VA benefits, even with a general discharge.
     
     
    The world did not end.
     
     
    The world didn’t end, but the U.S. military (including even the Marines) had a huge problem with morale and discipline in that era.  Not the best time to emulate.

  4. Joseph Wilkinson says:

    (according to this, it took “nearly a decade” to rebuild the military after the 70’s.   Before my time.)

  5. Concerned Defender says:

    In a military that routinely prosecutes (mostly) men on a mere allegation of misconduct and nothing else, the prosecution of Bergdahl is the right decision.  He would otherwise presumably receive a windfall, if he hasn’t already, of back pay.  In my view the whole thing was a sham and debacle, and the only way to make it right is a trial which I believe should result in a conviction.  His defenses are laughably poor in my view.  Ignorance?  Naive?  Had to walk to the next base – apparently an email or phone call was insufficient…  He was clearly misguided, disgruntled, and narcissistic; perhaps even unpatriotic.  Nevertheless, it’s the right call to send him to trial and hopefully he’s convicted. 
    As a former Army officer, and as a tax payer, I fully believe that men died while looking for him as primary or secondary missions, and these searches and his ultimate recovery cost us millions of dollars and also released five very dangerous terrorists in the swap.  None of this sets well with me.  I’ll add that having read the investigation, like so many politically motivated investigations, it was a joke and the findings and recommendations did not match the facts, which were inadequately gathered in my view.  I have no faith in that IO whatsoever given my review of another bungled investigation with his signature on it.  I digress. 
    While sympathy for Bergdahl’s injuries is mitigating, it is no more exonerating than any other criminal injured during the commission of his crime.  Becoming a long-term tortured MISCAP/POW is a direct and foreseeable result of going native and wandering off into hostile territory.  I seem to recall a few pre-deployment readiness briefings on this point, so it’s hard to claim he didn’t know.  Frankly, he’s lucky his fate wasn’t a beheaded AQ video, and should be thankful he’s alive.  Unlike his brothers that went looking for him and didn’t come home; those that had their deployments extended; those that had lost resources which were diverted to find him, etc.
    I agree with JW, the 1970s are not the model of the US Military to emulate.  Rife with low morale, poor training, and draftees that simply didn’t want to be there.  A far cry from someone who twice enlisted during a time of war, knowing he’d be going to war, to only then (allegedly) desert.  Sadly under the current model, low morale is exactly where the military is heading if you talk to senior leaders today as I often do.  A Bergdahl acquittal will do significant harm to morale in my view, given the overwhelming hatred among the ranks for the guy. 
     

  6. Zachary D Spilman says:

    I think there’s an enormous distinction, David Brahms, between someone who committed misconduct while in captivity and someone whose captivity was the result of their own misconduct

     

  7. stewie says:

    Enormous? Not really. How so? I can think of misconduct while in captivity worse than the alleged misconduct that Bergdahl did to get into captivity quite easily.
     
    And I also disagree that the Army “has” to court-martial him. They can determine that he was AWOL for purposes of tolling his enlistment time.  That’s not a criminal determination and does not require the due process of a trial.  He can then have an admin sep board which is sufficient due process for everyone else and certainly overall would likely result in as good of a result if not better for him than a trial.
     
    I disagree with your entire premise, whether or not you believe he should be court-martialed is a completely separate, fact-based determination, it has nothing to do with the Army “having” to do it.

  8. Saul says:

    Stewie – Your point that the Army does not HAVE to court-martial him is absolutely correct in my humble opinion.  He should be brought to trial, but there is a conscious, deliberate decision to be made. 
    Zach is right that there is an “enormous distinction”.  Not a distinction as to character or severity of the offense necessarily (depending on the specific misconduct), but a distinction nonetheless. Frankly, most of us cannot definitively say what we would do if held captive, but many of us can say that we did not walk off the FOB/COP while deployed, partly (perhaps exclusively) because of the foreseeable consequences.

  9. Denise Vowell says:

    There are certainly parallels to the trial of SGT Jenkins, who deserted to North Korea in the 60s and who was tried for that offense some 40 years later.
     

  10. stewie says:

    Saul, depends.  Someone is captured, then turns against his fellow detainees/POWs for better treatment/favors, or gives up secrets for better food, both worse then walking off a FOB while deployed by far.

  11. Matt Smith says:

    This may have been discussed before, but are there procedural due process issues implicated by the differences in end of service characterizations amongst the different branches of the military?

  12. John O'Connor says:

    “This may have been discussed before, but are there procedural due process issues implicated by the differences in end of service characterizations amongst the different branches of the military?”

     
    Matt Smith, I don’t know why there would be.  You murder someone in Texas, you might get the death penalty, while you don’t if you murder someone in New York.  You join the Army, you get the Army’s rules.  You join the Marine Corps, you get the Marine Corps’ rules.  Not every case of differential treatment is a due process issue, particularly when people are differently situated (by virtue of joining different services).