It’s not well-reported elsewhere, but Sergeant Bergdahl’s pleas of guilty to 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, included exceptions and substitutions limiting his desertion to only a single day.

An Army press release available here explained that:

Sgt. Bergdahl entered pleas of guilty to both charges, but indicated his period of desertion was for only one day. Following the entry of pleas, the government introduced evidence in support of the position that the period of desertion was for the entire period of Sgt. Bergdahl’s captivity. The military judge found Sgt. Bergdahl guilty of both charges with a one day period of desertion. The military judge also denied a defense motion to dismiss one of the charges as excessive, but announced he would combine both charges for sentencing purposes.

27 Responses to “Clarifying the Bergdahl pleas”

  1. Dew_Process says:

    No kidding, “not well reported.” Sort of changes the dynamics of things . . . . Stay tuned I guess.

  2. Less Concerned says:

    Explains the naked plea as the Gov would never agree to that change. 

  3. Bill Cassara says:

    But I read it on the Internet. They can’t put it on the Internet if it’s not true.

  4. Nathan Freeburg says:

    Excellent job by LTC Frank Rosenblatt and his team with today’s result. That’s how you run a defense case. 

  5. Anon says:

    But surely with no confinement that’s not sending a strong message of general deterrence and the Army, possibly all the branches, risk a troop doing this again.
    A just sentence by the MJ.  Good job by the defense team.

  6. Dre says:

    i am happy for BB. But this shows the disparity between punishment for mostly fabricated sex crimes and other serious crimes. People are doing 20 years in cases where there is no physical evidence yet BB gets to go home after endangering other people’s life

  7. Guilty Bystander says:

    “The military judge found Sgt. Bergdahl guilty of both charges with a one day period of desertion”
    No wonder it’s impossible to take military justice seriously.

  8. Jack Burton says:

    Excellent job by LTC Frank Rosenblatt and his team with today’s result. That’s how you run a defense case.

    The ‘team’ yes.  For a first time litigating a case Frank did well. 

  9. Allan says:

    Makes sense… maybe.  If he was captured within a day of deserting, he did not have the choice to come back.  He tried to get back (by trying to escape) and eventually did get back.  I am not sure how the government might prove the mens rea for a longer period.

  10. former JAG says:

    I had a desertion case once where the judge convicted the accused of desertion for the whole period of absence where in the care inquiry he only admitted possessing the requisite intent for one moment – the moment he threw away his uniforms.  Before that he wanted to come back but was afraid of facing the consequences for his other charges and after that he wanted to come back but felt he couldnt because he had no uniform.  The judge took the plea  – gone from a to b with the requisite intent at any point during the absence – guilty of desertion for the entire period.  The case was approved on the merits at appeal.  Maybe the AF judge was incorrect and you have to have the intent for the whole charge period.  not sure how the government would ever have evidence for that.  Has any case ever been overturned or reduced because the evidence of intent did not cover the whole time period charged?
    (I realize BB is unusual in that we have affirmative evidence of his lack of intent in the form of his 2 failed escape attempts, but I think its an interesting question.)
    Also, thanks Zach for clarifying the details on the plea.

  11. Concerned Defender says:

    Is there a real difference in terms of severing the AWOL or Desertion period for one who cannot physically return, and one who absented himself but cannot morally return or who lacks the courage to return?  
    I dare say the BB case has set a VERY BAD precedent. 
    Had a client once AWOL himself for extremely noble causes: Mom was dying of cancer and had nobody to care for her.  Soldier left to care for her.  Under the BB ill-logic, it cannot be illegal because someone in such a situation has an arguable MORAL confinement to care for a dying loved-one; while not as obvious as a physical confinement, it’s an actual bond.  
    I think the MJ was totally wrong on the decision and I’d expect a flood of appeals on OTHER cases and using the BB defense going forward.  
    How can an accused’s own misconduct resulting in probable, foreseeable, and proximate causes/results (capture, captivity) then BENEFIT the accused at his trial to achieve a WINDFALL result of only 1 day desertion/misbehavior?  I just cannot rationalize it.  

  12. Nick Stewart says:

    Asking an honest question here…Are the results of misconduct foreseeable when the misconduct is committed by someone whose mental capacity to foresee those results is not a given?
    If the answer is, “No, the results are of his misconduct are not foreseeable under those circumstances,” then what would bar the accused from benefit (i.e., avoiding a sentence that is appropriate for someone who does have the mental capacity to foresee such results)?

  13. Nathan Freeburg says:

    You guys are all missing why it was a one day AWOL. 

  14. Allan says:

    Nathan, please enlighten us.

  15. k fischer says:

    Is it because the Defense wanted the conviction to fall under the pre-2013 rules, so BB could be eligible for clemency, knowing that POTUS would tweet his disgust at the sentence, thereby ensuring their UCI motion would finally be granted?
    Because that’s pretty brilliant if that were the plan.

  16. Shawn says:

    OK, you attorneys correct me if I am wrong, but it wasn’t truly a naked plea after all?  Kudos to defense.  As good as OJ’s, maybe better.
    The media spin on this is fascinating, although also scary.

  17. Tami a/k/a Princess Leia says:

    Thanks for clarifying the plea Zach.
    Jack Burton, this wasn’t Frank’s first time litigating a case.

  18. Tami a/k/a Princess Leia says:

    Yes, this was a “naked” guilty plea, BB pled guilty without benefit of a pretrial agreement.  Which makes even more sense in light of the one-day desertion.  The government then gets to try to prove up the charges that BB didn’t plead guilty to, but apparently failed.

  19. Tami a/k/a Princess Leia says:

    Nathan Freeburg,
    This wasn’t a 1-day “AWOL.”  This was charged as “desertion,” which limits his intent to shirk important service to one day, the day he left.  Had the government charged his absence as an “AWOL,” then likely he would’ve been found guilty of AWOL for the entire time, as an inability to return doesn’t terminate the AWOL, though the inability to return it is a mitigating factor to consider.

  20. Casual Observer says:

    Tami, wouldn’t the impossibility defense still kick in with an 86?  Every 86 plea I’ve ever sat through had the M.J. inquire about this at length, especially in those cases where the Accused said “I didn’t have the money to return.”

  21. Tami a/k/a Princess Leia says:

    Casual Observer,
    The inability to perform a duty due to physical or financial inability, not the fault of the Soldier, is a defense.  For example, if I went on leave with a return flight, but the plane for my return flight broke down and I can’t return on time, then I am not AWOL because of the delayed return.  The plane breaking down isn’t my fault.
    However, if I go on leave, then claim I can’t return because I don’t have money for a return ticket, that is fault-based, as I shouldn’t have left without arrangements for a return flight, so then I’m AWOL if I don’t return on time.  In that situation, if I get into a car accident on the way to the airport and my return is delayed for being in the hospital, I’m still AWOL but my inability to return is a mitigating factor instead of a defense.  Does that make sense?
    In BB’s case, AWOL began as soon as he stepped away from his place of duty.  Getting captured, his AWOL would’ve continued because it was his fault he went AWOL, so that it would’ve lasted for the entire 5 year span, but his inability to return due to capture is a mitigating factor to consider, not a defense to AWOL.
    But with BB charged with desertion, which focuses on the intent when the Soldier leaves, that intent lasted only 1 day, not the entire 5 years.  Ergo, a one-day desertion.
    A guilty plea to AWOL would require the judge to inquire about inability to return to ensure the accused isn’t raising it as a defense.  If the Soldier did raise it as a defense, then the judge couldn’t accept the guilty plea.

  22. Casual Observer says:

    Tami, I reviewed the defense a couple of months ago because that was the direction I though the defense would go if this were contested. I still think it would have (arguably) applied to this case. Therefore, hypothetically, if the Defense pled naked to an 86 for one day then the Gov tried to prove a longer AWOL period, I’m not sure what the MJ would have done. I raise this only because I think your one day 85 versus longer period 86 theory might not be as clear cut as you think it is. I may be wrong but I’m pretty sure there’s no on point case law. Closest thing would be a SM confined preventing him or her returning from AWOL, but I would try to distinguish that situation from B.B. Alas, we will never know. 

  23. Concerned Defender says:

    @ Tami,Seems you’re making a distinction perhaps between a general intent and specific intent crime, which is academically interesting.  It would be an interesting discussion that perhaps the government could have/should have charged both Article 85 and Article 86 in the alternative, or bifercating the periods of time (eg 1 day desertion and the balance awol).  It does seem intellectually dishonest that the same basic behavior (e.g. you’re not here and intended to not be here for at least some of the time, and due to likely and foreseeable circumstances of your own doing you’re not here  for 5 years) that the accused gets an academic windfall.  (eg that somehow an awol charge would be more appropriate or result in a worse penalty than the proper desertion charge).You gave the example of going on leave but being unable to return due to a late plane or a storm or a hospital visit.  You’re still in violation but it’s simply mitigating.Also seems as though an AWOL should really be an LIO for Desertion, as the latter really simply includes an “intent” element. Seems the MJ probably should have allowed the government leave to correct/amend this in some fashion or found him guilty of ART 86 for the time he was gone that was not desertion.  This might be akin to, for instance, finding that a 120 is instead a 128 simple assault lacking the elements of the former but not the latter.That the MJ did not do this in some capacity seems like a windfall for the accused.  

  24. Charlie Dunlap says:

    Notwithstanding the guilty plea, could the government have gone on to prove the full period if it had wanted to do so?  Thanks, Charlie

  25. Casual Observer says:

    So turns out the Defense is out of the MCM, not the MJBB like I was looking through the last time I looked [I’m stealing liberally from the Army Criminal Law Deskbook here]:
    When a service member, already in an AWOL status, is unable to return because of sickness, lack of transportation or other disability, he remains in an AWOL status; however, the disability for part of the AWOL should be considered as an extenuating circumstance. MCM, pt. IV, ¶ 10c(6).

    Where a service member, while AWOL, is apprehended, detained and acquitted by civilian authorities, absent evidence of an attempt to return to military control, the entire period of time is chargeable as AWOL. United States v. Grover, 27 C.M.R. 165 (C.M.A. 1958); United States v. Bowman, 49 C.M.R. 406 (A.C.M.R. 1974) (while AWOL, accused was arrested and convicted for a civilian offense; civilian authorities did not make the accused available to return to military control; the AWOL continued through the entire time period he was in civilian control).
    So I think Tami’s theory would have made an open question at trial, and an interesting one at that.

  26. Tami a/k/a Princess Leia says:

    Charlie Dunlap,
    Yes, BB pled guilty to desertion of only 1 day–the day he left and got captured.  The government then tried to prove desertion for the remaining time, but apparently COL Nance wasn’t convinced he didn’t intend to shirk important service the entire time, especially since he tried to escape, so yes that is how you get the 1 day desertion.
    Now if the government had just gone with AWOL, then that would’ve opened the door wide for finding him guilty of the entire 5 year AWOL, though inability to return was extenuating.  But I think since the entire time was AWOL, all the money he got–pay, allowances, travel, etc.–out the door, and the entire 5 year span would have to be made up.  One day desertion, I think forfeited pay and allowances for that one day.  But don’t quote me on that 100% because I’m not sure about that.  DFAS thinkers could figure it out.
    So as I see the AAR on this, the first thing is the charging decision, and your desired outcome, and the risk you take with going for the most serious offense.

  27. Tami a/k/a Princess Leia says:

    Since BB wasn’t “in the line of duty” at the time of capture, he doesn’t qualify as a Prisoner of War.