In 2009, then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan. He was captured by the Taliban and held in captivity for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees. Ten months after his recovery, in March of 2015, Bergdahl (then a Sergeant) was charged with desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2), and with misbehavior before the enemy in violation of Article 99.
Bergdahl eventually pleaded guilty to both offenses without a pretrial agreement. Then, in sentencing, the defense specifically requested that the military judge sentence Bergdahl to a dishonorable discharge, and Bergdahl made it clear that he believed that a dishonorable discharge was the appropriate punishment. The military judge sentenced Bergdahl to reduction to E-1, forfeiture of $1,000 pay per month for 10 months, and a dishonorable discharge. The Army CCA affirmed the findings and sentence last month, in a published decision discussed here.
On Monday CAAF docketed a petition for grant of review inre Bergdahl’s case. The supplement to the petition is available here.
The supplement raises four issues:
I. WHETHER THE CHARGES AND SPECIFICATIONS SHOULD BE DISMISSED WITH PREJUDICE OR OTHER MEANINGFUL RELIEF GRANTED BECAUSE OF APPARENT UNLAWFUL COMMAND INFLUENCE.
II. WHETHER THE CHARGES WERE UNREASONABLY MULTIPLIED.
III. WHETHER THE MILITARY JUDGE MISAPPLIED THE SPECIFIC INTENT ELEMENT OF SHORT DESERTION.
IV. WHETHER THE MISBEHAVIOR BEFORE THE ENEMY SPECIFICATION STATES AN OFFENSE.
One particularly interesting part of the supplement is this passage, in which Bergdahl’s decision to abandon his post and assigned duties is characterized as bravery:
Charging both desertion and misbehavior was also an exaggeration. Short desertion involves a conscious purpose to shirk or avoid one’s duty. SGT Bergdahl’s absence from guard duty was a collateral consequence of his conscious purpose to travel to another base within the command. Misbehavior charges quintessentially involve cowardice, whereas this case involves a form of (misplaced) bravery.
Supp. at 22 (emphasis omitted).