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| Is this man guilty of desertion? Can it proven in court? |
Regardless of what is the objective truth about Bergdahl's disappearance into spending five years with the Taliban, what can be proven in a court-martial is an altogether different matter. The standards of evidence and the burden of proof are not weaker in military law than in civil law.
Having tried, and failed, to obtain a peacetime conviction of one my own soldiers for desertion when I was a company commander, I have some personal familiarity with the requirements, so here is my take on the matter as relates to Sgt. Bergdahl.
Desertion will likely be difficult to prove in court because of the elements of the offense that the trial counsel (prosecuting attorney) must persuade the panel (jury) beyond reasonable doubt. AWOL, of simply being absent from his place of duty without authorization, is necessarily a lesser-included offense in the charge of desertion. But here is what the UCMJ states is the chargeable offense for desertion. It is Article 85:
(a) Any member of the armed forces who–The article continues with a paragraph about desertion by commissioned officer, inapplicable here, and with the provision that desertion in time of war may be punished by death.
(1) without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently;
(2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or
(3) without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States; is guilty of desertion.
The above list is called the "elements of proof," Here is minimally what the trial counsel would have prove beyond reasonable doubt, all of the following:
1. That Bergdahl left his unit on his own accord,
2. That he intended to separate himself from the Army permanently,
3. That he left his unit with the intention of avoiding his military duties or avoiding hazards of his service.
Subpara (3) does not apply.
The most difficult hurdle is proving that Bergdahl intended to separate himself from the US Army permanently, meaning for the rest of his life. Here is why. When I was a company commander in the Army I received a soldier to my company who was returned to active duty after being gone for six years. A sheriff in Texas took him into custody when his name turned up on a traffic stop as wanted by the Army. Before he got to me, all that had happened was that he was administratively processed back onto active duty and assigned.
I discussed the case with my first sergeant and then went to the JAG office to talk to a trial counsel, who at first was enthusiastic about trying such a case as a violation of Art. 85. About three days later he called me and said no can do; there was not a ghost of a chance of convicting for desertion.
As it turns out, the length of time the offender is away is wholly irrelevant to proving desertion. Sure, Pvt. Snuffy had been gone six years, and yes, he had not turned himself in but had been apprehended, but the counsel said that documents related to his return to active duty showed that Snuffy had kept all his uniforms, kept his ID card and still even had his travel orders he was using when he decided not to board a connecting flight to go to a new posting.
"There is no way I can prove he intended to absent himself permanently from the Army," he said. "He kept everything Army related that he had with him when he went absent."
Not to worry, though, I put Snuffy in front of a Special Court Martial empowered to adjudge a Bad Conduct Discharge for going AWOL (Article 86). And a few days before trial date, he went AWOL again.
Proving that permanent separation from the Army was Bergdahl's intention when he went away five years ago will be very difficult to prove to legal standard.
The defense dept. never listed Bergdahl as a POW, despite what news reports have said. They listed him as DSWUN - Duty Status and Whereabouts Unknown. But he has at no time been listed as a deserter, either. It would not help the prosecution's case that President Obama publicly called Bergdahl a POW, however. That the Army promoted him to sergeant while he was gone is mostly a mere administrative matter and would not affect the prosecution, although the defense counsel will certainly try to leverage it in his favor.
However, the first hurdle is not building a case for a court, it is building the case for the prior Article 32 investigation, the military's equivalent of a grand jury. The officer conducting the Art. 32 investigation must amass enough evidence, not to convict, but to show why a trial should proceed. That is, he must show that the weight of evidence is that the accused is guilty.
That's the easiest part of building a case. In the military, only commanders actually prefer charges. Military law requires that before signing the charge documents, the commander himself must be convinced beyond reasonable doubt that the accused (his own soldier) is guilt. This is the same standard of proof as for a court martial.
That means that is this case the Criminal Investigation Command investigators must show to Bergdahl's commander, whomever that turns out to be, how all the elements of proof of desertion have been met. Bergdahl would not be part of this discussion, of course, nor would a defense counsel, since this process is not a trial.
As a battery commander in Germany, I had CID agents lay out a felony UCMJ case before me for one of my soldiers. I found it pocked with holes and refused to sign the charge documents. The acting battalion commander, a major, was unhappy with me and pressured me to sign. Of course, that pressuring crossed a line and I refused even more stoutly. So he signed the charge sheet himself, which he had the authority to do. A few days later the trial counsel looked at the case and threw it out. CID withdrew the investigation and the case was closed. Later I became a principal staff officer at HQ, CID Command and I must say that this was the worst case work I ever saw CID do.
So even if Bergdahl's future company commander refused to charge him, his battalion commander may do so. And if he refuses, the brigade commander may, although it would be very unlikely that he would after two subordinate commanders declined.
Or the brigade commander (or his own commanders on up the line) may direct that he personally will be the commander to decide from the first. They have the authority to declare that, too.
That six soldiers died looking for Bergdahl and many others were wounded is bad, but it is irrelevant to the legal case. There may be some legal issue regarding use in a court martial of what Bergdahl says in his debriefings, since he will not have been advised of his rights under Article 31, UCMJ (basically, the Miranda warning). But my guess is that the intelligence people are far more interested in grilling Bergdahl about the Taliban than protecting statements for use in court.
My prediction: No charge of desertion will be filed. If Bergdahl does face a court, it will be a Special Court Martial for AWOL, for which he could be given imprisonment of up to 12 months and forfeiture of up to two-thirds pay and allowances for the term of sentence, followed at the end with a Bad Conduct Discharge.
End note: the same trial counsel I referred to above told me that he had once obtained a conviction for desertion of a soldier who was in his barracks one evening when he suddenly stood up and yelled, "I can't take this [crap] any more!" Then he turned his wall locker over, emptying it onto the floor, did the same with his footlocker, then threw all his military clothing into a heap on top. Then he took of his dog tags and threw them into a corner. He took his military ID card and cut it in twain and threw it on the floor. Then he donned civilian shorts, shoes and a shirt, stuffed some bills into his pocket and stomped out of the building.
He was detained at a gate leading off post by the gate guard, who summoned the MPs who picked him up. He was charged with desertion, tried and convicted therefor. He was gone for about 20 minutes.
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