Following the case of Sgt. Bowe Bergdahl has regularly required a flow chart to keep up with every detail. Now, you will need a history book too. Over the Labor Day Weekend, Army prosecutors announced that they have amended the previous charge of desertion to also include “misbehavior before the enemy,” which military legal experts claim has rarely been used since World War 2.
The case of U.S. Army Sgt. Bowe Bergdahl has been a literal roller-coaster of ups, downs and unexpected twists. First, he was mysteriously apprehended by unknown assailants from outside his Afghanistan outpost. Then, while the Army conducted repeated but unsuccessful searches for him, some of Bergdahl’s platoon members claimed he was not abducted but had simply walked away. Of course, this did not stop the Army from searching, or the current administration from agreeing to trade his release for that of five long time Gitmo detainees.
At the same time that President Obama was greeting Bergdahl and his parents in the White House Rose Garden, calling him a “hero” on national television, those former platoon mates revived their previous claims – also on national television. Of course, this put the Army in a difficult position; it’s not easy to charge a hero with desertion. For over a year, the Army did little. Bergdahl was assigned unspecified duties and, although it was announced desertion charges were likely, the case appeared to stall.
Many believed that the case would die a slow political death. But it appears that the prosecutors were actually building a case, and a serious one at that. This new charge, a subsection of Uniform Military Code of Justice Article 99, carries a potential life sentence which is probably one of the factors contributing to it being so rarely utilized. Although specific details will not come out until the Article 32 hearing, scheduled for September 17th at Ft. Sam Houston in Texas, it has to be assumed prosecutors and the Army would not risk such a serious case without believing they could be successful at a Court Martial.
Defense attorneys for Bergdahl have already claimed the additional charge is simply prosecutors attempting to “take a second bite of the apple” by piling on multiple charges for a single offense. While this could be a reasonable argument for trial, that does not mean it will be enough to have the more serious charge dismissed. According to the UCMJ, desertion is a “lesser and included charge” of those covered by Article 99 but that does not mean it is inappropriate. The defense team would have you believe it is similar to charging a Private with theft and shoplifting after pocketing a candy bar at the post exchange. In reality, it is more attune to charging both murder and manslaughter and, although the specific charges may be unusual, the practice itself is not.
Stay tuned, as I am sure this is only the latest in what is sure to be a future movie of the week in the making.
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