Bergdahl: A Digest

Latest Update: 23 December 2015

I’m going to attempt what I perceive to be a pretty daunting task. That is to take the Bergdahl court-martial and dumb it down for the average person, providing some analysis that allows you to see what is happening and what might happen based on what I read and what I have learned from practicing military law for almost a dozen years.

This post will be pinned to the first page of this blog and updated over time. So, please check back. The date of the latest update will always be on top.

First, a couple of things:

  • I have no insider knowledge of Bergdahl’s case. I know and know of some of the players in the case, but I never spoke to them about it.
  • If you see something wrong, let me know. This post will change over time as we learn more and is designed to be informative.
  • I’m not a combat or combat zone veteran. I served in the Army from 1996 to 2001 (Infantry) and 2004 to 2010 (JAG). Prior to 9/11, I spent a few months in Saudi Arabia and another few months in Bosnia. After 9/11, I spent approximately 1 month total (2 trips) in Iraq in Summer 2011 for a court-martial, shortly before the Victory Base Complex was returned to the Iraqi government.
  • As a former Infantryman, I have some strong opinions about Bergdahl. However, I will not express them here. My goal is to be objective, giving you facts and reasonable analysis.
  • I’m starting this now (23 December 2015) because the stage is appropriately set for the court-martial. Charges have been referred, a judge is assigned, and the “real” case begins.
  • The best source of Bergdahl information is at CAAFLog.com. However, the fine folks there are not consolidating their Bergdahl information, and they write for an intended audience of experienced military law practitioners.

So, here’s my plan in the next few days.

  1. Tell you about the charges and the elements of those charges.
  2. Look at the evidence, gauging the likelihood of a finding of guilt.
  3. Look at the possible punishment (assuming a finding of guilty on at least one charge), predicting the likely punishment based on known and perceived aggravation, mitigation, and extenuation.
  4. Analyze the possible 2nd and 3rd order effects.
  5. Discuss anything else interesting about the case.

 

Bottom Line Upfront (As of 23 December 2015)

Here are my predictions, which I will update as I continue my education on the case. You should accept these predictions in the same way you accept preseason sports predictions. For instance, I’ve predicted a Royals World Series victory every spring since 1980.

Forum Selection: Judge alone (Colonel Jeffery Nance)

Charge I (Desertion): Guilty

Charge II (Misbehavior before the enemy): Guilty

Maximum Possible Punishment (Take this with a grain of salt.): Reduction to the grade of E-1, forfeiture of all pay and allowances, confinement for life, and a Dishonorable Discharge.

My Punishment Prediction: Reduction to E-1, forfeiture of all pay and allowances, 10 years confinement, and a Bad-Conduct Discharge.

Explanation: Prior to Berghahl’s appearance on Serial, I predicted no confinement. However, with the hours of Serial statements that will undoubtedly be obtained by prosecutors, the government will be amazingly prepared to attack all defenses, mitigation, and extenuation. Additionally, his confession on Serial supports the elements of both charges. His pretrial statements help the government to convince the judge that a harsh sentence is necessary in order to deter any other Soldiers from aspiring to be like Jason Bourne in hopes of becoming podcast famous. If it weren’t for his years of suffering in the hands of the enemy, he’d receive 20 years.

DIGEST

23 December 2015 (Charge I: Desertion)

In honor of Festivus, let’s take a look at the charges, which are, in effect, the government’s airing of grievances.

First, military charges are unique compared to most civilian jurisdictions. The way they are written is, to many, peculiar. You’ll notice that they are in the form of Charges and Specifications. The charge is the big picture crime that is being asserted. She specification(s) is the specific conduct that the government asserts to believe that the accused is guilty. For instance, if I murder someone named Daniel, the charge would be Murder, and the specification would list the who, what, when, and where regarding the murder.

So, take a minute and read the charges here. (I’d retype them, but I’m lazy today.)

Two charges. One specification for each charge. Today, I’m going to look at the first charge, as I’m quickly running out of time.

The Charge: Violation of the Uniform Code of Military Justice, Article 85 (Desertion)

Specification: In short, he intended to shirk important service and avoid hazardous duty.

This is important, as there are 3 flavors of Desertion in the Army. The first is absenting oneself without authority and with the intent to remain away permanently (contrast this with AWOL, which is just absenting oneself without authority). The second is to be absent without authority with the intent to shirk important service and/or to avoid hazardous duty (this is what we have). The third is when someone transfers from one branch of the service to another without properly being separated from the prior branch.

The most common Desertion charge is the first, where someone intends to remain away permanently. It is usually proven using circumstantial evidence, though an occasional confession is used to prove the intent to remain away permanently.

In Bergdahl’s case, we have the second flavor of Desertion. The elements of this are as follows (as taken from the Manual for Court-Martial, or, as one of my buddies often typed, the Manuel for Court-Martial (bless his heart)).

  • That the accused quit his unit, organization, or place of duty.
  • That the accused did so with the intent to avoid a certain duty or shirk a certain service.
  • That the duty to be performed was hazardous or the service important.
  • That the accused knew that he would be required for such duty or service.
  • That the accused remained absent until the date alleged.

So, at this point, I’m out of time. In the next installment, I’ll juxtapose these elements with the information we already know and begin a discussion of Charge II.

 

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