Bowe Bergdahl Charged: Where Do We Go From Here?

By: American Decency Staff

Yesterday, the Army announced its intention to charge Sgt. Bowe Bergdahl with desertion and misbehavior before the enemy and has served him with those two charges.

As I explained here last June, the military had at least five options on what to do with Sgt. Bergdahl given the fact that he left his appointed place of military duty in Afghanistan during a time of armed conflict.

Those five options included (1) do nothing; (2) send him to an Article 15 commanding officer’s non-judicial punishment proceeding; (3) send him to an administrative discharge board for specific violations of the Uniform Code of Military Justice; (4) send him directly to a Special Court-martial, or; (5) prefer felony charges against him and send him, possibly, to a General Court-martial.

The Army chose the fifth option.

The military justice system is unique—and for good reason. It exists to enforce good order and discipline in the armed forces and has unique aspects separate and distinct from the also-unique civilian criminal justice system. For an in-depth explanation of the unique nature of the military justice system, read my Heritage Special Report here.

That unique mission explains why, for example, it contains unique crimes, such as Article 99, Misbehavior Before the Enemy—which is meant to punish members of the armed forces who, without justification, “shamefully abandoned, surrendered, or delivered up” their appointed place of duty while “before or in the presence of the enemy.” There is no civilian equivalent to that crime.

But what happens next?

First, Bergdahl remains on active duty throughout this process, like all defendants (called “accused” in the military) in the military. As such, he will receive all pay and benefits, just like anyone else on active duty.

Second, he enjoys the constitutional presumption of innocence, unless and until the government proves his guilt, by legal and competent evidence, beyond a reasonable doubt.

Third, he is entitled to a free military defense attorney—a member of the Army Judge Advocate General’s Corps—and he can hire a civilian defense attorney at no expense to the government. Eugene Fidell, an outstanding civilian criminal defense attorney, has been representing Bergdahl for some time now.

Fourth, there is a multistep process that goes on before any General Court-martial will take place. And there is no guarantee there will be a trial, as this case could well result in a disposition short of trial, such as a guilty plea.

Now that charges have been preferred by the convening authority (the general under whose command Bergdahl legally remains), those charges will be sent to an Article 32 proceeding.

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