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Bowe Bergdahl Charged; What is Desertion?

By Christopher Coble, Esq. on March 26, 2015 | Last updated on March 21, 2019

Once welcomed home like a hero, Army Sergeant Bowe Bergdahl is now being labeled a deserter.

Sergeant Bergdahl returned home last year after spending nearly five years in captivity with the Taliban. Bergdahl was released in exchange for the release of five members of the Taliban held at Guantanamo Bay. While his family and community welcomed home with open arms, Bergdahl's platoon members and fellow veteran soldiers accused him of deserting his post during war time, putting others at risk.

After a lengthy investigation, the army has decided to charge Bergdahl on two counts, desertion and misbehavior before the enemy.

Court Martial

As this is a military matter, Bergdahl will eventually be tried in military court rather than civilian court. Similar to how each state has its own set of criminal laws, members of the military are governed by the Uniform Code of Military Justice (UCMJ).

Military courts have exclusive authority over purely military matters such as mutiny, sedition, failure to obey an order, and insubordinate conduct. However, many military crimes are also civilian crimes, such as rape, robbery, assault, murder.

If a crime violates both military and state law, the accused may be tried in both military and state court. In this case, Bergdahl is accused of desertion and misbehavior before the enemy, purely military matters. So, he will be tried in military court only.

At this time, Bergdahl's case will go before a military tribunal, a hearing process similar to that of a grand jury in civilian courts.

Desertion

Article 85 of the UCMJ states, "Any member of the armed forces who without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently ... is guilty of desertion."

Bergdahl's lawyer, Eugene Fidell, argues that Bergdahl isn't guilty of desertion because he never intended to leave the Army permanently, reports The New York Times. He implies that the Taliban captured Bergdahl before he could return to his post. If convicted of this charge, Bergdahl could be sentenced to up to five years in prison.

Misbehavior Before the Enemy and Desertion

Article 99 of the USMJ states, "Any member of the armed forces who before or in the presence of the enemy- (1) runs away; (2) shamefully abandons, surrenders, or delivers up any command, unit ... which it is his duty to defend ... shall be punished by death or such other punishment as a court-martial may direct."

While thousands of service members have been accused of desertion, Bergdahl's case is less common because he allegedly abandoned his post while on the battlefield. This is considered a more serious offense than non-war zone desertion.

Although Sergeant Bergdahl could be sentenced to death under the statute, the last known soldier to be executed for battle zone desertion was Pvt. Eddie Slovik who was shot by a firing squad after deserting his unit in WWII, reports The Washington Post.  More likely, Bergdahl would face up to life in prison, dishonorable discharge, demotion in rank, and forfeiture of pay.

With the military court system being different than civilian court, if you are a military member charged with a crime, and want to hire a private attorney, an experienced military attorney can help you assess your options.

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