For most of the time since it was announced Bowe Bergdahl had been freed after over five years in a Taliban POW camp, critics both inside and outside the military have claimed that he deserted his unit. But those claims seem to be belied by a 2010 internal Army investigation. The probe, completed shortly after then Pfc. Bergdahl (he was promoted in absentia to sergeant) disappeared in June 2009, failed to find any conclusive evidence that Bergdahl intended to leave his brothers in Blackfoot Company for good. Although the so-called “AR15-6” report on Bergdahl was and still is classified, several military sources have discussed the report on condition of anonymity.
CBS News reported that Bergdahl left his unit at least once before his 2009 disappearance–but no one reported it at the time. Friday’s New York Times confirmed that Bergdahl wandered away from assigned areas without permission twice before June 2009. He slipped away from his unit during its predeployment exercise at Fort Irwin, and also took an unauthorized stroll once at his outpost in Afghanistan. However, he returned both times. That report also contained no mention of a note Bergdahl reportedly wrote in which he explicitly stated he was leaving for good. While the report was inconclusive on whether Bergdahl intended to desert, an official familiar with the investigation told the Army Times that there was “no indication that he intended to leave permanently.”
This is a very important distinction. Under Article 85 of the Uniform Code of Military Justice, a soldier is guilty of desertion if he leaves his unit “with intent to remain away therefrom permanently” or leaves his unit “with intent to avoid hazardous duty or to shirk important service.” However, if Bergdahl left twice and returned, how can you prove that he intended to stay away for good? Daily Kos’ Heisod analyzed this and other smears that have been hurled against Bergdahl asked the same question–and his answer was that it will be difficult, if not impossible, to prove that Bergdahl intended to “remain away” from Blackfoot Company “permanently.” He also thinks that it would be an uphill battle to prove Bergdahl willfully tried to get away from “hazardous duty,” since he left at night and was not otherwise on duty. Hesiod wrote that in the absence of those two factors, any evidence that Bergdahl was a deserter is flimsy at best. Not only do I agree, but I’d add something else. If Bergdahl wrote a note stating his intent to desert, the investigators would have almost certainly found it in 2010.
Two experts in military law told the Army Times that in the absence of something earthshaking, it’s not likely Bergdahl will be court-martialed for leaving his post. Eugene Fidell, a lecturer at Yale Law and a co-founder of the National Institute of Military Justice, said that it is a very strong convention that POWs do not get court-martialed. He said that the only exceptions to this rule are if a POW became “a turncoat or joined the other side or assisted the other side in some way.” However, Fidell said there is no indication so far that Bergdahl sold out his country. Greg Rinckney, a former Army judge advocate, agrees. He thinks that while there will likely be an investigation, a court-martial is very unlikely. Even without his POW status to consider, Rinckney thinks Bergdahl is likely to raise concerns about his mental health, which would make it difficult to mount any sort of judicial punishment against him.
In the absence of something we haven’t heard or seen, this is likely to go down as yet another wingnut smear that is unsupported by actual facts.
Edited/Published by: SB
Darrell Lucus is a radical-lefty Jesus-lover who has been blogging for change for a decade. Follow him on Twitter @DarrellLucus or connect with him on Facebook.
