Two bites at the apple? Or just appropriate charges being brought
We're all familiar with the story of Army SGT Bowe Bergdahl. Then PFC Bergdahl allegedly walked away from his unit while they were deployed in Afghanistan. He was captured by the Taliban. As a POW he was automatically promoted in absentia, first to Specialist and then to SGT. He was released in a prisoner trade for five Taliban prisoners being held at the Guantanamo Bay detention facility.
On September 17th, the Article 32 hearing will be held. What's interesting and what is making news today is that SGT Bergdahl is being charged with desertion and misbehavior before the enemy. At the Article 32 hearing, which is the military equivalent of a civilian preliminary hearing, a military judge will determine if he will be bound over for a general court-martial.
Experts on military law, both civilians and retired military attorneys are calling this move by the prosecution a way to get two "bites at the apple." The charge of misbehavior before the enemy also carries a much stiffer maximum sentence. For desertion, a conviction would carry a maximum prison term of five years. For misbehavior before the enemy, SGT Bergdahl could get life in prison. Bergdahl's own attorney is saying that the military is charging his client twice for the same offense. Nothing could be further from the truth if we examine the offenses as codified in federal law under the Uniform Code of Military Justice. First, desertion:
Article 85
(a)
Any member of the armed forces who—
SGT Bergdahl is charged for deserting his unit. The evidence seems to indicate he did that, although we must remember that he is entitled to the presumption of innocence. Now let's look at misbehavior before the enemy:
Article 99
Any member of the armed forces who before or in the presence of the enemy—
It seems that item (3) above applies, as by causing his unit and other units to engage in protracted searches for him, he placed those individuals involved in the search at risk.
Some say that six members of SGT Bergdahl's unit died while searching for him. A reconstruction of the events involving his disappearance and the searches after he left by the Reuter's News Agency seems to indicate that this claim is specious at best. The six soldiers were involved in other operations not directly tied to the search and they cited one U. S. military source who said that "...the period of intensive ground searches had already ended."
On the other hand, it appears that the story of SFC Mark Allen, a soldier who was shot in the head by a sniper and paralyzed while he was serving in Afghanistan, is directly linked to SGT Bergdahl's disappearance. If he was paralyzed while involved in the search for SGT Bergdahl, as appears to be the case, that's all the evidence necessary to prove the charge of misbehavior before the enemy.
The Article 32 hearing and subsequent general court-martial that will almost certainly take place will draw a lot of media attention. Hopefully the truth will come to light.
On September 17th, the Article 32 hearing will be held. What's interesting and what is making news today is that SGT Bergdahl is being charged with desertion and misbehavior before the enemy. At the Article 32 hearing, which is the military equivalent of a civilian preliminary hearing, a military judge will determine if he will be bound over for a general court-martial.
Experts on military law, both civilians and retired military attorneys are calling this move by the prosecution a way to get two "bites at the apple." The charge of misbehavior before the enemy also carries a much stiffer maximum sentence. For desertion, a conviction would carry a maximum prison term of five years. For misbehavior before the enemy, SGT Bergdahl could get life in prison. Bergdahl's own attorney is saying that the military is charging his client twice for the same offense. Nothing could be further from the truth if we examine the offenses as codified in federal law under the Uniform Code of Military Justice. First, desertion:
Article 85
(a)
Any member of the armed forces who—
(1) without authority goes or
remains absent from his unit, organization, or place of duty with intent
to remain away therefrom permanently;
(2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or
(3) without being regularly
separated from one of the armed forces enlists or accepts an appointment
in the same or another one of the armed forces without fully disclosing
the fact that he has not been regularly separated, or enters any
foreign armed service except when authorized by the United States;
is guilty of desertion.
(b)
Any commissioned officer of
the armed forces who, after tender of his resignation and before notice
of its acceptance, quits his post or proper duties without leave and
with intent to remain away therefrom permanently is guilty of desertion.
(c)
Any person found guilty of
desertion or attempt to desert shall be punished, if the offense is
committed in time of war, by death or such other punishment as a
court-martial may direct, but if the desertion or attempt to desert
occurs at any other time, by such punishment, other than death, as a
court-martial may direct.
SGT Bergdahl is charged for deserting his unit. The evidence seems to indicate he did that, although we must remember that he is entitled to the presumption of innocence. Now let's look at misbehavior before the enemy:
Article 99
Any member of the armed forces who before or in the presence of the enemy—
(2) shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his duty to defend;
(3) through disobedience, neglect,
or intentional misconduct endangers the safety of any such command,
unit, place, or military property;
(8) willfully fails to do his
utmost to encounter, engage, capture, or destroy any enemy troops,
combatants, vessels, aircraft, or any other thing, which it is his duty
so to encounter, engage, capture, or destroy; or
(9) does not afford all
practicable relief and assistance to any troops, combatants, vessels, or
aircraft of the armed forces belonging to the United States or their
allies when engaged in battle;
shall be punished by death or such other punishment as a court-martial may direct.
It seems that item (3) above applies, as by causing his unit and other units to engage in protracted searches for him, he placed those individuals involved in the search at risk.
Some say that six members of SGT Bergdahl's unit died while searching for him. A reconstruction of the events involving his disappearance and the searches after he left by the Reuter's News Agency seems to indicate that this claim is specious at best. The six soldiers were involved in other operations not directly tied to the search and they cited one U. S. military source who said that "...the period of intensive ground searches had already ended."
On the other hand, it appears that the story of SFC Mark Allen, a soldier who was shot in the head by a sniper and paralyzed while he was serving in Afghanistan, is directly linked to SGT Bergdahl's disappearance. If he was paralyzed while involved in the search for SGT Bergdahl, as appears to be the case, that's all the evidence necessary to prove the charge of misbehavior before the enemy.
The Article 32 hearing and subsequent general court-martial that will almost certainly take place will draw a lot of media attention. Hopefully the truth will come to light.
posted by me at 10:37 AM
<< Home