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Wide Discretion on Bergdahl Charges    01/28 06:18

   Army and Pentagon officials said Tuesday there has been no decision on what, 
if any, criminal charges will be filed against Sgt. Bowe Bergdahl, the soldier 
who left his post in Afghanistan and was held by the Taliban for five years 
before being released in a prisoner exchange.

   WASHINGTON (AP) -- Army and Pentagon officials said Tuesday there has been 
no decision on what, if any, criminal charges will be filed against Sgt. Bowe 
Bergdahl, the soldier who left his post in Afghanistan and was held by the 
Taliban for five years before being released in a prisoner exchange.

   Gen. Mark Milley, head of U.S. Army Forces Command at Fort Bragg, North 
Carolina, has a broad range of legal options, including various degrees of 
desertion charges. A major consideration is whether military officials will be 
able to prove that Bergdahl had no intention of ever returning to his unit --- 
a key element in the more serious desertion charges.

   The case is also fraught with politics. Some members of Congress and former 
members of Bergdahl's unit criticized the Obama administration for trading 
someone they considered a deserter for five top Taliban commanders held at the 
U.S. detention facility at Guantanamo Bay, Cuba. If Bergdahl is severely 
punished, that trade could be called into question again. On the other hand, 
some believe that five years in Taliban captivity is punishment enough.

   Possible charges and possible punishments:

   ABSENT WITHOUT LEAVE

   This would be one of the least serious offenses. Tens of thousands of 
soldiers have walked away from their posts over the last decade, some for a few 
hours, others for a weekend or even weeks. Usually if service members are 
charged with being AWOL, the assumption is that they intended to return to 
duty. Often they get some type of administrative punishment. In more serious 
cases they are discharged.

   Because Bergdahl was in a warzone, leaving his combat post is a more serious 
offense than leaving a U.S. military base without authorization for a few days. 
So officials are likely to go for a more serious charge.

   DESERTION WITH INTENT TO AVOID HAZARDOUS DUTY OR TO SHIRK IMPORTANT SERVICE

   This is one of the more likely charges. It is more serious than AWOL because 
it involves deserting a hazardous duty, which includes combat service. Bergdahl 
left his post during a combat deployment in Paktika province, a far more 
critical violation because officials could argue that his sudden absence could 
have endangered other unit members. The charge does not require the military to 
prove Bergdahl had no intention of returning to his unit.

   DESERTION WITH INTENT TO REMAIN AWAY PERMANENTLY

   This charge is less likely because the Army would have to be able to prove 
that Bergdahl left his post and at some point decided he had no intention of 
returning. Former Army lawyer Greg Rinckey said that would be difficult, 
particularly since he was taken prisoner by the Taliban and couldn't return to 
his post even if he wanted to. Rinckey predicted any good lawyer could argue 
that Bergdahl would have returned but couldn't.

   FAILURE TO OBEY A LAWFUL ORDER

   This charge and other similar infractions are also likely to be added to 
bolster the contention that Bergdahl violated regulations and committed a 
serious breach of military conduct. The military will want to note that 
deserting a post during wartime, whatever the mitigating circumstances, cannot 
be condoned.

   POSSIBLE PUNISHMENTS

   Desertion in a time of war with the intent to stay away is punishable by 
death. That outcome is almost inconceivable in this case. Only one service 
member, Pvt. Eddie Slovik, has been executed for desertion since the Civil War. 
Slovik, 24, was shot by a firing squad in January 1945, but his execution, 
approved by Gen. Dwight D. Eisenhower, was kept secret for nine years.

   Desertion with the intent to avoid a certain duty or shirk a certain 
service, a more likely charge, carries a maximum penalty of five years in 
prison, along with a dishonorable discharge and forfeiture of all pay and 
benefits.

   AWOL can carry a broad range of punishments, ranging from a letter in a 
service member's file, getting extra duties or having pay docked to getting 
thrown out of the service.

   Depending on the charges and court martial proceedings, Bergdahl could 
receive an honorable, general or other than honorable discharge. That decision 
can determine whether he loses his rank, or whether he gets as much as $300,000 
in back pay and other benefits, including continued health care.

   LEGAL PROCESS

   Milley is reviewing the results of an investigation by Maj. Gen. Kenneth R. 
Dahl, and there is no estimated timeline for a decision. Milley can refer 
charges to a general court martial or decide not to charge Bergdahl at all. If 
Milley recommends charges and court martial, Bergdahl and his lawyer, military 
justice expert Eugene Fidell, can also try to plea bargain. Military leaders 
are likely to take into consideration Bergdahl's five years in enemy hands and 
could also consider any potential need for continued health or mental health 
care.


(KA)


 
 
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