After Sgt Bowe Bergdahl’s physical and mental health issues are dealt with by his medical team, it will be up to the military justice system to deal with the allegations he deserted his unit in Afghanistan.
What happens then? What are the steps along the way, and the possible outcomes?
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 civilian criminal justice system.
The Investigative Stage
First, as in the civilian justice system, Bergdahl is presumed to be innocent as a matter of law. This constitutionally protected presumption of innocence stays with him. If—and that is a big if—there is a court-martial, he retains this legal presumption unless and until he is convicted by reasonable and competent evidence beyond a reasonable doubt.
Second, soon after the physical and mental recovery stage is complete, Bergdahl most likely will be given the opportunity to answer questions about the circumstances of his departure from his post.
Since unauthorized absence from duty is a crime under the Uniform Code of Military Justice (UCMJ, Article 86), anyone who wants to question Bergdahl about that topic (or any other crime) first must read him his Article 31b rights. Article 31b of the UCMJ requires military personnel or investigators who suspect a U.S. serviceman of a crime to (1) inform the suspect of the nature of the accusation and (2) advise him that he does not have to make a statement regarding the offense and (3) that any statement may be used as evidence against him in a trial by court-martial.
After hearing his Article 31b rights, Bergdahl may, or may not, decide to give a voluntary statement.
Third, military investigators are working on the case now and will complete their investigation of the circumstances surrounding Bergdahl’s departure from post in due course. That may involve taking additional statements from witnesses and/or collecting additional tangible or other evidence.
Fourth, after the investigation is complete, it will be turned over to Bergdahl’s chain-of-command, and eventually make its way to a senior officer who has the power to convene a court-martial against Bergdahl. The convening authority—often an admiral or general—then has a variety of options depending on the findings of the investigation.
The Accountability Stage
Military convening authorities exercise virtual absolute discretion in how to handle instances of misconduct or crimes. The Bergdahl case is no exception. The convening authority is a non-lawyer line officer who, in military justice matters, is advised by a uniformed military attorney (a member of the Judge Advocate General’s Corps or JAG Corps).
The convening authority will wait for the investigation to be completed before taking any action against Bergdahl. Once the investigation is complete, depending on evidence that exists or doesn’t exist, the convening authority will have a wide range of options on the table. Those administrative options short of a court-martial include:
(1) Doing nothing because the evidence does not warrant any action. In this case, Bergdahl most likely would then exit the Army with an honorable discharge.
(2) Send Bergdahl to an Article 15 Commanding Officer’s non-judicial punishment. Bergdahl could refuse NJP in lieu of a court-martial. If he accepts NJP, he could be punished by losing some pay or being reduced in pay grade. At NJP, the rules of evidence do not apply; the accused is not entitled to an attorney; and the Commanding Officer acts as the finder of fact and imposes punishment.
(3) Send Bergdahl to an administrative discharge board (called an “Admin Board”) for specific violations of the UCMJ. At an Admin Board, Bergdahl is entitled to a free military defense counsel. The rules of evidence do not apply. The board is comprised of three officers who hear the government’s and defense’s evidence. The board decides if the accused committed any of the alleged misconduct. If it finds no misconduct, the Admin Board is over. If it finds misconduct, then the board must decide whether to retain the accused in military service or recommend discharge. If it recommends discharge from the armed forces (essentially “firing” the accused from employment in the armed forces), then the Board must select the nature of his discharge. The three choices, from best to worst, are: (1) Honorable Discharge. (2) General Discharge. (3) Other Than Honorable Discharge (called an “OTH”).
A Court Martial
The Convening Authority could decide, based on the nature of the offenses allegedly committed by Bergdahl, to send him to a military court-martial.
There are two types of courts-martial: a special court-martial for misdemeanor offenses, and general courts-martial for felony offenses. In both instances, the accused has all the rights that any accused has in a civilian criminal trial, including but not limited to: the right to counsel; the right to remain silent and not have that silence held against him; the right to cross-examine all government witnesses, and call witnesses on his own behalf, and the like.
Senior JAG officers experienced in military justice serve as military judges. One military judge presides over a court-martial, and makes rulings in court much like a civilian judge. The accused can request to be tried by a military jury or before the judge alone.
Convening authorities can send cases to a special court-martial if they have probable cause to believe that the accused committed an offense under the UCMJ. All they have to do to send a case to a special court-martial is sign a piece of paper, called the “convening order,” and a special court-martial is off and running.
If the convening authority decides to send an accused to a general court-martial, it first must send the case to a preliminary hearing, called an Article 32. At the Article 32, the accused is represented by counsel, and the government puts on evidence to establish probable cause to believe that the accused committed the alleged offenses. The accused may challenge the government’s evidence, and put on evidence if he so chooses. An investigating officer—a neutral JAG officer—presides over an Article 32 and makes a written recommendation to the convening authority as to whether he believes there is probable cause and if so, what charges should be referred against the accused.
Once the convening authority receives the recommendation from the investigating officer, he then must make an independent decision (with the advice and input from his JAG) as to whether he should refer any charges against the accused. The convening authority has unfettered discretion to refer charges against the accused.
Given the fact the investigation is ongoing and we don’t know all the facts behind the accused’s departure from his post, it is premature to say what charges should be filed, if any, against the accused.
The range of options, as discussed above, includes everything from taking no action, to, depending on the investigation, charges to include an alleged violation of:
(a) Article 85—Desertion during time of war
- 5-year minimum; max possible sentence includes death
(b) Article 86—Unauthorized Absence
- 1 year max
(c) Article 99—Misbehavior Before the Enemy
- Max possible sentence includes death
(d) Article 104—Aiding the Enemy
- Max possible sentence includes death
(e) Article 105—Misconduct As A Prisoner
- Max possible sentence life in prison
Bergdahl volunteered for service in the United States Army. He swore an oath to protect and defend the U.S. Constitution, just like all members of the U.S. military.
The Congress, the press and the American people must not get ahead of the facts or the investigation, which will, naturally, take place in the confines of a proper, objective analysis of all available evidence.
It will take some time for Bergdahl to fully recover from this ordeal, if he ever does. At some point in the coming weeks, he will transition from being a patient to being a potential suspect.
Bergdahl is presumed to be innocent of any crimes and will continue to be so unless and until he is convicted beyond a reasonable doubt.
Our military justice system is strong and independent and fully capable of dealing with a case like this. Political or senior military leaders should not attempt to influence the convening authority in the discharge of his responsibilities with respect to this case. That is unlawful and jeopardizes the integrity of the process.