Sgt. Bowe Bergdahl, the Army solider who was held by the Taliban for five years and released in May in exchange for five senior Taliban Guantanamo detainees, is now manning a desk while the Army decides what to do with him. According to news reports, he has completed the formal phase of his recovery and reintegration, and is now doing routine administrative duties pending disposition of his case.
Now that the Army has determined that Bergdahl is fit for duty, the Army will move to the formal investigative stage of his case.
As I wrote previously, the Army has five options on how to deal with Bergdahl’s case. It is important to understand that under military law, Bergdahl is entitled to the Constitutional presumption of innocence.
Regardless of which option the Army chooses, there seems to be some confusion in the media regarding the pay and allowances Bergdahl is entitled to, given his unique situation.
First, all pay and allowances received by enlisted military personnel assigned to a combat zone are excludable as taxable income for federal income tax purposes. Bergdahl was stationed in Afghanistan in June 2009 when he left his duty station. Afghanistan is and was, for military pay and federal tax purposes, a recognized combat zone. Therefore, all of Bergdahl’s pay, including pay he accrued while he was in captivity is excludable for federal income tax purposes.
Second, soldiers officially designated as captive, missing, missing in action or as prisoners of war (POWs) are entitled to receive or have credited to their account the pay and allowances which they were entitled to “when missing status began or to which a member becomes entitled later.”
In the military, those suspected or even accused of crimes continue to receive all pay and allowances up to and including during their court-martial. If Bergdahl is court-martialed—a BIG if—and if he is convicted and the approved sentence includes a punitive discharge (a Bad Conduct Discharge or a Dishonorable Discharge) or confinement in excess of 90 days, under Article 58a of the Uniform Code of Military Justice he would automatically be administratively reduced to the lowest enlisted pay grade unless the Convening Authority took action to remit or suspend that action. This is true whether the person is suspected of murder, rape, child abuse, or, as in Bergdahl’s case, unauthorized absence.
Furthermore, if an adjudged court-martial sentence includes either a punitive discharge and confinement, or confinement in excess of six months, UMCJ Article 58b requires the automatic imposition of forfeitures of all pay and allowances due during any period of confinement served, unless the Convening Authority takes action to waive or defer the automatic forfeiture provision.
In other words, even if Bergdahl was court-martialed and even if he was convicted and his sentence contained fines or forfeitures (or a combination thereof), those forfeitures would only apply to his future pay/allowances while he was incarcerated. And under Rule for Court-Martial 1003(a)(3), typically a fine should not be adjudged against a member of the armed forces unless the person was “unjustly enriched” as a result of the offense he was convicted of.
The bottom line is this: Bergdahl has, or will receive all of his back pay for the time he was missing from his duty station, and that pay will be free of federal income tax.
