Yesterday, the Army announced its intention to charge Sgt. Bowe Bergdahl with desertion and misbehavior before the enemy and has served him with those two charges.
Those five options included (1) do nothing; (2) send him to an Article 15 commanding officer’s non-judicial punishment proceeding; (3) send him to an administrative discharge board for specific violations of the Uniform Code of Military Justice; (4) send him directly to a Special Court-martial, or; (5) prefer felony charges against him and send him, possibly, to a General Court-martial.
The Army chose the fifth option.
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 also-unique civilian criminal justice system. For an in-depth explanation of the unique nature of the military justice system, read my Heritage Special Report here.
That unique mission explains why, for example, it contains unique crimes, such as Article 99, Misbehavior Before the Enemy—which is meant to punish members of the armed forces who, without justification, “shamefully abandoned, surrendered, or delivered up” their appointed place of duty while “before or in the presence of the enemy.” There is no civilian equivalent to that crime.
But what happens next?
First, Bergdahl remains on active duty throughout this process, like all defendants (called “accused” in the military) in the military. As such, he will receive all pay and benefits, just like anyone else on active duty.
Second, he enjoys the constitutional presumption of innocence, unless and until the government proves his guilt, by legal and competent evidence, beyond a reasonable doubt.
Third, he is entitled to a free military defense attorney—a member of the Army Judge Advocate General’s Corps—and he can hire a civilian defense attorney at no expense to the government. Eugene Fidell, an outstanding civilian criminal defense attorney, has been representing Bergdahl for some time now.
Fourth, there is a multistep process that goes on before any General Court-martial will take place. And there is no guarantee there will be a trial, as this case could well result in a disposition short of trial, such as a guilty plea.
Now that charges have been preferred by the convening authority (the general under whose command Bergdahl legally remains), those charges will be sent to an Article 32 proceeding.
The Article 32 Proceeding
At the Article 32 proceeding, akin to a civilian preliminary hearing—not a grand jury, as we often hear in the media—the government will attempt to establish probable cause to believe Bergdahl is guilty of each of the charges.
Unlike a grand jury proceeding, which is held in secret, the Article 32 is a public proceeding. A military prosecutor will present the government’s case to an investigating officer—a judge advocate general—but not the trial judge. The accused and his defense team attend and may cross examine all government witnesses. The accused may even call witnesses on his own behalf.
Once the Article 32 is over, the investigating officer takes the case under submission and drafts a written recommendation to the convening authority as to the sufficiency of the charges.
After receiving the investigating officer’s Article 32 report, the convening authority again has a variety of options. The convening authority, in consultation with his own judge advocate general, can decide to refer some or all of the charges to a General Court-martial or a Special Court-martial. He also could decide not to refer some or all of the charges to any type of court-martial and dispose of the case administratively.
In other words, the convening authority—the person most responsible for good order and discipline in the armed forces—has the statutory authority and responsibility to decide what is best for the case. This is one of the greatest strengths of the military justice system and is structured to allow commanders to fight and win wars.
A Court-Martial
If Bergdahl’s case is referred to a court-martial, then the military trial process—much like the civilian process—begins. Given the severity of the allegations in this case, if it goes to a court-martial, it most likely will go to a General Court-martial.
Arraignment will follow shortly in a public courtroom, with the military prosecutor, defense counsels and the accused appearing before a sitting military judge. Military judges are independent senior military judge advocate generals who are specially qualified to hear courts-martial.
The military judge will set a schedule for pretrial motions, just like a civilian judge. The parties then will be able to file pretrial motions, and those motions will be heard by the military judge, who will render opinions on those motions.
Eventually, if there is not a disposition of the case short of trial, such as a guilty plea, it will be scheduled for trial.
The accused is entitled under the law to have the facts of his case decided by a jury (called “members” in the military), and since he is enlisted, he is entitled to have a jury of at least 1/3 enlisted members. Or the accused can decide to have the facts of his case decided by the judge alone. If convicted by a jury, the jury will decide on an appropriate sentence.
Conclusion
This case may take a long time to get to trial, or it may end up resulting in a guilty plea in short order. It is way too early to predict what will happen. What is clear is that now that felony charges have been preferred against Sgt. Bergdahl, the process will proceed in some fashion until the case is resolved.
