Bowe Bergdahl Goes to Trial. What Happens Next?

Cully Stimson /

The Army has decided to send Sgt. Bowe Bergdahl to a general court martial, where he will face two charges: desertion and misbehavior before the enemy.

There are some important facts to keep in mind regarding Bergdahl’s case going forward, as well as some unique aspects of the military justice system.

The Military Justice System

For instance, defendants in the military justice system are called the “accused.” They are, like their civilian counterparts, presumed innocent unless and until proven guilty by legal and competent evidence beyond a reasonable doubt.

A military trial judge will now own the case and will preside over all proceedings. First, she will arraign the accused on the charges he is facing. Then she will set a pre-trial motions schedule, which both the prosecution and defense must follow.

The government is represented by a trial counsel—a military prosecutor. This will be an active-duty Army soldier who is a member of the Judge Advocate General (JAG)’s Corps. The accused will be represented by an Army JAG defense counsel. Military defense counsel are provided to the accused free of charge. And all accused are entitled to a civilian defense counsel of their own choosing, at no expense to the government (i.e., taxpayer).

The accused has the option, like all defendants, to plead guilty. All offers to plead guilty have to be made to the convening authority—not the prosecutor. All plea bargains are made between the accused and the convening authority.

If the accused decides to have a contested trial, he can choose to be tried before a military judge alone, members (a military jury), and for enlisted accused, members with at least one third enlisted representation. If the case is tried to members, the members decide on the sentence. If the case is tried on the merits to a military judge, if there is a conviction, the accused can elect to have members decide his sentence.

Bergdahl’s Case

It is important to distinguish between the accused’s court martial itself and the fact that the Obama administration traded five top Taliban commanders (then detained at Guantanamo Bay) for Bergdahl’s release. Before that controversial trade, virtually no one would have ever heard of Bergdahl.

Put another way, name another soldier, sailor, airman, or Marine who is currently being prosecuted for desertion or related offenses. The military prosecutes personnel for desertion every year, yet their cases rarely make the news.

Some in the media have pointed out that the Army general in charge of the Bergdahl case—called the Convening Authority—referred the case to a general (felony) court martial instead of to a special (misdemeanor) court martial, as the Article 32 (preliminary hearing) officer recommended.

But what many in the media seem not to understand is that the law gives the convening authority absolute discretion to dispose of the case in any legal manner, whereas the recommendation of the Article 32 officer is merely a recommendation.

Furthermore, the convening authority, and only the convening authority, is legally responsible for ensuring good order and discipline in the armed forces. That is a strength of the military justice system, and one of the main differences between that system and the civilian criminal justice system, which is focused on enforcing the criminal laws on the books.

To prove desertion against Bergdahl, the trial counsel will have to prove each and every element listed below beyond a reasonable doubt:

  1. That the accused absented himself from his unit, organization, or place of duty;
  2. That such absence was without authority;
  3. That the accused, at the time the absence began or at some time during the absence, intended to remain away from his unit, organization, or place of duty permanently; and
  4. That the accused remained absent until the date alleged.

To prove misbehavior before the enemy, the government must prove each and every element listed below also beyond a reasonable doubt:

  1. That the accused was charged by orders or circumstances with the duty to defend a certain command, unit, place, ship, or military property;
  2. That, without justification, the accused shamefully abandoned, surrendered, or delivered up that command, unit, place, ship, or military property; and
  3. That this act occurred while the accused was before or in the presence of the enemy.

There are very few mandatory minimum sentences in the military justice system. Here, if convicted of either or both crimes, the accused could receive a sentence that ranges from no punishment (the federal conviction alone serving as his punishment) to life in prison, or anything in between. In addition to potential incarceration, sentences may include a punitive discharge from the service (either a Dishonorable Discharge or a Bad Conduct Discharge), a reduction in rank, and a fine, or any combination thereof.

Military courts martial are not televised but are open to the media and the public.

Every accused continues to draw all pay and benefits throughout the court-martial process. If there is a conviction, the accused’s pay stops shortly thereafter. Any sentence of confinement would be served in a military confinement facility in the United States.

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