Army Sgt. Bowe Bergdahl, ‘a case nobody wants to see go to trial’

Every year since America’s current overseas wars began 14 years ago, hundreds of Army soldiers have abandoned their units — almost 6,000 since 2001. More than 5,000 have been convicted of desertion or being absent without leave, and most were thrown out of the Army.

Yet few of those soldiers end up with the type of sentence confronting Army Sgt. Bowe Bergdahl, who could receive from five years up to life in prison if convicted of desertion and misbehavior charges.

The Army has routinely allowed soldiers to plead guilty to lesser charges in administrative actions that allow them to avoid prison time in return for their dismissal on other than honorable discharges.

Few, if any, of those desertion cases attracted the national attention focused on the dramatic tale of Bergdahl, who walked away from his remote combat outpost in Afghanistan in 2009 and was captured by insurgents who held him prisoner for five years.

In many cases, soldiers originally charged with desertion have pleaded guilty to lesser charges under plea deals that military lawyers say allow the Army to quickly rid itself of troublesome soldiers. A bad discharge strips soldiers of benefits and makes it difficult to find a good job.

“Desertions rarely go to trial. They usually end up with a plea,” said Gary Solis, a Georgetown University law professor and a former military lawyer and judge.

Bergdahl’s case is likely to end with a plea deal as well, according to military lawyers.

“This is a case nobody wants to see go to trial,” Solis said. “Bergdahl just wants to go home. And for the Army, this case is just an embarrassment.”

Bergdahl, 29, was released last spring under a contentious prisoner exchange that freed five Taliban detainees at Guantanamo Bay, Cuba. He is awaiting an Article 32 preliminary hearing scheduled for July 8 at Joint Base San Antonio-Ft. Sam Houston in Texas.

Bergdahl’s case is a rare example of a soldier abandoning a unit while deployed in Afghanistan or Iraq. Army figures compiled at the request of the Los Angeles Times show that of 6,077 cases of alleged desertion or being absent without leave since 2001, just 41 took place in Afghanistan and 150 in Iraq. Most of the other cases involved soldiers who left their units while stationed in the U.S.

There were convictions or guilty pleas in 33 of the 41 cases in Afghanistan and 133 of the 150 Iraq cases.

Cases stemming from offenses at bases elsewhere also have a high rate of conviction or guilty pleas — 5,110 of 5,886 cases.

Of those cases, just nine involved a charge of “misbehavior before the enemy,” a rarely invoked offense. The Army lodged that charge against Bergdahl, who is accused by some members of his former unit of exposing soldiers to enemy attacks while they searched fruitlessly for him.

The misbehavior charge covers nine broad categories of misconduct. It applies to a soldier who “runs away”; “shamefully abandons [or] surrenders” a post; exhibits “cowardly conduct”; “casts away his arms or ammunition” or commits other offenses. Bergdahl is accused of leaving his weapon behind when he walked away from his base.

The misbehavior charge carries a maximum penalty of life in prison.

Bergdahl is also accused of “desertion with intent to shirk important or hazardous duty.” That charge carries a maximum penalty of five years in prison.

Desertion normally refers to service members who leave their units without permission for more than 30 days. Service members who abandon their units for less than 30 days are typically charged with being AWOL.

Desertion rates in today’s war are probably the lowest of any war in U.S. history, said Fred L. Borch III, regimental historian and archivist at the JAG Legal Center and School in Charlottesville, Va.

In World War II, about 50,000 service members deserted from a fighting force of 13 million. Desertion and AWOL were rampant during the Vietnam War, when the conflict was unpopular and draftees resented the military.

Some cases were dealt with through plea bargains or administrative separations, Borch said. But thousands of service members faced court-martial and were imprisoned.

In one notorious case, Pvt. Eddie Slovik was court-martialed and executed in 1945 for deserting before the Battle of the Bulge in 1944. That was the only documented case of execution for desertion in modern U.S. history, Borch said.

The Army said it could not provide statistics on the penalties imposed in the 6,000 desertion cases since 2001, but military lawyers said punishment is more severe for cases in combat zones than on U.S. bases.

Penalties are also significant in cases in which a soldier leaves a U.S.-based unit that has received orders to deploy overseas — a serious offense known as missing a troop movement.

For most other desertion cases that occur away from war zones, soldiers often plead guilty to lesser offenses — usually AWOL — and are reduced in rank and thrown out of the Army with an other than honorable discharge, known as “bad paper.”

Even if a plea deal allows a soldier to avoid prison time, the penalty is still significant. A bad discharge carries a stigma that can hamper employment or advancement.

For Bergdahl, who says he was tortured and beaten, his ordeal could mitigate any punishment and possibly the charges against him, military lawyers said. His lawyers could argue that his time as a prisoner is tantamount to time served in military prison, even though Bergdahl’s own actions led to his capture.

“The judge might think, well, this guy did do five years with the enemy,” Solis said. “He did bring it on himself, but it was no cakewalk.”

An other than honorable discharge could prove problematic in Bergdahl’s case, said Greg T. Rinckey, a lawyer who has represented service members who left their units.

“This is an individual who will probably need mental healthcare the rest of his life,” Rinckey said. “Does the government really want to take away mental healthcare for a soldier who has been held captive and tortured?”

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