SGT Bergdahl to face general court-martial

Discussion in 'Off-Topic Discussions' started by major56, Dec 15, 2015.

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  1. major56

    major56 Active Member

    Army Pursues Court-Martial Proceedings Against Bowe Bergdahl (WSJ 12/14/2015)

    Soldier could face life in prison if convicted on charges of desertion and misbehavior before the enemy

    Army Pursues Court-Martial Proceedings Against Bowe Bergdahl - WSJ

    By
    Dan Frosch
    Updated Dec. 14, 2015 7:37 p.m. ET


    Sgt. Bowe Bergdahl will face a military trial on charges that he deserted his unit in Afghanistan in 2009 and endangered the lives of soldiers who searched for him, the Army said Monday, a move that means he could be sentenced to life in prison if found guilty.

    Sgt. Bergdahl, who was subsequently captured by the Taliban before being returned to the U.S. in a controversial prisoner exchange in 2014, is accused of desertion and misbehavior before the enemy.

    The decision to pursue a court-martial was reached by Gen. Robert Abrams, who heads Army Forces Command at Fort Bragg, N.C. It comes two months after an Army officer recommended that Sgt. Bergdahl, 29, not face jail time or a punitive discharge from the military.

    Following an Article 32 preliminary hearing in the case, Lt. Colonel Mark Visger recommended in October that Sgt. Bergdahl face a special court-martial—essentially a military version of a misdemeanor court—according to Sgt. Bergdahl’s civilian defense lawyer, Eugene Fidell.

    Gen. Abrams instead opted for a general court-martial, a far more serious proceeding. The desertion charge in Sgt. Bergdahl’s case carries a five-year maximum sentence, while the misbehavior before the enemy count, a much rarer military violation, could result in a life sentence.

    In a brief statement, Mr. Fidell said that Gen. Abrams didn’t “follow the advice of the preliminary hearing officer who heard the witnesses.” Mr. Fidell added that Sgt. Bergdahl’s defense team had hoped the case wouldn’t “go in this direction.”


    According to Mr. Fidell, Sgt. Bergdahl is currently assigned to desk duty at Joint Base San Antonio-Fort Sam Houston in Texas but isn’t being confined or restricted to the base.

    A spokesman for Army Forces Command declined to comment further on Gen. Abrams’ decision. Military law experts said that while it isn’t unprecedented for Army officials to reject a recommendation from an Article 32 hearing, it is uncommon.

    From the beginning, Sgt. Bergdahl’s case has generated strong passions. The Obama administration has faced criticism for its handling of the prisoner exchange that led to the Idaho native’s release.

    Some members of the military have said they consider Sgt. Bergdahl a deserter who wasn’t worthy of a prisoner swap. Last week, Republican members of the House Armed Services Committee issued a report accusing the Pentagon of misleading Congress about the prisoner-exchange negotiations.

    At the preliminary hearing in the case, military prosecutors sought to cast Sgt. Bergdahl as motivated by selfishness. They argued that his disappearance from his unit in a rugged swath of Afghanistan endangered the legions of American soldiers who spent weeks frantically searching for him and that it shifted the entire mission of U.S. forces in Afghanistan at the time.

    Sgt. Bergdahl’s defense team countered that he was a standout soldier who wasn’t trying to desert, but had slipped away from an Army outpost one night because he wanted to inform a general about what he believed was his unit’s failed mission in Afghanistan.

    A Defense Department official who interviewed Sgt. Bergdahl after he was returned to the U.S. testified for the defense that while in captivity he had been subjected to some of the most brutal torture any American soldier had suffered since the Vietnam War. Maj. General Kenneth Dahl, also testified that jail time wouldn’t be an appropriate punishment for Sgt. Bergdahl. He described the soldier as naive and self-deluded, but sincere in his account of what happened.

    The saga of Sgt. Bergdahl gained increased attention recently as it is the focus of a new season of the hit podcast “Serial.”

    The court-martial in Sgt. Bergdahl’s case is expected to begin sometime next year.
     
  2. Kizmet

    Kizmet Moderator Staff Member

    I have not followed this story as closely as I could have. Yesterday he was on a television show (?Serial?) and I heard him say that 20 minutes into his "walk" he knew he had made a mistake. I'm not clear why, at that point, he's choose to walk for another 20 hours rather than simply turn around.
     
  3. Neuhaus

    Neuhaus Well-Known Member

    In his version of events, he knew that if he walked back he'd be in big trouble for walking off post. But he figured if he could come back with something of value he might lessen his punishment.

    Part of my problem with Bowe Bergdahl is that I, as an adult, think his story sounds like a crock. Then I think back to when I was on active duty and the sort of hair brained logic that comes from a cluster of twenty something's.

    We had a guy dessert one month before he was scheduled to be separated (EAOS) so that he could follow Limp Bizkit on tour. He turned himself in because he couldn't figure out why he stopped getting paid during his absence. The skipper cut the Navy's losses and gave him an NJP and sent him on his merry way.

    Point: I can't tell whether Bergdahl actually intended to join the Taliban and he's now trying to make up stupid excuses or if he was just a knucklehead and his excuses make little sense because he was an odd duck in his unit who made some bad decisions based upon flawed logic. It sounds like he didn't have many friends. So, idealistic mindset coupled with a lack of friends to temper that with some outside perspective could, indeed, lead to stupid behavior.

    What I do know is that this guy was able to convince a Lieutenant Colonel that he should just be discharged with no punishment. So the possibility that he could sway a jury definitely exists.

    Kind of reminds me of that Jenkins guy who crossed into NK to avoid deployment to Vietnam. Spend decades under North Korean rule before being released as part of an agreement to return kidnapped Japanese nationals (inclusing his wife). He turned himself in to a military base when he hit Japan and ended up with something like 45 days locked up, a DD and a reduction to E-1.

    So, I don't have the evidence before me to make a truly informed decision. Two high ranking career officers came to very different conclusions this far so it tells me the story may be more nuanced than the press is leading us to believe. Hopefully Justice is served, whatever that is in this case.
     
  4. Davewill

    Davewill Member

    I'm glad they got him back, and I'm doubly glad no one was killed looking for him. He needs to answer for his actions, so this is no surprise. Hopefully justice will be served.
     
  5. Rich Douglas

    Rich Douglas Well-Known Member

    He doesn't need to answer yet. Those actions--alleged at this point--remain to be adjudicated. I guess we'll see.
     
  6. Davewill

    Davewill Member

    That's not what I meant by answer, but I can see why you read it that way. I meant he'll have a chance to explain his actions in court.
     
  7. Rich Douglas

    Rich Douglas Well-Known Member

    Perhaps. It is not uncommon for the defendant to decline to testify in his defense. We'll see.
     
  8. major56

    major56 Active Member

    It is purported that … six soldiers either died directly or indirectly as a result of searching for Bergdahl. Such will be evaluated (be proven or unproven) via the General Court-Martial proceedings against Bergdahl. There can be little doubt though that Bergdahl deserted his his post and unit while in a combat zone.

    [​IMG]
    The six men reportedly killed while searching for Bergdahl were identified by CNN as Staff Sgt. Clayton Bowen and Pfc. Morris Walker on Aug. 18, 2009; Staff Sgt. Kurt Curtiss on Aug. 26; 2nd Lt. Darryn Andrews and Pfc. Matthew Michael Martinek on Sept. 4; and Staff Sgt. Michael Murphrey on Sept. 5.
    Bergdahl's Platoon Mates: Six Died Looking for 'Deserter'
    6 soldiers killed searching for ‘deserter’ POW, fueling backlash | New York Post
     
  9. Neuhaus

    Neuhaus Well-Known Member

    It has been purported, it has also been disputed.

    From the article:


    Indeed, this is for a jury to determine. As to whether there can be "little doubt" that Bergdahl deserted, that's simply laughable.

    There is no doubt that he was AWOL. He left his post without proper authorization. Whether he deserted his unit is largely a matter of intent. Did he intend to return? If he is speaking the truth that he only intended to sneak over to another outpost to complain about the leadership of his unit then that's a knuckleheaded move, it is absolutely AWOL (we'd call it "UA") and it absolutely deserves punishment but it is also nowhere near the legal definition of "desertion."

    If he truly deserted then the only possible outcome was that he intended to join the Taliban in which case there would be a very reasonable levying of additional charges against him. Desertion during time of war is very serious but taking up arms against the United States government is even more serious.

    If anything weighs heavily against the interest of justice it would be if any of the officers summoned for jury duty go into their task having already made up their minds based upon media accounts and kneejerk reactions as you have. I'd rather a guilty Bergdahl go free than a guy get sent to Leavenworth for life because an article from the NY Post swayed my jury more than the official military accounts that all agree that no one died specifically trying to find Bergdahl.
     
  10. Rich Douglas

    Rich Douglas Well-Known Member

    Not just officers on the panel (jury). It can be. But the (enlisted) defendant may request that one-third of the panel be made up of enlisted members.
    Conventional wisdom is that this is a bad idea, that enlisted members will be tougher in judgment. I don't know if this is borne out by research or even if it's true.
     
  11. Neuhaus

    Neuhaus Well-Known Member

    I think it's safe to say that it is, at least, perceived to be a bad idea.

    The rule though, if I'm not mistaken, is that everyone on the jury as to be of senior rank to the accused. So I think that's likely where this little nugget of conventional wisdom stems.

    If I were a Petty Officer Third Class (E-4) and had been in the Navy for, say, two years, I might like my odds a bit better if I were being judged by (among others) a LTJG with roughly the same amount of time in service as me than I would having a crusty Senior Chief who accepts no excuse for anything less than perfection.

    Of course, there would be nothing to prevent a former crusty Senior Chief, who is now a warrant officer or an LDO (who may very well be an Ensign or a JG at the time of said fictional court-martial) from serving on a jury that excluded enlisted members.

    I only knew a hand full of people who endured a court-martial and none of those situations were pretty. One went by the all officer jury and was convicted without even a hint of hesitation. The other had enlisted on his jury and was acquitted.

    It reminds me, a bit, of the conventional wisdom that the CO was the good and fair "old man" who would handle you with fairness and mercy while the XO was the raving prick who would end your career as a hobby. It's pretty obvious bunk but it didn't stop many senior enlisted people from holding it out as a general rule of thumb.

    But yeah, I have a feeling that this trial is going to illustrate just how polarizing Bergdahl can be.
     
  12. It's going to be a THOUGH case to prove. In my opinion, there's very little evidence to show his intent. Especially if he was a decent (not even role model) soldier beforehand. I foresee everyone getting all up and arms. The media going crazy...and him getting convicted of the same things he could have gotten convicted of at a special court martial. He'll probably still get some confinement time as well as a dishonorable discharge but it will be no where near the level of what most people think.
     
  13. Neuhaus

    Neuhaus Well-Known Member

    With a special court-martial his punishment would have been capped at 18 months confinement and a Bad Conduct Discharge. At a General Court martial, they can give him the dreaded DD (as if a BCD is really that much better) as well as potentially send him away for life.

    Considering Behenna got 25 years, had it reduced to 15 years and received parole after serving less than 5 years for cold blooded murder, it would be a pretty big insult to hand this guy a significant sentence for walking away in the middle of the night.

    But hey, it wouldn't be the first time justice was perverted.
     
  14. major56

    major56 Active Member

    There is nothing laughable regarding this case. However, your quip is surely attributable to your deficiency in credible familiarity to the seriousness of actions by the accused. E.g., Bergdahl likely endangered the lives of American soldiers in a combat theater of operations by: 1) abandoning /deserting his assigned post, 2) subsequently causing the altering of unit missions—re the ensuing search for Bergdahl, and 3) the possible loss of and/or increased risk to U.S. lives while conducting the search. Consequently, the juncture now being the resulting charges (desertion and misbehavior before the enemy) the accused (Bergdahl) faces via a General court-martial (for trying serious offenses). Whereas I consider your effort to inject a clever remark not unexpected—in your particular instance, I quantify the source as being offered through a Pogue /REMF perspective. Personnel-HR (BUPERS) … wasn’t it Neuhaus?
     
  15. Neuhaus

    Neuhaus Well-Known Member

    I did, indeed, serve in a Personnel role. Much like your Australia jab I'm a bit amazed at how often a brutal warrior such as yourself resorts to these chuckle worthy little passive aggressive digs. But let's get to why you're objectively wrong and leave that battle for another day.

    If I leave my post without leave, I am AWOL/UA.

    If I leave my post without leave and never intend to return, I am deserting.

    If someone dies looking for me while I'm UA that doesn't magically make my UA a desertion it's still UA. The burden of proof is on the prosecution that he deserted. Though, it's also possible that they included lesser charges for the court to consider.

    So yes, by all means, quantify (sic) my experience as a lowly REMF but you're approaching the situation from a highly emotional, completely illogical "vengeance shall by mine" place without regard for how military justice actually functions. Fortunately, the proceedings (as well as all subsequent appeals) will also be overseen by others sharing a pogue perspective. There is little doubt that Bergdahl was away without authorized leave. He admits this. There is a great deal of doubt as to whether he deserted.

    But if you rely on the NY Post (again, ignoring countless high level officials who have made statements to the contrary) to formulate judgments about all matters military then I would say it greatly explains why you're not LtCol59.
     

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