Why the U.S. Army Is Charging Bowe Bergdahl With Desertion

The justice system is complicated, but the military-justice system is another matter entirely. The vagaries of Army courts may help to explain why a general decided to charge Bowe Bergdahl with desertion on Wednesday.

That choice seems pretty confusing: After all, why would the U.S. trade five high-value Taliban prisoners for Bergdahl, only to turn around several months later and accuse him of a major crime? The Obama administration is already taking political fire from conservatives for an alleged miscalculation.

But General Mark Milley, who made the call, may have had a restricted set of choices. While Bergdahl was in Taliban captivity, his term of enlistment expired, even though he remained on military rosters and was classified as being on active duty. As Military Times explained in December, that means the Army really had only two choices: either grant Bergdahl an honorable discharge, or else begin the procedure to court-martial him.

"We're in an all-or-nothing situation," retired military lawyer Jeffrey Addicott told Military Times.

This doesn't necessarily mean that Bergdahl will end up in a court-martial. As Colonel Daniel J.W. King explained in a statement at Fort Bragg Wednesday, Bergdahl is being charged not only with desertion with intent to shirk important or hazardous duty, but also with misbehavior before the enemy by endangering the safety of a command, unit, or place. The charges are now referred to an Article 32 hearing, which is similar to a grand jury in the civilian-justice system.

The Article 32 hearing will investigate whether there's sufficient evidence to support the charges and make a recommendation, at which point a general can choose to refer Bergdahl's case to a general or special court-martial or to dismiss it.

Legal experts have cast doubt on the Army's ability to actually convict Bergdahl on either charge, because of the difficulty of proving them. But the process could create an opening for Bergdahl to request a less-than-honorable discharge. That might also involve surrendering pay or military benefits. If Bergdahl and his lawyers could agree on such a resolution with the military, it would prevent a court martial and excuse the Army from paying benefits like a pension to someone they believe walked away from his unit in Afghanistan.

If Bergdahl goes to trial and is convicted, he faces a range of sanctions. Misbehavior before the enemy actually carries stronger potential penalties—with maximums of a dishonorable discharge, reduction to E1, the lowest rank, forfeiture of pay and allowances, and up to life imprisonment. The desertion charge carries most of the same penalties, but with a maximum of five years imprisonment. Some experts had speculated that the Army would instead attempt to bring Bergdahl up on a charge of being absent without leave, which—unlike desertion—does not require proof that he intended to leave his unit permanently.