2014 Archives

What punishment could Bergdahl face?


The following is from the May 5, 2014, edition of Stars & Stripes. Chris Jenks, an assistant law professor at SMU  with extensive experience with the military system of justice, provided expertise for this story.

June 6, 2014

By Chris Carroll
Stars and Stripes

WASHINGTON — What started with a joyful White House Rose Garden announcement Saturday on the return of Army Sgt. Bowe Bergdahl from Taliban captivity soon took a darker turn, with commentators across the Internet calling for the ultimate legal penalty.

“If he’s guilty of desertion, the only orientation I care about is that he’s facing the firing squad,” a reader commented Wednesday on Stripes.com.

Military legal experts say chances are zero the Army would pursue such an unusual course — only one American has been executed for desertion since the 19th century — with some arguing such a sentence wouldn’t even be legal in the current conflict.

Realistically, what punishment could Bergdahl face? Former unit members have said he deserted his outpost in Paktika province, causing death and injury among soldiers who had to look for him.

But given the claims about Bergdahl’s actions from other soldiers, (Eugene) Fidell (a former president of the National Institute for Military Justice) said a court-martial, which can end in penalties ranging from a dishonorable discharge to prison, was becoming increasingly likely.

“I think they do have to send a message,” Fidell said. “This sounds to me like desertion. I don’t want to convict him in the media, but if I were a convening authority, the information that’s now available would probably convince me to send it to an Article 32 investigation.”

That seems likely, said Chris Jenks, an assistant law professor at the Southern Methodist University Dedman School of Law who served as an Army prosecutor. But alternately, the Army may fear a circus-like trial and elect to move Bergdahl out quickly through an administrative action.

“At the end of the day, the Army is going to have to decide whether eliminating Bergdahl from the Army or a harsh characterization of his service is the top priority,” he said. “If moving him out expeditiously is the priority, they can chapter him and give him a general discharge or other-than-honorable discharge.”

“But if you want to have a harsh judgment on his service in the Army, you’re looking at the possibility of a long and drawn-out ordeal.”

Read the full story.

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