Sunday, June 8, 2014

Is Bowe Bergdahl guilty of desertion?

By Henry Mark Holzer

Beginning some five years ago and virtually taking over the headlines in the last ten days, the case of private (were his two promotions legal?) Bowe Bergdahl has consumed the public’s attention. Among the endless and mostly uninformed palaver has been the conclusion—by legal, military, and lay commentators alike—that Bergdahl committed the crime of desertion by leaving his unit in the Afghanistan.

Typically, none of the pundits bothered to define “desertion,” or to explain why the charge would apply to private Bergdahl.

Under Section 885 of Title 10 of the United States Code, this is desertion:

(a) Any member of the armed forces who--
(1) Without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently; [or]
(2) Quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or
(3) [Not relevant]; (Holzer’s emphasis.)
is guilty of desertion.

(b) [Not relevant.]

This is the punishment for desertion:

(c) Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment, other than death, as a court-martial may direct.

It is apparent that under both 10 U.S.C. Sections (a) (1) and (2) the common, and key, element is the accused’s intent.

Intent is a question of fact, to be decided by a jury, in Bergdahl’s case at a court-martial. So far, from Bergdahl’s own notes, emails, and statements, his intent “to remain away therefrom permanently” and/or “to avoid hazardous duty or to shirk important service” seem clear and easily provable.

To those who have been trying to soften Bergdahl’s conduct by suggesting that he was merely Absent Without Official Leave (AWOL, a lesser included offense of desertion), please note what the U.S. Navy-Marine Corps Court of Military Review said in the 1994 case of United States v. Gonzalez.

Desertion with the intent to avoid hazardous duty or to shirk important service is a serious offense under military law. What distinguishes it—and aggravates it—from simple unauthorized absence, and even from desertion with intent to remain away permanently, is the existence of an intent to abandon the unit at a time when the presence of all hands is most critically needed. [citing as precedent] United States v. Merrow (1963). The elements of this form of desertion are:

(1) The accused quit his unit;
(2) The accused did so with the intent to avoid hazardous duty or to shirk important service;
(3) The duty to be performed was hazardous or the service important;
(4) The accused knew he would be required for such service or duty; and
(5) The accused remained absent until the date alleged [in the charge of desertion].

If charged, will Bowe Bergdahl be convicted of desertion?

We’ll see what the court-martial jury says.