Desertion or AWOL?

I served on two Special Court-Martial boards during my encounter with the military. The first one occurred during my stint in Viet Nam; the second one was during a temporary duty assignment as I awaited separation from active duty.

I’ve read many pieces concerning the Bowe Bergdahl case. And while many people seem to have reached a final conclusion concerning his actions and how he should be punished, I have not. The issues involved are complex and defy a “rush-to-judgment” verdict.

Some of the following is MY opinion; the rest of it is military fact. I’ll clearly identify both as I go. As well, because of the uniqueness of the issues, the matter can’t be explained in a few short paragraphs loaded with blasé ambiguity.

First—a FACT—the Uniform Code of Military Justice (UCMJ) was established with convenience as its prime directive. As such, its purpose has less to do with “justice” than it has with providing military field commanders with an effective means of instilling discipline within the ranks—both enlisted and commissioned.

Second—another FACT—the UCMJ, often referred to as “military law,” is way different than civilian law.

As such—my OPINION—I learned that it takes approximately 10-minutes for an officer assigned to these boards to realize that the UCMJ is to justice what paper cuts are to brain tumors.

It would take way more space than I have here to list all of the differences between military law and civilian law. So I’ll just list a few of them.

The rules of evidence—another FACT—are much less strict under the UCMJ than they are under a civilian justice system. For example, in this country, a Justice of the Peace court is not even a court of original record, yet the rules of evidence are much more limiting than under the UCMJ.

Under the UCMJ—another FACT—until defendants are officially charged with a crime or crimes, they do NOT have the right to remain silent during preliminary investigations—the military calls them “interviews.” Nor do they have the absolute RIGHT to have an attorney present during interviews.

Bergdahl has a civilian attorney—a brilliant one, Eugene Fidell, who is representing him pro bono. But until the preliminaries (interviews) are complete and/if the Army formally charges him, his attorney is basically a coach with attorney/client privileges.

As well, to the point of “feet-dragging” relative to charging the man with a crime, it’s not been Bergdahl, or his legal team, that has been holding things up; the Army—through the good sense efforts of Maj. Gen. Kenneth Dahl—is doing this, and for good reasons.

First, the medical team in charge of his case has made delay a critical point. And second, General Dahl is not about to convene a General Court Martial until he is reasonably sure he has a winnable case.

The Army Judge Advocate General’s office will decide the merits of the case, and will advise the General.

The evidence must support charging him under the UCMJ—and so far, based ONLY on what we in the public knows—it’s likely to be under Article 86, AWOL, not under Article 85, Desertion.

Of course, the above is, again, my OPINION; I don’t know any more FACTS than the rest us know at this point.

But as for all the talk of DESERTION, it is 99% speculation on the parts of the hard-print media, the cable news networks, and myriad self-declared Rambo-wannabe “experts” throughout the Internet.

The ARMY, however, with the understandable exception of some of his fellow soldiers, is visibly mum on the topic to this point.

Under Article 85 of the UCMJ, the military may charge people with desertion for virtually any period of absence without leave, as little as a week, or even a day, for that matter.

But a DESERTION charge always requires evidence of INTENT. What makes things interesting, however, is which side has the burden of proving the intent.

For personnel absent without leave for less than 30-days, the appropriate charge falls under Article 86 (absent without leave, AWOL), where intent is a non-issue.

However, if the Army levels a charge of desertion (Article 85) involving absences of less than 30-days, the burden of proving intent falls to the trial counsel (prosecution).

But Article 85 also gives the military the RIGHT to ASSUME an intent to desert for periods exceeding 30-days. As such, Article 85 also places the burden of proof on the defendants to substantiate that they had no intention to desert.

This man walked away from his unit; I don’t see anything that supports the contrary. But he was captured by the enemy shortly thereafter. He could not have returned, even had he wanted to.

As well, the Army has already conceded that there is no evidence to support claims that he cooperated with that enemy in any way. This bodes extremely well for the defense in the event of a desertion charge.

So—again, MY opinion—I don’t see a charge of desertion being lodged against Bergdahl, but AWOL is a definite possibility, perhaps even with a few aggravating factors added to the specifications of the charge.

However, the fact is, due to specific circumstances, we’re never going to know whether Bergdahl intended to desert or not.

Whatever Bergdahl actually did, or intended to do, falls under the category of REAL guilt. And while real guilt and PROVABLE guilt may be the same, they are often NOT the same.

And, under the auspices of the UCMJ, even the military is restricted to convicting people based on what it’s able to PROVE, as opposed to what it BELIEVES. Just like our civilian system is.

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