Despite efforts by his defense attorneys to have the charge dropped, Army Sgt. Bowe Bergdahl will face the rare charge of misbehavior before the enemy — which carries a possible life sentence — when he faces his court-martial in October.
The charge is levied against a solider who endangers his comrades.
In 2009, Bergdahl walked off his post in Afghanistan. Bergdahl then spent five years as a captive held by the Taliban. Bergdahl was freed in a controversial May 2014 prisoner swap that included five Taliban leaders being released from the U.S. military prison at Guantanamo Bay, Cuba.
Col. Jeffery Nance, the judge in the case, rejected arguments by the defense that the charge of misbehavior should be dropped, while admitting that case law on the charge is scarce.
The defense said that crime was more serious than warranted.
“There is simply no way the accused could not reasonably have understood that his conduct was proscribed,” Nance wrote.
“The government avers that the accused left his combat outpost intentionally, without authority and for the purpose of causing search and recovery operations, which he ultimately did cause. How could such alleged conduct be characterized as anything other than misconduct under any definition of the word?” he wrote
Bergdahl is charged with “misbehavior before the enemy by endangering the safety of a command, unit or place” and “desertion with intent to shirk important or hazardous duty.” The desertion charge carries a maximum sentence of five years in prison.
Nance also ruled this week that evidence of injuries to those who searched for Bergdahl can be used in the sentencing phase of Bergdahl’s court-martial. He would not allow that evidence to be used in determining Bergdahl’s guilt or innocence because it might trigger a verdict based on emotion and not the facts.
Sgt. 1st Class Mark Allen and retired Senior Chief Petty Officer James Hatch, a Navy SEAL, were both injured while searching for Bergdahl.
“Neither Allen nor Hatch would have been where they were doing what they were doing but for the actions of the accused, assuming he is found guilty of (misbehavior before the enemy),” Nance wrote.
Allen was shot in the head while searching for Bergdahl. He suffered a traumatic brain injury, is confined to a wheelchair and is unable to communicate. Hatch suffered a career-ending broken femur on a separate mission to search for Bergdahl.
Bergdahl has said he left his unit to illustrate a leadership failure endangering the lives of the soldiers with whom he served.
“All I was seeing was basically leadership failure to the point that the lives of the guys standing next me to were literally, from what I could see, in danger of something seriously going wrong, and somebody being killed,” Bergdahl said, claiming he had devised a plan to hike 18 miles to a different Army base, where he would state his concerns.
“I was fully confident that when someone took a look at the situation … that people would understand that I was right. What was going on was a danger to the lives of the men of that company,” Bergdahl said.
Bergdahl’s court-martial is set to begin Oct. 23 at Fort Bragg in North Carolina.
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