Outside the Beltway

Army Investigation Of Bowe Berghdahl Referred To Top General

The Army's investigation of the disappearance five years ago of Sgt. Bowe Bergdahl has been referred to a top General, who will decide if a court martial should be convened.

Doug Mataconis · Tuesday, December 23, 2014 · 14 comments

Some seven months after his release as part of a deal that immediately proved to be controversial both because it included the release of five prisoners held in the prison at Guantanamo Bay, and because of outstanding questions regarding his disappearance five years earlier from his post in Afghanistan before become a Taliban captive, the case of Sgt Bowe Bergdahl is headed to a top Army General for a determination of the next step in the process:

The fate of Sgt. Bowe Bergdahl now rests with a four-star Army general at Fort Bragg, N.C., who will decide whether the soldier, who disappeared from his tiny Army outpost in rugged easternAfghanistan in 2009, should be court-martialed and what, if any, charges will be filed against him.

A Pentagon statement on Monday said the military’s investigation of the sergeant’s disappearance had been forwarded to Gen. Mark Milley, the commander of Army Forces Command, who will “determine appropriate action — which ranges from no further action to convening a court-martial.”

Sergeant Bergdahl — then a private first class — disappeared on June 30, 2009, and was captured by the Taliban and held by members of the Haqqani insurgent network until last May, when he was released in exchange for five Taliban officials imprisoned at Guantánamo Bay, Cuba. Since June he has been assigned to administrative duties at Fort Sam Houston, Tex.

The Army recently finished its investigation, by Maj. Gen. Kenneth R. Dahl, and Defense Secretary Chuck Hagel and Gen. Martin Dempsey, the chairman of the Joint Chiefs of Staff, were briefed last week on the findings and on how the Army plans to proceed. A military official briefed on the report said that General Dahl had made “findings of fact” but had not make any specific recommendations on whether or how the Army should discipline the sergeant.

Rear Adm. John Kirby, the Pentagon press secretary, told reporters Friday that the briefing for Mr. Hagel had been “informational” only, and that the secretary would not have input into the investigation or make any decisions on the case.

Details about General Dahl’s findings have been closely held. Some members of Sergeant Bergdahl’s former unit, and some lawmakers, have been critical of the prisoner exchange and said he should be punished. They say that he deserted or otherwise voluntarily walked off his base, and that men assigned to search for him were put into harm’s way.

Eugene R. Fidell, a lawyer for Sergeant Bergdahl, said in an interview that his client was “glad to see some forward movement on this matter” and was “grateful to the Army for having taken care of him and for having respected his privacy.” Mr. Fidell said he assumed the Army would allow him and his military co-counsel to read General Dahl’s report.

“As the facts become known, as they presumably will at some point, perhaps those who were so quick to condemn Sergeant Bergdahl will have second thoughts, or at least, especially at this time of year, will see his conduct in a different light,” said Mr. Fidell, who teaches military justice at Yale Law School.

He said Sergeant Bergdahl had answered every question General Dahl put to him and had spent considerable time with other officials describing his captivity.

“He has cooperated fully in debriefings by officials who are concerned with how to prepare Americans for the possibility they may fall into enemy hands,” Mr. Fidell said. He added, “He has cooperated with the Department of Justice in its efforts to hold accountable those who illegally kept him captive, and most recently he has cooperated with the International Committee of the Red Cross, which asked to meet with him at Fort Sam Houston to assess ways to improve the flow of information to and from people held as P.O.W.s.”

(…)

An earlier Army investigation into his disappearance, conducted by another officer and completed two months after Sergeant Bergdahl left his unit, concluded he most likely walked away of his own free will from his outpost at night, but it stopped short of concluding that he intended to permanently desert. The report also painted a critical portrait of lax security practices and poor discipline within his unit, and blamed the unit and chain of command for inadequately securing the area around the outpost, two American officials briefed on the classified report said in June.

Greg T. Rinckey, a former Army lawyer who now practices in Albany, predicted the recommended course of action would be an administrative separation from the Army, possibly combined with a nonjudicial punishment.

“I would be very shocked if there were some recommendation to court-martial here, but I’ve been shocked before,” Mr. Rinckey said. He noted that it would be unusual to invite the sergeant’s parents to the White House when his release was announced, only to “turn around and court-martial him” a few months later. He also said that he believed charges requiring a court-martial would be hard to prove, and that Sergeant Bergdahl’s five years in captivity would weigh in the decision.

More from The Army Times:

The Army’s decision Monday to forward the investigation of Army Sgt. Bowe Bergdahl for possible court-martial means the former prisoner of war will remain on active duty and in legal limbo for months to come.

The Army has not determined whether Bergdahl, who spent five years as a captive under the Taliban, is eligible for the lump-sum back pay that is traditionally provided to prisoners of war who return home. In Bergdahl’s case, he could be eligible for more than $200,000.

For now Bergdahl, 28, remains assigned to a desk job at an Army headquarters unit in San Antonio. The Army declined to release any details of the six-month investigation into the the circumstances surrounding his disappearance.

Then-Spc. Bergdahl was accused of leaving his patrol base alone and intentionally before he was captured by Taliban insurgents in 2009. Legal experts say the allegations suggest charges of desertion could apply.

At the crux of the case is a question of intent: When Bergdahl left his base that night, was he going temporarily AWOL, or was he a intending to desert his unit permanently? A determination that he was a deserter would result in a far more severe punishment.

A prior investigation of Bergdahl’s disappearance — conducted in 2009 long before his return — found that some members of his unit believed Bergdahl left his patrol base alone at night at least once before and returned safely.

In a short statement issued Monday, the Army said the general courts-martial convening authority in the case, Gen. Mark Milley, commanding general of Army Forces Command, will determine “appropriate action,” which could range from no further action to a full-blown court-martial.

The case presents a challenge for the Army’s leadership, which has to decide whether to punish a soldier who spent five years as a prisoner of war or essentially overlook the allegations of misconduct that surrounded his disappearance.

(…)

If the Army concludes he was a prisoner of war, he would be eligible for far more in additional pay and benefits.

Those questions remain unresolved, Army spokeswoman Lt. Col. Alayne Conway said Monday. “The determination on pay and allowances will be made at the Department of the Army level at the appropriate time,” she told Military Times.

If Bergdahl is court-martialed, he could ultimately face a punitive discharge, denying him most or all veterans benefits.

Given the fact that the case has now been referred up the chain of command, it’s unlikely that the results of the investigation into Bergdahl’s disappearance will be made public any time soon and, indeed, if the determination is made to forgo convening a court martial based on whatever might be in that report, it’s unlikely that the report will ever be made public unless it somehow manages to get leaked. That outcome would likely displease many on the right who seem convinced that the Obama Administration is involved in some kind of a cover-up regarding the facts of what led Bergdahl to leave his post five years ago as well as the circumstances that led to the prisoner exchange that brought him home. That second part, of course, has not been part of the Army investigation at all but that hasn’t stopped the  conspiracy theories from flowing.

In any case, until we hear from the General to whom this matter has been referred, there’s really not a whole lot more that can be said about the matter. Not being an expert in this particular field, I’m not going to hazard a guess as to what may happen but some discussions I’ve had with those more familiar with the UCMJ and proceedings such as thing have suggested to me that it’s unlikely that Bergdahl will face a court martial or that, if he does, it would be more likely than not that a deal would be worked out that would allow him to avoid the worst consequences of a convictions such as jail time and a loss of pay. Essentially, the argument seems to be that five years in captivity is likely to be seen as sufficient mitigation for whatever might have happened the night Bergdahl left his post to make it advisable to avoid charges. The fact that his unit was apparently suffering from significant command and morale problems at the time of Bergdahl’s disappearance is also arguably mitigation evidence in his favor. In any case, until General Milley makes his decision, which could not be until months from now, this case will remain unresolved and the conspiracy theories will continue to flow.