Outside the Beltway

Benderman Charged with Desertion

James Joyner · Tuesday, February 8, 2005 · 1 comment

The other shoe has dropped in the case I reported on yesterday, of Sgt. Kevin Benderman, a 3rd ID soldier who refused orders to go to back Iraq on the grounds that his first tour convinced him war was immoral. (See Conscientious Objector or Coward?)

Soldier charged with desertion (Army Times – AP)

A soldier seeking conscientious-objector status has been charged with deserting his fellow troops when they deployed for Iraq. Sgt. Kevin Benderman, 40, a Bradley Fighting Vehicle mechanic and training supervisor, will now simultaneously have to support his application for the status, while defending himself against the Army̢۪s desertion charges.

Benderman began his application process Dec. 28, but when his 3rd Infantry Division headed out for Kuwait en route to Iraq on Jan. 7, Benderman stayed home after receiving vague orders to think about his application, his defense attorney said. The noncommissioned officer is now charged with desertion to avoid hazardous duty and missing movement.

[…]

Prosecutor Capt. Jonathan DeJesus said Benderman’s application for conscientious-objector status was “suspect,†and that it was a ploy to avoid deployment. Proceedings for the application were scheduled to begin Tuesday and to run concurrently with the desertion proceedings. “His unit knew it was deploying to Iraq months ago,†DeJesus said in his closing statement. “He knew how dangerous it was in Iraq. He deserted his unit.â€

[Maj. S. Scott] Sikes [Benderman’s defense counsel] argued, however, that Benderman was uncertain whether he needed to deploy or handle the application after speaking to Command Master Sgt. Samuel Costen, who testified by phone that he released Benderman the night of Jan. 7 to think things over, but told him to come back after dinner. Costen and others said they tried to reach Benderman by phone that weekend, and testimony showed he got a call to report for duty at 9 a.m. the following Monday. “He was there at the precise hour,†Sikes said, adding that his client’s actions were atypical of a deserter.

Certainly true. Still, the UCMJ defines “desertion” as follows:

885. ART. 85. 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;
(2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or
(3) without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another on of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States; is guilty of desertion.

In may lay opinion, Benderman is guilty by both definitions (1) and (2). He is absent from his unit without authority and gives every indication that this condition is permanent. Certainly, his primary intent was to avoid hazardous duty.

(As an odd aside, I stumbled upon web reports that Benderman had been charged as of 19 January. )