SGT Bowe Bergdahl’s “disappearance” is not necessarily desertion.
Once upon a time I served as an Army JAG officer – a Trial Defense Services lawyer – defending the men and women of the 4th Infantry Division at Ft. Carson against criminal charges. Viet Nam was over, but there were traces of its wrath daily in the halls of the building in which we were housed. A service member who had served honorably in Viet Nam, but “left” a little early on arrival to the States without having “processed out.” Or the occasional soldier who had never reported for that flight to "Namland," and somehow evaded detection for a dozen years or so.
The first question for the Staff Judge Advocate in each case was whether a crime had been committed and if so, which crime?.
Did the soldier go AWOL (absent without leave) or was he or she a deserter? Does it really matter?
The Convening Authority (a General who serves as the grand decision maker in these matters) in Bowe Bergdahl’s case will have much to weigh when it comes to making that call. He may decide that SGT Bergdahl deserves the benefit of the doubt, and simply permit him to be discharged.
From my experience as a military lawyer, such decisions are generally made after carefully considering the soldier’s service, as well as the circumstances surrounding his or her “disappearance” from the unit. Add to that the fact that SGT Bergdahl’s release was negotiated on behalf of the United States with full knowledge that he was reported to have walked away from his unit.
Even so, not every person who walks away is a deserter. Desertion is a separate offense that requires proof of an intention to permanently remain away or avoid hazardous duty. The military treats desertion very seriously – and it can result in the death penalty during wartime. AWOL is not nearly as serious, and there are administrative, non-judicial means of punishing that conduct which might be more appropriate here.
But did SGT Bergdahl intend to remain away? That question is more difficult to answer, and the process used by the military to investigate such a case is similar to a grand jury proceeding, but better. SGT Bergdahl and his lawyers will be present to hear the evidence to be considered by the investigating officer and they can cross-examine the witnesses. He can have and needs the best lawyers he can get. And those lawyers should ideally include both military and civilian counsel. After all – at some level this is a political case that may be pursued more out of a feeling we traded away five really bad guys for one possible deserter than because we believe SGT Bergdahl committed a crime.
I trust the military justice system. I like the checks and balances within the system and I like the way it tries to avoid politics. Still, SGT Bergdahl’s case is political. Remember that Rose Garden press conference with the President and Bowe’s parents? Politics.
We always say nobody is guilty until proven so, but the popular presumption echoed by talking heads across the cable news outlets is that he ran away from his unit. The presumption of innocence will have to fight for space, and that will take help.
Let’s just try to reserve judgment for now and find joy that he is back in the states.