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Orange County Bar Association

Army Investigator Says Bergdahl Should Not Be Incarcerated

Law Offices of William W. Bruzzo
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Sgt Bowe Bergdahl could face court martial for the crime of Desertion for leaving his post in June 2009. At that time he was a private first class at Forward Operating Post Mest in eastern Afghanistan. Mest, a small base surrounded by Taliban fighters, had been established and maintained by the platoon he was in. The soldiers were going to be rotated out the next day and travel to another base to take a rest from their post. But by that morning Bergdahl had left the base, leaving his rifle behind. According to Maj. Gen. Kenneth Dahl who led an investigation as to what happened to Bergdahl, Sgt. Bergdahl left his post in order to reach another base. Bergdahl believed that his platoon was in danger because of questionable leadership. He was hoping to reach a bigger base and explain his concerns to a General. However Maj. Gen. Dahl’s investigation uncovered that there were no known problems or issues to deem the platoon in danger from improper command. It seems that Sgt. Bergdahl’s concerns were unfounded. The post had been successfully built and maintained by the platoon and was considered a success. Also there was no General at the Forward Operating Base Bergdahl was hoping to get to. As such, Bergdahl would not have found a General present in order to report his concerns. Perhaps surprisingly, prior to leaving his unit Bergdahl was a respected solider and most of those interviewed who knew him were flummoxed by his leaving his post in the manner he did.

The investigation conducted by Maj. Gen. Dahl revealed that Sgt. Bergdahl had been captured 12 hours into his departure from Mest. Bergdahl’s unit spent weeks searching for him, as they would for any missing soldier. Reports that soldiers had died trying to locate Bergdahl turned out to be false. And while they searched for him, he in turn tried to escape the Taliban. The investigation confirmed that he tried to escape at least 12 times. In one of those attempts he managed to escape for nine days before running out of food and water and being recaptured. In all Bergdahl spent 5-years as a prisoner to the Taliban; he suffered permanent injury to his legs and spine as a result of being a prisoner and is now physically unfit to serve.

Currently, his case is in military court before an Article 32 Officer which is the civilian equivalent of a probable cause hearing or preliminary hearing in California. The Article 32 Officer will determine if the Uniform Code of Military Justice (UCMJ) has been violated and if so he will recommend that the charges be forwarded to a Court-martial. While there seems little doubt that Bergdahl did violate the law by leaving without permission, it may also be determined that his 5 years in captivity having sustained permanent physical disability from that captivity, may be deemed sufficient punishment. At that time the Commanding General may permit Bergdahl to plead guilty to being Away Without Leave (AWOL) and discharge him immediately from the service; or the Commanding General can forego a court-martial altogether and administratively separate Bergdahl with an Other Then Honorable Discharge. He may also send Bergdahl to court-martial which could result in years in custody if he is found guilty. The Commanding General has complete discretion in how the matter proceeds.

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