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Title: Bowe Bergdahl, once missing U.S. soldier, charged with desertion
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URL Source: http://www.washingtonpost.com/news/ ... harged-with-desertion/?hpid=z1
Published: Mar 25, 2015
Author: Dan Lamothe
Post Date: 2015-03-25 14:36:55 by A K A Stone
Keywords: None
Views: 13299
Comments: 86
Sgt. Bowe Bergdahl, the U.S. soldier who was recovered in Afghanistan last spring after five years in captivity, faces charges of desertion and misbehavior before the enemy, according to his lawyer. Eugene Fidell, Bergdahl’s attorney, told The Washington Post that his client was handed a charge sheet on Tuesday. Army officials announced they will provide an update in his case at 3:30 p.m. at Fort Bragg, N.C., but declined to discuss new developments ahead of the news conference.
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Begin Trace Mode for Comment # 85.
#1. To: A K A Stone (#0)
Is this the guy whose parents appeared with the president for some sort of announcement months ago? OH No!
I was going to post a photo of the Bergdahl parents with Obummer and found this nice one from BareNakedIslam.com. I wonder if the Bergdahl parents will stay in hiding or come charging out on a media offensive. This is a blow to Obama on that foolish trade of Bergdahl for the 5 Taliban leaders, who are almost off detention in Qatar and ready to go home to shoot at Americans again. No way this White House didn't try to stop this courtmartial. BNI has some other playful pix.
But not the blow to his ego that Bibi hit him with. In this case The Imam in Chief was fully prepared to take the hit for facilitating this obvious treason. There was NO way of stopping this CM from going down. Besides, it was a GREAT trade for his "side" after all. FIVE terr'ists for one traitor?? We all know Bergdahl will merely be pardoned in 2016, most likely after having served a few months -- if that.
I see as most likely that Bergdahl will plea bargain, plead guilty to one count of something, and accept a Bad Conduct Discharge with forfeiture of pay and allowances, including the pay for his time in captivity. A legal point of contention may be whether he intended to remain away permanently, or was he taking a dump or communing with Gaia when captured, said capture preventing his return from an unauthorized absence.
We shall see. The investigating officer with legal counsel drummed up the article 99. Tells me the government is not leaning towards a plea bargain. Soldiers died looking for this crap bag. His unit from reports are unanimous in saying he fled. He left his unit without authorization and left his weapon behind. He didn't want to be found. If he did he would have taken a piece of equipment where he could be found. Assets were taken off combat operations to look for him endangering more soldiers. I think article 99 is there in the charge sheet for a reason.
I'm sure it is, but I think it is to ensure that Bergdahl will plead guilty as part of a deal to get rid of that charge. I do not think this case will face a trial. It took quite a while for the White House and the military to come up with this charge sheet.
If the WH was involved in this charge sheet we could have a serious issue with "Unlawful Command Influence (UCI). Let him plea guilty to Article 85 and try him for Article 99. Seems to be the only way to keep good order and discipline. It is not like this guy deserted before deploying and is sitting up in Canada wanting to come home. That is what a plea is for.
A plea is for when avoiding a trial is desired. The Commander-in-Chief does not want a trial. His appointees want what he wants. The military needs a guilty plea. A plea agreement can do that. This probably comes to nothing in the end, but it is interesting to look at the possibilities. Everybody knew for years that Bergdahl had left his unit and was captured. He was promoted to Sergeant, paid for his time in captivity, and returned to duty. That’s all public knowledge. Manual for Courts-Martial, 2012 Edition, R.C.M. 907(b)(2)(D)(iii), p. II-97-98 (i) A pardon issued by the President; [...] (iii) Constructive condonation of desertion established by unconditional restoration to duty without trial of a deserter by a general court-martial convening authority who knew of the desertion; “A promotion will operate as a constructive pardon on such offense,” Winthrop at 270, U.S. v Mason, excerpted below. Court-Martial Reports of the Judge Advocate General of the Air Force, Holdings and Opinions of the Judge Advocate General, Judicial Council and Boards of Review, Volume 3, (1950) At 174: UNITED STATES Continuance — absence of witness — materiality— constructive condonation. At 174-5: 2. A motion for dismissal of a Charge of desertion was made on the grounds of constructive condonation based on the claim that the accused had been promoted from private to private first class after the offense was committed. There was no showing, nor contention that evidence was available to show, that the promotion was made by a commander exercising general court-martial jurisdiction or that his mind was directed to this particular offense and was consciously willing that the accused be granted exception from the consequence of it. The law member, therefore, properly denied the motion. At 176: Guilty except the words ‘Wilmington, Delaware’ substituting therefor the words ‘Fort Dix, New Jersey’, of the excepted words, Not Guilty, of the substituted words, Guilty. At 177: Prior to entering pleas to the general issue, the accused moved for dismissal of Specifications 1 and 2 of the Charge “on the ground of constructive condonation” (R. 6). At 179: At 180-81: “The defense of constructive condonation, although long recognised in military law, is a defense only to the single offense of desertion. . . . [Citing cases.] When interposed as a special plea in bar of trial, it must be supported by the accused by a preponderance of the proof (par 64a. MCM 1928, p-51)” (Italics added). At 181: “. . . For the purpose of this holding, the Board of Review wiil assume, without deciding, that an unconditional restoration to duty without trial by the Staff Judge Advocate of the authority competent to order trial, may successfully be pleaded in bar of trial for the desertion, as constructive condonation by that authority. “The full purport of the conversation between the Staff Judge Advocate and accused, assuming there was one, and any evidence bearing upon the authority of that officer to act for the division commander in the premises, should have been presented by the defense if it intended to establish constructive condonation. Upon the a state of the record, one cannot say that the defense was established or that the court was bound to believe accused’s uncorroborated testimony with respect thereto or that it constituted a discharge of the defense’s burden of supporting the plea, which the Board will assume to have been entered. . . .” At 182: At 183: This motion was made at the conclusion of the prosecution’s case and was based upon the fact that Prosecution’s Exhibit No. 2 shows accused as private first class. The defense counsel stated: In fact, all subsequent exhibits of the prosecution show the accused as “Pfc”, and he is so charged. However, there is no showing, nor was there any representation or contention that evidence was available to show, that the promotion was made by a commander exercising general court-martial jurisdiction, or that his mind was directed to this particular offense and was consciously willing that the accused be granted exception from the consequences of it. The law member, therefore, properly denied the motion (R. 21).
Interesting.
Just an update on the scheduling of the Article 32, delayed until July. By Michelle Tan, Staff writer 4:48 p.m. EDT April 2, 2015 The Article 32 hearing for Sgt. Bowe Bergdahl is scheduled for July 8 at Joint Base San Antonio-Fort Sam Houston, Texas, the Army announced Thursday. Bergdahl, who spent five years as a captive under the Taliban, was charged March 25 with one count of desertion with intent to shirk important or hazardous duty, and one count of misbehavior before the enemy by endangering the safety of a command, unit or place. The decision to charge Bergdahl was made by Gen. Mark Milley, commanding general of Army Forces Command. It comes after a review of the facts and findings from an extensive Army investigation to determine what, if any, actions should be taken against Bergdahl. [snip]
GEN Milley was the III Corps commander before I retired last year. He was the type who 'ate' the first COL he saw every morning:) The motto was "never be the first one in his office in the morning." I had sympathy for his Chief of Staff.
On Megyn Kelly Show/Fox tonight, former Lt Col Tony Shaffer asserted that the Bergdahl Article 32 hearing has been delayed again at the request of the defense. He claimed that the defense is complaining of Network vilification, presumably citing the Kelly/Fox interview of the platoon mates, and that Bergdahl would try to vilify the platoon mates who drove him to go off in search of a friendly general (in Taliban central). Offhand, I can't think of any reasonable defense.
#86. To: nolu chan (#85)
As you know defense delays are common for high profile cases. So this will drag on.
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#3. To: Fred Mertz, redleghunter (#1)
Is this the guy whose parents appeared with the president for some sort of announcement months ago?
#12. To: TooConservative, redleghunter (#3)
This is a blow to 0buma on that foolish trade of Bergdahl for the 5 Taliban leaders, who are almost off detention in Qatar and ready to go home to shoot at Americans again. No way this White House didn't try to stop this courtmartial.
#20. To: Liberator, TooConservative, redleghunter (#12)
We all know Bergdahl will merely be pardoned in 2016, most likely after having served a few months -- if that.
#27. To: nolu chan, Liberator, TooConservative, CZ82 (#20)
A legal point of contention may be whether he intended to remain away permanently, or was he taking a dump or communing with Gaia when captured, said capture preventing his return from an unauthorized absence.
#33. To: redleghunter, Liberator, TooConservative, CZ82 (#27)
I think article 99 is there in the charge sheet for a reason.
#38. To: nolu chan (#33)
I do not think this case will face a trial. It took quite a while for the White House and the military to come up with this charge sheet.
#58. To: redleghunter (#38)
It is not like this guy deserted before deploying and is sitting up in Canada wanting to come home. That is what a plea is for.
(D) Prosecution is barred by:
BOARD OF REVIEW
ACM 2289
v.
Private First Class WILLIAM MASON, AF 6712867, Headquarters and Headquarters Squadron, 1100th Air Base Group Desertion —constructive condonation.
After the arraignment, but prior to pleading to the general issue, the accused made a special motion to dismiss Specifications 1 and 2 of the Charge, which motion was denied. The accused then pleaded not guilty to all of the Specifications of the Charge and to the Charge. The Court’s findings were as follows:
3. Special pleas and motions.
Having in mind that the record of trial shows that the defense counsel is not a lawyer within the meaning of Article of War 11, the Board of Review has treated the defense counsel’s language regarding the desirability of a continuance as an outright request for continuance for the purpose of obtaining general Hutchinson’s testimony either in person before the Court or in the form of a deposition.
Constructive condonation has been considered by Boards of Review of the Department of the Army in situations somewhat similar to that in the present case, i.e., where there was no showing that the suthority competent to appoint a general court-marital restored the accused to duty with full knowledge of the facts concerning the alleged desertion. (CM 298568, Schultz, 24 BR ETO 127, 133; CM 299988, Pagano, 31 BR ETO 121, 130; CM 280227, Stirewalt, 58 BR 115, 119-121; CM 316767, Jones, 66 BR 29, 31; CM 882151, Missik, 3 BR -JC 243, 272). It does not appear that the matter of restoration and condonation has heretofore been the subect of an opinion by any Board of Review of the Department of the Air force, either generally, or upon the precisely defined question of whether such restoration with constructive knowledge of the competent appointing authority can successfully be pleaded in bar of trial for the offense of desertion. Initially, the Board deems appropriate the following language from the Missik opinion, supra, at page 272:
Proceeding upon this the Board then said, at pages 130 and 131:
The language of the foregoing opinions suggests that a commander who exercises general court-martial authority need not personally do all the acts requircd to accomplish a condonation of an offense by the unconditional restoration of the offender to duty, but that such condonation may be accomplished by a subordinate officer to whom the commander by either expressly or impliedly delegated either special or general authority to act in his name on such matters. The question of whether a condonation may be accomplished by a subordinate officer under such conditions, as distinguished from the mere carrying out of the expressed wishes of the commander in a particular case, is not presented in the case. This Board does not decide that question herein. It is clear, however, from the above cases, that even if such acts of a subordinate done under a delegation of authority are legally sufficient to accomplish condonation, the accused’s burden of showing the requisite knowledge and intent on the part of such officer would be no less than where it is claimed that the commander himself ordered the restoration. This Board so holds.
The defense made a further motion for dismissal of Specification 1 of the Charge on the grounds of condonation based on the claim that the accused had been promoted from private to private first class [R. 21].
“. . . He was promoted. We don’t know where or when, but it was after he took off and the offense was committed. Winthrop says, on page 270: ‘A promotion will operate as a constructive pardon on such offense’.”
#61. To: nolu chan (#58)
#83. To: redleghunter, SOSO, TooConservative, Pericles, CZ82 (#61)
Army sets date for Bergdahl Article 32
#84. To: nolu chan (#83)
The decision to charge Bergdahl was made by Gen. Mark Milley, commanding general of Army Forces Command.
#85. To: redleghunter (#84)
Replies to Comment # 85.
End Trace Mode for Comment # 85.
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