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Foreign Invaders crisis cost $150B in 2023, forcing some areas to cut police and fire services: report Israel kills head of Hezbollah Intelligence. Status: Not Logged In; Sign In Obama Wars See other Obama Wars Articles Title: Bergdahl charges, required elements, explanation, lesser included offense, maximum punishment Source: [None] URL Source: [None] Published: Mar 26, 2015 Author: nolu chan Post Date: 2015-03-26 19:33:01 by nolu chan Keywords: bergdahl, charges, elements Views: 841 Comments: 1 The Washington Times reported that, Sgt. Bergdahl was charged 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, Col. Daniel J.W. King, chief of public affairs at U.S. Army Forces Command, said in a press conference at Fort Bragg, N.C. 9. Article 85—Desertion a. Text. “(a) Any member of the armed forces who— [...] (2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; [...] b. Elements. (2) Desertion with intent to avoid hazardous duty or to shirk important service. (a) That the accused quit his or her unit, organization, or other place of duty; (b) That the accused did so with the intent to avoid a certain duty or shirk a certain service; (c) That the duty to be performed was hazardous or the service important; (d) That the accused knew that he or she would be required for such duty or service; and (e) That the accused remained absent until the date alleged. [...] c. Explanation. [...] (2) Quitting unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service. (a) Hazardous duty or important service. “Hazardous duty” or “important service” may include service such as duty in a combat or other dangerous area; embarkation for certain foreign or sea duty; movement to a port of embarkation for that purpose; entrainment for duty on the border or coast in time of war or threatened invasion or other disturbances; strike or riot duty; or employment in aid of the civil power in, for example, protecting property, or quelling or preventing disorder in times of great public disaster. Such services as drill, target practice, maneuvers, and practice marches are not ordinarily “hazardous duty or important service.” Whether a duty is hazardous or a service is important depends upon the circumstances of the particular case, and is a question of fact for the court martial to decide. (b) Quits. “Quits” in Article 85 means “goes absent without authority.” (c) Actual knowledge. Article 85 a(2) requires proof that the accused actually knew of the hazardous duty or important service. Actual knowledge may be proved by circumstantial evidence. [...] d. Lesser included offense. Article 86—absence without leave. e. Maximum punishment. (1) Completed or attempted desertion with intent to avoid hazardous duty or to shirk important service. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. 23. Article 99—Misbehavior before the enemy a. Text. “Any member of the armed forces who before or in the presence of the enemy— [...] (3) through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property; [...] b. Elements. [...] (3) Endangering safety of a command, unit, place, ship, or military property. (a) That it was the duty of the accused to defend a certain command, unit, place, ship, or certain military property; (b) That the accused committed certain disobedience, neglect, or intentional misconduct; (c) That the accused thereby endangered the safety of the command, unit, place, ship, or military property; and (d) That this act occurred while the accused was before or in the presence of the enemy. [...] c. Explanation. [...] (b) Enemy. “Enemy” includes organized forces of the enemy in time of war, any hostile body that our forces may be opposing, such as a rebellious mob or a band of renegades, and includes civilians as well as members of military organizations. “Enemy” is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and all the citizens of the other. (c) Before the enemy. Whether a person is “before the enemy” is a question of tactical relation, not distance. For example, a member of an antiaircraft gun crew charged with opposing anticipated attack from the air, or a member of a unit about to move into combat may be before the enemy although miles from the enemy lines. On the other hand, an organization some distance from the front or immediate area of combat which is not a part of a tactical operation then going on or in immediate prospect is not “before or in the presence of the enemy” within the meaning of this article. [...] d. Lesser included offenses. [...] (3) Endangering safety of a command, unit, place, ship, or military property. (a) Through disobedience of order. Article 92—failure to obey lawful order (b) Article 80—attempts [...] e. Maximum punishment. All offenses under Article 99. Death or such other punishment as a court-martial may direct. Note: When, as with Bergdahl, the Convenint Authority (CA) does not include specific content in the charging document bringing a capital case, the Court shall not consider or award a death sentence. Post Comment   Private Reply   Ignore Thread   Top • Page Up • Full Thread • Page Down • Bottom/Latest #1. To: All (#0) (b) That the accused did so with the intent to avoid a certain duty or shirk a certain service; From written statement of Bergdahl defense counsel, Eugene R. Fidell, of March 25, 2015. At 6: While we have not received important supporting and related documents, we have seen MG Dahl's Executive Summary and have the following comments. First, the report makes it clear that SGT Bergdahl is a truthful person, albeit a naive and at times unrealistic one. (Many of his most vociferous and self-righteous detractors may be surprised to learn of the influence Ayn Rand (author of, among other works, The Fountainhead and Atlas Shrugged) has had on his worldview.) The record is clear that he did not act out of a bad motive. Although the motive behind an offense may not furnish a defense, as the report notes, it remains a pertinent consideration when a convening authority, exercising broad discretion, decides upon the proper disposition of charges. While hedging its bets (n.347), the report basically concludes that SGT Bergdahl did not intend to remain away from the Army permanently, as classic "long" desertion requires. It also concludes that his specific intent was to bring what he thought were disturbing circumstances to the attention of the nearest general officer. MG Dahl correctly stressed SGT Bergdahl's cooperation with a variety of investigative efforts, and found him credible. The report properly dismisses a variety of contentions that have been made about SGT Bergdahl. No, he was not planning to walk to China or India. No, there is no evidence that any Soldier died searching for him. No, there is no evidence of misbehavior of any kind while he was held captive. Nor is there any credible evidence that SGT Bergdahl left in order to get in touch with the Taliban. At 8: Without undertaking a complete deconstruction of the report's analysis of potential charges, I will offer a few comments on both what is addressed in it - and what is not. I am gratified that it concluded that SGT Bergdahl did not harbor an intent to remain away permanently, and that the case sounds more in "avoidance of important service" at the outpost than "shirking hazardous duty." After all, it would obviously be more dangerous to be alone without a gun outside the wire in hostile territory than to be fully armed, inside the wire. At 8-9: The report's evaluation of potential defenses trains its fire on matters that no responsible attorney would consider worth raising based on the law and the known facts. It overlooks constructive condonation, a defense that is recognized in R.C.M. 907(b)(2)(D)(iii) and is fairly raised on the facts of the case. Cognizant GCMCAs have had ample reason to believe SGT Bergdahl had deserted by the time he resumed regular duty on July 14, 2014 and certainly in the months since the report was submitted to LTG Grisoli and referred by him to you. There appears to be significant material to argue condonation. Attachment at 23 of the PDF file: DEPARTMENT OF THE ARMY HEADQUARTERS, UNITED STATES ARMY NORTH (FIFTH ARMY) MILITARY PERSONNEL DIVISION JBSA FORT SAM HOUSTON, TEXAS 78234-5018 21 AUG 2014 PERMANENT ORDERS 233-900 BERGDAHL, BOWE R. SGT WJMH 0000HQ HSC AR NORTH (WJMHT0) FORT SAM HOUSTON, TX 78234 ANNOUNCEMENT IS MADE OF THE FOLLOWING ORDER AWARD: GOOD CONDUCT MEDAL (2ND AWARD) DATE(S) OR PERIOD OF SERVICE: 12 JUN 2011 TO 11 JUN 2014 AUTHORITY: PARAGRAPH 4-6, AR 600-8-22 REASON: FOR EXEMPLARY BEHAVIOR, EFFICIENCY AND FIDELITY IN ACTIVE MILITARY SERVICE. FORMAT: 320 FOR THE COMMANDER: ******************** * OFFICIAL * JBSA 502 MPD ******************** EARNEST C. BRIDGES CHEF, MILPERS DIV DISTRIBUTION: IMSW-SMH-HRM-E(ENLISTED RECORDS) (1) SGT BERGDAHL BOWE R (1) WJMH 0000HQ HSC AR NORTH FORT SAM HOUSTON, TX 78234 (1) CDR, USAEREC, ATTN: PCRE-RF, INDIANAPOLIS 46249-5100 (1) As that is Bergdahl’s Second Award, he must have received a First award for the four years preceding. A NCOER COUNSELING AND SUPPORT FORM of August through November 2014 is an Attachment at 18-19 of the PDF file. Bergdahl walks on water and is in direct communication with God. “PERFORMANCE SUMMARY: * has what an NCO must BE, KNOW, DO. * placed mission first; totally devoted to duty and a real team player.” The writer exhibits a commanding knowledge of cliches of glowing military performance evaluations. His promotion of 12 June 2011 to Sergeant was signed by Gina S. Farrisee, Major General, USA, Commanding. Attachment at 21 of the PDF file. Just coincidentally, the Army chose a Desertion charge that carries a maximum of 5 years, and Bowe served 5 years in captivity, and that could be assessed toward time served. nolu chan  posted on  2015-03-26   19:34:31 ET  Reply   Trace   Private Reply   Top • Page Up • Full Thread • Page Down • Bottom/Latest

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