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Does an Article 32 hearing end a military criminal case?

A recent military officer’s recommendation provides a compelling look into the wheels of military justice in action.

The story involves Sgt. Bergdahl, a solder accused of deserting his Afghanistan post during his service in 2009. The soldier was captured and help prisoner by the Taliban after his alleged desertion until 2014, when a prisoner swap allowed him to return to the United States.

Lt. Col Mark Visger presided over the soldier’s Article 32 hearing, functioning as the lead military investigator. In the military, an Article 32 hearing is comparable to a preliminary hearing in a civilian court, where the civilian parties may dispense with certain undisputed facts and the court may set a schedule. 

The military had charged the soldier with very serious offenses. Specifically, the charge of desertion implicates a potential five-year sentence. The other charge, misbehavior before the enemy, could be punishable by a life sentence. However, the outcome may be much less serious for the solider than the charges initially forecast.

In this case, the Article 32 hearing concluded with Col. Visger’s recommendation that the soldier not be subjected to a punitive discharge or jail time. The soldier’s defense counsel has stated that it agrees with Col. Visger’s analysis. The counsel has also called for a special court-martial, a much less serious forum, somewhat analogous to a civilian misdemeanor court.

However, there may still be a twist. The head of the Army Forces Command at Fort Bragg, Gen. Robert Abrams, must approve Col. Visger’s recommendation. The general has the power to reject the lower recommendation. Thus, the Article 32 hearing is not necessarily the end to this saga. 

Source: The Wall Street Journal, “Military Officer Recommends Against Jail Time or Punitive Discharge for Bowe Bergdahl,” Dan Frosch, Oct. 10, 2015

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