Update on Bergdahl case: Is a court-martial in the cards? | Law Offices of David P. Sheldon
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Update on Bergdahl case: Is a court-martial in the cards?

The strange case and singular circumstances surrounding a man referred to as "the only U.S. prisoner of war in the Afghan theater" are marked with notable twists and turns as material developments further unfold in the matter.

The name Bowe Bergdahl is now familiar to many Americans in the recent wake of that Army sergeant's release from extended Taliban captivity. Bergdahl spent approximately five years under the control of the Taliban after leaving his duty station in Afghanistan, and a prerequisite to his release was the return of five Taliban detainees being held by the United States.

We reported initially on the matter in our blog entry dated June 10, noting that the case has been centrally marked by "sheer polarity." Many people view Bergdahl as a returning hero, with others questioning his motives for wandering away from his duty location and pointing out that fellow soldiers were put in harm's way because of that act.

Will Bergdahl face a court-martial proceeding or administrative discharge from the Army for leaving his post?

One former Army lawyer and current law professor says that any punishment is unlikely, at least regarding a charge of desertion, which requires proof of intent to leave a post permanently. That conduct has never been formally alleged by the Army.

“I’m not so sure there would be much of an appetite to court martial him,” says the professor, in the event that Bergdahl merely wandered away and was captured.

A host of other anti-prosecution factors would seemingly come into play, as well. Rather than taking any action to drop Bergdahl from Army rolls during his absence, the military promoted him. Then there is, of course, the prisoner swap for his return, involving several Taliban prisoners of war. And comments from President Obama himself would seem to undercut any proposed disciplinary action against Bergdahl, with the nation’s chief executive and commander in chief calling the sergeant a prisoner of war.

Still, the case continues to play out in the press. We will keep readers duly posted of any material developments that occur.

Source: Business Insider, "Here's why Bowe Bergdahl probably won't be court martialed for desertion," Armin Rosen, June 2, 2014

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