Bergdahl, The Military, and Capital Punishment

SGT Bowe Bergdahl* has been charged with Desertion (Article 85 of the Uniform Code of Military Justice) , and Misbehavior Before the Enemy (Article 99 of the Uniform Code of Military Justice).

News reports such as this from the Washington Post tell us that if convicted, Bergdahl faces the possibility of life in prison. Without having seen the actual charge sheet, I’ll admit that this confuses me somewhat, as theoretically, both articles, and especially Article 99, provide for the death penalty.

Since 1942, the services have executed 160 service members. Of these, three were Air Force personnel, and the remainder were all Army personnel. The vast majority were during World War II. The last person executed under the UCMJ was John A. Bennett, in 1961, for the rape and attempted murder of a young girl in Austria.

The only execution not for murder or rape was that of Eddie Slovik, famously the only American soldier executed for Desertion during World War II.

There are currently six servicemembers facing the death penalty for convictions under the UCMJ. Four are, for want of a better term, rather garden variety spree murders. Two are rather more imfamous, Hasan K. Akbar and Nidal Hasan, both cases of “Sudden Jihad Syndrome,” if you will.

The military, while arguing against appeals in the above cases, does not currently seem to be pressing forward toward actually executing any of the above. Every death sentence under the UCMJ must be personally affirmed by the President.


*Here is an interesting aside. SGT Bergdahl was a Private First Class when he was alleged to have deserted. His promotions were automatic, under the presumption of satisfactory service, as is the norm with POW/MIA personnel. The Army now alleges that his performance was not satisfactory. Would the reduction from Sergeant to PFC be administrative, or would a conviction under the charges listed be required for reduction? Any JAG officers around?

8 thoughts on “Bergdahl, The Military, and Capital Punishment”

  1. Frankly, this idiot deserves a DD, some small amount of time in Leavenworth or JBLM or wherever else they have a place for people these days for short-term confinement and forget it. The SOB was a Taliban prisoner for years. He’s GOT his punishment. THAT punishment was more than sufficient to do what DOD ALWAYS wants to do in these cases, which is “Send a Message.”

    DD his ass (Making him forever a felon) and wash our hands of him.

    Doing anything significantly more will make this jackwad a hero of the Left, produce no satisfactory resolution for the troops. (Because there is no way in Hell they will execute him). As My example, I submit private Chelsea Manning. Who did FAR, FAR worse damage, and, after prison will have a host of talks at high prices to every left-wing organization in the country.

    In a better era, we’d have stood him up against a wall. In THIS one, just get him out of our hair and call it a day.

  2. The leftist lunatics already blowing tires on this crap
    You had the NYT yesterday asking, if the ass got convicted, can he still get an honourable discharge….I mean, it’ll effect his job prospects!

    Let that sink in for a min, otherwise you might want to hurt something…..

    God almighty

  3. Not a JAG officer, and I don’t know the Army administrative rules, but in a civilian case (and I know its not a direct comparison), I think, they would need to prove the desertion before you get to the unsatisfactory performance. Otherwise, you end up with a situation of prior finding that the performance was unsatisfactory that could impact the trial. Usually, a court proceeding will force a halt to an administrative hearing.

  4. While I am not a JAG, sure it is possible to have an admin reduction board for a SGT at the unit level. However, the proof necessary to prove unsatisfactory service as a SGT would more than likely come from the Article 32 hearing by which time you might as well go for the real charge. If all you wanted to do was reduce him and still let him serve, an admin reduction board would work. Would be dumb, but could be done.

  5. They won’t refer the case capital for a lot of reasons – it would tie things up on appeal forever, the President would never affirm it anyway, etc. I defended a Marine who was charged with falling asleep on post in Iraq back in 2005 (a potential death penalty offense) and the command specifically chose not to refer it capital to take any of the appellate issues off the table. They knew they wouldn’t get it, so why complicate things?

    As for the reduction in rank, at a court-martial, reduction can be adjudged or automatic. Obviously, the members could reduce him to E-1 as part of his sentence (adjudged), but if they did not, any enlisted servicemember who receives a sentence that includes either a punitive discharge (BCD, DD) or confinement greater than six months will be reduced to E-1 by operation of law (automatic). There are also automatic/adjudged forfeitures based on the sentence and the forum (2/3 pay at a Special and total at a General).

  6. DD at the least so that he must wander the earth forever “branded.” Any other type of discharge can be upgraded to Honorable and that, in this case is bile in my mouth.

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