Army Sergeant Bowe Bergdahl’s case has been referred to a general court martial, where he could face a life sentence if convicted of misbehavior before the enemy and he could face five years of prison time if convicted of desertion. On June 30, 2009, Bergdahl walked away from his unit’s remote outpost in eastern Afghanistan and was held captive by the Taliban for the next five years until a controversial prisoner swap for five former Taliban officials held at Guantanamo.
"The U.S. Army Forces Command's Commanding General referred two charges today, Dec. 14, in the case of United States vs. Sgt. Robert B. Bergdahl to a General Court-Martial," the Army said in a statement.
"The two specific charges referred under the U.S. Armed Forces' Uniform Code of Military Justice are: (1) Article 85: 'Desertion with Intent to Shirk Important or Hazardous Duty;' and (2) Article 99: 'Misbehavior before the Enemy by Endangering the Safety of a Command, Unit or Place,'" the statement added.
Bergdahl's attorney, Eugene Fidell, said in a statement that Gen. Robert Abrams, commander of U.S. Army Forces Command, did not accept the recommendation from a pre-trial hearing that Bergdahl’s case should be referred to a special court martial that would have limited prison time for a conviction to a year. Instead, Abrams decided to refer Bergdahl’s case to a general court martial for which he could get five years if convicted of desertion and a life sentence if convicted of misbehavior before the enemy.
"The convening authority did not follow the advice of the hearing officer who heard the witnesses," said Fidell, noting he "had hoped the case would not go in this direction."
At a pre-trial hearing in September known as an Article 32 hearing, Major General Kenneth Dahl, who had conducted an exhaustive investigation of Bergdahl’s case testified that he felt Bergdahl should not face jail time if convicted. “I do not believe that there is a jail sentence at the end of this process," Dahl said. "I think it would be inappropriate.”
The hearing’s presiding officer later recommended that Bergdahl’s case should be heard by a special court martial. Lt. Col. Mark Visger also recommended that Bergdahl should not face any jail time or a punitive discharge if convicted of the charges.
"We will continue to defend Sgt. Bergdahl as the case proceeds," Fidell said.
Bergdahl disappeared June 30, 2009, from Combat Outpost Mest-Malak in Paktika Province, Afghanistan, and was held captive by the Taliban for five years.
Late last week, Bergdahl explained his disappearance from his post in his own words in the first installment of the popular podcast “Serial."
In recorded phone conversations with filmmaker Mark Boal, Bergdahl said he was unhappy with the leadership in his unit and feared his fellow soldiers might suffer harm as a result. He devised a plan to hike 18 miles to another Army base to report his concerns to a general.
“I was fully confident that when someone took a look at the situation ... that people would understand that I was right. What was going on was a danger to the lives of the men of that company,” Bergdahl said on the podcast. Bergdahl’s description matched details gathered by Major General Dahl’s investigation that were presented at the Article 32 hearing in September.
Bergdahl also admitted that he had the desire to prove himself as a kind of “super soldier,” like the fictional spy Jason Bourne.
Bergdahl’s case has also become a hot topic in the presidential campaign. Republican Donald Trump frequently labels the Army sergeant as a deserter.
"We again ask that Donald Trump cease his prejudicial months-long campaign of defamation against our client. “
Bergdahl was released on May 31, 2014, in a controversial swap for five former Taliban leaders who had been held at the detention facility in Guantanamo Bay.
“We also ask that the House and Senate Armed Services Committees avoid any further statements or actions that prejudice our client’s right to a fair trial," said Fidell in his statement.
The House Armed Services Committee issued a report last week critical of the Obama administration for not properly informing Congress in advance of the swap.
White House spokesman Josh Earnest today defended President Obama's efforts to secure Bergdahl's freedom.
"He feels a responsibility to everyone who puts on a uniform that we are not going to leave them behind and the ... way that Sgt. Bergdahl was rescued I think is a testament to the president’s commitment to that principle,” Earnest said.
The date of Bergdahl's arraignment hearing at Fort Bragg, North Carolina, will be announced at a later date.