October 25, 2017
Ask most people what Army Sgt. Bowe Bergdahl pleaded guilty to and you will likely receive a common answer: desertion.
The offense, a familiar word in our vernacular, is the purposeful abandonment of one’s unit or post. If convicted of this alone, Sgt. Bergdahl would face a maximum of five years of confinement.
It is the second, lesser known offense, however, that Bergdahl pleaded guilty to, one that subjects him to the possibility of spending the remainder of his life in prison: misbehavior before the enemy.
Throughout the evolution of war, armies have sought to regulate the behavior of its soldiers. Behavior that demonstrates a lack of discipline or honor places at risk the ability of the army to effectively achieve its tactical goals on the battlefield and its strategic goal of maintaining the confidence of the people it serves.
The Articles remained largely unchanged in language for over 100 years after their enactment in 1806. Indeed, a review of the modern-day Uniform Code of Military Justice reveals very similar language to that contained in the original Articles.
Article 52 of the 1806 Articles of War, for example, stated: “Any officer or soldier who shall misbehave himself before the enemy, run away, or shamefully abandon any fort, post, or guard which he or they may be commanded to defend, or speak words inducing others to do the like, or shall cast away his arms or ammunition, or who shall quit his post or colors to plunder and pillage, every such offended, being duly convicted thereof, shall suffer death, or such other punishment as shall be ordered by the sentence of a general court martial.”
Article 99 of the Uniform Code of Military Justice, the offense to which Sgt. Bergdahl pleaded guilty, states:
“Any member of the armed forces who before or in the presence of the enemy—
(1) runs away;
(2) shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his duty to defend;
(3) through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property;
(4) casts away his arms or ammunition;
(5) is guilty of cowardly conduct;
(6) quits his place of duty to plunder or pillage;
(7) causes false alarms in any command, unit, or place under control of the armed forces;
(8) willfully fails to do his utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any other thing, which it is his duty so to encounter, engage, capture, or destroy; or
(9) does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft of the armed forces belonging to the United States or their allies when engaged in battle; shall be punished by death or such other punishment as a court-martial may direct.”
The most significant changes in the language were intended to wrest from the judiciary the obligation of determining what standards of conduct would sustain an offense that might result in capital punishment, and instead, attempt to create a uniformed approach to that determination.
Key under the modern-day charge is the requirement that there be a “wrongful intention” and that the consequences of this wrongful intention were the “natural and probable consequence of which is the endangering of the safety of any command, unit, place, or military property.”
Take, for example, the case of United States v. Carey, in which a soldier in charge of a tank used in the defense against the North Korean Army became voluntarily intoxicated, rendering him incapable of operating the tank and thus endangering the lives of his entire unit by “breaking a vital link in the defense chain.”
This intentional act of intoxication, which jeopardized the lives of others, was deemed to be misconduct before the enemy. No single person in the Carey case was actually injured by the soldier’s wrongdoing, and Carey was sentenced to, among other things, a bad conduct discharge and three years hard labor.
In the case of Bergdahl, the government has proffered aggravation evidence approved by the military judge that consists of the harm Bergdahl’s unit suffered based on his intentional abandonment of his post.
The government has focused this evidence on three service members who engaged in search-and-rescue operations once the unit realized that Bergdahl was missing. All three service members suffered life-altering injuries during these search operations.
In pleading guilty to misbehavior before the enemy, Sgt. Bergdahl has admitted that he, “through disobedience, neglect, or intentional misconduct endanger[ed] the safety of [his or] any such command, unit, place, or military property” when he intentionally walked away from his post. Now the defense cannot claim Bergdahl was unaware his unit was placed at risk because that is one of the elements of the charge he conceded he violated for the judge to accept his guilty plea.
When one enters the profession of arms, they commit to a code of conduct, one that is steeped in history. Soldiers cannot unilaterally choose to compromise a defensive perimeter. The consequences of such behavior could be catastrophic.
Our nation and democracy cannot survive if soldiers standing on the battlefield who are facing down the enemy are wondering whether their flank is exposed because they have been abandoned by those who have sworn to protect them.
While punishment is a key component of any criminal case, it should be hoped that deterrence is what prevails when the judge adjudicates Bergdahl’s punishment. A soldier should be incentivized to pause and reflect before risking the lives of supposed brothers and sisters. Instead of turning to the enemy, Bergdahl could have informed his chain of command in a way that would have met both his needs and the safety of his unit.
No one, except Bergdahl, truly knows why he abandoned his post, but we can hope the consequences he suffers will deter future conduct that would directly put those whom service members have sworn to serve with and protect at risk.
Eric S. Montalvo (USMC Ret.) is a retired “Mustang” who served 21 years in the Marine Corps, and is the founding partner of The Federal Practice Group, a Washington, D.C. law firm.