EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, December 10, 2015

Serial, Season 2 & A Legal Analysis of the Charges Against Bowe Bergdahl

Season 2 of the Serial Podcast premiered earlier today. Before listening to it, I thought that I would take a look at the charges against Sergeant Robert (Bowe) Bowdrie Bergdahl. Both of these charges were brought under the Uniform Code of Military Justice (UCMJ). From the charge sheet, we have:



SPECIFICATION: In that Sergeant Robert (Bowe) Bowdrie Bergdahl, United States Army, did, on or about 30 June 2009, with the intent to shirk important service and avoid hazardous duty, namely: combat operations in Afghanistan; and guard duty at Observation Post Mest, Paktika Province, Afghanistan; and combat patrol duties in Paktika Province, Afghanistan, quit his place of duty, to wit: Observation Post Mest, located in Paktika Province, Afghanistan, and did remain so absent in desertion until on or about 31 May 2014.




SPECIFICATION: In that Sergeant Robert (Bowe) Bowdrie Bergdahl, United States Army, did, at or near Observation Post Mest, Paktika Province, Afghanistan, on or about 30 June 2009, before the enemy, endanger the safety of Observation Post Mest and Task Force Yukon, which it was his duty to defend, by intentional misconduct in that he left Observation Post Mest alone; and left without authority; and wrongfully caused search and recovery operations.

Both of these charges are under Subchapter  X of the UCMJ. Section 885.85 covers "Desertion" and states that

(a) Any member of the armed forces who-- 
(1) without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently; 
(2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or 
(3) without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another on of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States; is guilty of desertion. 
(b) Any commissioned officer of the armed forces who, after tender of his resignation and before notice of its acceptance, quits his post or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion. 
(c) Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment, other than death, as a court-martial may direct.

This language makes it apparent that the allegation is that Bergdahl violated subsection (a)(2). The opinion of the United States Coast Guard Court of Criminal Appeals in United States v. Fazo does a nice job of unpacking two key phrases in this subsection: "important service" and "intent to shirk." First, according to the opinion,

Within the meaning of Article 85, UCMJ, service is important if an objective evaluation of the expected military situation in which the duty or service is to be performed indicates that it is more significant than the ordinary everyday service of members of the Armed Forces....The “something more” that distinguishes important service from ordinary service depends entirely upon the facts of each case....Activities such as drill, target practice, maneuvers, and practice marches are not normally considered important service....Additionally, a routine overseas assignment is not per se important service. 


Important service, on the other hand, is not limited to direct combat support or highly unusual duties. For example, an E–2's cooking duties onboard the Coast Guard Cutter EASTWIND during Operation Deep Freeze were found to be important [in Merrow]....In that case, the ship's mission involved ice-breaking duty in logistic support of a scientific mission in the Antarctic....While an older case, it is significant that our higher court cited Merrow in a 1995 decision to establish the objective standard for important service and in their factual analysis of important service.

Second, according to the opinion,

Desertion with intent to shirk important service is a specific intent offense....The accused must have the specific intent to shirk the important service....Therefore, contrary to the Government's argument at trial, an unauthorized absence with knowledge that the unit was to perform important service does not automatically satisfy the intent element....On the other hand, the factfinder may infer the required specific intent from all the evidence, including evidence of an intentional absence and knowledge of the important service.


While all the evidence may be considered in determining intent, this element goes to the accused's immediate intent, not his ultimate goal....If the accused had the required specific intent to avoid a certain duty or shirk important service, then it does not matter if she also ultimately intended to perform a legal, or even noble, act....The ultimate goal, also sometimes called an ulterior intent, is more properly labeled a motive....This motive, no matter how compelling, cannot negate the accused's immediate intent....For example, it is immaterial that one who takes money with the intent to steal it also intends to use the money to buy food for a hungry child....The motive to feed the child does not replace the immediate intent to steal the money.


Obviously, in some cases a motive may help establish an affirmative defense such as duress....The motive, however, is only relevant to the extent it establishes a recognized defense....For example, quitting a unit due to one's conscience, religion, personal philosophies, or moral, ethical or professional reservations is not a defense....These motives, along with any others, do not replace the immediate intent to quit one's unit, or shirk important service.

Meanwhile, Section 899.99 covers "Misbehavior Before the Enemy" and provides that

Any person subject to this chapter 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 punishment as a court-martial may direct.

This language makes it apparent that the allegation is that Bergdahl violated subsection (3). The only case I could find that addressed this subsection was United States v. Carey, 15 C.M.R. 112 (U.S.C.M.A. 1954). In Carey, Corporal Herman M. Carey was commander of a tank supporting Company B in the Korean War. One day,

Versteeg, a crew member went to the rear to obtain gasoline for the tank. While there, he purchased five bottles of whiskey with funds supplied by the accused and at his direction. By rule of the Tank Company, whiskey was prohibited in the front lines. That night [Private First Class Herman W.] Clark reported enemy activity to the Tank Company command post. His suspicions aroused by Clark's manner, the accused's platoon leader investigated the report and learned it was unfounded. The officer then went to the tank position where he discovered that both Clark and Carey were intoxicated. When the Tank Commander arrived at the site to relieve the accused, the latter was in such a stupor that he could not be aroused for a half-hour.

As a result, Clark and Carey were charged with misbehavior before the enemy/endangering the safety of the unit. According to the court,

As used in this Article, misconduct implies a wrongful intention, not a mere error of judgment....The term contemplates "a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand;...a violation of a definite law."...Under the provisions of this Article, any disobedience, neglect, or intentional misconduct of a member of the armed forces, before or in the presence of the enemy, the natural and probable consequence of which is the endangering of the safety of any command, unit, place, or military property, which it is his duty to defend, constitutes misbehavior before the enemy. Thus the essential elements of this offense are correctly summarized by paragraph 178c, Manual for Courts-Martial, United States, 1951, as follows: 

"(a) That it was the duty of the accused to defend a certain command, unit, ship, or place, or certain military property; (b) that he committed certain disobedience, neglect, or intentional misconduct, as alleged; (c) that thereby he endangered the safety of the command, unit, place, ship, or military property; and (d) that this act occurred while the accused was before or in the presence of the enemy."

Applying these standards to the case at hand, the court concluded that

the tank to which the accused was assigned as commander occupied a vital link in a defensive chain. The loss of that link endangered not only the infantry company to which it was attached, but also the safety of  other regimental units because of the havoc resulting from the rupture of a defensive line. The accused's duty to defend his unit, therefore, was clearly established by the general conditions shown to exist, as well as by the evidence of his assignment and of the mission of his tank. Similarly established was the element of "presence of the enemy." The unit was located in advance of an infantry company occupying positions on the main line of resistance; there were no friendly troops located between it and the enemy positions 2500 yards away; and it was required to furnish fire support for friendly patrols while well within range of hostile fire.... At a time when full responsibility for the operational efficiency of this vital defensive and offensive instrumentality was upon him, the accused voluntarily consumed sufficient liquor to intoxicate him. That such intoxication constitutes intentional misconduct there is no doubt, for drunkenness is a violation of Article 134 of the Code,...and, when it occurs while on duty, it is a violation of Article 112 of the Code....In that condition the accused was incapable of directing the operation of the tank, the delivery of fire support, or of defending his position against an enemy advance, should occasion arise. With Clark in the same condition, only two men were available to carry out the mission which ordinarily required the services of a crew of five. Under these circumstances, the safety of the unit was jeopardized, because the tank was out of action for all practical purposes, and the defensive chain was broken. This was the natural and probable consequence of the accused's intentional misconduct. Manual for Courts-Martial, United States, 1951, paragraph 138a.


Every essential element of the offense charged was established beyond a reasonable doubt. The evidence is legally sufficient to sustain the findings.



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Interesting to see the exact language here. It seems pretty clear cut that he willingly violated the articles above. But what I found most interesting is that motive cannot be a defense. Looking forward to hearing more each week and seeing how this unravels.

Posted by: Jackie | Dec 10, 2015 2:21:32 PM

jackie: Yes, I found the motive discussion in the Fazo case to be especially interesting.

Posted by: Colin | Dec 11, 2015 6:09:28 AM

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