Did Bergdahl Desert?

One of the main side stories of the prisoner swap surrounds the issue of whether Sgt. Bergdahl is a deserter. Several former military members have spoken out strongly indicating  their belief that Bergdahl did in fact walk away from his post. That remains to be investigated by the military, and Section 85 of the Uniform Code of Military Justice is not as cut and dried as it may appear. It will be very interesting to see how the military handles this case given the notoriety that has attached to it. Stay tuned.

Desertion

Desertion is an aggravated type of Unauthorized Absence (UA) or Absence Without Leave (AWOL).  Military prosecutors charge desertion under UCMJ Article 85. 

Article 85 provides:

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; or

(2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service

The charge of desertion is more aggravated if it is committed in time of war or to avoid hazardous service. 

The key to any desertion charge is the intent or mental state of the service member.  Since it is usually difficult to prove what someone is actually thinking at any given time, prosecutors will look to circumstantial evidence to prove the intent to remain away permanently.   Factors like destruction of uniforms or an identification card, changing a name or SSN, remarks of intent, failure of the member to turn himself in when he had the opportunity to do so, moving to foreign countries, and remaining absent for many years are the types of circumstantial evidence that can help to establish intent to remain away permanently. 

Almost always, the best course of action for a member in an unauthorized absence status is to return to military authority voluntarily for resolution of the situation.   Very few people can live an entire lifetime in an unauthorized absence status without someday being forced to answer to authorities.  It is particularly difficult today, with the advent of pervasive and interconnected databases that reflect unauthorized absence status.   

Most unauthorized absence cases are resolved administratively.  However, a command always has the option of resolving more aggravated cases at court-martial.  Many unauthorized absence cases have important extenuating and mitigating circumstances.  When presented properly, by a competent military lawyer, such circumstances can reduce punishment or lead to a better characterization of discharge in the event of administrative discharge.