A recent development in the political charged case against Army Sgt. Bowe Bergdahl saw military prosecutors charge Bergdahl with the rarely used charge of misbehavior before the enemy, in addition to the original charge of desertion.
Bergdahl's troubles began in June of 2009 when, for unexplained reasons, he wandered off the Army post at which he was stationed in Afghanistan. Eventually Taliban insurgents captured Bergdahl, and he was held until his negotiated release in May of 2014.
The negotiated release of Bergdahl in exchange for the release of five terrorists from Guantanamo Bay prison led to widespread criticism of the Obama administration. The administration's woes were further compounded once it was made known that Bergdahl had deserted his fellow soldiers in 2009. Despite this revelation, the President and his staff continue to stand by their decision to negotiate for Bergdahl's release.
The additional charge filed against Bergdahl comes as a surprise to many observers. The charge of misbehavior before the enemy is a rare offense that has seldom been used since World War II. "I've never seen it charged," said Walter Huffman, the retired major general who once served as the Army's chief attorney. "It's not something you find in common everyday practice in the military."
The 'misbehavior' charge was used hundreds of times in the early days of the 20th Century, continuing into World War II. After World War II, however, it fell out of favor with military prosecutors. The charge is found in Section 99 of the Uniform Code of Military Justice – a complicated provision best known for its use in prosecuting cowardice. Section 99 includes nine offenses in total – not all relating to charges of cowardice – including Bergdahl's charge of endangering one's unit.
Huffman says the charge of misbehavior before the enemy is significant. It permits the military to sanction Bergdahl, not only for abandoning his unit, but also for placing those soldiers that participated in the search and rescue mission in harms way. The Pentagon said there exists no evidence that any soldiers were killed in the search for Bergdahl.
The misbehavior charge allows military prosecutors to seek a more severe penalty for Bergdahl than the desertion charge, which carries a maximum penalty of five years in jail. If convicted of the additional charge, Bergdahl could face a life sentence in military prison.
Because of the similarities between the two charges, Bergdahl's attorney argues that his client is being charged twice for the same infraction – an argument that some legal scholars believe has merit.
Bergdahl is due to appear in court on September 17 at Fort Sam Houston, Texas for an Article 32 hearing, which is similar to a civilian grand jury proceeding. If the prosecution presents sufficient evidence, then Bergdahl's case would be referred to a court martial for an eventual trial.