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Bergdahl charged with desertion, faces Article 32

March 25, 2015 (Photo Credit: Uncredited)

The Army has charged Sgt. Bowe Bergdahl with desertion and misbehavior before the enemy, officials announced Wednesday.

Bergdahl, who spent five years as a captive under the Taliban before he was freed in a May 31 prisoner swap, will face an Article 32 preliminary hearing, said Col. Daniel King, a spokesman for Army Forces Command.

The decision by Gen. Mark Milley, commanding general of FORSCOM, comes after a review of the facts and findings from an extensive Army investigation to determine what, if any, actions should be taken against Bergdahl.

Bergdahl's statement: Bergdahl's attorney shares details of his capture, escape attempts

FORSCOM "thoroughly reviewed" the Army's investigation, King said. Bergdahl is charged with:

• One count of desertion with intent to shirk important or hazardous duty.

• One count of misbehavior before the enemy by endangering the safety of a command, unit or place.

Bergdahl, 28, disappeared from Combat Outpost Mest-Lalak in Paktika province, Afghanistan, on June 30, 2009. He has been accused of leaving his patrol base alone and intentionally before he was captured by Taliban insurgents.

He spent five years as a captive under the Taliban before he was freed in a May 31 prisoner swap that also freed five Taliban leaders from the U.S. military prison at Guantanamo Bay, Cuba.

Bergdahl is now assigned to a desk job at U.S. Army North at Joint Base San Antonio-Fort Sam Houston, Texas.

On Wednesday, he was handed a charge sheet outlining the charges against him, said Eugene Fidell, Bergdahl's defense attorney, in a statement.

Fidell refuted "recent assertions" that Bergdahl or his attorneys were pressured to reach a plea agreement with the government.

"There have been no plea negotiations," Fidell said in his statement, adding that the defense has not been given the opportunity to meet with Milley, and it has only received the executive summary of the Army's investigation.

"We ask that all Americans continue to withhold judgment until the facts of this case emerge," he said. "We also ask that government officials refrain from leaking information or engaging in other conduct that endangers our client's rights to a fair trial."

Along with his statement, Fidell also released a document that Bergdahl's defense team submitted to Milley on March 2.

In it, Fidell outlined for Milley that Bergdahl continues to receive care from Brooke Army Medical Center, and that he is "accompanied by at least two NCOs for all off-post activities, even when in civilian attire."

"I am informed that they are there not to prevent Sgt. Bergdahl from escaping but to prevent third parties from injuring him," Fidell wrote. "Whatever physical danger Sgt. Bergdahl may face when he re-enters private life (and I fear he will), it would be very difficult to assemble an impartial court-martial panel."

Bergdahl also is "eternally grateful" to President Obama for saving his life, as well as the medical professionals at Landstuhl Regional Medical Center and Brooke, the documents state.

"Had President Obama not exerted himself, Sgt. Bergdahl would likely have been murdered," according to the documents from Fidell. "Anyone who has followed the news over the last few months knows that this is no exaggeration."

During his captivity, Bergdahl was chained to a bed and blindfolded for long periods of time, the soldier wrote in a letter that was part of the documents submitted to Milley. He also suffered from infections and severe weight loss, he wrote.

"After the first year, they put me inside a cage," the letter states. "In there my hands were always handcuffed in front of me, being taken off only on the few times I would wash and change clothes, which came more often than in the first year, when I would go three or four months without washing or changing clothes."

Bergdahl wrote that he was kept in "constant isolation during the entire five years, with little to no understanding of time, through periods of constant darkness, periods of constant light, and periods of completely random flickering of light, and absolutely no understanding of anything that was happening beyond the door I was held behind."

His captors also "continuously" showed him Taliban videos and told him he was going to be executed, Bergdahl wrote, adding that during the course of his captivity, he "unsuccessfully tried to escape approximately 12 times."

The Article 32, which will determine if there is enough evidence to merit a court-martial and is often compared to a civilian grand jury inquiry, will take place at Fort Sam Houston, King said.

Once the Article 32 is completed, the report will be forwarded to Milley, who is the general court-martial convening authority.

In that role, Milley has several courses of action, from no further action against Bergdahl to a special or general court-martial.

Sen. John McCain, R-Ariz., called Wednesday's announcement an important step.

"This is an important step in the military justice process towards determining the accountability of Sgt. Bowe Bergdahl," McCain said in a statement. "I am confident that the Department of the Army will continue to ensure this process is conducted with the utmost integrity under the Uniformed Code of Military Justice."

Rep. Duncan Hunter, a Republican from California and Marine combat veteran, questioned the prisoner swap that freed Bergdahl.

"At the heart of this whole situation, there's still the decision to trade five Taliban detainees for a deserter when there were, in fact, other options on the table," Hunter said in a statement. "We're aware of those options, and, frankly, the White House made a big mistake. And tying Bergdahl to an end of war effort was no less an error in judgment. The Army's going to continue its process, which has taken way too long already, but it's evident the administration screwed this up and nothing exists to justify the swap."

The desertion charge against Bergdahl, which falls under Article 85 of the Uniformed Code of Military Justice, carries a maximum punishment of five years confinement, a dishonorable discharge, reduction to the rank of E-1, forfeiture of all pay and allowances.

The misbehavior before the enemy charge, which falls under Article 99 of the UCMJ, carries a maximum punishment of confinement for life as well as a dishonorable discharge, reduction in rank to E-1, and forfeiture of pay and allowances.

So far, the Army has declined to release any details of the six-month investigation into the circumstances surrounding his disappearance. On Wednesday, King said the Army's investigation is now being treated as potential evidence in the upcoming Article 32.

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