To prove a charge of desertion, generally the military prosecutor must prove that the ‘deserter’ left his post with the “intent to remain away permanently”
To the members of Sgt. Bowe Bergdahl’s unit, the former Taliban captive is a deserter, no ifs, ands or buts about it. He voluntarily abandoned his unit’s front-line observation post and disappeared into the Afghan countryside. That makes him a deserter in the eyes of his comrades.
Legally, however, that does not make Bergdahl a deserter. More likely he went AWOL, legally that is. Desertion is covered under Article 85 of the Uniform Code of Military Justice and AWOL under Article 86.
From About.com US Military:
Many people confuse the terms, AWOL and Desertion. Some people believe that AWOL is when someone is absent for less than 30 days, and someone absent from the military for 30 days or more is a deserter. That's not quite true.
AWOL simply means not being where you are supposed to be at the time you are supposed to be there. Being late for work is a violation of Article 86. Missing a medical appointment is a violation. So is disappearing for several days (or months, or years).
Many people believe that if one is absent without authority for 30 days or more, the offense changes from AWOL to desertion, but that's not quite true.
The primary difference between the two offenses is "intent to remain away permanently," or if the purpose of the absence is to shirk "important duty," (such as a combat deployment).
If one intends to return to "military control" someday, one is guilty of AWOL, not desertion, even if they were away for 50 years. Conversely, if a person was absent for just one minute, and then captured, he could be convicted of desertion, if the prosecution could prove that the member intended to remain away from the military permanently.
If the intent of the absence was to "shirk important duty," such as a combat deployment, then the "intent to remain away permanently" to support a charge of desertion is not necessary. However, such services as drill, target practice, maneuvers, and practice marches are not ordinarily "important duty." "Important duty" may include such duty as hazardous duty, duty in a combat zone, certain ship deployments, etc. Whether a duty is hazardous or a service is important depends upon the circumstances of the particular case, and is a question of fact for the court-martial to decide.
Even though Article 85 does not require the prosecution to prove that a member of the military intended to remain away permanently if he left his post in a combat zone, considering the circumstances under which Bergdahl abandoned his post, he will probably only face an AWOL charge, that is if he is even charged with violating the UCMJ.
Legal technicalities aside, the members of Bergdahl’s unit are clearly justified in calling him a deserter. And to say that Bergdahl served with honor and distinction, as National Security Adviser Susan Rice did, is an unconscionable insult to all members of the military and to all veterans who did not shirk their duties at the front lines.
1 comment:
I remember a person beating a robbery rap a few years back by asserting they were only taking the money temporarily in order to invest it and then return the principle to the rightful owner. A jury actually bought it, though I strongly suspect there might have been some other motive working in the background of the jury.
Post a Comment