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thompsonx -> RE: Bergdahl (6/11/2014 6:18:04 AM)
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ORIGINAL: ThirdWheelWanted
No, you're misunderstanding me yet again. Those are the three ARTICLES dealing with being absent from duty, 85-87. Within those articles are sections, paragraphs, and subsections, etc., that explain what is required to be charged with each.
For someone to be charged with desertion under Article 85, they need to 1) be absent with the intent never to return to military control, OR 2) leave his place of duty to avoid hazardous service or shirk important duty, OR 3) without being properly separated accept service in another branch of the military or accept foreign service.
No offense, I'm glad that you served and have a working knowledge of the UCMJ, but have you actually read Article 85 in it's entirety? Folksy wisdom and anecdotes are all well and good. I can just hear R. Lee Ermey saying "I will by god tell you, it's been this way since christ was a corporal!" But it really doesn't compare to actually pointing out what is said, in the UCMJ itself. Article 85 is about 3 pages long, and is pretty specific.
To me, it seems that Bergdahl can rather easily be charged under Article 85, section 2, quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service. This is defined in Explanations, section 2: "(a) Hazardous duty or important service. “Hazardous duty” or “important service” may include service such as duty in a combat or other dangerous area" "(b) Quits. “Quits” in Article 85 means “goes absent without authority.”
So, going absent without authority, from a combat area, regardless of any other factors, is desertion. That's not an opinion, that's what the regulation says. Argue that any way you'd like, but THE BOOK says X.
But if you really want to keep going on section 1 and Intent, there seems to be evidence there as well.
Explanations, (1) Desertion with intent to remain away permanently.
a) In general. Desertion with intent to remain away permanently is complete when the person absents himself or herself without authority from his or her unit, organization, or place of duty, with the intent to remain away therefrom permanently. A prompt repentance and return, while material in extenuation, is no defense. It is not necessary that the person be absent entirely from military jurisdiction and control.
(i) The intent to remain away permanently from the unit, organization, or place of duty may be formed any time during the unauthorized absence. The intent need not exist throughout the absence, or for any particular period of time, as long as it exists at some time during the absence.
(ii) The accused must have intended to remain away permanently from the unit, organization, or place of duty. When the accused had such an intent, it is no defense that the accused also intended to report for duty elsewhere, or to enlist or accept an appointment in the same or a different armed force.
(iii) The intent to remain away permanently may be established by circumstantial evidence. Among the circumstances from which an inference may be drawn that an accused intended to remain absent permanently or; that the period of absence was lengthy; that the accused attempted to, or did, dispose of uniforms or other military property; that the accused purchased a ticket for a distant point or was arrested, apprehended, or surrendered a considerable distance from the accused’s station; that the accused could have conveniently surrendered to military control but did not; that the accused was dissatisfied with the accused’s unit, ship, or with military service; that the accused made remarks indicating an intention to desert; that the accused was under charges or had escaped from confinement at the time of the absence; that the accused made preparations indicative of an intent not to return (for example, financial arrangements), or that the accused enlisted or accepted an appointment in the same or another armed force without disclosing the fact that the accused had not been regularly separated, or entered any foreign armed service without being authorized by the United States. On the other hand, the following are included in the circumstances which may tend to negate an inference that the accused intended to remain away permanently: previous long and excellent service; that the accused left valuable personal property in the unit or on the ship; or that the accused was under the influence of alcohol or drugs during the absence. These lists are illustrative only. (Highlighting mine)
So, if at ANY point, someone says F the Army, I'm never coming back, and leaves post, they are guilty of desertion. Even if they return the next morning. Odds are they'd never be charged with such, but by the strict letter of the law, that's the case. Again, that's not an opinion, it's written right there.
(Now I do realize that what the book says, and what happens are two very different things on occasion. Most likely if someone did the above, they'd be offered an Article 15, take the hit, and move on. But if the soldier insists on pushing the issue, or has a CO who's an ass, they can be charged with desertion.)
If someone had made statements expressing dissatisfaction with the military, had spent time learning the languages of the area, and had sent all of his personal belongings home to his parents, that can all be used as circumstantial evidence of his INTENT not to return. Again, not my opinion, it's written in the UCMJ.
So, I don't know if Bergdahl will be charged, but he certainly could be. If he's charged, I don't know if he'll be found guilty, but he could be. And of he's found guilty, he might just be let off with a dishonorable, since he was already "imprisoned" for 5 years. But, he could be given a stiffer sentence.
Once again, after several paragraphs of shithouse lawyering the question still stands, how many times has this happened in the past 60 years?
It has been pointed out to you that the ucmj is designed to be vague enough to charge anyone with most anything. That gives them the power of intimidation...that does not always translate into convictions. That you pendantically continue to point out that the letter of the law is such and such you have yet to validate that the letter of the law is practiced with any frequency.
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