10 U.S. Code § 899 - Art. 99. Misbehavior before the enemy:
https://www.law.cornell.edu/uscode/text/10/899
which this AP report, http://news.yahoo.com/military-selects-rarely-used-charge-bergdahl-case-144326544.html, says is “worse,” rarer, and more difficult to prosecute.
Why is it “worse?” (I don’t have a cite for the plain old desertion charge).
Reading the article makes it clear why it’s worse. If a soldier just fakes an injury, say, to avoid going into action, he doesn’t cause any search and rescue operations. What he did put his comrades “in harms way”.
The cite says that misbehavior before the enemy is a capital offense.
One imagines that the standard for proof is necessarily higher when it’s possible that the accused may be sentenced to death if found guilty.
My understanding may be archaic (but then, military law tends to hold to some very old standards…) but I believe that not only are some categories of “misbehavior” capital offenses, but commanders may be authorized or even required to summarily execute someone under their command “misbehaving” in certain ways.
There definitely seems to be something about Bergdahls’s behavior that was not… honorable.
Let’s spell this out:
This moral and intellectual defective named Bowe Bergdahl was incontestably guilty of the acts highlighted above in bold red.
The case hinges on whether he was “before the enemy” while committing the acts.
Hopefully that phrase has been through the wash enough times to have an unambiguous definition. If Bergdahl is to get the noose he deserves it will have to be an expansive definition because IIRC he had to walk a few days before he actually made contact with the enemy.
AB, were/are you a JAG?
“Before the enemy. Whether a person is “before the enemy” is a question of tactical relation, not distance. For example, a member of an antiaircraft gun crew charged with opposing anticipated attack from the air, or a member of a unit about to move into combat may be before the enemy although miles from the enemy lines. On the other hand, an organization some distance from the front or immediate area of combat which is not a part of a tactical operation then going on or in immediate prospect is not “before or in the presence of the enemy” within the meaning of this article.” - Manual for Courts-Martial, ¶23.c.(1)(c).
The maximum punishment for all Article 99 offenses is death.
The maximum punishment for Article 85 - Desertion “in time of war” is “Death or such other punishment as a court-martial may direct”. They are both capital offenses. However, according to this Associated Press report, the difference between the two offenses in practice is that desertion would get him 5 years, while misbehavior charge could get him life in prison. “For Bergdahl, the Article 99 offense allows the prosecutors to seek a stiffer penalty than the desertion charge, which in this case carries a maximum sentence of five years in prison.”
Thanks.
I messed up the OP hed by inventing “desertion before the enemy” – which is “run away” in 1) above, as opposed to plain old desertion (layman’s term), which could mean leaving any old base, or whatever, and not coming back.
It was already spelled out in 85, which Bear Nenno cited.
Bear, you have that handy?
The MCM? Sure.
Sorry, I linked to an older version in my Drop Box. Here is the current one.
There probably haven’t been many changes between those two articles though. If you were just looking for information on Article 85 and not the entire MCM, I will summarize it below. All that follows if from the Manual for Courts-Martial United States (2012 Edition), ¶9.
9. Article 85—Desertion
a. Text of statute.
(a) 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;**
(2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or
(3) without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another one of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters
any foreign armed service except when authorized by the United States; is guilty of desertion.
(b) Any commissioned officer of the armed forces who, after tender of his resignation and before notice of its acceptance, quits his post or proper duties without leave and with intent to remain away therefrom permanently is guilty of
desertion.
(c) Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment, other than death, as a court-martial may direct.
b. Elements.
(1) Desertion with intent to remain away permanently.
(a) That the accused absented himself or herself from his or her unit, organization, or place of duty;
(b) That such absence was without authority;
(c) That the accused, at the time the absence began or at some time during the absence, intended to remain away from his or her unit, organization, or place of duty permanently; and
(d) That the accused remained absent until the date alleged.
…
(2) Desertion with intent to avoid hazardous duty or to shirk important service.
(a) That the accused quit his or her unit, organization, or other place of duty;
(b) That the accused did so with the intent to avoid a certain duty or shirk a certain service;
(c) That the duty to be performed was hazardous or the service important;
(d) That the accused knew that he or she would be required for such duty or service; and
(e) That the accused remained absent until the date alleged.
…
Hazardous duty or important service.
“Hazardous duty” or “important service” may include service such as duty in a combat or other dangerous area;
…
e. Maximum punishment.
(1) Completed or attempted desertion with intent to avoid hazardous duty or to shirk important service.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years.
(2) Other cases of completed or attempted desertion.
(a) Terminated by apprehension.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.
(b) Terminated otherwise.
Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years.
(3) *In time of war. *
Death or such other punishment as a court-martial may direct.
Thanks for the informative post.
“In time of war”. Does that require Congress to have declared war?
It requires that either Congress had declared war, or “the factual determination by the President that the existence of hostilities warrants a finding that a ‘time of war’ exists”. - R.C.M. 103(12)
So, while the President does not have the authority to declare war, he does have the authority to declare that a time of war exists for the purposes of court martial. I don’t think he’s going to do that in this situation, which would certainly explain why prosecutors are adding Article 99, as it has much harsher penalties without a time of war element. I bet whoever wrote the law centuries ago figured that adding the element “in a time of war” to the crime of “misbehaving before the enemy” would have just been redundant.
In Appendix 21, there is more discussion about the President’s authority to declare that “time of war” exists. “…it provides a mechanism by which the President may recognize, for purposes of removing or specifically raising the maximum limits on punishments for certain offenses under Part IV, that a “time of war” exists. This determination would be based on the existing circumstances. For purposes of codal provisions triggered by “time of war,” this determination would be subject to judicial review to ensure it is consistent with congressional intent. Cf. United States v. Bancroft, supra. Nevertheless, a determination by the President that time of war exists for these purposes would be entitled to great weight.”
ISTM that constitutionally the POTUS would already have to have declared that a war-analogous state existed when Bergdahl wandered off. Otherwise, the declaration amounts to a bill of attainder. Of course, some constitutional protections do not apply to prosecutions under the UCMJ and I am not at all familiar with which.
Here’s one indication that we’re in a Presidentially-acknowledged “war-analogous state”: Afghanistan Campaign Medal - Wikipedia
It’s important to note that at this stage it’s an Article 32 hearing. It’s not yet a court martial. An Article 32 hearing is required before a general court martial can be convened. The investigating officer, after reviewing the evidence, can make recommendations to proceed in other ways than a general court martial. The IO can also recommend adding or removing charges. In some ways it’s similar to notions of a civilian preliminary hearing. In some ways, like the end result being non-binding recommendations to the relevant commander, it is quite a bit different.