A sign on June 1 announces the release of Sgt. Bowe Bergdahl his hometown of Hailey, Idaho. (Scott Olson / Getty Images)
An internal military investigation found that Army Sgt. Bowe Bergdahl intentionally sneaked away from his forward operating base in Afghanistan just before he disappeared in 2009 — and that may not have been the first time he left the post without permission, according to officials familiar with the probe.
“We have no indication that he intended to leave permanently,” one government official familiar with the investigation told Military Times. However, the official noted, the investigation did not have potentially critical input from Sgt. Bergdahl himself.
Several soldiers in Bergdahl’s unit told investigators that Bergdahl talked about his desire to leave the base unaccompanied and that he may have done so and returned unharmed at least once before the night he disappeared for good, the official said.
The internal investigation, known as an AR15-6, was completed in 2010 and remains classified, but several officials familiar with it have disclosed its results under condition of anonymity.
The investigation determined that there was little doubt Bergdahl walked away from his unit before he was captured.
Reports about the internal investigation come as the Pentagon is facing mounting pressure to treat Bergdahl as a deserter, a crime under the Uniform Code of Military Justice.
After five years in captivity, Bergdahl’s Taliban captors released him Saturday in a prisoner swap that also freed five Taliban leaders from the U.S. military prison in Guantanamo Bay, Cuba.
Bergdahl is in Germany, hospitalized at Landstuhl Regional Medical Center, in part due to concerns that he was poorly fed and may have “nutritional issues,” a defense official said. He has not yet spoken to his family.
Numerous soldiers who served with Bergdahl in the 1st Battalion, 501st Parachute Infantry Regiment have stepped forward to call him a deserter and blame him for putting troops at risk in the search-and-rescue operations prompted by his capture.
The military’s top officer, Joint Chiefs Chairman Army Gen. Martin Dempsey, signaled Tuesday that Bergdahl may face punishment after he completes his reintegration process.
On his Facebook page, Dempsey wrote: “The questions about this particular soldier’s conduct are separate from our effort to recover ANY U.S. service member in enemy captivity. This was likely the last, best opportunity to free him. As for the circumstances of his capture, when he is able to provide them, we’ll learn the facts. Like any American, he is innocent until proven guilty. Our Army’s leaders will not look away from misconduct if it occurred. In the meantime, we will continue to care for him and his family.”
Dempsey’s statement drew nearly 400 comments Tuesday, highlighting the intense emotional impact that Bergdahl’s release is having on the military community.
From a hospital bed in Germany, Bergdahl is facing questions from Army psychologists and others who are part of an “interdisciplinary team,” said Army Col. Steve Warren, a Defense Department spokesman.
When asked Monday whether Bergdahl has an attorney, Warren said: “Not to my knowledge,” then added, “I’m not going to speculate on whether he needs a lawyer. Let’s just get him back.”
If Bergdahl talks in detail about his disappearance before investigators notify him of his right to an attorney, anything he says is likely inadmissible as evidence at a court-martial, legal experts say.
Almost immediately after Bergdahl’s return to U.S. military custody Saturday, a small but vocal group of service members and veterans sought to puncture the public image of a war hero returning home.
“He is safe, and now it is time to speak the truth. And that truth is: Bergdahl was a deserter, and soldiers from his own unit died trying to track him down,” wrote Nathan Bradley Bethea, a former junior officer who deployed with Bergdahl and the 1st Battalion, 501st Infantry Regiment.
In an article published online by the Daily Beast, Bethea cited six specific soldiers from his unit who died in operations linked to those search-and-rescue operations following Bergdahl’s disappearance.
By Tuesday morning, nearly 10,000 people had signed an online White House petition urging President Obama to court-martial Bergdahl.
Prosecuting freed prisoners of war is not unheard of. In 2004, the Army court-martialed a deserter from the Vietnam era, Charles Robert Jenkins, who left his unit in Korea in 1965 in part due to fears about deploying to Vietnam.
Jenkins was captured by the North Koreans and spent decades as a prisoner of war before his release in 2002. The Army subsequently sentenced him to 30 days’ confinement.
Under the UCMJ, desertion is punishable by the death penalty. A lesser charge for similar conduct is being absent without leave, or AWOL.
Yet many legal experts say a prosecution of Bergdahl is unlikely. There is an “unwritten policy” to avoid court-martialing service members who have spent time as POWs, said Eugene Fidell, a military law expert who teaches at Yale Law School and is a former president of the National Institute of Military Justice.
“I don’t think they’ll do that in this case,” Fidell said. “Unless something comes to light that suggests that he was a turncoat or joined the other side or assisted the other side in some way. … There is no public indication that any of those things are true in his case.”
Greg Rinckey, a former Army judge advocate who practices at the New York law firm Tully Rinckey, agreed.
“There’s going to be an investigation, I’m sure, but do I expect to see a court-martial? No,” Rinckey said in an interview.
A prosecution would be especially difficult because Bergdahl could raise questions about his mental health when he disappeared or as a result of his captivity, Rinckey said.
Rinckey speculated the military could subject Bergdahl to an administrative discharge if he did something wrong, or a medical separation or retirement, if his mental state warrants.
In that event, he could be entitled to disability benefits from the Army and the Veterans Affairs Department.
Already, Bergdahl appears to be entitled to back pay and benefits for his time in captivity, Rinckey said. “The law is while you’re a prisoner of war, you receive your pay and benefits, or your family will receive it, and you will receive your [scheduled] promotions,” he said.
On Tuesday afternoon, Army Secretary John McHugh issued a statement signaling that the Army will investigate the matter again, but it’s not clear when.
“Our first priority is ensuring Sgt. Bergdahl’s health and beginning his reintegration process. There is no timeline for this, and we will take as long as medically necessary to aid his recovery,” McHugh said in the statement.
“As Chairman Dempsey indicated, the Army will then review this in a comprehensive, coordinated effort that will include speaking with Sgt. Bergdahl to better learn from him the circumstances of his disappearance and captivity. All other decisions will be made thereafter, and in accordance with appropriate regulations, policies and practices,” McHugh said.
Staff writer Joe Gould and The Associated Press contributed to this report