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What to do with Bergdahl? Options all carry pros and cons

Jun. 10, 2014 - 06:00AM   |  
Bergdahl (Getty Images)
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In strictly tactical terms, the recovery of Army Sgt. Bowe Bergdahl after five years in captivity was flawless — a single helicopter touched down at the meeting spot in eastern Afghanistan, followed by a few handshakes under a makeshift white flag. About a minute later, the special operations team lifted off again with Bergdahl back in U.S. hands.

But in political terms, the recovery has created a minefield for Army leaders, who now must decide how to deal with Bergdahl and allegations that he is a deserter whose recklessness contributed to the death of other soldiers.

Decisions about whether to court-martial him, and how to ultimately discharge him, will be made by top civilian and military leaders, in a hazy intersection of politics and military law. The Uniform Code of Military Justice, along with the military personnel system, offers a variety of options. Here are five likely to be on the table when Army leaders sit down to decide:

1. General court-martial

Appeal to military leaders: A heavy-handed general court-martial and threat of harsh punishment would send a strong message. Commanders would like the opportunity to reinforce good order and discipline by making an example of Bergdahl. And this would appeal to the many soldiers who believe he behaved selfishly and recklessly.

Why it may not fly: A court-martial will not please a White House that is already on the defensive for green-lighting the Taliban prisoner swap that brought Bergdahl home. A high-profile courtroom proceeding will reinforce criticism that Bergdhal was not worth the trade. A court-martial verdict also could get hung up on appeal for years — with Bergdahl technically remaining in the Army.

Outcome: If he is convicted at court-martial, Bergdahl could be locked up for years and ultimately face a punitive discharge, denying him most or all veteran’s benefits.

2. Special court-martial

Appeal to military leaders: The Army could leverage the threat of an aggressive prosecution and offer Bergdahl a plea agreement with the hope of resolving the matter at a special court-martial, which is typically reserved for lesser crimes. This way, the Army could avoid a politically sensitive show trial but nevertheless obtain legal authority to kick Bergdahl out with a punitive discharge that would serve as a clear message to the force, while also meeting troops’ calls for “real” punishment.

Why it may not fly: Bergdahl (and his attorney) may refuse a quick and simple plea deal, daring commanders to risk a high-profile trial that might air dirty laundry regarding Bergdahl’s unit and the ground-level prosecution of a war that has grown unpopular. This also would also raise hackles in the White House, which is eager to see the matter resolved.

Outcome: If convicted at special court-martial, Bergdahl could face limited confinement, but the primary punishment could come in the form bad-conduct discharge, which would deny him most or all of his veteran’s benefits.

3. Nonjudicial punishment

Appeal to military leaders: NJP would allow for quick resolution and avoid the public spectacle of a court-martial. The Army could mete out tangible punishment, such as up to 30 days in jail, reduced rank and some forfeiture of pay. An NJP also would allow the Army to send Bergdahl home with an other-than-honorable discharge, limiting his access to veteran’s benefits.

Why it may not fly: Actual punishment options are limited; dishonorable and bad-conduct discharges are not an option without a court-martial. Army leaders could face criticism for letting Bergdahl off the hook. Moreover, a proposed resolution could hit a snag if Bergdahl decided to refuse NJP and, implicitly, roll the dice on a court-martial.

Outcome: Bergdahl would move quickly from NJP to administrative separation. Depending on his ultimate discharge, he could have limited access to VA benefits.

4. Routine admin separation

Appeal to military leaders: This ultimate middle-ground option would track with the initial view offered by some military officials that “five years in captivity is enough.” An administrative separation would not require the Army to reach any firm conclusion about Bergdahl’s disappearance. Instead, the brass could simply wash their hands of this accused troublemaker. Bergdahl cannot refuse this option if it is offered.

Why it may not fly: A routine “admin sep” discharge levies no real punishment beyond, maybe, a bar to re-enlistment. That may leave many troops embittered by the belief that commanders were too lenient. And the mystery surrounding Bergdahl’s disappearance could remain unresolved and fester among conspiracy theorists.

Outcome: Bergdahl likely would leave with a general discharge and have access to applicable benefits.

5. Medical retirement

Appeal to military leaders: The Army could sidestep the “good order and discipline” issue at the heart of Bergdahl’s case by implying that he was mentally incapacitated at the time of his disappearance, a logical tack for any defense attorney. Taking responsibility away from Bergdahl also would help bolster the White House’s case that he deserves the same treatment as every other service member.

Why it may not fly: Rank-and-file troops will be outraged that the Army gave a pass to an alleged deserter despite evidence that he committed misconduct — and commanders will still worry about the impact on good order and discipline. Giving Bergdahl access to disability payments also would rub salt in the wound of embittered troops.

Outcome: If Bergdahl lands a medical retirement, he would go home with full military retirement benefits, including a lifelong pension and health care — benefits the vast majority of young enlisted soldiers never see after leaving service.

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