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Bergdahl Article 32 Hearing Begins At Ft. Sam Houston

U.S. Army
Bowe Bergdahl

  Today, an Army investigator in San Antonio begins hearing evidence against Sergeant Bowe Bergdahl. Bergdahl left his post in Afghanistan in 2009 and was held by the Taliban for five years. In a military town like San Antonio service members appear to have little sympathy for Bergdahl.

In 2009, Army Sgt. Bowe Bergdahl left his outpost in Afghanistan and was held captive by the Taliban for five years. Last year he was released when the Obama Administration exchanged five Taliban members for Bergdahl.

President Obama praised Bergdahl for remaining steadfast while a prisoner, but some military families and service members blamed the officer for the deaths of soldiers who were killed while searching for him.

At VFW Post 76 in San Antonio, ex-military members settling in for a drink say it shouldn’t have taken more than a year for the military to conduct a hearing.  John Vervoort is a former soldier from New Jersey.

“I think he’s due a fair trial because this is America,” Vervoort said. “But based what I’ve heard and what I know and from some of the men I’ve spoken to that served with him overseas, I think it’s a shame that we let all these bad guys, to trade for this guy, that basically just skipped out and he should be severely punished for that.”

Seven-year Army Veteran Sean Cing agrees. “We pride ourselves in teamwork and not leaving anybody behind,” Cing said. “For him to just drop his weapon and walk away is just wrong. It’s like me walking out on my children.”

In March of this year the U.S Army Forces Command charged Sgt. Bergdahl with desertion, and second more uncommon charge - “Misbehavior Before the Enemy.” A military investigator will now consider those charges in what’s known as an Article 32 Hearing under the Uniformed Code of Military Justice. Professor Jeffrey Addicott is the director of the Center for Terrorism Law at St. Mary’s University. Addicott, a former JAG officer or military attorney, said the military’s Article 32 Hearing is similar to a grand jury proceeding in civilian court.

“All the evidence is evaluated to see whether it will go to a trial but in the military it’s very detailed,” Addicott said. “The Article 32 session could last for weeks and I expect it to last for weeks in his case.”

The hearing is the first step in the military’s legal process before a possible court martial. Bergdahl’s charge of desertion carries a maximum sentence of five years.  If he’s convicted of the second charge, misbehavior before the enemy, he could go to prison for life.  Addicott said “misbehaving: can have many meanings.

“If you’re on sentry duty and your job is to watch while other’s sleep and you decide to leave then you put other people in great danger when you leave your duty post,” Addicott said.”So Misbehaving Before the Enemy has a very wide definition, it can be things such as giving aid to the enemy, getting on the radio saying ‘we are unjust in our cause,’ it could be giving your rifle to the enemy, or it simply could be leaving your duty post in a combat zone which is what he’s charged with.”

Like a civilian hearing the prosecution and defense will be able to present their sides and call as many witnesses as they choose.  It will be up to the lone investigator hearing the evidence to recommend for or against a court martial for Bergdahl.

“This article 32 officer is what you’re going to see sitting on the jury, or the panel, that’s coming up.” Addicott said. “If you can convince him that the case shouldn’t do forward that gives you a pretty good indication that I’m going to be successful at the court-martial. If you can’t convince this officer that this case shouldn’t go forward that’s a pretty good indication that you’re not going to win at a general court-martial.”

The presiding officer doesn’t have the final say, however. A general officer, referred to as the convening authority, will decide if charges should be referred to a court-martial.  Bergdahl’s attorney Gene Fidell declined to be interviewed saying:  “Not withstanding the unfair beating Sgt. Bergdahl has been taking from the right wing media for the last year, we are not going to try this case in the press.”

Fidell has asked the Army to release transcripts of Bergdahl‘s interviews with the military following his return.

It’s unknown which witnesses each side will call, but it’s likely those who served with Bergdahl or participated in his initial search could take the stand. 

Joey Palacios can be reached atJoey@TPR.org and on Twitter at @Joeycules