U.S. Army Recommends Desertion Charge for Bergdahl

The DoD News service offers the below:

WASHINGTON, March 25, 2015 - U.S. Army Forces Command has thoroughly reviewed the Army investigation surrounding Sgt. Robert Bowdrie Bergdahl's 2009 disappearance in Afghanistan and formally charged him today under the Uniform Code of Military Justice with "Desertion with Intent to Shirk Important or Hazardous Duty" and "Misbehavior Before The Enemy by Endangering the Safety of a Command, Unit or Place," and has referred the case to an Article 32 preliminary hearing, command officials announced today in a news release.

The remainder of the release follows:

Sgt. Bergdahl is charged under the Uniform Code of Military Justice with one count of Article 85, "Desertion with Intent to Shirk Important or Hazardous Duty," and one count of Article 99, "Misbehavior Before The Enemy by Endangering the Safety of a Command, Unit or Place." Army Sgt. Bergdahl disappeared June 30, 2009, from Combat Outpost Mest-Lalak in Paktika Province, Afghanistan, and was subsequently captured.

An Article 32 preliminary hearing is a legal procedure under the Uniform Code of Military Justice designed to determine whether there is sufficient evidence to merit a court-martial and is required before a case can be tried by a General Court-Martial.

Legal experts often compare this to a civilian grand jury inquiry. The Article 32 hearing will take place at Fort Sam Houston, Texas. Specific scheduling details and procedures for news-media coverage of the hearing will be announced at a later date.

Following the Article 32 preliminary hearing and receipt of the Article 32 preliminary hearing officer's recommendations, the report will be forwarded to a General Court-Martial convening authority who may refer charges to a General Court-martial, refer the charges to a Special Court-martial, dismiss the charges, or take any other action deemed appropriate.

Article 85 of the Uniform Code of Military Justice, "Desertion with Intent to Shirk Important or Hazardous Duty," carries a maximum potential punishment of a dishonorable discharge, reduction to the rank of E-1, total forfeiture of all pay and allowances, and maximum confinement of five years. Article 99 of the Uniform Code of Military Justice, "Misbehavior Before The Enemy by Endangering the Safety of a Command, Unit or Place," carries a maximum potential penalty of dishonorable discharge, reduction to the rank of E-1, total forfeiture of all pay and allowances, and possible confinement for life.

Under the Uniform Code of Military Justice, the specific legal elements for Article 85, "Desertion with Intent to Shirk Important or Hazardous Duty," are: (1) "The accused quit his (or her) unit or place of duty," (2) "The accused did so with the intent to avoid or shirk certain service," (3) The duty to be performed was hazardous or important," (4) "The accused knew he (or she) was required for the duty or service," and (5) "The accused remained absent until a certain date."

The specific legal elements for Article 99, "Misbehavior Before The Enemy by Endangering the Safety of a Command, Unit or Place," are: (1) "The accused has a duty to defend a unit or place," (2) "The accused committed misconduct," (3) "The accused thereby endangered the unit or place," and (4) "The act occurred before the enemy."

Forces Command officials associated with this legal case cannot discuss or disclose the findings of the 2014 investigation while legal actions are pending out of respect to the judicial process, the rights of the accused, and to ensure the proceeding's fairness and impartiality.

The Army's 2014 investigation into the circumstances of the soldier's 2009 disappearance and capture in Afghanistan is currently being treated as potential evidence in the pending Article 32 preliminary hearing.

Pretrial Wraps Up For Alleged Document Leaker

By Donna Miles, American Forces Press Service

FORT MEADE, Md., Dec. 22, 2011 - The prosecution and defense rested today after delivering their closing statements in the Article 32 hearing of a soldier charged with leaking hundreds of thousands of classified documents.

Today's session, which adjourned at about 10:30 a.m., wrapped up eight days of pre-trial proceedings in the case against Army Pfc. Bradley E. Manning that began Dec. 16.

An Article 32 hearing, often compared to a civilian grand jury, is a pretrial hearing to determine if grounds exist for a general court martial, the most serious of courts martial.

The investigating officer, Army Lt. Col. Paul Almanza, now has until Jan. 16 to issue his recommendations to the Special Court Martial Convening Authority, a Military District of Washington spokesperson told American Forces Press Service.

Alamanza may ask for an extension, if needed, the official said.

His report will recommend that the case be referred to a court martial, or that some or all of the charges against Manning be dismissed.

The Special Court Martial Convening Authority, Army Col. Carl Coffman, will then provide Alamanza's recommendation to the General Court Martial Convening Authority, and indicate whether he concurs with it, the MDW official said.

Manning, an intelligence analyst, is suspected of leaking military and diplomatic documents to the whistle-blowing website WikiLeaks in what officials believe is the biggest intelligence leak in U.S. history.

WikiLeaks, in turn, released thousands of these documents, including classified records about the wars in Iraq and Afghanistan, on its website last year.

At the time, then-Defense Secretary Robert M. Gates and other senior defense officials condemned the organization's actions, claiming the act put deployed service members at an increased risk.

The Article 32 hearing marked 24-year-old Manning's first appearance in a military court since his arrest in Iraq in May 2010.

He faces more than 20 charges alleging he introduced unauthorized software onto government computers to extract classified information, unlawfully downloaded it, improperly stored it, and transmitted the data for public release and use by the enemy.

The charge of aiding the enemy under Article 104 of the Uniformed Code of Military Justice is a capital offense; however, the prosecution team has said it won't recommend the death penalty, a legal official said.

If convicted of all charges, Manning would face a maximum punishment of life in prison. He also could be reduced to E-1, the lowest enlisted grade, face a total forfeiture of all pay and allowances and dishonorable discharge, officials said.

Pretrial Begins For Alleged Document Leaker to WikiLeaks

By Elaine Sanchez, American Forces Press Service

FORT MEADE, Md., Dec. 16, 2011 - The Article 32 hearing for the soldier allegedly involved in what's considered one of the largest leaks of classified material in U.S. history got under way in a crowded military courthouse here today.

Pfc. Bradley E. Manning (seen in the above U.S. Army photo), an Army intelligence analyst, is suspected of leaking military and diplomatic documents, including classified records about the wars in Iraq and Afghanistan, to the whistle-blowing website WikiLeaks, which released thousands of classified military documents on its website last year.

At the time, then-Defense Secretary Robert M. Gates and other senior defense officials condemned the organization's actions, claiming the act put deployed service members at an increased risk.

The hearing today marked Manning's first appearance in a military court since his arrest in Iraq in May 2010. An Article 32 hearing, often likened to a civilian grand jury, is a pretrial hearing to determine if there are grounds for a general court martial, the most serious of courts martial.

The soldier, dressed in an Army combat uniform, his hair cut short and with black-rimmed glasses, sat between his civilian lawyer David E. Coombs, and his two military lawyers. The soldier was attentive throughout, eyes forward and his hands clasped or fiddling with a pen, taking notes occasionally. When asked if he understood the charges and if he was satisfied with his representation, he answered "Yes sir" each time in a soft-spoken tone.

The soldier, who turns 24 tomorrow, faces more than 20 charges and a maximum sentence of life in prison if proven guilty. The charges allege Manning introduced unauthorized software onto government computers to extract classified information, unlawfully downloaded it, improperly stored it, and transmitted the data for public release and use by the enemy.

The charge of aiding the enemy under Article 104 of the Uniformed Code of Military Justice is a capital offense; however, the prosecution team has said it won't recommend the death penalty, a legal official said today.

First up today was Coombs for defense, who came out swinging. He almost immediately called for Army Reserve Lt. Col. Paul Almanza, the hearing's investigating officer, to disqualify himself from the hearing for bias or perception of bias, along with some rulings against the defense. It's the investigating officer's role to consider witnesses' testimony and evidence presented to counsel and to recommend if the case should be referred for trial to general court martial or other courts martial, or be dismissed.

Almanza serves as a reserve military judge as well as the deputy chief of the Justice Department's child exploitation and obscenity section. Coombs argued there's a conflict of interest since the Justice Department has an ongoing criminal investigation regarding this case.

The officer, Coombs continued, also allowed all of the government's 20 witnesses and only two of the defense's 38 witnesses, who were not in common with the government. He also argued the fact that the hearing is open, not closed, which can allow prejudicial information to impact the trial. Finally, Almanza is allowing unsworn statements from the prosecution to be considered, he added.

After lengthy recesses and with input from the defense, the government and his legal advisor, Almanza denied the defense's request for a recusal and for a stay, or delay, of proceedings.

Almanza said he doesn't believe that "a reasonable person knowing all the circumstances" of the case would question his impartiality, and stressed that no aspect of his civilian work is involved with or relates to Manning's case.

Almanza then called for another recess to give Manning's defense team time to file a writ, or legal document, to stay the hearing to the Army Court of Criminal Appeals, located at Fort Belvoir, Va.

Turning proceedings back to the case at hand, Almanza reviewed Manning's rights with him, ensuring the soldier had a copy of the charge sheet and understood the charges preferred against him.

Almanza also discussed the possibility that classified information may be introduced into the hearing. If classified information needs to be discussed, he explained, a determination will be made to close portions of the hearing as required.

After one final recess, Almanza noted the hearing will reconvene tomorrow at 10 a.m. Manning remains in pretrial confinement.

Manning's Article 32 hearing is expected to continue for several days, possibly up to a week. When the hearing is over, Almanza will file a report recommending either a trial, or that some or all of the charges against Manning be dismissed.