The arraignment Tuesday of Sgt. Bowe Bergdahl at Fort Bragg, N.C., will include putting into the record a charge of "misbehavior before the enemy" that has rarely been used since World War II.
Before the Bergdahl case, the most high-profile use of the "misbehavior" offense in the last 70 years under Article 99 of the Uniform Code of Military Justice involved a Navy commander who surrendered his ship in 1968.
A naval Board of Inquiry consisting of five admirals recommended that Cmdr. Lloyd Bucher face a court martial under Article 99 for surrendering the spy ship USS Pueblo, which was armed with two .50 caliber machineguns, to North Korea. It was the first time a U.S. officer had surrendered a ship since the War of 1812.
Then-Navy Secretary John Chafee overruled the admirals and dismissed the charge, saying that Bucher and his crew had already suffered enough in nearly a year of harsh captivity.
The one count of misbehavior against Bergdahl could bring a term of life imprisonment upon conviction. The 29-year-old Bergdahl also faces one count of desertion under Article 85, which could bring a maximum term of five years imprisonment upon conviction.
The arraignment before a military judge at the Fort Bragg Courtroom Tuesday was expected to be brief. The charges will be read into the record by the trial counsel, or prosecutor, unless Bergdahl and his defense team waive the reading. Bergdahl will then enter a plea to the charges.
Bergdahl left Combat Outpost Mest-Malak in Afghanistan's southeastern Paktika Province on or about June 30, 2009, and was quickly captured by the Haqqani network, an affiliate of the Taliban. He was released in May 2014 in a controversial exchange for five Taliban prisoners held at the Guantanamo Bay, Cuba, naval facility.
Bergdahl has been assigned to clerical duties at Joint Base San Antonio, Texas, since his release. On March 25, Gen. Mark Milley, then head of U.S. Forces Command and now the Army's Chief of Staff, filed charges desertion and misbehavior against Bergdahl.
An Article 32 hearing, sometimes referred to as the military's version of a grand jury proceeding, was held on Sept. 17 and 18 at Joint Base San Antonio. The Article 32 hearing officer recommended no confinement but Gen. Robert B. Abrams, now head of U.S. Forces Command, on Dec. 14 ordered Bergdahl to face a general court martial, the highest military trial venue, on the desertion and misbehavior charges.
The misbehavior charge includes nine separate offenses ranging from "running away" and "cowardly conduct" to behavior that through "disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property."
-- Richard Sisk can be reached at richard.sisk@military.com
