The Army may consider pursuing an investigation of possible charges of desertion or other violations by Sgt. Bowe Bergdahl, who was freed Saturday after nearly five years in Taliban custody, the chairman of the Joint Chiefs of Staff said Tuesday.
Army Gen. Martin Dempsey noted that U.S. military leaders "have been accused of looking away from misconduct.” Dempsey said that was "premature" in the case of Bergdahl, who has been accused of desertion by former members of his unit in Afghanistan for abandoning his post during a combat deployment.
The remarks, in a telephone interview with the Associated Press, were Dempsey’s first public comment on Bergdahl since he was freed Saturday in exchange for the transfer to Qatar of five Taliban commanders held at the U.S. prison at Guantanamo Bay, Cuba.
In a separate posting on Facebook, Dempsey said of Bergdahl:
"Like any American, he is innocent until proven guilty. Our Army’s leaders will not look away from misconduct if it occurred."
Any decision on disciplinary measures will be up to the Army, Dempsey said in the interview. He said he does not want to pre-judge Bergdahl or say anything that might influence Army commanders.
In the Facebook post, Dempsey said in response to "those of you interested in my personal judgments about the recovery of SGT. Bowe Bergdahl, the questions about this particular soldier’s conduct are separate from our effort to recover ANY U.S. service member in enemy captivity."
He added: "This was likely the last, best opportunity to free him."
Several members of Congress have criticized the prisoner swap, described as a "transfer" by the Obama administration. Critics said the administration caved in to Taliban demands and raised the ransom price for any future U.S. service member captured by insurgents, and also failed to properly notify Congress of prisoner releases.
Dempsey said he had not spoken to Bergdahl or his parents since the soldier’s release. The military is expected to learn more about the circumstances of Bergdahl’s disappearance and captivity by questioning him.
He is undergoing evaluation at a U.S. military hospital in Landstuhl, Germany, and has not had direct contact with his parents in Idaho.
Bergdahl, 28, left a small observation post in eastern Afghanistan in the early morning hours of June 30, 2009, without informing anyone, three former members of his 30-man platoon said in interviews Monday. In his one-man tent, they said, they found Berghdahl’s rifle, helmet, body armor, night-vision goggles and other gear neatly stacked.
The former soldiers said Bergdahl had expressed disillusionment with the way the Army was conducting the U.S. combat mission in Afghanistan and had made off-hand comments about walking into the mountains or walking to India.
Calling Bergdahl a deserter, the soldiers said he should be held accountable for possible violations of the Uniform Code of Military Justice. They contended that several U.S. service members died in direct or indirect connection with the massive 90-day search for the missing sergeant.
The Pentagon has not confirmed that any deaths were related to the search for Bergdahl.
In the Facebook post, Dempsey said: "I want to thank those who for almost five years worked to find him, prepared to rescue him, and ultimately put themselves at risk to recover him."
Dempsey said in the interview that Bergdahl, a private, who was promoted to sergeant during his captivity, will no longer be automatically promoted to staff sergeant because he is now free.
Soldiers missing in action are normally promoted on the same schedule as their peers. But for Bergdahl, "his status has now changed, and therefore the requirements for promotion are more consistent with normal duty status," Dempsey said.
Bergdahl could face court-martial if the Army uncovers sufficient evidence of desertion, said Eugene Fidell, who teaches military law at Yale Law School. The Army might also decide to separate Bergdahl from the service through administrative procedures.
Any physical or psychological trauma could make Bergdahl unfit for continued service, Fidell said. If so, the Army would likely begin the process of arranging for retirement, medical care and other benefits.
Because the U.S. is not formally at war with the Taliban — Congress authorized military force against terrorists — a soldier serving in Afghanistan would not face the death penalty if convicted of desertion, Fidell said. The maximum penalty under these circumstances is five years in prison and a dishonorable discharge for "intent to avoid hazardous duty or shirk important service," Fidell said.
The maximum penalty for a soldier absent without leave for less than 30 days is six months in prison. The penalty is one year in jail (or 18 months if the soldier has to be apprehended) and a dishonorable discharge for AW0L more than 30 days Fidell said.
Fidell said the military may decide that, regardless of any offenses Bergdahl may have committed, he suffered nearly five years in enemy custody and should not be punished further.