According to a report from the Associated Press, Joint Chiefs of Staff Chairman General Martin Dempsey has said the Army still may pursue desertion charges against Sgt. Bowe Bergdahl, the just-released American solider held captive by the Taliban for more than five years.
Whether the Army ultimately decides to refer desertion charges against Bergdahl remains an open question, and it is still too early to tell.
To prove an American service member guilty of desertion under Article 85 of the Uniform Code of Military Justice, the government would have to prove, by legal and competent evidence, beyond a reasonable doubt, the elements of the crime.
The elements of Article 85 are:
- That the accused absented himself from his unit, organization or place of duty;
- That such absence was without authority;
- That the accused, at the time the absence began or at some time during the absence, intended to remain away from his unit, organization or place of duty permanently; and
- That the accused remained absent until the date alleged.
The maximum possible punishment is a dishonorable discharge, forfeiture of all pay and allowances, and confinement up to five years. If the accused deserted during a time of war, the maximum possible punishment is death. Under the Uniform Code of Military Justice, the accused could receive no punishment, except for the conviction.
All military members are presumed innocent unless and until proven guilty beyond a reasonable doubt.