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  1. #61
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    Re: SGT Bowe Bergdahl exchange

    Quote Originally Posted by Squatch347 View Post
    Actually that is incorrect. Under UCMJ (the applicable legal system here), desertion of your post in the face of the enemy is considered treason since by your act you are aiding the enemy.
    The two charges I saw don't mention treason or being a traitor, maybe that's how you interpret it.
    "Real Boys Kiss Boys" -M.L.

  2. #62
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    Re: SGT Bowe Bergdahl exchange

    Quote Originally Posted by Sigfried View Post
    And while I agree getting a deserter back is no great gain, neither do I think the men we released pose any great threat
    Close your eyes. Fall in love. Stay there.
    Rumi

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  3. #63
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    Re: SGT Bowe Bergdahl exchange

    Quote Originally Posted by CowboyX View Post
    The two charges I saw don't mention treason or being a traitor, maybe that's how you interpret it.
    Do you think there was even the slightest chance that Obama, the Commander in Chief, would let the army charge Bergdahl with treason after Obama claimed that Bergdahl served "with honor and distinction" and having given a Rose Garden welcome home? You live in LaLa Land if you think that could happen. I'd bet that the US Army wanted to charge him with more than desertion, and Obama refused. But even if not, Squatch's statement isn't a matter of interpretation, but of fact. You do understand the difference, I hope.
    "If we lose freedom here, there is no place to escape to. This is the last stand on Earth." - Ronald Reagan

  4. #64
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    Re: SGT Bowe Bergdahl exchange

    Eye4Magic

    The thing of it is, these are people we now know intimately and can track. If they go about connecting to other terrorist groups that only helps expose those groups to our intelligence services. Anyone working with these guys is opening themselves up to us. Anything they do is likely to ultimately server our ends in this fight. Not guaranteed of course but we should by far have the upper hand here.
    Feed me some debate pellets!

  5. #65
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    Re: SGT Bowe Bergdahl exchange

    Quote Originally Posted by evensaul View Post
    Do you think there was even the slightest chance that Obama, the Commander in Chief, would let the army charge Bergdahl with treason after Obama claimed that Bergdahl served "with honor and distinction" and having given a Rose Garden welcome home? You live in LaLa Land if you think that could happen. I'd bet that the US Army wanted to charge him with more than desertion, and Obama refused. But even if not, Squatch's statement isn't a matter of interpretation, but of fact. You do understand the difference, I hope.
    I understand there's a difference between openly and consciously being a traitor and supporting the enemy and abandoning your post and shirking your duty. If they are both considered treason by the military, then there are definitely different degrees of treason. In this case, nothing happened, the enemy didn't overrun the base.
    "Real Boys Kiss Boys" -M.L.

  6. #66
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    Re: SGT Bowe Bergdahl exchange

    Quote Originally Posted by CowboyX View Post
    The two charges I saw don't mention treason or being a traitor, maybe that's how you interpret it.
    That's because there is no such charge in UCMJ for "Treason," it is a category under military law, not a specific act. Any act that aides or abets the enemy to the detriment of our government is treason. Desertion as treason is a pretty old concept within military law, originally going back to the idea of breaking your fealty oath to your liege lord. Today it only applies "in the face of the enemy" ie when you action will aide and abet the enemy. That is the reason why desertion in the face of the enemy allows for a death sentence, while desertion during non-deployment does not. Leaving your post during conflict, by its very nature, is a comfort to the enemy at the expense of your country. By leaving that hole in a military unit you are, by default, giving the enemy an advantage at the expense of those soldiers around you, in the same way given them information would give them an advantage at the expense of soldiers around you.


    Quote Originally Posted by CowboyX View Post
    If they are both considered treason by the military, then there are definitely different degrees of treason. In this case, nothing happened, the enemy didn't overrun the base.

    Why would you see them as different? They carry the same punishment after all. They have the same consequences (the fact that the enemy failed to act on it isn't a good defense).

    And in this case soldiers died Cowboy. People died because of his actions.

    How is that different?
    "Suffering lies not with inequality, but with dependence." -Voltaire
    "Fallacies do not cease to be fallacies because they become fashions. -G.K. Chesterton
    Also, if you think I've overlooked your post please shoot me a PM, I'm not intentionally ignoring you.


  7. #67
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    Re: SGT Bowe Bergdahl exchange

    I get it.
    "Real Boys Kiss Boys" -M.L.

  8. #68
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    Re: SGT Bowe Bergdahl exchange

    What is going to be even more interesting is what comes out of this trial. Apparently, Bergdahl was attempting to find a General Officer to report misconduct, and the back story on most of the platoon that was vehemently against Bergdahl was that many of them had already been kicked out of the service themselves for drug use and other issues. Having worked with the 82nd Airborne on many occasions they are either incredibly good or incredibly bad. I would guess this was one of the later cases, and as Bergdahl's lawyer is clearly leaking details to the press - as the matter moves forward its going to be interesting.

    Next up is the ART 32 hearing. It'l be interesting to see what comes out.

    ---------- Post added at 04:54 AM ---------- Previous post was at 04:27 AM ----------

    http://www.businessinsider.com/deser...rs-2014-5?IR=T

    I also thought it would be interesting to contrast this with Charles Jenkins, who deserted (quite intentionally) to North Korea to avoid service in Vietnam. He was certainly made to do things in support of our enemy, but was returned, spent 30 days in the brig and is a free man now. There are plenty of 'deserters' in the US. Plenty of guys who return home on leave, for example, and never return to their units. Plenty simply disappear as their units deploy. Many, just leave even without deployment orders. The vast majority of them do not get 'court martialed'. Instead, they are processed out of the military under general or other than honorable discharges. Why Bergdahl is being made to endure this?

    It's an open question whether commanders are being influenced by press coverage to apply double standards here. Did Bergdahl screw up? Yep, and he spent five years quite literally being tortured for it. I'm not sure how inflicting even more pain on a very young and naive man is going to help much of anything. Were I in Obama's shoes I would simply pardon him, and save both the boy and the Army a lot of needless grief.
    Most people say that it is the intellect which makes a great scientist. They are wrong: it is character.

    Albert Einstein

  9. Thanks CowboyX, MindTrap028, evensaul thanked for this post
  10. #69
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    Re: SGT Bowe Bergdahl exchange

    What message would a Presidential pardon send to other soldiers who are considering desertion?
    Last edited by evensaul; March 28th, 2015 at 06:34 AM.
    "If we lose freedom here, there is no place to escape to. This is the last stand on Earth." - Ronald Reagan

  11. #70
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    Re: SGT Bowe Bergdahl exchange

    Quote Originally Posted by evensaul View Post
    What message would a Presidential pardon send to other soldiers who are considering desertion?
    If only you get tortured for fives by the Taliban first? I think it'd be OK. Pardons are the exception.
    Most people say that it is the intellect which makes a great scientist. They are wrong: it is character.

    Albert Einstein

  12. #71
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    Re: SGT Bowe Bergdahl exchange

    Quote Originally Posted by gree0232 View Post
    Apparently, Bergdahl was attempting to find a General Officer to report misconduct,
    This won't carry much weight at trial.

    It is neither credible, nor extenuating.


    It isn't credible because the Army makes the ease of reporting via parallel methods (IG, EO, Resiliency, Chaplain, etc) unbelievably easy, I would argue too easy. Odds are the prosecutor will simply ask a series of questions showing that SGT Bergdahl failed to use any of the myriad resources at his disposal and the article 32 officer will dismiss it.


    It isn't extenuating, because under UCMJ the misconduct of other soldiers is not related to desertion (given the above) unless such misconduct directly led to either war crimes or endangered the soldiers' life unnecessarily. Neither seems to be the case here.

    Quote Originally Posted by Gree
    and the back story on most of the platoon that was vehemently against Bergdahl...
    Having been an article 32 officer on multiple occasions I'll point out that every soldier says this, it is rarely compelling and certainly doesn't warrant desertion. Maybe in minor misconduct cases it recommends a rehabilitative transfer rather than more strenuous punishment, but desertion isn't one of those cases.
    "Suffering lies not with inequality, but with dependence." -Voltaire
    "Fallacies do not cease to be fallacies because they become fashions. -G.K. Chesterton
    Also, if you think I've overlooked your post please shoot me a PM, I'm not intentionally ignoring you.


  13. #72
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    Re: SGT Bowe Bergdahl exchange

    Quote Originally Posted by Squatch347 View Post
    This won't carry much weight at trial.

    It is neither credible, nor extenuating.
    Actually it will. What matters at trial is matters of mitigation and extenuation. If there was serious misconduct taking place, and Bowe fled the misconduct to report it ... that is a HUGE ISSUE OF MITIGATION.

    Without any evidence or knowledge of the circumstances, you have no way of knowing whether its credible or not. Obviously his lawyer thinks it is, and he probably has some idea of what was taking place in that remote outpost. But having served in the 5th Stryker Brigade, these lone outposts often breed serious misconduct, such as those that caused murders in Kandahar Province in 2010. In that case, letters home and even parents calling JBLM and reporting the misconduct were ignored - allowing more murders to continue.

    Please bear in mind, members of that platoon have been devastated. The first to respond were those who had been forced out for illegal drug use or other serious misconduct. Having deployed a few times myself, and having had to investigate a suicide by cop, time and again, I have seen this misconduct come down to really crappy leadership that was forcing Soldiers into highly unethical practices. The results? Some incredibly screwed up young men, who are often told to just suck it up ... until they crack.

    That there was serious misconduct occurring around Bergdahl is almost a given based on what we know - thus far. That will definitely count toward mitigation and extenuation.


    It isn't credible because the Army makes the ease of reporting via parallel methods (IG, EO, Resiliency, Chaplain, etc) unbelievably easy, I would argue too easy. Odds are the prosecutor will simply ask a series of questions showing that SGT Bergdahl failed to use any of the myriad resources at his disposal and the article 32 officer will dismiss it.
    There is no IG or EO rep at a forward platoon or company COP (this did not happen in garrison, and he did not flee a giant super FOB). If the issues were reported through the chain of command and quashed ... Bergdahl may very well have felt that drastic action has taken place.

    I will also tell you that I know many people who were involved in the BG Sinclair fiasco (which also took place in Afghanistan - same area actually), including several officers who reported BG Sinclair's adultery (and other misconduct) to IG, and that information went to the CoC who used it as the basis to quash several people and succeeded until criminal investigations got involved. So when I say that I have worked with the 82nd and seen the bath very good and very bad ... when they are bad, they are literally the worst the Army produces - hidden behind the slick veneer of arrogance about being a 'paratrooper' - but IED's kill paratroopers just like everyone else, but arrogance buries objectivity leading to a dangerous situation in which, if the problems are not caused by me ... they must be caused by something else ... now, you are armed and largely unsupervised ... I've seen it happen.


    It isn't extenuating, because under UCMJ the misconduct of other soldiers is not related to desertion (given the above) unless such misconduct directly led to either war crimes or endangered the soldiers' life unnecessarily. Neither seems to be the case here.
    Actually it would not be desertion in that case, it would be leaving your post. And again, I would refrain from speculating about the nature of the misconduct unless you have direct knowledge of it. It could very well be very, very bad, and based on the high incidence of drug use and other indiscipline, simple pattern analysis indicates something more than nothing. Having seen how the Army treats whistleblowers? Why don;t you ask Fort Bragg why the full detail so the BG Sinclair trial have not been published?



    Having been an article 32 officer on multiple occasions I'll point out that every soldier says this, it is rarely compelling and certainly doesn't warrant desertion. Maybe in minor misconduct cases it recommends a rehabilitative transfer rather than more strenuous punishment, but desertion isn't one of those cases.
    You are assuming that the CoC was not complicit in the misconduct. Again, if Bowe were trying to meet a General Officer, he certainly believed something was seriously out of whack. If he were simply out of his mind and delusional? Then we have yet another issue of mitigation and extenuation.

    And what is the normal punishment for desertion? Right, not a court martial, just a General discharge. There is more going here, and all the signs point to something more than nothing. I am very surprised that FORSCOM chose to take this to trial - assuming it gets past the ART 32, which it may not. Things get very political at that level, and I would not be surprised at all to see the ART 32 hearing not be able to substantiate the evidence to the point where a trial is necessary. That happily sweeps the misconduct under the rug, and makes the Generals look like they are trying to do the right thing.

    The right thing after spending five years in torture and captivity is not to put politics first - we take care of our Soldiers EVEN WHEN THEY MAKE MISTAKES.
    Most people say that it is the intellect which makes a great scientist. They are wrong: it is character.

    Albert Einstein

  14. #73
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    Re: SGT Bowe Bergdahl exchange

    Quote Originally Posted by gree0232 View Post
    If there was serious misconduct taking place, and Bowe fled the misconduct to report it ... that is a HUGE ISSUE OF MITIGATION.
    For the sake of the argument, lets presume the misconduct was taking place.

    Here is why it will not be considered by a Courts Martial board.

    1) Bergdahl failed to utilize the available reporting mechanisms to report such misconduct before deserting. Understandably he might have felt uncomfortable reporting this to his Squad Leader or even PL, but the Company chain of command was available. The BN Chaplain had been available. EO, SHARP, IG, and JAG reporting structures had been available. He ignored all of these. You don't get to claim you were trying to report misconduct when you ignored all the opportunities to report it.

    2) Desertion is not an authorized manner for dealing with illegal orders. A soldier can refuse to follow an illegal order for sure, he can refuse to fire, or patrol (in theory) as long as the action taken clearly and materially related to mitigating the illegal order. You don't fire if it is about killing civilians. You don't go on patrol if it is an order to violate some standing order. Nothing about the situation described by Bergdahl means that desertion would mitigate the problem. Nor has he indicated that the pattern of negative activity was such that immediate action was necessary to save life, limb, or eyesight. Which brings me to...

    3) If his concern was to quickly report the information, it would have been faster to stay with his unit, which was scheduled to return to its COP the next day. He wasn't going to cover that distance over night. If he had really been concerned about reporting the info, he would have stayed, waited 24 hours and reported it from the COP. That casts some serious doubt on his story.

    4) Most critically, imo, his route as reported by Bergdahl and by SF teams trying to recover him and civilians took him away from areas he would expect to find other Americans. He headed away from friendly units, which seems an odd choice if your goal is to find them and report.


    Quote Originally Posted by Gree
    There is no IG or EO rep at a forward platoon or company COP (this did not happen in garrison, and he did not flee a giant super FOB).
    But they are available via email right? There are (and have been) giant report buttons on most Army pages, and every GO he could have wanted to talk to was available via AKO whitepages. And we know he had internet access because he emailed his family after the decision to desert. http://www.bloombergview.com/article...not-a-deserter

    So why ignore that option?


    Quote Originally Posted by Gree
    And again, I would refrain from speculating about the nature of the misconduct unless you have direct knowledge of it. It could very well be very, very bad,
    It could well be, but that data doesn't fit the facts we do have. If it were that bad it makes no sense to have not reported it to either IG or at least his family. And if he was fleeing something (which is not his story remember), why would he flee into bandit country rather than at least towards an allied area?


    Quote Originally Posted by Gree
    You are assuming that the CoC was not complicit in the misconduct.
    How does my statement indicate that?

    A rehab transfer is exactly the kind of action taken in cases where you suspect the CoC is not above board, but the soldier still violated the law.


    Quote Originally Posted by Gree
    Again, if Bowe were trying to meet a General Officer, he certainly believed something was seriously out of whack.
    If he was trying to meet a general officer, why was he not heading towards a general officer? And why not utilize the IG chain, since it has general officers as well?


    Quote Originally Posted by Gree
    And what is the normal punishment for desertion? Right, not a court martial, just a General discharge.
    But this isn't general desertion is it? This is desertion in the face of the enemy, whose UCMJ punishment can be death. Whats more it is desertion that directly led to the death of other soldiers, thats a bit more than just a little mistake.
    "Suffering lies not with inequality, but with dependence." -Voltaire
    "Fallacies do not cease to be fallacies because they become fashions. -G.K. Chesterton
    Also, if you think I've overlooked your post please shoot me a PM, I'm not intentionally ignoring you.


  15. #74
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    Re: SGT Bowe Bergdahl exchange

    There has been an update to this story a bit:

    SGT Bergdahl has pled guilty to desertion and misbehavior before the enemy. https://www.nytimes.com/2017/10/16/u...=Homepage&_r=0

    The NYT article isn't quite correct (they are usually pretty terrible with military news). UCMJ does not proscribe maximum sentences like civilian law, they probably got the 5 year thing from someone saying that that is a usual punishment. [It is an interesting sub topic, but this is a great example of the NYT just pulling stuff out of their butt.]


    This guilty plea is SGT Bergdahl admitting that the original claim of "toxic leadership" was not true as that would mitigate the desertion charge. Nor was his claim that he was operating against an illegal order, which would mitigate the misbehavior charge. Both of those circumstances have long standing exemptions from these specific charges, so to have pled guilty is an admission that there was no evidence to make such a claim.


    For those of your unfamiliar with the specifics of these crimes:

    (a) Any member of the armed forces who–
    (1) without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently;
    (2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or
    (3) without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another on of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States; is guilty of desertion.
    (b) Any commissioned officer of the armed forces who, after tender of his resignation and before notice of its acceptance, quits his post or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion.
    (c) Any person found guilty of desertion or attempt to desert shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, but if the desertion or attempt to desert occurs at any other time, by such punishment, other than death, as a court-martial may direct.

    http://www.ucmj.us/sub-chapter-10-pu...e-85-desertion


    Any person subject to this chapter who before or in the presence of the enemy–
    (1) runs away;
    (2) shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his duty to defend;
    (3) through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property;
    (4) casts away his arms or ammunition;
    (5) is guilty of cowardly conduct;
    (6) quits his place of duty to plunder or pillage;
    (7) causes false alarms in any command, unit, or place under control of the armed forces;
    (8) willfully fails to do his utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any other thing, which it is his duty so to encounter, engage, capture, or destroy; or
    (9) does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft of the armed forces belonging to the United States or their allies when engaged in battle;
    shall be punished by death or such punishment as a court- martial may direct.

    http://www.ucmj.us/sub-chapter-10-pu...fore-the-enemy


    Both of these crimes can carry a death penalty. It is very, very unlikely the Courts Martial Board will implement that decision, and frankly it is primarily a policial consideration, but given the loss of life during the search, execution isn't outside the realm of possibility.
    "Suffering lies not with inequality, but with dependence." -Voltaire
    "Fallacies do not cease to be fallacies because they become fashions. -G.K. Chesterton
    Also, if you think I've overlooked your post please shoot me a PM, I'm not intentionally ignoring you.


 

 
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