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Bergdahl’s Biggest Worry Is Rare ‘Misbehavior Before the Enemy’ Charge

A 2004 Marine Corps case shines some light on how the military justice system handles the unusual charge.

Bergdahl Being Treated At U.S. Military Hospital In Germany
UNDATED - In this undated image provided by the U.S. Army, Sgt. Bowe Bergdahl poses in front of an American flag. U.S. officials say Bergdahl, the only American soldier held prisoner in Afghanistan, was exchanged for five Taliban commanders being held at Guantanamo Bay, Cuba, according to published reports. Bergdahl is in stable condition at a Berlin hospital, according to the reports. (Photo by U.S. Army via Getty Images)

In addition to desertion, Army Sgt. Bowe Bergdahl faces an unusual charge: misbehavior before the enemy. Of the two, it is the far more serious charge, carrying with it a maximum punishment of life behind bars, a dishonorable discharge, a reduction in rank, and the loss of the tens of thousands of dollars of pay and benefits Bergdahl earned after joining the military over six years ago.

The misbehavior charge is so rare that there aren’t many examples of how the military justice system has handled it in the past. The Army said that it had such a case in 2005, but wouldn’t provide any details without a Freedom of Information Act request. The Marine Corps last leveled the charge against one of its own in 2004 when it went after a lance corporal who had refused to go on convoy duty in Iraq.

The latter case — the United States vs. Thomas H. King — shows how seriously the military takes these offenses and offers the most recent illustration available of what the military means when it accuses a member of the armed forces of committing the little-known crime.

“It’s not apples to apples, but the takeaway from the King case is that the military seriously frowns upon this kind of behavior,” said Zachary Spilman, a civilian defense attorney and lead author of the military justice blog CAAFlog. “If Bergdahl’s case goes to trial, and he gets convicted, the sentence could be significant.”

According to the Uniform Code of Military Justice, Article 99, or “misbehavior before the enemy,” covers a wide range of misconduct, from running away to leaving one’s post “to plunder or pillage” to leaving behind your weapons.

And, as the King case shows, you don’t even have to leave your base to be found guilty of it.

In early 2004, King, a Marine lance corporal, deployed to Iraq as part of a Marine Corps security battalion tasked with protecting convoys delivering supplies and ammunition to other units.

In March, he refused to provide security for a convoy about to leave Al Asad Air Base in Anbar province, according to documents from his case. Afraid of getting killed in combat, King “refused to accept ammunition for his rifle, refused to carry a loaded weapon as a member of the convoy, and refused the option of not carrying a rifle but serving as a driver for the convoy.”

Following this standoff, King was sent to a staff psychiatrist for evaluation. He was deemed mentally fit and returned to his unit. But the next day, he disobeyed orders again, and was found to be disrespectful toward officers more senior than him, according to court records.

The staff psychiatrist monitored him closely over the next several days, and concluded that while he had experienced an “operational stress reaction,” King was competent to face the legal consequences of his actions.

One month later, in April 2004, King was charged with misbehavior before the enemy and an array of other offenses. He pleaded guilty to all of them.

But several months after his conviction, King appealed, arguing that his guilty pleas were invalid because he was mentally incompetent at the time. A year had passed since the case, and King’s legal counsel noted that the Marine had been diagnosed with bipolar disorder by a psychiatrist with the Veterans Affairs Department.

In a 2005 appeal, King’s lawyer also said his client’s guilty pleas didn’t hold up because it was never proved that his actions took place “before the enemy.”

But a panel of judges disagreed and in 2006, King’s conviction was upheld. He was sentenced to confinement for one year, had his rank reduced, had to forfeit his pay, and was given a bad-conduct discharge.

The judges found that even though King’s refusals to go on duty occurred while still inside the base, his actions still took place “before the enemy,” because “enemy forces operated in the immediate area around the base.”

In its appeal decision, the panel also said King “displayed cowardice at a time when his unit was about to embark on a tactical operation in an area teeming with both organized and unorganized forces of the Iraqi insurgency.”

In other words, the fact that he was still on base didn’t matter.

Unlike King, Bergdahl was stationed at a remote outpost in Paktika province, not on a sprawling U.S. military base. And he willingly walked off it, something King never did. Still, the military believes both men basically committed the same crime.

In its summary of his charges, the Army says that on June 30, 2009, Bergdahl endangered the safety of Observation Post Mest, a remote Army base in eastern Afghanistan, and Task Force Yukon, by walking off the post alone and without authority, wrongfully causing search and recovery operations. He did all of this “before the enemy,” according to the charge sheet.

But this charge has nothing to do with what Bergdahl did during his five years as a prisoner of the Taliban.

“There is no evidence of misbehavior of any kind while he was held captive,” Bergdahl’s lawyer, Eugene Fidell, wrote in a March 2 letter to Gen. Mark Milley, who was tasked with the decision whether to charge Bergdahl. A copy of the letter was shared with Foreign Policy.

The letter states that Bergdahl’s first attempt at escaping his Taliban captors occurred within a few hours of being taken prisoner. During his time in captivity, according to Bergdahl, he was beaten, tortured and held in a cage.

In his letter, Fidell argues that Bergdahl’s “nearly five years of harsh captivity” should be taken into account. He says it would be “unduly harsh” to impose on him “the lifetime stigma of a court-martial conviction.”

Photo by U.S. Army via Getty Images

Kate Brannen is deputy managing editor at Just Security and a contributor to Foreign Policy, where she previously worked as a senior reporter. Twitter: @K8brannen