Were Bergdahl to be charged with desertion, the maximum penalty he would face is five years in prison and a dishonorable discharge, if it’s proved that he deserted with the intent to avoid hazardous duty or to shirk important service. A case of AWOL, ended by the U.S. apprehending him, would not require proof that he intended to remain away permanently. The maximum punishment for that would be a dishonorable discharge and 18 months’ confinement, he said.
“Someone is going to have to make a decision, based on a preliminary investigation, as to whether this is a desertion or AWOL rather than simply having the bad luck to have fallen into the wrong hands,” Fidell said.
“The command can say ‘This fellow has been living in terrible conditions. We don’t approve of what he did but we’re not going to prosecute him,’” he said. “Or, the military could prosecute him as a way of signaling to others that ‘Look, you can’t simply go over the hill.’ … It’s quite an interesting set of issues that will have to be addressed as a matter of both policy and law.”
Desertion can be difficult to prove, said Ret. Maj. Gen. John Altenburg Jr., a Washington attorney who served 28 years as a lawyer in the Army.
“There has to be some evidence that he intended never to come back - that he intended to remain away from his unit permanently,” Altenburg said.
“I don’t know if they’ll charge him with anything. It will depend on the circumstances of his return and what he has to say.”
Mary Schantag, chairman of the P.O.W. Network, an educational nonprofit group founded in 1989, said it’s futile to speculate. “He is an American soldier in enemy hands. Period. Bring him home,” she said.
Rep. Duncan Hunter, a member of the House Armed Services Committee and former Marine who served two tours in Iraq and one in Afghanistan, agreed.
“It’s hard to imagine any circumstance where his captivity won’t be viewed as time served,” said Hunter, R-Calif. “The first order of business is securing his release and I don’t think it does an ounce of good to begin contemplating that far ahead when the focus is on getting him home.”
Chrissy Marsaglia and her husband, ex-Marines from outside Seattle who launched a bring Bowe home project in 2012, don’t speculate about the details of his capture or efforts to release him. They just want him home. Through donations, the small group has worked to raise awareness of Bergdahl’s captivity on more than 90 billboards in U.S. cities.
“Every day, we meet people who don’t know about him,” she said