A sign on June 1 announces the release of Sgt. Bowe Bergdahl in his hometown of Hailey, Idaho. (Scott Olson / Getty Images)
A framegrab from a video released by the Taliban containing then-Spc. Bowe Bergdahl. ((AP Photo/IntelCenter))
Army Sgt. Bowe Bergdahl intentionally sneaked away from his forward operating base in Afghanistan just before he disappeared in 2009, and that may not have been the first time he left the post without permission, according to officials familiar with the military’s internal investigation.
“We have no indication that he intended to leave permanently,” one government official familiar with the probe told Military Times. Several soldiers in Bergdahl’s unit told investigators that Bergdahl had previously talked about a desire to leave the base unaccompanied and may have done so and returned unharmed at least once before the night he disappeared, the official said.
An internal military investigation concluded in 2010 that there was little doubt Bergdahl walked away from his unit before he was captured. That investigation, known as an AR-15-6, remains classified and has not been released publicly, but several officials familiar with it have disclosed its results under condition of anonymity.
Reports about the internal investigation come as the Pentagon is facing mounting pressure to treat Bergdahl as a deserter, a crime under the Uniform Code of Military Justice.
After five years in captivity, Bergdahl’s Taliban captors released him Saturday in a prisoner swap that also freed five Taliban leaders from the U.S. military prison in Guantanamo Bay, Cuba.
Bergdahl is in Germany, hospitalized at Landstuhl Regional Medical Center, in part due to concerns that he was poorly fed and may have “nutritional issues,” a defense official said. Bergdahl has not yet spoken to his family.
Numerous soldiers who served with Bergdahl in the 1st Battalion, 501st Parachute Infantry Regiment, have stepped forward and publicly criticized him and blamed him for putting troops at risk in the search-and-rescue operations prompted by his capture.
The military’s top officer, Chairman of the Joint Chiefs Army Gen. Martin Dempsey, signaled Tuesday that Bergdahl may face punishment after he completes his reintegration process.
“The questions about this particular soldier’s conduct are separate from our effort to recover ANY U.S. service member in enemy captivity. This was likely the last, best opportunity to free him,” Dempsey wrote on his Facebook page.
“As for the circumstances of his capture, when he is able to provide them, we’ll learn the facts. Like any American, he is innocent until proven guilty. Our Army’s leaders will not look away from misconduct if it occurred. In the meantime, we will continue to care for him and his family,” Dempsey wrote.
It’s unclear whether Bergdahl has an attorney or whether he is facing questions about his disappearance.
“Clearly he’s suspected of an offense, and that is desertion,” said Eugene Fidell, a military law expert who teaches at Yale Law School and is a former president of the National Institute of Military Justice.
“So if they are interrogating him, they have to give him warnings. That includes notice of his right to counsel, which he can waive, but they have to give him the warning,” Fidell said in an interview Monday.
If Bergdahl talks in detail about his disappearance before investigators notify him of his right to an attorney, anything he says is likely inadmissible as evidence at a court martial, legal experts say.
The Army ultimately will make the decision about any punishment, Army Col. Steve Warren, a Pentagon spokesman, said Monday.
“Our focus right now is to get Sgt. Bergdahl stabilized and brought through the three phases of reintegration and reunited with his family,” Warren said. “There is plenty of time in the future for looking into the circumstances surrounding his disappearance and to make decisions on the way forward.”
From a hospital bed in Germany, Bergdahl is facing some forms of interrogation from Army psychologists and others who are part of an “interdisciplinary team,” Warren said.
Those interrogators are seeking bits of intelligence about the Taliban that could help with current operations and details about Bergdahl’s captivity that could help refine U.S. military training programs, Warren said.
Eventually, interrogators will ask Bergdahl about precisely what happened the night he disappeared from his FOB. The Pentagon has never formally completed an investigation into incident.
“There have been several looks into the circumstances surrounding his disappearance but we’ve never publicly said anything, primarily because we haven’t had a chance to speak to Sgt. Bergdahl himself,” Warren said.
When asked whether Bergdahl has an attorney, Warren said: “Not to my knowledge.”
“I’m not going to speculate on whether he needs a lawyer. Let’s just get him back,” he added.
Almost immediately after Bergdahl’s return to U.S. military custody Saturday, a small but vocal group of service members and veterans sought to puncture the public image of a war hero returning home.
“He is safe, and now it is time to speak the truth. And that the truth is: Bergdahl was a deserter, and soldiers from his own unit died trying to track him down,” wrote Nathan Bradley Bethea, a former junior officer who deployed with Bergdahl and the 1st Battalion, 501st Infantry Regiment.
In an article published online by the Daily Beast, Bethea cited six specific soldiers from his unit who died in operations linked to those search-and-rescue operations following Bergdahl’s disappearance.
By Tuesday morning, nearly 10,000 people had signed an online White House petition urging President Obama to court-martial Bergdahl.
Prosecuting freed prisoners of war is not unheard of. In 2004, the Army court-martialed a deserter from the Vietnam era, Charles Robert Jenkins, who left his unit in Korea in 1965 in part due to fears about deploying to Vietnam.
Jenkins was captured by the North Koreans and spent decades as a prisoner of war before his release in 2002. The Army subsequently sentenced him to 30 days’ confinement.
Under the UCMJ, desertion is punishable by the death penalty. A lesser charge for similar conduct is being absent without leave, or AWOL.
Yet many legal experts say a prosecution for Bergdahl is unlikely. There is an “unwritten policy” to avoid court-martialing service members who have spent time as POWs, Fidell said.
“I don’t think they’ll do that in this case,” Fidell said. “Unless something comes to light that suggests that he was a turncoat or joined the other side or assisted the other side in some way. … There is no public indication that any of those things are true in his case.”
Greg Rinckey, a former Army judge advocate who practices at the New York law firm Tully Rinckey, agreed.
“There’s going to be an investigation, I’m sure, but do I expect to see a court-martial? No,” Rinckey said in an interview.
A prosecution would be especially difficult because Bergdahl could raise questions about his mental health when he disappeared or as a result of his captivity, Rinckey said.
Rinckey speculated the military could subject Bergdahl to an administrative discharge if he did something wrong, or a medical separation or retirement, if his mental state warrants.
In that event, he could be entitled to disability benefits from the Army and the Veterans Affairs Department.
Already, Bergdahl appears to be entitled to back pay and benefits for his time in captivity, Rinckey said.
“The law is while you’re a prisoner of war, you receive your pay and benefits, or your family will receive it, and you will receive your [scheduled] promotions,” he said.
Staff writer Joe Gould and The Associated Press contributed to this report