More than a year after he was released in a controversial prisoner swap, Sgt. Bowe Bergdahl will face court-martial for charges including desertion and endangering troops. The precise date of the arraignment hearing has not yet been announced, but it will take place in 2016 at the United States Army Forces Command (FORSCOM) headquarters in Fort Bragg, North Carolina. This report comes two months after an army officer suggested Bergdahl should not face jail time or a discharge from the military.
According to online legal advisory service Nolo.com, a person becomes subject to Uniform Code of Military Justice (UCMJ) upon enlistment in the armed services, a rule that came about post-World War II in an effort to establish a standardized system of criminal justice for all branches of the military. Under this code, the military court-martial process was born. The court-martial is a judicial court intended to try members of the military accused of offenses that oppose its laws.
Procedurally, the defendant is given the right to hire detailed military defense counsel — called a judge advocate — request witnesses (if applicable), and have a probable cause hearing (Article 32 proceedings). The defense counsel is either assigned via an objective service, or selected by the defendant. Defendants are also welcome to employ a civilian attorney, though it can prove an expensive feat.
If a commander opts to send a case to court-martial, an investigation must come first, and depending on whether or not the case is going to summary (which is less severe), special, or general court-martial, an informal or a formal investigation will take place. In other words, the type of court-martial plays a role in the general time-frame of the trial. Afterward is the probable cause hearing, where a prosecutor presents evidence of the offense, as well as favorable evidence, to a hearing officer. The defendant doesn't have to participate in the probable cause hearing, but it does happen. The defendant also has the right to waive this hearing, though it could increase the chances of facing court-martial. Additionally, the defendant's commander chooses the hearing officer, the jury, and ultimately determines whether the case should go to trial.
The trial is similar to a civilian court trial in that lawyers arrange evidence and witnesses and file pre-trial motions in pre-trial proceedings. The trial itself occurs before a jury or military judge. Juries tend to rule more kindly than military judges, but the defendant's commander may select the members of the jury — though this is also done by a staff judge advocate. At this point, voir dire questioning occurs, which is a bit like the verification of jurors for civilian jury duty.
The major difference in court-martial proceedings from a civilian one, though, is that a two-thirds vote decides guilt; if two-thirds cannot reach this conclusion, the defendant is granted innocence. The only occasion in which a unanimous ruling is required is in cases involving a death sentence.
How long might it take before a hearing happens? The answer depends. In Sgt. Bergdahl's case, he already had his Article 32 proceeding. Initially, Lt. Colonel Mark Visger suggested a special court-martial for the case, but this was overruled by Gen. Robert Abrams — Sgt. Bergdahl's commander — in favor of a general court-martial, making the proceedings much more severe and likely of longer duration. Sgt. Bergdahl's charges include a desertion charge and a misbehavior before the enemy count, the latter of which could result in a life sentence.