Defense Secretary Chuck Hagel on Wednesday warned against a rush to judgment that Sgt. Bowe Bergdahl should be punished rather than welcomed home after nearly five years in Taliban captivity.
"We don't do that in the United States," Hagel said of critics that include former members of Bergdahl's unit who have called Bergdahl a deserter after he walked away from his outpost in Afghanistan's Paktika province on June 30, 2009.
An Army Article 15-6 investigation of how Bergdahl went missing concluded in 2010 that he voluntarily left his unit and was later captured by the Taliban, according to the Associated Press. However, Hagel urged caution pending another Army review.
"Until we get the facts, until we have a review of all the circumstances, it is not in the interest of anyone and certainly I think a bit unfair to Sgt. Bergdahl's family and to him to presume anything," Hagel said in Belgium, where he met with NATO defense ministers.
"We rely on facts," Hagel said in echoing the statement Tuesday by Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, that the 28-year-old Bergdahl was "innocent until proven guilty."
"Let's get the facts," Hagel said. "But let's first focus on getting Sgt. Bergdahl well, getting his health back, getting him reunited with his family."
Gen. Ray Odierno, the Army's chief of staff, supported Hagel in calling for caution in judging Bergdahl.
"Now that Sgt. Bergdahl is back and under our control, first and foremost we must ensure his health is taken care of and he is properly re-integrated," Odierno said in a statement.
"At the appropriate time, we will conduct a thorough, transparent and complete review of the circumstances surrounding his capture," Odierno said.
The review could possibly lead to charges under the Uniform Code of Military Justice, military law experts said, despite the potential reluctance to pursue a case against a soldier held prisoner for nearly five years.
Should a case be pursued, the most likely charge would be Absence Without Leave under Article 86 of the UCMJ, said Gary Solis, a retired Marine colonel and former Judge Advocate General.
From his reading of the facts, "there's enough evidence of intent" to support a charge under Article 86, but not enough to charge him under Article 85 for desertion.
Article 85 requires proof of an intent to remain away permanently, and "desertion would be just about impossible to prove" in the case of Bergdahl, Solis said.
Article 86 states in part that "any member of the armed forces who, without authority absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed, shall be punished as a court-martial may direct."
Upon conviction, the maximum punishment for a violation of Article 86 would be dishonorable discharge, forfeiture of all pay and allowances, reduction to the lowest enlisted grade, and confinement for one year.
Both Solis and Michael Noone, a Catholic University law professor and military law specialist, said any potential case against Bergdahl could be compromised by how he has been treated since his release.
Much like civilians, service members under suspicion must be told of their rights to counsel and to remain silent.
"They should have told him that when he got on the helicopter," Solis said.
Bergdahl has been undergoing treatment, psychological evaluation and debriefings by intelligence officers at the Landstuhl Medical Center in Germany since his release last Saturday in exchange for five top-ranking Taliban prisoners who were being held at the Guantanamo Naval Base.
Bergdahl has not been permitted to speak with his parents since arriving at Landstuhl. It was unclear whether he had been advised of his rights or whether he or his parents had asked for a lawyer.
"Not to my knowledge," said Army Col. Steve Warren, a Pentagon spokesman.
Noone said "I was just stunned" at the near euphoria in the Obama administation's initial statements on Bergdahl's release. "They had reason to believe he was a deserter from the beginning. There were good grounds for believing the guy committed a serious offense," Noone said.
"There seems to be a policy judgment here that the administration wants to treat him as a POW and nothing more than that,' Noone said.
However, Hagel said "Bergdahl is a member of the United States armed forces. The United States of America has, and always will have, responsibility for getting its soldiers back. Other questions and facts regarding Sgt. Bergdahl will be dealt with at a later time."
-- Richard Sisk can be reached at firstname.lastname@example.org