If the US Army determines that Sgt. Bowe Bergdahl wandered off his small outpost in Afghanistan without authorization – in other words, if he was absent without leave – this will effectively negate his status as a “captured” soldier, the Pentagon said Wednesday.
Sergeant Bergdahl may be classified as captured, absent without leave (AWOL), or a deserter. “They are all mutually exclusive,” said a senior Army official, who briefed Pentagon reporters Wednesday on condition of anonymity.
While it is possible for a US soldier to be AWOL and also to be held against his will, “In a legal context, you’re going to be one or the other,” the official added.
It is a legal distinction with big implications for Bergdahl. If he is found to be AWOL or a deserter, for example, he may be forced to forfeit some $200,000 in accrued pay during his captivity.
Bergdahl has not been advised of his rights and he has not been appointed an attorney, the official said, adding that “he has not asked for an attorney.”
The Army soldier, who was held in captivity for five years, is in the “last stage” of his reintegration process.
The focus of the reintegration debriefings has been on the time he has been held in captivity – not the time leading up to his capture, says another senior Army official, who also briefed Pentagon reporters on condition of anonymity.
Bergdahl is not suspected of colluding with the enemy or acting against the Uniform Code of Military Justice while he was in captivity, one senior Army official said. It is the time leading up to his capture that will be the focus of an Army investigation.
If, however, Bergdahl makes a “spontaneous” confession during his reintegration treatment, this could potentially be used against him, the official adds. In that case, the reintegration would stop, and Bergdahl would be advised of his rights.
He has not yet made any admissions that could be used against him, one of the senior Army officials said.
If Bergdahl is determined to have been AWOL or to have deserted – desertion means he never intended to return, whereas AWOL means he just went away for a while – then he could be court-martialed, demoted, and forced to forfeit the back pay.
As it stands now, “There is some pay that is in contention because of his duty status,” said one of the senior Army officials, who added that this money is being kept in a separate military account until the investigation is completed.
“Pay is tied to duty status,” the official added. A soldier with the status of “missing/captured is entitled to that pay,” while soldiers who are determined to be AWOL are not.
“If Bergdahl is found to be AWOL, then all that time since he left the post five years ago is considered ‘bad time’ and is not creditable,” says a former US military judge advocate general, who spoke on condition of anonymity because he is not authorized to discuss the case.
The investigation into Bergdahl’s duty status will likely begin in “a couple of weeks,” officials said. At that point, Army investigators will have 60 days to complete their investigation.
In the meantime, one senior Army official added, “I can tell you that he’s been cooperative to date.”