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Just Deserts

Bowe Bergdahl and our “so-it-goes” system of military justice

“Remember the old days?” candidate Trump asked the crowd at a July 2016 rally. “A deserter, what happened?” Trump pantomimed aiming a rifle and pulled the invisible trigger, answering his own rhetorical question with a deadpan “Bang.” He was riffing on the case of Sergeant Bowe Bergdahl, who walked away from his battalion in 2009 and was captured by the Afghan Taliban. As CNN reported, six U.S. soldiers were killed during the months-long manhunt for Bergdahl. The facts of his captivity come under some dispute, as did his release as part of an unprecedented prisoner swap. The issue was a resonant drumbeat on Trump’s campaign stops, pounded out mercilessly as an example of bad deal-making. Hours after Trump’s inauguration, Bergdahl’s defense team filed a motion arguing that the commander-in-chief’s fiery rhetoric coupled with his new role created “unlawful command influence” that precluded any possibility that Bergdahl would get a fair trial. That motion was denied, and Bergdahl pleaded guilty in court today.

Over the years, the media has also made much of the dramatic old days when desertion was deadly. We revisit and reenact the events on January 31, 1945, in Sainte-Marie-aux-Mines, France, where Private Eddie Slovik was executed by a firing squad formed from a dozen of his fellow soldiers, under orders issued by Eisenhower. In Kurt Vonnegut’s Slaughterhouse-Five, or The Children’s Crusade: A Duty-Dance with Death, Billy Pilgrim finds William Bradford Huie’s The Execution of Private Slovik under a waiting-room seat cushion. From it, Vonnegut’s protagonist reads an excerpt of an actual appellate report written by a judge advocate general: “If the death penalty is ever to be imposed for desertion, it should be imposed in this case, not as a punitive measure nor as retribution, but to maintain that discipline upon which alone an army can succeed against the enemy.” Pilgrim reacts with glib fatalism—“So it goes.” In the made-for-TV version of The Execution of Private Slovik, Slovik is played by Martin Sheen who, five years later, would play Captain Benjamin L. Willard in Francis Ford Coppola’s Apocalypse Now (1979), a character tasked with the extrajudicial assassination of another deserter, Colonel Kurtz.

Bowe Bergdahl is one part Billy Pilgrim, one part Eddie Slovik—a symbol of our weaker selves and a stand-in for those of us who’ve lost heart. But unlike Pilgrim and Slovik, Bergdahl won’t get gunned down. He doesn’t face the death penalty, despite the severity of the Uniform Code of Military Justice, which states that “Any person found guilty of desertion or attempt to desert shall be punished if the offense is committed in time of war, by death or such other punishment as a court-martial may direct.” Bergdahl’s lesser desertion charge carries a maximum sentence of five years. It’s his second charge under Article 99, “Misbehavior Before The Enemy,” an obscure carryover from the older Articles of War folded into the Uniform Code of Military Justice in 1951, that has Bergdahl facing the possibility of life in prison.

The discreet Pentagon policy on desertion could be renamed “So It Goes.”

Given the unprecedented American incarceration rates, it may come as a surprise that Bergdahl is not presently in confinement. He’s flying a D4D—desk, 4 drawers—assigned to clerical duties at Fort Sam Houston, Texas. He’s even allowed off post in supervised company. Indeed, the extremes of the Bergdahl case have overshadowed this little-known revelation: the U.S. military is more merciful in its treatment of deserters than it lets on. The discreet Pentagon policy on desertion might even be renamed “So It Goes.” In his executioner’s rant, Trump hit upon something resembling truth: “Twenty years ago it was bang but slowly,” he said. “Ten years ago it was long prison. Today, they’re probably talking about nothing.” By and large, the U.S. Armed Forces don’t hunt down deserters. They don’t have the manpower or the resources. These days, some 95 percent of deserters aren’t prosecuted. Deserters receive an administrative discharge but only after they return, either voluntarily or by arrest, to military control. Each branch of the military differs, but the Army, the largest American force, displays little interest in bringing most deserters to court-martial; much cheaper and easier to let them walk. Discharge—in most cases, not dishonorable—is the most efficient way for the Army to rid itself of soldiers who are, statistically, the least enthusiastic and the most troubled enlistees, financially and emotionally. You desert, and the Army doesn’t have to provide your benefits. It doesn’t have to pay disability, and a high percentage of deserters have psychiatric problems. You’re cut off, and the Army got your service at cost. If you’re not a PFC Bergdahl deserting from a combat zone—and you’re among the estimated 50,000-plus absent soldiers presently at large—you’re essentially granted an amnesty.

This information isn’t readily available. The powers-that-be seem to believe that if every soldier knew the Pentagon’s unofficial policy on desertion, more soldiers would skedaddle. Indeed Eddie Slovik’s legend is a powerful cautionary tale, but its moral is deceptive: during World War II, of the approximately 50,000 U.S. soldiers who deserted, 20,000 were tried and sentenced. Forty-nine received death sentences. All but one of those sentences was commuted. In fact, the only U.S. soldier actually executed for desertion since the Civil War was the infamous Private Eddie Slovik.

There is general agreement in the military that AWOL and desertion rates are an indicator of the stress on military personnel. After a decade-and-a-half in what feels like a forever war—if this were ancient Greece, Troy would be seven years sacked and Odysseus halfway home by now—most of us are spent, soldiers and civilians alike.

Comprehensive contemporary desertion rates are impossible to come by without classified security clearance, and the public numbers are woefully underreported. Mother Jones put the count for the first decade of the War on Terror, from 2001 to 2011, at 29,000 Army desertions. Nearly fifteen years ago, the U.S. Army Research Institute concluded their last unclassified comprehensive study on the issue, called “What We Know About AWOL and Desertion: A Review of the Professional Literature for Policy Makers and Commanders.” In 2012, a lesser AWOL and desertion assessment was included as part of “Army 2020: Generating Health and Discipline in the Force Ahead of the Strategic Reset.” It lays out a policy under consideration that would allow the Army to separate deserters in absentia, without returning them to military control. This would set apart soldiers “absent for more than two years and who are not facing additional charges or who are not considered high risk,” from more threatening absentees, like those “wanted for crimes including homicide, armed robbery, assault, sexual assault, illegal drug use or possess a top secret security clearance.” This first group of soldiers would “receive a characterization of service of Other Than Honorable,” and “discharging these soldiers in absentia would save Army time and resources.”

No doubt our preternaturally uninformed president would be shocked by this leniency, but he should have more sympathy for the volunteers who change their minds and want to walk. These American minds—not exactly starving hysterical naked, nor seeing Mohammedan angels—aren’t yet fully formed when they’re first made up. The young women and men, the vast majority of fellow Americans choosing to fight our wars for us, have a right to know what happens to them if they experience changes of heart or mind, and want to abandon their posts. Anything less is coercion.

If you’re one of those at-large soldiers, here’s what happens when you go AWOL. Your commanding officer notifies your next of kin. An inquiry is undertaken to ascertain your location and your possible reasons for disappearing. Relevant personnel, like the provost marshal, are notified. Necessary reports are filed. After thirty days, you’re classified as “Dropped from Rolls.” More forms are compiled in a deserter packet forwarded to the Army Deserter Information Point at Ft. Knox, Kentucky. This is the normal progression from absence without leave to desertion, but there are any number of impediments. Of the 18,010 soldiers who “deserted from FY2006–11, only 13,443 were reported to law enforcement.” Army commanding officers, for a variety of reasons, failed to report deserters in one-quarter of cases.

Threatening deserters with the firing squad has become a tough-guy pantomime for hacks and hams.

So what normally happens if a deserter surrenders? You’re taken to a Processing Confinement Facility. There, you go through the paperwork drill, which takes a couple of days. In most cases, you’re discharged with an “other-than-honorable” designation on your separation papers. You’re even free to seek an upgrade to a “general discharge under honorable conditions.” Either way, most deserters will be given a Chapter 10 general discharge. This discharge will not ruin your life: the federal government will still employ you; you get no GI Bill, but you’re still fully eligible for all other federal financial aid. Once you have your discharge papers, you lose TRICARE, but if you get your “other-than-honorable” upgraded, you get benefits back. With the 2016 Fairness for Veterans Act, signed into law by President Obama, these upgrades are now supposedly more likely than ever. But, given the flightiness of the current commander-in-chief, this could change at the drop of a tweet.

Some seventy-two years removed from the last American execution for desertion, the firing squad is no longer an effective deterrent. It’s become an act, a tough-guy pantomime for hacks and hams.

The hollow threat of a death sentence should no longer stand as an official punishment for desertion during wartime. If, under Trump, we are facing a further extension of conventional ground forces in Afghanistan after a full generation of American war-waging and deficit increases, the Trump Administration must find other, less expensive ways to boost troop morale. It’s time we strike the death penalty from Article 85 of the Uniform Code of Military Justice. The battlefield offers death threat enough.

If our civilian and military leaders can’t count on friendly fear to maintain the commitment of our fighting force, maybe future administrations will be less inclined to indefinitely commit our troops to questionable wars. Or so it goes.