FILE: In this image taken from video obtained from Voice of Jihad website on June 4, 2014, Sgt. Bowe Bergdahl, right, stands with a Taliban fighter in eastern Afghanistan.
FILE: In this image taken from video obtained from Voice of Jihad website on June 4, 2014, Sgt. Bowe Bergdahl, right, stands with a Taliban fighter in eastern Afghanistan.

HOUSTON - U.S. Army Sergeant Bowe Bergdahl, who has been charged with desertion, goes Thursday before an army court hearing at Fort Sam Houston in Texas. He was a captive of the Taliban in Afghanistan for five years before his exchange last year for five detainees held at the U.S. Navy base at Guantanamo Bay, Cuba.

At the hearing in San Antonio, Army prosecutors will begin laying out their case against Bergdahl, focusing at first on the desertion charge. The panel that will hear the arguments serves the same function as a grand jury in civilian criminal cases, and either will recommend a court martial or dismissal of charges.

The second charge against Bergdahl is misbehavior before the enemy. It was used nearly 500 times during World War II, but rarely since the war ended in 1945.

Geoffrey Corn, a former army attorney and current professor at South Texas College of Law in Houston, said the charge, although rare, is appropriate in this case given the evidence.

“It has not been used much because there have not been many cases like this,” said Corn. “You have a soldier who, apparently, from what we know from the evidence, abandoned his combat outpost leaving his equipment behind and put himself, at best, in a position where he was vulnerable to capture by the enemy.”

Serious accusations

Shortly after the Taliban released him in May of last year, soldiers who had served with Bergdahl accused him of putting their lives at risk, and there was speculation that he had joined or had tried to join the enemy.

Army investigators, however, found no evidence to back that accusation, and they cite evidence that Bergdahl was held captive and was beaten by his captors after he attempted to escape.

FILE - In this file image taken from video obtaine
FILE - In this file image taken from video obtained from Voice Of Jihad Website, which has been authenticated based on its contents and other AP reporting, Sgt. Bowe Bergdahl, sits in a vehicle guarded by the Taliban in eastern Afghanistan.

Republicans criticized President Barack Obama for making the deal, arguing he set free five men who could return to the fight against U.S. troops in return for a soldier who deserted his post.

Another recurrent theme of those critical of the prisoner exchange is that Bergdahl’s desertion resulted in death and injury to other soldiers trying to rescue him. Army prosecutors are not expected to cite any deaths, but they may provide evidence that some soldiers were severely wounded in operations launched to locate and rescue Bergdahl.

Corn said Army prosecutors may not have to show anything more than evidence that Bergdahl’s abandonment of his post created a potential danger for all U.S. soldiers in the area, as well as any engaged in rescue attempts.

“I think what they certainly will be able to do is establish that the mission was significantly disrupted and that soldiers were, in fact, placed in jeopardy,” said Corn.

Misbehavior before the enemy

While the desertion charge comes with a maximum sentence of five years in prison, Corn said the misbehavior-before-the-enemy charge could result in a much harsher sentence.

“It could be as much as life in prison,” he said, adding he does not think prosecutors will seek that harsh a sentence.

“I think the main effort of the government sentencing argument will be a dishonorable discharge,” Corn said.

It also is possible that army prosecutors and Bergdahl’s lawyers will work out a plea bargain deal, whereby the soldier would relieve the military court of carrying out a long trial in exchange for a guilty plea and a moderate punishment.  

He could, for example, use his time in captivity to reduce whatever prison time is ordered. Bergdahl also may seek to protect his back pay and veteran’s benefits by accepting prison time rather than a dishonorable discharge.