Sgt. Bergdahl and the High Priority to Recover Missing Soldiers

So far as I can tell, the issue of whether Sergeant Bowe Bergdahl was a deserter is an issue that has very little relevance to any question of the legality or wisdom of the US government’s recent success in recovering SGT Bergdahl.  Title 10 of the U.S. Code directs the Department of Defense to establish policy with regard to individuals who fall into enemy hands or otherwise go missing in combat while serving as members of the armed forces.  Department of Defense policy, as described in Department of Defense Directive 3002.01E, is to pursue their safe return.  SGT Bergdahl went missing in combat while serving as an active duty servicemember.  Thus, we sought his safe return.  Unless there is some other provision that I am missing in law or in a Department of Defense policy document, then this seems fairly straightforward.

Section 1501 of Title 10 of the U.S. Code assigns responsibility for Department of Defense matters relating to “missing persons” to the Deputy Assistant Secretary of Defense for Prisoner of War/Missing Personnel Affairs (DASD(POW/MPA)).  Section 1502 directs DASD(POW/MPA) to establish uniform Department of Defense procedures for members of the armed forces on active duty who (a) “become involuntarily absent as a result of a hostile action or under circumstances suggesting that the involuntary absence is a result of a hostile action” and (b) “whose status is undetermined or who is unaccounted for.”

Does voluntariness or involuntariness attach at the moment of absenting oneself and remain unchangeable thereafter?  Case in point, if SGT Bergdahl left the perimeter of his outpost voluntarily, then does that mean his absence is voluntary, even if he was later captured by Taliban militants and then changed his mind and really wished he could return to his comrades at the outpost?  Common sense suggests that a voluntary absence would be more applicable to the Soldier who skedaddles from the austere living conditions of a remote outpost and finds his way to an island resort, not to the Soldier who finds his way into the hands of captors who hold him against his will.

Following the direction from Congress in 10 U.S.C. 1501-1503, the Department of Defense published Directive 3002.01E, Personnel Recovery in the Department of Defense (published on 16 April 2009, ten weeks prior to SGT Bergdahl disappearing from his outpost).  The directive does not address deserters.  Instead, it sets policy in regard to “isolated” personnel, defined as those who are “in danger of becoming, or already are, beleaguered, besieged, captured, detained, interned, or otherwise missing or evading capture… while participating in U.S.-sponsored activities or missions.”

The glossary of the directive gives a shorter definition for “isolated personnel” as those “who are separated from their unit (as an individual or a group) while participating in a U.S. sponsored military activity or mission and are, or may be, in a situation where they must survive, evade, resist, or escape.”

Per paragraph 4 of DODD 3002.01E, preserving the lives and well-being of isolated personnel is “one of the highest priorities of the Department of Defense.”  So long as we lacked evidence that SGT Bergdahl was free to come and go as he pleased from wherever he has been for the last five years, it appears fairly clear that Department of Defense policy was to continue to make efforts for his safe return.

The views expressed are those of the author and do not represent the views the US Government or Department of Defense. 

About the Author(s)

Timothy Mathews

US Army JAG officer and Formerly Served as a US Army Infantry Officer (1999-2008) Follow him on Twitter (@timmathews).