Death penalty rarely used for desertion conviction

Although the death penalty is a possibility in cases of desertion or misbehavior before the enemy — the charges leveled Tuesday against Army Sgt. Bowe Bergdahl — it has rarely been used.

“On the books, it is an option,” said Noel Tipon, an attorney in Hawaii who specializes in defending servicemembers facing Article 32 hearings and courts martial.

But it would be an “unlikely event” for a case to be referred as capital where a death was not directly involved, he said.

RELATED: More Stars and Stripes coverage of Sgt. Bowe Bergdahl

Under the Uniform Code of Military Justice, the death penalty is an option for either desertion or misbehavior before the enemy — but only during times of declared war.

The only U.S. servicemember to be executed for a purely military offense — desertion — since the Civil War was Edward D. Slovik, who was executed by firing squad in January 1945 in France.

In a letter to Gen. Dwight Eisenhower, Slovik pleaded for leniency. But the American forces were rife with desertions at that time, and Eisenhower wanted to stem the tide by making the private’s execution an example.

Congress issued formal declarations of war on Germany and Japan for World War II, which clearly created a “time of war” in regard to the UCMJ’s requirements.

But the Authorization for Use of Military Force passed by Congress and signed by President George W. Bush on Sept. 18, 2001, is a slightly different creature than a “declaration of war.”

Tipon said it is “unclear” whether the 2001 authorization rises to the level of a declared war in regard to the interpretation of applying the death penalty.

He said it’s the prerogative of the court-martial convening authority to decide whether the charges will be referred as capital.

Desertion could lead to the death of soldiers left behind in certain extraordinary cases.

“I understand that argument,” Tipon said. “Sure, if something had gone wrong, then it could have led to the death of other soldiers, other servicemembers.”

But without Bergdahl being directly involved in one of those soldiers’ deaths, the convening authority would not likely refer it as a capital case, he said.

“The decision to refer something capital, especially in a case where an action didn’t lead to the death of another individual as a result of that misconduct, is undertaken very soberly and very deliberately,” Tipon said.

Some soldiers who served with Bergdahl say some soldiers died in the search for Bergdahl after he walked off his post in Afghanistan in June 2009. Some of his platoon mates have publicly held him responsible for those deaths.

“That might be a game-changer for the powers-that-be who are making the decision whether or not to refer capital,” Tipon said. “But again, that’s such a tough call to make because typically a death-penalty-eligible case is for murder. It isn’t second- or third-order effects, as they say in the military, of what the misconduct was.”

olson.wyatt@stripes.com

Twitter: @WyattWOlson