https://www.law.cornell.edu/uscode/text/10/885
If charged with Article 85, Desertion, Intent To Shirk (#2)
https://www.law.cornell.edu/uscode/text/10/843
Under UCMJ's U.S. Code 843, Article 43 Statute of Limitations, Bowe Bergdahl's time of imprisonment by the enemy has to be deducted from the statute of limitations in charging him as a deserter. Both sections C, and D support the U.S. military court's obligations, power/authority and ability to charge him as a deserter.
He could claim international law, Nuremberg Article IV as his legal defense, as a conscientious objector, since he truly decided to become a Buddhist monk before his military service. Also, the post 9/11 sentencing for desertion is probably closer to a discharge, and up to 24 months in prison.
It would be politically difficult though, for him to be successful in a U.S. court martial, using the Nuremberg Article IV as his legal defense. Most likely, he should be given a general discharge, or OTH administrative one, at the most. He could also begin a counter-lawsuit against the U.S. Army. It seems wisest for the U.S. Army to prevent further lawsuits, by being more sensitive to his Taliban imprisonment term.
Since he has been reassigned to administrative duties, by the U.S. Army, it seems illogical to punish him severely for needing medical leave time, for his counseling and psychiatric appointments. This is probably a factor in the charges of desertion being brought against him now, after he was assigned to administrative duties.
***Is he safe to be around other disabled veterans at the VA offices and medical centers though? He may be in a delayed, grieving process for the death of one of his colleagues. He does require psychological and psychiatric care for that also. Perhaps his lawyer can try to negotiate his charge down to one count of AWOL/UA with a general discharge.***
Differences Between AWOL/UA and Desertion:
http://en.m.wikipedia.org/wiki/Desertion
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