This is just my opinion ....
He didn't go AWOL because he was on duty in a combat zone. I think AWOL is where you say F it and don't come back from leave. His crime is abandoning his post, at a forward operating position, in combat.
886. ARTICLE 86. ABSENCE WITHOUT LEAVE
10. Punitive Articles
Any member of the armed forces who, without authority–
(1) fails to go to his appointed place of duty at the time prescribed;
(2) goes from that place; or
(3) absents himself or remains absent from his unit, organization, or place of duty at which he is required to be at the time prescribed;
shall be punished as a court-martial may direct.
885. ARTICLE 85. DESERTION
by admin on Jul.21, 2010, under 10. Punitive Articles
(a) Any member of the armed forces who–
(1) without authority goes or remains absent from his unit, organization, or place of duty with intent to remain away therefrom permanently;
(2) quits his unit, organization, or place of duty with intent to avoid hazardous duty or to shirk important service; or
(3) without being regularly separated from one of the armed forces enlists or accepts an appointment in the same or another on of the armed forces without fully disclosing the fact that he has not been regularly separated, or enters any foreign armed service except when authorized by the United States; is guilty of desertion.
(b) Any commissioned officer of the armed forces who, after tender of his resignation and before notice of its acceptance, quits his post or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion.
(c) 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, but if the desertion or attempt to desert occurs at any other time, by such punishment, other than death, as a court-martial may direct.
899. ARTICLE 99. MISBEHAVIOR BEFORE THE ENEMY
10. Punitive Articles
Any person subject to this chapter who before or in the presence of the enemy–
(1) runs away;
(2) shamefully abandons, surrenders, or delivers up any command, unit, place, or military property which it is his duty to defend;
(3) through disobedience, neglect, or intentional misconduct endangers the safety of any such command, unit, place, or military property;
(4) casts away his arms or ammunition;
(5) is guilty of cowardly conduct;
(6) quits his place of duty to plunder or pillage;
(7) causes false alarms in any command, unit, or place under control of the armed forces;
(8) willfully fails to do his utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or any other thing, which it is his duty so to encounter, engage, capture, or destroy; or
(9) does not afford all practicable relief and assistance to any troops, combatants, vessels, or aircraft of the armed forces belonging to the United States or their allies when engaged in battle;
shall be punished by death or such punishment as a court- martial may direct.
The wording is pretty clear, desertion is out, and the words, "before or in the presence," when literally interpreted, as they have been in the past,(stare decisis) will make a conviction of misbehavior difficult, but not impossible.
I think conviction will be for AWOL, if anything, which is a very serious offense, but I cannot mesh out desertion and misbehavior opens a whole can of worms, and endless appeals.
Lest we forget, this is not a declared war, so the death penalty is absolutely out of the question. Just another problem with these nasty undeclared wars we call police actions or regime change.
Time will tell, and the evidence that comes forth, will answer a slew of unanswered question, and may change a lot of minds, perhaps even mine.
