The court-martial of the first of two sailors facing charges in the deaths of two Navy divers at Aberdeen Proving Ground, Maryland's 'Super Pond' last year is underway in Norfolk, Va. (Army via AP)
NORFOLK, VA. — The court-martial of Senior Chief Navy Diver (EXW/SW) James Burger, the former Navy master diver accused of dereliction of duty in the deaths of two of his divers last February, kicked off this week with two marathon days of courtroom drama.
Burger is accused of a single count of dereliction of duty in the wake of the training deaths of Navy Diver 1st Class (DSW) James Reyher of Caldwell, Ohio, and ND2 (DSW) Ryan Harris of Gladstone, Mo., who died during a training dive in Aberdeen, Md., on Feb. 26, 2013.
He is one of two senior Navy divers from Mobile Diving and Salvage Unit 2, based in Little Creek, Va., slated to have their fate decided by a panel of their peers. His trial continued Wednesday and could last well into the weekend.
His charges state that he failed “to ensure established diving procedures and safety requirements were adhered to, as it was his duty to do so.”
The Navy has also charged Chief Warrant Officer 3 Jason M. Bennett, who was not present on diving stations in Aberdeen when the deaths took place, with two specifications of dereliction. He’s slated for trial next week.
Along with a charge similar to Burger’s, Bennett also is charged with allegedly failing to relay to MDSU 2’s commanding officer — Cmdr. Michael Runkle, who was later relieved of command — a request from the divers on station to conduct a SCUBA dive to 150 feet, which exceeded normal working limits.
It’s a dive the Navy says shouldn’t have happened, and it was up to Burger as the master diver to stop it, Marine Capt. Keaton Harrell, who leads the government’s prosecution efforts, said in his opening statements Tuesday.
“Navy divers operate in areas of inherent danger,” Harrell said, adding that the “select few” who become master divers are entrusted with ensuring diving operations are conducted safely.
“They are vigilant and recognize issues others miss, and speak up when others are slack,” Harrell said. “Senior Chief Burger did not live up to that standard on Feb. 26.”
But Burger’s defense counsel, Lt. Cmdr. John F. Butler, said the evidence will show that faulty dive gear, not negligence, caused the deaths.
“This was a tragic accident and not a crime,” Butler told the court. He said that during the trial, the members of the court would hear compelling testimony from engineers from the Navy’s Experimental Diving Unit, who tested the perished divers gear after the accident.
Those tests, he said, prove the deaths were “caused by defective regulators that when tested, failed over and over again.”
The opening statements came after a marathon first day of trial on Monday, during which the court set to work selecting the military members who would serve as the trial’s court — similar to a jury in civilian court.
Navy rules state that those slated to sit in judgment in a military court must be of equal or higher rank than the accused. Navy legal officials told Navy Times that the trial’s convening authority — in this case, Capt. John Coffey, who heads Little Creek-based Explosive Ordnance Disposal Group 2, MDSU’s higher headquarters — is charged with locating and vetting potential jurors.
Of the 11 initially ordered to the trial, only four remain. The rest were whittled away by the prosecution, the defense and the trial’s military judge, Capt. Carolyn Glaser-Allen. The minimum number of court members a special court-martial can have is three; a finding of guilty by three of the four now empaneled would be required to convict Burger.
Eight of the 11 sent to the trial were explosive ordnance disposal technicians, either officer or enlisted. Upon lengthy questioning, many were deemed to be too close to the convening authority or possible witnesses to be allowed to take part.
The four-member panel includes a SEAL lieutenant, a master chief, an intelligence specialist and one remaining EOD tech.
The Navy originally charged five divers in the case in August, taking them to captain’s mast. At the time, only one of the divers agreed to take punishment at mast while the others opted for courts-martial.
Chief Warrant Officer 3 Mark Smith was the officer in charge of Company 2-3. Navy officials won’t confirm whether Smith was the sole sailor who initially accepted the nonjudicial punishment.
Since then, two other divers — Chief Navy Diver Gary G. Ladd, Jr., MDSU 2’s readiness and training leading chief petty officer, and Senior Chief Navy Diver David C. Jones, the command’s readiness and training master diver — agreed to the nonjudicial punishment terms, avoiding courts-martial.