Senior Chief Navy Diver (EXW/SW) James Burger was found guilty of negligent dereliction of duty in the drowning deaths of two of his divers. (Army via The Associated Press)
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A panel of three master chiefs and one officer found Senior Chief Navy Diver (EXW/SW) James Burger guilty of negligent dereliction of duty in the drowning deaths of two of his divers on Feb. 26, 2013, during a training dive in Aberdeen, Md.
The panel decided that the 24-year Navy veteran had “failed to ensure established diving procedures and safety requirements were adhered to, as was his duty to do” which ultimately led to the deaths of Navy Diver 1st Class (DSW) James Reyher of Caldwell, Ohio, and ND2 (DSW) Ryan Harris of Gladstone, Mo.
At the time of the incident, Burger was serving as the Master Diver for Company 2/3 at Mobile Diving and Salvage Unit, 2 and the deaths came as the unit was going though a final evaluation to be certified to deploy.
Burger’s reaction to the verdict was stoic, though he was seen embracing family and friends once the court had adjourned.
Harris’ mother and father, who were present at the trial, openly wept at the announcement. Reyher’s widow was also present during the trial and verdict.
All of the present family members declined to comment after the verdict.
The verdict came after a five-day courts-martial on Naval Base, Norfolk, Va. The trial now enters the punishment phase, where the members of the court must decide what punishment — if any — Burger deserves.
He faces up to 90 days in the brig; forfeiture of two-thirds pay for those 90 days; and reduction in rank to E-1. That sentencing phase is slated to begin Saturday morning at 10 a.m.
The court’s panel, in essence the jury, comprised two Navy SEALs, one explosive ordnance disposal technician and an intelligence specialist. They took just over two hours to come to their decision on Burger, apparently believing the case put to them by Marine Corps Capt. Keaton Harrell, who headed the prosecution’s team.
“This dive should never have happened,” Harrell said over and over during his closing arguments. “The buck stops with the master diver. The master diver alone is the most qualified to supervise SCUBA diving operations.”
Harrell made the case that Burger was not only negligently derelict in allowing the dive to happen, but also once the decision was made to get in the water that he failed to ensure it was conducted safely and within Navy acceptable diving procedures and practices.
At issue was the training SCUBA dive to 150 feet in Aberdeen’s “Super Pond,” conducted as part of a final evaluation exercise required was outside the normal Navy limits for SCUBA diving. The service allows routine SCUBA dives up to 130 feet, but special approval is required from the unit’s commanding officer or officer in charge. The Navy’s Dive Manual also says there must be “operational necessity” for the dive to be conducted as well.
Though the dive manual doesn’t define what operational necessity is, Harrell said a definition from Naval aviation — the only such definition of the term in the military — applies.
That definition states that operational necessity meant that the “consequences of the actions justify the loss of the aircraft and crew.”
And though the approval had been given, Harrell said, this was a training dive and there was no operational necessary because the risks of the dive outweighed any training benefit.
As such, he said, Burger was duty-bound to step in and stop the dive from happening and instead, other options to complete the training scenarios should have been insisted upon by Burger.
“The benefits were negligible and the risks monumental,” Harrell said. “There was no reason and no necessity” for the dive to occur.
And taking his case further, Harrell said Burger — even during the planning and execution of the dive — was negligent and that his divers weren’t adequately trained and prepared to successfully conduct the SCUBA dive to that deep of depth.
Not so, argued Lt. Cmdr. John Butler, who headed Burger’s defense.
His stated case right from his opening was that he would show that this incident was really caused by the failure of the diving breathing regulators used by Reyher and Harris, which evidence indicates could have free-flowed while the pair was on the bottom, completely draining their air tanks.
“This wasn’t a dangerous dive,” Butler said. “This was a tragic accident not a crime — catastrophic instantaneous failure, that’s what happened.”
To emphasize this part of the case, Butler concluded his case with the testimony of from Vincent Ferris, the engineer from the Navy Experimental Diving Unit who tested the regulators from the ill-fated dive after the incident.
Ferris’ investigation showed all the regulators used during the dive failed by free-flowing testing when subjected to the fresh water dives in 38-degree water at a depth of 150 feet.
But on Harrell’s cross examination Ferris admitted that though the regulators failed during his tests, he couldn’t say for certain if they’d failed during the dive.
Butler also worked hard to prove that the dive wasn’t dangerous and would have been possible to successfully complete had it not been for the regulator failure.
“Death is a mysterious thing,” Butler said in his final plea to the panel after asking them to return a not guilt verdict. “We want so badly to find reasons why, we want so badly to blame someone — this case boiled down to a catastrophic failure, let’s not make it any more tragic.”