The master diver of the Navy company that lost two men in a training dive last February negligently failed to ensure that proper safety procedures were adhered to, a Navy jury found Friday.
The four-man jury – two SEALs, one Explosive Ordnance Disposal technician and one intelligence specialist – spent two hours deliberating before they found Senior Chief Petty Officer James Burger guilty Friday evening of a single charge of negligent dereliction of duty.
Burger was his company’s master diver at Mobile Diving and Salvage Unit 2 when two sailors drowned during a training dive on Feb. 26.
The dive at the Aberdeen Proving Ground in Maryland was deep: down to 150 feet, in cold water with little visibility and with wire and debris at the bottom of the pond.
Petty Officer 1st Class James Reyher and Petty Officer 2nd Class Ryan Harris were on a tending line that got tangled while they were at the bottom, and testing of their breathing apparatuses indicated that the equipment likely failed them.
As the verdict was delivered, Harris’ mother and father shook with sobs. Beside them, Reyher’s wife, who’d broken down in tears at other points during the trial, sat quietly. Burger showed little emotion, and he somberly embraced family and friends after court adjourned.
He was not held accountable for the sailors’ deaths. But the government charged that, as master diver, he was responsible to ensure safe conditions and failed to see the risks of the dive or take steps to mitigate them.
“This dive should never have happened,” Marine Corps Capt. Keaton Harrell, the prosecutor, said in his closing statement at Norfolk Naval Station. “Sr. Chief Burger had a responsibility. He had a duty to prevent it. He did not.”
The defense contended that the dive, in essence, was safe and the things that went wrong were out of Burger’s control. It was, said Burger’s attorney, Lt. Cmdr. John Butler, a tragic accident.
“This wasn’t a dangerous dive,” Butler said in his summation. “Catastrophic instantaneous failure – that’s what happened.”
The 16-man dive team from Joint Expeditionary Base Little Creek was undergoing an evaluation ahead of deployment in March, performing a series of diving scenarios designed by the company’s readiness and training team.
Reyher and Harris were supposed to locate a helicopter at the bottom of the pond using a breathing apparatus called Mark 16, which offers longer bottom time because of its greater air supply.
When the Mark 16s didn’t work, the company’s senior officer in charge, feeling pressure to pass the evaluation and with approval from other senior divers there, decided to use scuba.
That decision was at the crux of the trial. The prosecution argued that the scuba tanks did not have enough air in case of underwater emergency and that the choice was pressured and rushed.
Harrell cited testimony from several divers that they did not feel adequately trained for a scuba dive at that depth.
“You don’t take unnecessary risks like that for a check in the box,” he said, referring to the evaluation.
Butler urged the jury not to blame Burger. He cited all the ways Burger had trained the men and the precautions he took the day of the dive.
“Death is a mysterious thing,” Butler told the panel. “We want so badly to find reasons why. We want so badly to blame someone.”
Burger, who has been in the Navy for 24 years, faces a maximum of 90 days in confinement and a possible demotion to as low as seaman recruit. The sentencing hearing will take place today.
As she dismissed the jury Friday, the judge, Capt. Colleen Glaser-Allen, told them to get a good night’s rest because today’s hearing would likely be emotional.