The court-martial of the first of two sailors facing charges related to the deaths of two Navy divers at Aberdeen Proving Ground, Md.'s 'Super Pond' last year began Jan. 13 in Norfolk, Va. (Army via The Associated Press)
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NORFOLK, VA. — Defense attorneys for a Navy diver accused of dereliction of duty related to the deaths of two divers under his leadership last February began their case Thursday, and planned to draw from a report critical of the breathing gear used by both men the day they died.
The findings of a Navy Experimental Diving Unit investigation completed the month after the incident show that faulty maintenance of the gear, along with its poor performance in cold-water situations, may have sped up their deaths.
A copy of the report, dated March 25, 2013, was obtained by Navy Times and confirmed by sources to be authentic.
Navy Diver 1st Class (DSW) James Reyher of Caldwell, Ohio, and ND2 (DSW) Ryan Harris of Gladstone, Mo., died Feb. 26, 2013, after apparently becoming trapped on the bottom of the “Super Pond” test facility in Aberdeen, Md., and running out of air. Military prosecutors, who rested their case Thursday, say Senior Chief Navy Diver (EXW/SW) James Burger, now a former master diver, was derelict in his duties as senior diver during the training operations.
“Given the cold water conditions present during the incident, the catastrophic loss of breathing gas from an uncontrolled free-flow state of one or both of the second stage regulator assemblies was possible,” wrote Capt. K.W. Lenhardt, NEDU’s commanding officer, in his letter summarizing his command’s tests of the diving gear used by both Ryher and Harris, as well the breathing gear from ND3 Austin Noone, the standby diver sent in to rescue the other men.
Noone’s regulator froze open and free-flowed on the surface after his aborted attempt to reach the trapped pair of divers.
This drained his tanks of remaining air and made another attempt impossible. The escaping gas also resulted in ice forming on the first stage of the regulator, the part that attaches to the diver’s bottle and makes the high-pressure air breathable.
Failing the test
Regulators used by both deceased divers were tested just as they’d been received from the Naval Criminal Investigative Service, Lenhardt went on to say in the report. Conditions matched those at Aberdeen — fresh water, 38 degrees. The regulators “exhibited a sustained free-flow” before the scheduled end of the test, and one of them froze up, preventing any air from reaching the tester “within four minutes of leaving the surface” in two separate tests.
“Experience has shown that in cold water environments, once a free-flow state has initiated, it may be impossible to stop unless the supply gas is cut off to the regulator assembly,” according to the report.
That finding raises the specter that either Reyher or Harris, or both, could have run out of air on the bottom before drowning.
The Maryland medical examiner’s office classified both deaths as accidental drownings after considering autopsy results.
In testimony during the trial on Tuesday and Wednesday, multiple divers expressed doubt that their dive company, Company 2-3 from Mobile Diving and Salvage Unit 2, was properly trained on the use of Apeks TX-50 regulators.
The regulator wasn’t well-regarded by some of the MDSU 2 divers who testified in court.
“I’m not a big fan,” said ND1 (DSW) Peter Kozminski, an experienced diver who made the dive prior to Reyher and Harris. Kozminski and another diver failed to get below 100 feet because their tending line became fouled on the surface. He said he preferred other regulators.
Another diver, ND1 (DSW) Spencer Puett, said he’d never dove using the Apeks regulator before he was put in the water as part of a second set of divers sent unsuccessfully to retrieve Reyher and Harris.
When asked if he thought his unit was properly trained to make the ill-fated dive, he simply said “no.”
At the time of the incident, the Apeks TX-50 regulator was approved for Navy use to the maximum limits of SCUBA gear — 190 feet — and could be used in water as cold as 27 degrees.
But on April 10, 2013, weeks after the NEDU report had been signed out, the Navy removed the item from its list of authorized cold-water regulators and limited its authorized depth to 130 feet.
“This was a tragic accident and not a crime,” Lt. Cmdr. John F. Butler, Burger’s senior military defense lawyer, told the members of the court earlier in the week. The tests, he said, prove the deaths were “caused by defective regulators that when tested, failed over and over again.”
The report doesn’t mention or speculate on the details of the dive, only the condition of the gear the divers used. It doesn’t make formal conclusions on the causes of the accident, according to a recently retired master diver familiar with the report who confirmed its authenticity.
According to the report, one of the regulators worn by the deceased divers had been worked on recently, but had missed routine maintenance checks that were due during the same quarter. When NEDU received the gear after the accident, testers found it hadn’t been adjusted properly, according to the report.
More court time coming
Burger is one of two senior Navy divers from MDSU 2, based in Little Creek, Va., slated to face court-martial related to the incident.
The Navy says 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 also charged with not ensuring established diving and safety requirements were adhered to. His trial is set for next week. Three others have accepted nonjudicial punishment in the case.
Burger faces a maximum sentence of 90 days in the brig, forfeiture of two-thirds of his pay for three months and reduction in rank to E-1.