NORFOLK -- In the moments before the grenade exploded, two Afghan men sat in the back of a medical clinic on a small military base, waiting to see an American medic.
Petty Officer 1st Class Omar Pescador-Montanez, a Navy corpsman, was the only other person in the building.
It was Aug. 2, 2013, and the summer heat was oppressive at the base housing Navy SEALs and Afghan Special Forces.
One of the men waiting worked for U.S. forces at the compound in southeastern Afghanistan. He escorted the other man -- thought to be an Afghan soldier -- complaining of leg pain.
In actions at the heart of a criminal case against him, Pescador-Montanez suddenly ran into the room and told the men to take cover; he thought someone had thrown something into the building.
Nothing happened. All three ran outside and didn't see anything. Then Pescador-Montanez ran back into the building. There was an explosion.
Pescador-Montanez, who deployed to Afghanistan with SEAL Team 10, has maintained that he came under a grenade attack that injured him.
The government isn't buying it.
The Navy accuses the corpsman of creating the entire scene, exploding the grenade to get out of his duties, and then lying about it.
His lawyer, Lt. Cmdr. Kimberly Kelly, described the incident in a hearing Thursday at Norfolk Naval Station. A court-martial has been scheduled for May.
"The government essentially has a circumstantial case," Kelly told the court. "It is essentially alleging that there is no other reasonable possibility other than Mr. Pescador-Montanez detonated the grenade."
She argued for access to classified information about the kinds of attacks the SEALs from the base, known as Village Security Platform Shobar, had encountered. By showing that there were hostile forces in the area, Kelly said, it's not "completely implausible to say there was an attack on the base itself."
Marine Capt. Keaton Harrell, the prosecutor, said the base had not come under attack in the months before the incident. He said there were a few attacks on personnel from the base while on patrol, but they were several kilometers away and involved gunfire and rocket-propelled grenades, not hand grenades.
Specifically, he added, they did not involve an American hand grenade.
The case brings the conflict in Afghanistan to a Norfolk courtroom, raising issues about maintaining standards of evidence and testimony in circumstances complicated by war.
The defense is calling for the government to present the Afghans as witnesses and arguing that the crime scene was not properly sealed, leading to a contamination of evidence.
Prosecutors said they might not be able to find one of the Afghan witnesses and argued that it's impossible to maintain the same investigative standards in a dusty, remote base in war-bedeviled Afghanistan.
A sailor from the Bronx who joined the Navy in 2002, Pescador-Montanez spent a year at the Surface Warfare Medical Institute before being assigned to SEAL Team 10 at Joint Expeditionary Base Little Creek in April 2012 and deploying with the unit to Afghanistan in 2013.
He's charged with lying about the incident, damaging the Afghan compound, intentionally injuring himself to get out of his duties and endangering others and himself with the wrongful use of his firearm and by wrongfully detonating a grenade.
The Navy would not release any information about Pescador-Montanez's injuries; none were visible when he appeared in the courtroom Thursday.
The defense insists that at least one of the two Afghan men at the clinic that day testify at the court-martial. One still works for U.S. forces there, but he's on 30-day leave to visit his family and his cell phone does not appear to be working, Harrell said.
The other man is more elusive. Harrell told the court that his name did not show up on a search of the Afghan National Army database. U.S. forces have been unable to locate him.
Kelly said that questioning at least one of the two men was integral to her case and that she would ask that the proceeding be suspended until one is available.
"We are entitled to confrontation, sir," she told the judge.
|Navy Crime in the Military Afghanistan|