WASHINGTON -- At a pretrial hearing last month, the Navy painted two junior officers at the controls the night the USS Fitzgerald collided with a merchant vessel as negligent and complacent officers who failed to communicate adequately and were accountable for the deaths of seven sailors on board.
But after some deliberation, the Article 32 hearing officer has recommended that Lt. Irian Woodley, the ship's surface warfare coordinator, and Lt. Natalie Combs, the tactical action officer, should not face court-martial, according to Combs' lawyer.
Cmdr. Anthony Johnson recommended that both cases go before an administrative separation board, where each sailor will likely face a board of inquiry to determine whether their performance was substandard and whether they should be separated from the Navy.
"It's not a foregone conclusion," said David Sheldon, Combs' attorney.
Johnson's recommendation goes to Adm. Frank Caldwell, the consolidated disposition authority who ordered the Article 32. Caldwell can accept the recommendation or decide whether the two officers should face court-martial or other punishment. Caldwell is likely to make his decision next week, Sheldon said.
He said he doubted that Caldwell or the Navy would press for a court-martial after the recommendation and in the wake of the evidence that the defense presented during the one-day hearing May 12.
Prosecutors portrayed the defendants as failing in their jobs -- not using the tools at their disposal properly, and not trying to get faulty equipment fixed and therefore failing to see close calls in busy waters over the course of the night. The defense argued that the ship's radars and electronic equipment never worked properly and that the crew was exhausted from working 20-hour days with no time to train or do repairs. The problems were systemic, the defense argued, leaving the officers unaware of the other ship's approach.
The Fitzgerald never should have gotten underway in the shape it was in, Sheldon argued at the hearing.
Calling the Article 32 hearing a "dog and pony show," Sheldon charged that the Navy wanted a show of justice but was really hoping not to have to go through a full court-martial that would expose the systemic problems that led to back-to-back collisions in the Pacific last summer.
"I think the Navy would be very hard-pressed to proceed down the path of court-martial," Sheldon said Thursday. "The glimpse you got of what we could marshal as a defense is really startling."
Eighteen sailors and officers received nonjudicial punishment in the wake of the Fitzgerald collision in June and the deadly collision of the USS John S. McCain with a tanker near the Singapore Strait in August that killed 10 sailors.
A series of court-martial and Article 32 proceedings were scheduled. So far, the commanding officer and a chief petty officer on the McCain have pleaded guilty to dereliction of duty, as did the officer of the deck aboard the Fitzgerald. Combs and Woodley pleaded not guilty and opted for Article 32 hearing, while the Fitzgerald commanding officer, Cmdr. Bryce Benson, waived his right to an Article 32 and is pending court-martial.
Several senior Pacific Fleet commanders lost their jobs after the collision, including the head of Pacific Fleet and the commander of the carrier strike group.
Still, Sheldon argued that the Navy's approach was unfair. He said the Navy offered his client a plea deal, but she declined because "she did not believe she was derelict in her duties and she did not commit negligent homicide." Because she declined, he said, the Navy hit her with an Article 32 and a general court-martial, while more senior officers took a plea and received a special court-martial.
"It's a harrowing story and there are true heroes. And if you dig deep enough there are true villains," he said.
"From my standpoint, obviously I am happy for my client if she doesn't have to go through court-martial," he added. "But from the standpoint of accountability, much would have been learned and gained by a full accounting of the facts in a fair-minded way."