Judge Acquits Captain of Charge in Vietnam Refugee’s Drowning

SUBIC BAY NAVAL BASE, Philippines —  Capt. Alexander G. Balian, on trial for failing to rescue a boatload of Vietnamese refugees, was acquitted Thursday of a charge stemming from the death of a refugee who jumped from the disabled junk and drowned in the South China Sea.

Balian, the former skipper of the U.S. amphibious transport Dubuque, still faces two charges of disobeying orders and dereliction of duty.

After Navy prosecutors rested their case Thursday, Capt. James A. Freyer, the judge presiding over the court-martial, said there was insufficient evidence to prove that Balian was guilty of violating Navy regulations when he failed to rescue the refugee who jumped. Freyer entered a directed verdict of not guilty to the charge, so it will not be considered by the jury of six Navy captains.

No Trace of Evidence

Balian’s lawyer, Dan Donato, had requested the directed verdict, arguing that there was no trace of evidence that Balian was informed that a swimmer was floundering in the water. Even if Balian had known the swimmer was in trouble, “there was no way he could have prevented it,” Donato said.

Freyer agreed, saying he could not see how a “reasonable person” could convict Balian based on the evidence presented by the prosecution. He said the testimony and logs indicated that before Balian and the others on the bridge of the Dubuque received reports of a body in the water, the refugee was already dead.

“The impression I’m left with is that the whole thing happened very quickly,” Freyer said.

The swimmer was among four refugees who jumped from the junk and tried to swim to the Dubuque as it approached the vessel on the morning of last June 9. The swimmers were thrown life rings as they neared the Dubuque, but they were not allowed on board. The swimmer who died drowned while he was still near the junk, according to most of the witnesses who saw the incident. The other swimmers, wearing the life rings from the Dubuque, made it back to the junk.

Navy prosecutors contended Thursday that as soon as the refugees jumped into the water their lives were in danger and Balian had an obligation under Navy regulations to rescue anyone in danger at sea.

“When those refugees started jumping off the craft, (Balian) had an obligation to render assistance and no assistance was rendered,” said Lt. Michael J. Wentworth, a Navy prosecutor.

The judge let stand a charge in which the Navy alleges that Balian violated a regulation when he failed to assist one of the swimmers who tried to climb a rope hanging from the Dubuque, but was shaken off by crew members. During the weeklong trial, crew members have given conflicting accounts on that part of the incident. Some said Balian ordered the crew to shake the refugees off the lines and others said no such order was ever given. Several refugees who were hanging on the lines said in written statements presented Thursday that they were simply lowered back into the water.

Dereliction Charged

In the other remaining charge, the Navy alleges that Balian disobeyed orders and was derelict in his duty for failing to properly assess the condition of the refugees and give them adequate assistance.

Balian ordered that the refugees be given food, water and directions, but decided, after crew members viewed the refugees from a small boat, that the junk was seaworthy and could reach land without further assistance. However, the refugees drifted for another 19 days after the Dubuque left and have said they resorted to cannibalism after their food ran out.

Before prosecutors rested their case Thursday, they called several Marines to the stand to testify about what they saw when they set off in a small rubber boat to deliver supplies to the junk. The Marines described a desperate and chaotic situation that was far more serious than Balian apparently realized. But they did not report much of what they saw, they said, and were never debriefed by Balian or any Navy personnel when they returned to the ship.