Page:United States Statutes at Large Volume 114 Part 3.djvu/159

 PUBLIC LAW 106-398—APPENDIX 114 STAT. 1654A-117 the open sea, the remainder having perishing from battle wounds, drowning, predatory shark attacks, exposure to the elements, and lack of food and potable water. (3) Rescue for the remaining 316 sailors came only when they were spotted by chance by Navy Lieutenant Wilbur C. Gwinn while flying a routine naval air patrol mission. (4) After the end of World War II, the commanding officer of the U.S.S. Indianapolis, Captain Charles Butler McVay, III, who was rescued with the other survivors, was court-martialed for "suffering a vessel to be hazarded through negligence" by failing to zigzag (a naval tactic employed to help evade submarine attacks) and was convicted even though— (A) the choice to zigzag was left to Captain McVay's discretion in his orders; and (B) Motchisura Hashimoto, the commander of the Japanese submarine that sank the U.S.S. Indianapolis, and Glynn R. Donaho, a United States Navy submarine commander highly decorated for his service during World War II, both testified at Captain McVay's court-martial trial that the Japanese submarine could have sunk the U.S.S. Indianapolis whether or not it had been zigzagging, an assertion that has since been reaffirmed in a letter to the Chairman of the Committee on Armed Services of the Senate dated November 24, 1999. (5) Although not argued by Captain McVay's defense counsel in the court-martial trial, poor visibility on the night of the sinking (as attested in surviving crew members' handwritten accounts recently discovered at the National Archives) justified Captain McVay's choice not to zigzag as that choice was consistent with the applicable Navy directives in force in 1945, which stated that, "During thick weather and at night, except on very clear nights or during bright moonlight, vessels normally cease zig-zagging.". (6) Before the U.S.S. Indianapolis sailed from Guam on what became her final voyage. Naval officials failed to provide Captain McVay with available support that was critical to the safety of the U.S.S. Indianapolis and her crew by— (A) disapproving a request made by Captain McVay for a destroyer escort for the U.S.S. Indianapolis across the Philippine Sea as being "not necessary"; (B) not informing Captain McVay that naval intelligence sources, through signal intelligence (the Japanese code having been broken earlier in World War II), had become aware that the Japanese submarine 1-58 was operating in the area of the U.S.S. Indianapolis' course (as disclosed in evidence presented in a hearing of the Committee on Armed Services of the Senate conducted September 14, 1999); and (C) not informing Captain McVay of the sinking of the destroyer escort U.S.S. Underbill by a Japanese submarine within range of the course of the U.S.S. Indianapolis four days before the U.S.S. Indianapolis departed Guam for the Philippine Islands. (7) Captain McVay's court-martial initially was opposed by his immediate command superiors. Fleet Admiral Chester Nimitz (CINCPAC) and Vice Admiral Raymond Spruance of the 5th fleet, for whom the U.S.S. Indianapolis had served

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