The Exoneration of Captain McVay
William Toti
June 4, 2014
I wrote this in 2014 as a follow-up to my 1999 article, “The Sinking of the Indy and the Responsibility of Command,” to reveal events that I did not feel comfortable exposing while I was still on active duty. It was submitted to US Naval Institute Proceedings for consideration, but was rejected on the basis that it was “too personal” and that the “subject matter was already covered sufficiently.” Much of this material was later covered in the 2018 Simon & Schuster book “Indianapolis: The True Story of the Worst Sea Disaster in US Navy History and the Fifty-Year Fight to Exonerate an Innocent Man,” by Lynn Vincent and Sara Vladic.
The events which led to the 1945 sinking of USS Indianapolis (CA-35) have been well covered. The story is so remarkable, entwined with so many iconic events, that it evokes Greek tragedy rather than western history:
 
  • Struck by a kamikaze at the battle of Okinawa, causing her to be located at Mare Island naval shipyard for repairs at the precise moment a ship is required to deliver the Hiroshima atomic bomb to Tinian, so she is called upon to execute a record-setting Pacific crossing to deliver the bomb.
  • Later transiting from Guam to Leyte to begin preparations for the invasion of Japan, she finds herself in the crosshairs of a Japanese submarine crew that had endured the entire war without ever sinking a single ship, where she becomes the target of a textbook submarine torpedo attack, sinking in twelve short minutes.
  • The remnants of her crew suffer for nearly five days in the water, until a wayward Ventura chances upon an oil slick, then a PBY pilot executes a harrowing open ocean landing to begin the rescue, including response by a destroyer commanded by a future secretary of the Navy (the one who much later will sign my own commissioning certificate).
  • Then there was the court-martial of the Indy’s captain, Charles Butler McVay III, with Navy prosecutors abandoning any sense of decency by flying the enemy submarine commander to the United States to testify against an undeniably heroic, decorated naval officer.
  • Finally comes the conviction of the captain, his twenty-year struggle with depression, and his subsequent suicide.
Could a single story possibly get any more compelling?
 
The 1945 conviction of Captain McVay had always been a source of anger with the cruiser survivors because the conviction was a de facto declaration that the Indy’s crew shared culpability in the sinking of their ship, even though every witnesses, including the key prosecution witness—the commander of the enemy submarine that did the sinking— stated that the ship would likely have been sunk regardless of the crew’s actions.
Convincing Myself
My direct involvement in the affair began in 1998 while serving as commanding officer of the nuclear fast attack submarine USS Indianapolis (SSN-697). At the decommissioning ceremony for my submarine, several of the cruiser survivors asked for my help in exonerating their captain.
 
My first reaction was to convince myself that McVay deserved exoneration. I knew that the Indy had not been zigzagging at the time of the torpedo attack, so I wondered what would have been the outcome if the ship had been doing what Navy prosecutors alleged it should have been doing.
 
While still assigned to my Indianapolis submarine, I was able to mimic the Japanese torpedo attack on the cruiser by using my submarine’s fire control planning computer to simulate computer runs of the pattern of six torpedoes the Japanese skipper fired, and then seeing what would happen if the cruiser did zig according to the Navy’s procedure, using various, randomized zig points on its track.
 
Knowing that the tactic of firing a spread of torpedoes was designed specifically to counter a zigzagging target, I expected that zigzagging would not have significantly changed the torpedo attack probability of success. American submarines sunk millions of tons of shipping during the war, the vast majority of which were zigzagging. But what would the computer tell me about the outcome of the Indy-maru and Japanese submarine I-58?
 
In statistics there is a concept called monte carlo analysis, where randomized computer models are run to estimate the probability of a particular outcome. This is normally done by automating the runs so that the computer can change variables, and over the course of thousands of runs the probability of a particular outcome can be gleaned. This is what I would try to approximate.
 
Of course, there were several problems with my approach. First, my submarine didn’t fire Japanese Type 95 torpedoes– a the kind that was used against the Indy— so I couldn’t precisely simulate them. Modern American submarines fired Mark 48 ADCAP torpedoes. Interestingly, I could simulate a Mark 48 in my computer that ran at about the same speed as a Type 95 which would be a pretty good model of the Japanese torpedo runs.
 
The next issue was that Mark 48 ADCAP torpedoes are acoustic homing torpedoes, while the Type 95 are straight-running. Fortunately again, the Mark 48 can be programmed to run in “acoustics off” mode.
 
Further, my submarine could fire a salvo of torpedoes, but only four at a time, whereas the I-58 fired a salvo of six. To overcome this, I would have to trick the computer into thinking I was able to reload and fire two torpedoes much quicker than a submarine could in reality, but it would suffice for this simulation.
 
These three changes were sufficient to get a pretty good simulation of a Type 95 torpedo attack. Now all I needed to do was to simulate a target making run after run as if it were the Indy zigzagging at different intervals.
 
Having set this problem up, I spent a couple of weeks running these models while my submarine entered the shipyard and began its decommissioning process. It didn’t take me very long to decide that no matter what the Indy did as far as zigzagging went, the I-58 was going to get at least one hit. And once a single torpedo hit and rendered the Indy “dead in the water,” the I-58 would be able to close in for the kill.
 
Once the I-58 saw the Indy and found itself to be in the perfect firing position, the Indy was doomed, no matter what kind of zigzagging it did. If only McVay’s defense counsel had access to a similar tool in 1945—the outcome of the court martial would have been very different.
 
Once I decided for myself that McVay’s exoneration was justified, I wrote an article arguing for his exoneration, which was published in the US Naval Institute Proceedings journal in October 1999. Then in 2000 the survivors received what they had been pursuing for over fifty years: a de facto exoneration of their captain.
 
This article is intended to fill in the one-year gap between October 1999 and Congress’ 2000 exoneration of McVay.
The Public Relations Problem
When the survivors began their campaign to exonerate Captain McVay in the late 1960s, over the ensuing decades the Navy repeated its mantra that there was no provision in military law to overturn the conviction of a dead man. Specifically, since McVay committed suicide in 1968, he could not be re-tried. If he could not be re-tried, he could not be exonerated. As far at the Navy was concerned, it was case closed.
 
So the survivors persisted by getting Congress involved.
 

Over the course of several Congressionally-mandated reviews of the original conviction, the Navy repeatedly articulated their reaffirmation of the conviction in such an inartful and ham-fisted way that these findings only further raised survivor anger and antibodies. In short, the survivors gained no traction on this issue until the late-1990s, when a young boy named Hunter Scott completed a history project on the McVay affair and began a personal crusade to clear McVay’s name, ultimately gaining national attention. And with public attention comes political attention. This is the point at which the Navy seriously began losing the PR battle.

But there were a few problems with young Mr. Scott’s involvement:

  • He had produced no new or original research.  Instead, the arguments he made were derivative from both earlier works and from stories the survivors told him.
  • Many of the points he made were based on conventional wisdom, but were urban myths, easily disproved by the Navy.  When he advanced one spurious argument, it was easy for the Navy to discard all his arguments.
  • As retired Captain Ed Beach, author of “Run Silent Run Deep” and who was leading the effort to exonerate Admiral Kimmel and General Short, would write, “I must admit having been turned off by the spectacle of of the nation reacting better to him [Scott] with greater depth of interest than it did to all the other investigations that have taken place.  It sort of undignifies the whole situation, in my mind, to find it hanging on the interest of a 12-year-old boy.”
  • Aligned with this, the Navy disengaged from the whole argument rather than risking the perception that admirals were beating up on a kid.

Hunter Scott eventually gained the attention of Congressman Joe Scarborough of Florida, who picked up the cause. Then Senator Bob Smith of New Hampshire joined in. Congressman Scarborough crafted a “sense of Congress resolution” that he easily pushed through the House of Representatives. Then in 1999 Senator Smith arranged hearings on the McVay affair in front of Virginia Senator John Warner’s Senate Armed Services Committee.
 
But of course Senator Warner had previously been Secretary of the Navy himself, and during his tenure he had been “encouraged” to review the McVay case several times. As Secretary of the Navy he opted not to do so, instead allowing it to remain unchallenged. During his tenure as the senior Senator on the Armed Services committee, Warner had historically been disinclined to advance any issue that presented the Navy in a bad light. Multiple sense of Congress resolutions on the McVay affair had been written and debated previously, but none had ever been allowed to advance out of Warner’s committee, hence none had ever reached the floor of the Senate for a vote, hence none had ever passed. When this 1999 hearing was first called, there was initially no indication that this one would be any different than the rest.
My Role 

Because of a very successful deployment we had while I was captain of the submarine Indianapolis, I was directed to transfer back to the Pentagon in January 1999 to serve as Special Assistant to the Vice Chief of Naval Operations, Admiral Donald Pilling. When the Senate scheduled hearings on the McVay affair, it “invited” the Chief of Naval Operations to testify on the Navy’s behalf. Not wanting any part of this tar baby, the CNO delegated the testimony down to his Vice Chief, my boss. And because my boss knew of my involvement with the survivors from my time as captain of my Indianapolis, Pilling asked me to lead preparations for his testimony. That’s where things got interesting.

A few weeks before the hearings were to be held, I got a call from Senator Warner’s military assistant. His message was simple: the senator had not supported exoneration of McVay while serving as Secretary of the Navy, and had no intention “changing history” now since doing so would be tantamount to admitting that the position he held while serving as Secretary of the Navy was wrong. So the Senator would invite Indianapolis survivors to testify and express their outrage, he would honor their service and say great things, but in the end the sense of congress resolution would never leave his committee, would never go to the Senate for a vote, and therefore would never see the light of day.

 
But one caveat was applied to this message: the survivors were to be treated gently. Navy statements should not be unnecessarily provocative. Committee inaction would cause the exoneration resolution to “go away,” but the Navy was not to provoke or disrespect the survivors during the hearing. It was OK to describe the conviction as a fact of history that could not be changed. But we should not dig this hole any deeper.
 
The staffer did come across as being sympathetic to the cause when he made one final observation: Hunter Scott’s campaign was not helping the survivors’ cause. The staffer repeated a point I had made in my Proceedings article: that nobody currently on active duty, or in the Senate for that matter, had any personal capital invested in the 1945 decision. Every time Hunter went on TV to proclaim that Captain McVay was still being “scapegoated,” he was just irritating the people who could help our cause. I told him I had made this point to Hunter myself when he visited my submarine in 1998, but the message didn’t “take.”
 
The thought that the resolution was destined to die in committee was disheartening, but we still had an opportunity for the Navy to change its position on the matter. If the Navy were to admit “we were on the wrong side of history on this issue,” that statement might be as effective as any sense of Congress resolution.
 
So I wrote what I felt was a properly contrite statement for Admiral Pilling to present at the hearing. The admiral knew where I stood on the issue of exoneration, so I suspect he read my draft of his testimony with some degree of trepidation. My main theme was to acknowledge that there was no provision of law that allowed McVay to be legally exonerated, but with the benefit of 20/20 hindsight, justice was likely not served by the court-martial, and if we were to do it again today, we’d likely do it differently. I remember him reading the draft, then looking up at me with that wry smile of his. And to his credit, while he did ask me for some revisions, he allowed my main theme to remain. Then with his approval, I sent the language to Senator Warner’s staff for an unofficial review to make sure it passed the “not unnecessarily provocative” test.
 
However, things began to unravel the weekend before the scheduled hearing, when on Saturday, September 11th 1999, two years to the date before a more infamous 9/11, I received the one and only call at home I would ever receive from Admiral Pilling in the two years I worked for him. He told me he was going to have to change his testimony to one where he stated positively that the Navy still agreed with the conviction. I argued vigorously that there was no point in fanning these flames, that we had already coordinated his testimony with the committee, to the point where I knew I was beginning to agitate him. But he made it clear that “this is the way it’s going to have to be” and hung up.
 
Now, many years removed from these events, I am willing to admit that although I notified Senator Bob Smith’s staff of the change in Navy position, we never followed up with Senator Warner’s staff. After all, that was the job of the Navy’s Office of Legislative Affairs. Whether that inaction was causal in the series of events that followed we will never know.
 
I am also willing to admit that after hearing that we were going to change our testimony, I forwarded a list of “murder board” questions I knew we had no answer to, questions that were used to prepare Admiral Pilling for his testimony, to Mike Monroney, a retired lobbyist whose son-in-law had worked for Senator Smith. All I said to Mike was that “use this as you think appropriate, and I’m hoping it will inform the other in a general way, but it will go bad for me if Senator Smith ends up reading these questions verbatim.”
 
What I do know is that during the hearing, as Admiral Pilling was reading an entirely different statement than the one I had written and greased through Senator Warner’s staff, Senator Warner’s agitation at the apparent bait-and-switch was palpable. I was told he was completely blind-sided by the Navy’s last-minute change in position. In his verbal response to Admiral Pilling’s testimony, Senator Warner expressed his regret that the Navy continued to defend a position that did not hold up under the scrutiny of time, and said Navy intransigence in the face of so many years of reflection and examination were now causing him to change his position on the matter.
 
And then, to my horror and contrary to my request, Senator Smith did need begin to read verbatim from the list of questions I had sent to Mike Monroney. Apparently nobody on his staff had the wherewithal to reword them, and Senator Smith didn’t know how to ad-lib, so he simply read from the very same list of questions that was sitting in front of my boss the Admiral. There is no way the Admiral didn’t know that I was responsible for that, but to his credit, he never asked me about it, not even during our very uncomfortable ride from the Senate hearing back to the Pentagon. When the hearing was over, we simply moved on to the next issue.
 
I was later told that as a result of what he considered the Navy thumbing its nose at the survivors yet again, Senator Warner did allow the sense of congress resolution to advance to the Senate floor, where it passed full vote of the Senate in short order.
 
McVay’s Service Record and Secretary Gordon England
This sordid tale had been so painful and had gone on so long, the survivors completely lost faith in the Navy’s willingness to do the right thing on any matter that involved their story. So after the sense of Congress resolution passed, the survivors wrote a letter to the Secretary of the Navy asking that I be the one allowed to enter the exoneration language into Captain McVay’s service record. In a phone call to me, survivors’ chairman Paul Murphy said, “Bill we won’t believe it’s been entered until you tell us it has been.” In the waning days of the Clinton administration, the Navy continued to wish away the issue by taking absolutely no action in reaction to the recently-passed Congressional resolution.
 
Then in 2001 when the Bush administration came in and Gordon England was named Secretary of the Navy, the survivors wrote yet another letter saying essentially the same thing. I did not know about this one until I was summoned to the Secretary’s office to explain what this was all about.
 
It didn’t take more than fifteen minutes for Gordon England to understand what was going on. He said, “I want you to do this, not because the survivors asked us to, but because it’s the right thing to do.”
 
It took a couple of months for the Navy’s Bureau of Personnel to pull McVay’s service record out of national archives. Then one day, a female JAG officer from SECNAV staff called me to say, “It’s here,” whereupon she brought McVay’s service record into my office and sat alongside me as I entered the exoneration language, and removed the court-martial entry, once and for all exonerating him.
 
I was surprised at how thin McVay’s service record was. And I will now admit one more transgression: having this historic document in my hands was too much— I could not resist the temptation of reading through it.
 
One small entry caught our eye, one that is nearly burned into my memory. The statement read something like this: “Captain McVay awarded the Bronze Star Medal with Combat ‘V’ this date for services during the Battle of Okinawa. Unable to locate service member. Medal returned to stock.”
 
The date of that entry was December 1945, when McVay’s court martial was front-page news in every newspaper in the country. It’s clear that handing McVay a medal in the middle of his court-martial would create even more of a PR problem for the Navy, so they apparently just decided to let it fade away.
 
The JAG officer and I brought this bit of news back to Secretary England, and again he did the right thing. He allowed me to present the medal to Captain McVay’s only surviving kin, his son Charles McVay IV. Secretary England then authorized a Navy Unit Citation for the ship, which was presented to the surviving crew in 2002. He also agreed to speak at the survivors’ reunion in 2005, finally putting any specter of Navy irritation with the survivors to rest.
Epilogue
Next year will be the 70th anniversary of the sinking, and over the past 14 years I have often wondered what happened over the course of the week of testimony. Was Admiral Pilling really ordered to toe the party line? I know he understood and agreed with my position— did he merely fold? I asked him that question in 2007 shortly before he passed away, but he would not tell me. All he would say is that he was satisfied with the outcome.
 
Over the years, several images surrounding these events have haunted me.
 
This may seem rather innocuous, but prior to McVay’s court-martial the Navy brought in carpenters to renovate a large room on the top floor of Building 57 in the Washington Navy Yard where event would be held.
 
Courts martial are generally private affairs, not open to the public. But not only was Captain McVay’s court martial an open proceeding, they anticipated so much interest in the trial that in the weeks before it began they had carpenters prepare areas for camera crews and seating for over 200 people. Why? There wasn’t that much press at the Japanese surrender ceremony held on the USS Missouri. Nothing in Navy protocol could provide me with a reasonable explanation.
 
And while the Navy worked for weeks to prepare courtroom seating, Captain McVay’s attorneys were assigned so late they only had four days to prepare his defense. Weeks for the cameras, but only days for his defense.
 
Then there is the matter of the chief prosecutor, Captain Thomas J. Ryan introducing the skipper of the enemy submarine to the court by telling the members that there had been many other times, in many other wars, when other enemies in battle were called to testify against Americans at courts-martial. The problem with that statement? It was a lie. It had never happened before. Why did the Judge Advocate find it necessary to lie about that point? In the end, I believe it was the Navy’s own intransigence on this matter that led to their failure to prevail.
 
So this sad bit of history was corrected. And although McVay’s suicide means he will always be the final victim of this tragic string of events, the wrong was finally righted, to the extent it could be.
 
Captain McVay was not responsible for the sinking of his ship, so says the Congress of the United States.