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Michael B. Keating
Keating
617 832 1136 direct
mkeating@foleyhoag.com
mkeating@foleyhoag.com

May 19,
19,2017
2017

By Federal
FederalExpress
Express

KathieR.
Kathie R.Scarrah
Scarrah
Director,Legislative
Director, Legislative Affairs
Affairs and and
Communications
Communications
Officeof
Office ofthe
theInspector
Inspector
General
General
Department
Department ofof
Defense
Defense
4800Mark
4800 MarkCenter
Center Drive
Drive
Alexandria,VA
Alexandria, VA22350-1500
22350-1500

Re: Recommendation
Recommendationfor
forAward
Awardof of Medal
Medal of Honor
of Honor to Corporal
to Corporal David
David D. D.
White
White

DearDirector
Dear DirectorScarrah:
Scarrah:

As you
As youknow,
know, this
this firmfirm represents
represents Mr. Frank
Mr. Frank E. White
E. in connection
White with matters
in connection with matters
relatingtotohishis
relating recommendation
recommendation that
that his his great-great
great-great grandfather, Corporal David
grandfather, D. White,
Corporal Davidbe D. White, be
awardedthe
awarded the Medal
Medal of Honor
of Honor for actions
for actions taken taken
in connection with the capture of Confederate
in connection with the capture of Confederate
MajorGeneral
Major General G.W.
G.W. Custis
Custis LeeLee during
during the Battle of Sailor's
the Battle Creek in Creek
of Sailor's 1865. in 1865.

I.
I. Background.
Background.

In July
In July2011,
2011,thethe Army
Army Decorations
Decorations BoardBoard
("ADB") recommended
("ADB") approval of
recommended this
approval of this
award. However,
award. However, after
after further
further review
review by thebySenior Army Decorations
the Senior Board ("SADB"),
Army Decorations Board ("SADB"),
then-ActingSecretary
then-Acting Secretary of Army
of the the Army Patrick
Patrick denied the
J. Murphy
J. Murphy awardthe
denied in aaward
letter dated
in a letter dated
March8,8,2016.
March 2016.

In aa letter
lettertotothen-Secretary
then-Secretary of Defense
of Defense AshtonAshton
B. Carter
B.dated
CarterSeptember 13, 2016, 13, 2016,
dated September
UnitedStates
United States Senators
Senators Robert
Robert Menendez
Menendez and Coryand
A. Cory
BookerA.and States
Unitedand
Booker United States
Representative
Representative Leonard
Leonard Lance
Lance requested
requested that thethat the Department
Department of Defenseof Inspector
Defense General
Inspector General
investigate
investigate thethe process
process by which
by which Mr. White's
Mr. White's was evaluated
recommendation
recommendation wasand certain and certain
evaluated
irregularities
irregularities andand errors
errors that occurred
that occurred therein.therein. On October
On October 5, 2016, the5, Honorable
2016, the Glenn A.
Honorable Glenn A.
Fine,the
Fine, theActing
Acting Inspector
Inspector General,
General, issuedissued a memorandum
a memorandum to then-Secretary of the Army of the Army
to then-Secretary
EricFanning.
Eric Fanning.Mr. Mr.Fine
Fine declined
declined to initiate
to initiate an investigation
an investigation "at this time" and referred
"at this time" andthesereferred these
concerns
concerns to to then-Secretary
then-Secretary Fanning
Fanning for additional
for additional consideration and response.
consideration and response.

B4686006.1
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Page 2

In a letter dated
dated December
December 7,7,2016,
2016,then-Secretary Fanningdeclined
then-SecretaryFanning declinedtotoreconsider
reconsiderthethe
March 8, 2016 denial and stated that
that "this
"this request
request for
for reconsideration
reconsiderationwaswasprocessed
processedand and
ultimately decided in accordance with
with all
all applicable laws and
applicable laws and regulations."
regulations."InIna aletter
letterdated
dated
December 18, 2016, Mr. WhiteWhite wrote
wrote toto Mr.
Mr. Fine
Fine and
and again
again requested an investigation
requested an investigation into
into
the process by which Mr.Mr. White's
White'srecommendation
recommendationwas wasevaluated
evaluatedandandthe
therelated
related
irregularities, including an opportunity
opportunity forfor Mr.
Mr. White
White andand his
his colleagues
colleaguesto topresent
present evidence
evidence
that the adjudication process was critically flawed. Mr. Mr.White's
White'srequest
requestfor
forsuch
suchan an
investigation was again re-echoed by by Congressman
Congressman Lance Lance inin an
an email
email sent
sent to
to Mr.
Mr.Fine's
Fine's
Congressional liaison, Mr. Steven
Steven M.
M. Anthony,
Anthony, by by Mr.
Mr. John
John M.
M. Byres,
Byres, Deputy
DeputyChief
Chiefof ofStaff
Staff
for Congressman Lance,
Lance, dated
dated March
March13, 13,2017.
2017.

In a letter dated April 6, 2017,

2017, you
you informed
informed Mr.
Mr. White
White that
that the
the Office
Office of
ofthe
the
Inspector General "do[es] not believe an investigation.
investigation .....isiswarranted."
warranted."As Asgrounds,
grounds,youyou
stated that there would not be a sufficient basis to investigate "[a]bsent evidenceofofanan
lalbsent evidence
inappropriate review by the Army,"
Army," and
and that
that your
your office
office"did
"didnotnotfind
findsuch
suchevidence
evidenceininthis
this
instance."
instance."

There IsIsStrong
There StrongEvidence
Evidence that
that thethe Army's
Army's Review
Review WasWas Inappropriate.
Inappropriate.

Respectfully, we disagree
disagree that there is
that there is no
no "evidence
"evidence of
ofan
aninappropriate
inappropriatereview
reviewby
bythe
the
Army." InInfact,
fact,as
assummarized
summarizedbelow,below,thetheprocessing
processingofofMr.
Mr.White's
White'srecommendation
recommendationwas
was
highly inappropriate inin at least
least two
two respects.
respects.

A. The
TheArmy
ArmyDenied
DeniedMr.
Mr.White
Whitethe
theOpportunity toPresent
Opportunityto Present Material
Material
Evidence that
that Supports the Recommendation.
Recommendation.

Army's review
The Army's reviewwas
wasinappropriate
inappropriatebecause
becausethe
theArmy
Armyaffirmatively
affirmativelyprevented
preventedMr.
Mr.
White from presenting
presenting material evidenceconcerning
material evidence concerningthe
theconduct
conductofofPrivate
PrivateHarris
HarrisS.S.
Hawthorne. Mr.Mr.White
Whitewas
wasthereby
therebydenied
deniedaameaningful opportunitytotobebeheard
meaningfulopportunity heardconcerning
concerning
the merits of his recommendation.
recommendation.

As you may be aware, Private

Private Hawthorne
Hawthorne received
received aa Medal
Medal ofofHonor
Honorinin1894,
1894,also
alsoinin
connection with the capture of General Lee. ItIt was wastherefore
thereforeimportant
important that
that Mr.
Mr. White's
White's
recommendation not only address
address the
the well-documented
well-documented heroic conductof
heroicconduct ofCorporal
CorporalWhite,
White,
but also evaluate the evidence concerning
concerning Private
Private Hawthorne's
Hawthorne'srole roleininthe captureand
thecapture and
explain the reasons that such conduct does not preclude
does not preclude an
an award
award totoCorporal White,as
CorporalWhite, aswell.
well.
Mr. White's
White's initial
initial submission
submissionto tothe
theADB
ADBdid didexactly that,and,
exactlythat, and,ininJuly
July2011,
2011,the
theADB
ADB
recommended that Corporal White White receive
receive aa Medal
Medal of
ofHonor basedupon
Honorbased uponthat
thatcomplete
complete
evidentiary record. TheThefollowing
followingmonth,
month,the Centerfor
theCenter forMilitary
Military History reviewed the
History reviewed the
recommendation and found found no
no historical
historical inaccuracies.
inaccuracies.

Immediately thereafter, however,

however, the
the Army took aa series
Army took series of
ofsteps
stepsto
topreclude Mr.
precludeMr.
White from presenting the same evidentiary record to the SADB. In In early 2012, the
early 2012, the Army
Army
suspended its consideration of Mr. White's
suspended White's recommendation.
recommendation. The Thesuspension
suspensionwaswaspremised
premised
upon the assertion that the
the supporting
supporting documentation hadnot
documentation had notbeen providedininits
beenprovided itsoriginal
original

B4686006.1
K. Scarrah
May 19, 2017
Page 3

format. This
Thisassertion
assertion was
wasincorrect.
incorrect.All
Allhistorical
historicaldocuments
documentshad,
had,ininfact,
fact,been
beenprovided
providedinin
the form of direct photocopies
photocopies of
of artifacts
artifacts stored
stored in
in the
theNational
National Archives
Archivesand andother
other
collections.
collections.

In any event, Mr. White was

was then
then instructed
instructed to
to re-submit
re-submit hishisrecommendation
recommendation underunder
the direction of
of Army contractor
contractor Tim
Tim Barnard.
Barnard. Mr.Mr.Barnard
Barnardspecifically
specificallyandandrepeatedly
repeatedly
instructed Mr. White to omit documents
documents andand information
information concerning
concerningPrivate
PrivateHawthorne
Hawthorne
from the re-constituted recommendation,
recommendation, on on the
the purported
purported basis
basis that
that "the
"the[SADB]
[SADB]isisnotnot
considering Hawthorne at all."
all." When
WhenMr.Mr.White
Whiteandandhis
histeam
teamexpressed
expressedconcern
concernthat
thatsuch
such
omission would undermine thethe recommendation,
recommendation, Mr. Mr. Barnard
Barnard repeatedly
repeatedlyinstructed
instructedthem
them
that Private Hawthorne's
Hawthorne'saward
awardwaswastotally
totallyimmaterial
immaterialtotothe theprocess
processand andthat
thatany
anymention
mention
of Hawthorne must be omitted.
omitted. Among
Amongother
otherthings,
things,Mr.
Mr.Barnard
Barnardwrote:
wrote:

"I realize it is difficult to

to understand
understand from
from your
your position,
position,but
butthe
thefact
factthat
that
Hawthorn's MOH exists
Hawthorn's MOH exists doesnot does impact the White Recommendation
notimpact the White Recommendation one one
iota!"
iota!"

46 . . I have insisted that the
C4
. . . the arrangement
arrangementof
ofdocuments
documentsreflect
reflectwhat
whatPVT
PVT
White did on the eventful day, and not to
to focus
focus on
on Hawthorne."
Hawthorne."

"The Senior Board does not do additional research.

research . ...... Hawthorn
Hawthorn isis aa non-
non-
issue."

"The recommendation must

must be
be based
based completely,
completely, totally,
totally,and
and without
withoutan
aniota
iota
of interest in Hawthorn except to explain
explain why
why the
the [1897]
[1897] Protest was
Protest was
originally made."
made."

"The final disposition of

of Hawthorn
Hawthorn is
is not,
not, cannot,
cannot, and
and shall notbe
shall not beaaconcern
concern
for the board or further recommenders. These
Theseare
areall
allworked
workedininvacuum."
vacuum."

"Underscore: Forget Hawthorn

"Underscore: Hawthorn .... .. White
White and
and White
White alone
aloneisisthe
theonly
only
concern."
concern."

Mr. White had no choice but

but to
to follow
follow these
these instructions,
instructions,which
whichwere containedininaaseries
werecontained seriesof
of
emails that we are prepared to furnish
furnish to
to your
your office.
office. Mr. Whitesubmitted
Mr.White submittedthe
therevised
revised
recommendation in late-2013,
late-2013, omitting
omitting (as
(as directed)
directed)the crucial evidence
the crucial evidenceand
andargument
argument
concerning Private Hawthorne's
Hawthorne'sconduct
conductandandaward.
award.

Barnard's instructions
As it turns out, Mr. Barnard's instructions were
were flagrantly
flagrantly incorrect. Accordingtoto
incorrect. According
the SADB's
SADB's own "ACTION MEMORANDUM,"
own "ACTION MEMORANDUM," whenthe when theSADB convened
SADBconvened in inlate 2014, itit
late2014,
"voted to return the recommendation
"voted recommendation without
without action dueto
action due toconflicts withan
conflictswith anapproved
approvedMOHMOH
for SGT Harris Hawthorne"
Hawthorne" and
and "requested
"requested toto review
reviewthe MOHpacket
theMOH packetfor
forSGT Hawthorne
SGTHawthorne
alongside PVT White." TheTheSADB
SADB"received
"receivedSGT SGTHawthorne's
Hawthorn'sMOH packetfrom
MOHpacket fromthe
the
National Archives" in February 2015. WhenWhenititreconvened
reconvenedon onApril
April1,1,2015, theSADB
2015,the SADB

B4686006.1
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"unanimously voted to disapprove the award," no doubt in light of the new information. ItIt
appears that information concerning
concerning Private
Private Hawthorne
Hawthorne was
was not
not only
onlymaterial
materialto
tothe
theSADB's
SADB's
decision, but also
also dispositive.
dispositive.

Mr. White's
White's recommendation
recommendationwas wasseverely
severelyprejudiced
prejudicedby byhis
hisinability
inabilitytotoaddress
addressthe
the
crucial questions concerning
concerning Private
Private Hawthorne's
Hawthorne'sactions
actionsand
andtheir
theirbearing
bearingon onany
anyaward
awardfor
for
Corporal White. Mr.
Mr.White
Whitewas
wasleft
leftunable
unabletotopresent
presentsubstantial
substantialhistorical
historicalevidence
evidenceandand
related argument that, whatever
whatever Private
Private Hawthorne's
Hawthorne'srole rolemight
mighthave
havebeen
beenininthe
thesequence
sequenceofof
events involved in General Lee's
Lee'scapture,
capture,there
thereisisample
ampleevidence
evidencethat,
that,during
duringthe thecourse
courseofof
those events, Corporal White
White committed
committed acts
acts of
ofgallantry
gallantrysufficient
sufficienttotojustify
justifyaaMedal
Medalofof
Honor, and that this conclusion
conclusion is
is not
not overcome
overcome by by any
any reliable
reliable contrary
contraryevidence.
evidence.Further,
Further,
we believe that this evidence
evidence would
would not
not have
have been
been contained
contained ininthe
theHawthorne
Hawthorneaward awardpacket
packet
that the SADB independently gathered from the National Archives. The Thewrongfully
wrongfully
excluded evidence,
evidence, includes,
includes,for
forexample:
example:

A letter authored by Private Hawthorne

Hawthorne himself,
himself, in
in which
which where
wherehehe states
statesthat
thatwhen
when
he captured Gen. Lee andand demanded
demanded his
his arms,
arms, Lee
Lee stated
stated to
to Hawthorne
Hawthornethat thathe
hedid
did
not have as much as a "jackknife."
"jackknife." This
Thisstrongly
stronglysuggests
suggeststhat,
that,by
bythe
thetime
timePrivate
Private
Hawthorne came upon Gen. Gen. Lee,
Lee, the
the general
general had
had already
already been
been captured
captured by byCorporal
Corporal
White and stripped
stripped of
of his
his weapons
weaponsand
andother
otherpersonal
personaleffects.
effects.

The Sylvanus D. Locke papers,

papers, archived
archived in
in the
the Yale
Yale University
University Library,
Library,which
which
demonstrate the unreliability
unreliability of
of certain
certain evidence
evidence presented
presented in 1897to
in 1897 to dispute
disputePrivate
Private
White's account.
White's account.

A letter authored by Joseph H.H. Heath

Heath in
in 1894,
1894, which
which again demonstratesthe
again demonstrates the
unreliability of certain evidence suggesting that
evidence suggesting that Hawthorne
Hawthorne deserves
deservesexclusive
exclusivecredit
credit
for the act of
of capture.
capture.

It was not appropriate for the Army

Army to forbid Mr.
to forbid Mr. White
White from
from presenting
presentingevidence
evidenceto to
the SADB concerning an issue that was plainly material to its decision. Indeed, Indeed,the
the
mandated exclusion of of this
this evidence
evidence and
and argument
argument was
was the
the principal
principal difference
differencebetween
betweenMr.Mr.
White's
White's recommendation
recommendationto tothe
theADB
ADBinin2011
2011(which
(whichwaswasapproved)
approved)andandhishis
recommendation to the SADB in 2014 (which was rejected). The TheArmy
Armyshould nothave
shouldnot have
prevented Mr. White from addressing
addressing what
what appears
appears to havebeen
to have beenthe
thedispositive
dispositivequestion
questioninin
recommendation.
its analysis of his recommendation.

B. Army's Decision
The Army's Decision Addressed
Addressed the
the Wrong
Wrong Question.
Question.

The Army's
Army's review
reviewwas
wasalso
alsoinappropriate becauseititappears
inappropriatebecause appearstotohave addressedthe
haveaddressed the
wrong question. Specifically,
Specifically,Lieutenant
LieutenantColonel
Colonel R. R.Anon Lummer,Chief
ArronLummer, Chiefofofthe
theAwards
Awards
and Decorations Branch, has
has twice
twice written
written to Mr. White
to Mr. White and/or
and/orhis
hiscounsel
counseltotoexplain
explainthat
that
the SADB decided the question
question of
of whether
whether there
thereisis"a preponderanceof
"apreponderance ofsubstantive evidence
substantiveevidence
to overturn the 1897 decision by Secretary of War Russell A. Alger." Alger." This wasconfirmed
Thiswas confirmed
by Secretary of the Army
Army Eric
Eric Fanning, who wrote
Fanning, who wrote that
that "[t]he [SADB]concluded
"[t]he[SADB] thatitit
concludedthat

134686006.1
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could not overturn the decision

decision made
made inin 1897
1897 and
and recommended
recommended disapproval."
disapproval."But,
But,asas
explained below, that decision
decision was
was already
already overturned
overturned long
long ago.
ago.

As previously noted, Private Hawthorne

Hawthorne was was awarded
awarded aa Medal
Medal of ofHonor
Honorin in1894
1894inin
Lee's capture.
connection with Gen. Lee's capture. InIn1897,
1897,James
JamesL.L.Bowen,
Bowen,thetheHistorian
Historianfor
forPrivate
Private
White's unit,
White's unit, submitted
submitted aaletter
letterto theWar
tothe WarDepartment
Departmentasserting
assertingthat
that"Gen.
"Gen.LeeLeehimself
himself
surrendered to Corporal David
David White."
White."Ultimately,
Ultimately,thethematter
matterwas
wassubmitted
submittedtotothe
the
Secretary of War. He Hedetermined
determinedthat thatboth
bothCorporal
CorporalWhite
Whiteand PrivateHawthorne
andPrivate Hawthorneshould
should
be notified that, in the course
course ofof the
the capture,
capture, "there
"therewaswas nono opportunity
opportunityforforthe
thedisplay
displayofofany
any
action by any individual soldier,
soldier, that
that would,
would, under
under law
law and
and regulation,
regulation,earn
earnthe
the
Congressional Medal of Honor."
Honor." In Inother
otherwords,
words,the
the1897
1897decision
decisionfound
foundthat
thatthe
theact
act of
of
capture did not involve sufficient
sufficient gallantry
gallantry to
to justify
justify aa Medal
Medal ofofHonor
Honorfor foranyone.
anyone.
Secretary Alger did not
not address
address whowhocaptured
capturedGen.
Gen.Lee;
Lee;rather
ratherhis
hissole
soledetermination
determinationwaswas
that the act was not worthy
worthy ofof aa Medal
Medal of of Honor,
Honor, regardless
regardlessof ofwhich
whichsoldier(s)
soldier(s)performed
performedit. it.

However, the 1897 decision was necessarily reversed in 1916. At Atthat

thattime,
time, the
the
Medal of Honor Review Board
Board specifically
specifically considered
considered and
anddeclined
declinedto torevoke
revokethe theMedal
Medalof of
Honor previously awarded in 1894 for the capture of Gen. Lee. In In doing
doing so,
so,the
the Board
Board
necessarily overturned
overturned the
the 1897
1897determination
determinationthat
thatthe
thesequence
sequenceofofevents
eventsleading
leadingtotoGen.
Gen.
Lee's capture
Lee's capture could
could not
not justify
justify an
an award
award for
for anyone.
anyone. And
Andthere
thereisisnothing
nothinginineither
eitherthe
the1897
1897
decision or the 1916 decision
decision that
that would
would bar
bar Corporal
Corporal White's
White'saward
awardon onany
anyother
othergrounds.
grounds.

Accordingly, Secretary Alger's

Alger's1897
1897determination
determinationwas
wasoverturned
overturnedby byaabody
bodylegally
legally
empowered to make such decisions
decisions in 1916, and
in 1916, and that
that 1897
1897 determination
determinationisisnot
notan
anobstacle
obstacle
to Mr. White's
White's recommendation
recommendation today.
today. ItItwas
wasnot
notappropriate forthe
appropriatefor theSADB
SADBtotorequire
requireMr.Mr.
White to disprove aa decision
decisionthat
thatwas
wasalready
alreadyoverturned
overturnedbybythe
theArmy
Armyover
over100
100years
yearsago.
ago.
Mr. White's
White's recommendation
recommendation was,was, and
and is,
is, entitled
entitled to
to de novo consideration under
under the
the same
same
standards in effect during
during the
theCivil
CivilWar.
War.

III.
III. Conclusion.
Conclusion.

We are prepared to immediately submit submit documentation

documentation and and other
otherevidence
evidencethat
that
demonstrates the irregularities
irregularities described
described above.
above. ItItisisour
oursincere
sincerehope
hopeand
andrequest
requestthat
thatyou
you
will decide to initiate an investigation. We Wefeelfeelconfident
confidentthat
thatsuch
suchananinvestigation
investigationwould
would
reveal that the prior denial was
was marred
marred by irregularitiesand,
by irregularities and, as
asaaresult,
result,should
shouldbebe
immediately reconsidered by by the
the SADB
SADB and and by
by the Secretaryof
the Secretary ofthe
theArmy.
Army.WhileWhilewe wecannot
cannot
say now whether or not these
these irregularities
irregularities were
were deliberate,
deliberate, the
theinvestigation
investigationof ofthat
thatquestion
question
purview of
is surely within the purview of your
your office.
office. WeWerequest
requestthat
thatsuch
suchananinquiry
inquirybebemade.
made.
Undertaking such investigations
investigations is
is aa core
core responsibility
responsibilityof ofthe Officeof
theOffice ofthe
theInspector
Inspector
General.

Further, we respectfully request

request that
that your
your office
office obtain
obtainand
andreview
reviewan unredacted
anunredacted
copy of the SADB's
SADB's President's
President'sSummary
SummarySheet,
Sheet,Member
MemberVote Sheets,and
VoteSheets, and
Recommendation. Mr.Mr. White
Whitehas
hasendeavored
endeavoredto toobtain
obtainthese
thesehimself,
himself,but thusfar
butthus farthe
theArmy
Army
has provided them only with heavy redactions that obscure virtually all of the information
with heavy redactions that obscurevirtually all of the information

B4686006,1
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Page 6

contained therein. WeWestrongly

stronglybelieve
believethat theredacted
thatthe redactedportions
portionsofofthese documentswill
thesedocuments will
further prove the
the materiality
materialityofofthe
thewrongfully
wrongfullyexcluded
excludedevidence concerningPrivate
evidenceconcerning Private
Hawthorne, as well as the SADB's inappropriaterequirement
SADB'sinappropriate requirementthat Mr.White
thatMr. Whiteovercome
overcomethe the
decision of
already-overturned 1897 decision of Secretary Alger. To
Secretary Alger. Tothe
theextent
extentyour officeisisable
youroffice abletoto
obtain a copy of
of these records,we
these records, werespectfully
respectfullyrequest anopportunity
requestan opportunitytotoreview
reviewandand
comment upon them,
them, asas well.
well.

Sincerely,
Sincerely,

t4A tjit ta-k)

IIttA '1/4

Michael B. Keating

cc: Senator Robert Menendez

Senator Cory Booker
Congressman Leonard
Leonard Lance
Lance
Honorable James Mattis
General Joseph F. Dunford,
Dunford, Jr.
Jr.
General Mark A. Milley
Daniel L. McFadden, Esq.

B4686006.1