This flag has been confirmed as belonging to the 38th Georgia Regiment by the renowned Confederate Flag expert, Mr. Greg Biggs.
Until now, it has been believed the regimental battle flags carried by the 38th Georgia Regiment did not survived the war, at least none identified. However, there is one Confederate battle flag that reposes in the flag collection of the Museum of the Confederacy, which evidence suggests, belonged to the 38th Georgia Regiment. The flag is identified as flag # WD 106, which is currently attributed to having belonged to the 31st Georgia, a sister regiment of the 38th Ga., and also part of Lawton's Brigade. This flag was found abandoned on the battlefield at the battle of Shepherdstown, or Boteler’s Ford , Virginia, on Sept. 19th, 1862, just two days after the battle of Antietam.
The 38th Ga. Regiment, greatly reduced in strength, spent the day after the battle of Antietam "burying our dead." Lawton's Brigade served as the rear guard of the ANV during the retreat from the battle of Antietam. The brigade was among the very last to cross the Potomac River back into Virginia and the 38th Ga. was at the rear of the Brigade. Once the Army of Northern Virginia was safely across the Potomac River, General Lee left behind a rear guard of two infantry brigades and 45 guns under his chief of artillery, Brig. Gen. William N. Pendleton, to hold Boteler's Ford. Lawton's Brigade was one of the two brigades left behind to hold the Ford.
The 38th Ga., Lt. G. R. Wells commanding, was posted as a picket force along the edge of the Potomac River. Their instructions from General Pendleton were to "stay concealed and not to fire unnecessarily."
A general advance of the Federals was not expected, but the Federals rapidly forced a crossing at the Ford and caught the 38th Georgia Regiment by surprise. Capt. William C. Mathews of Company G, the Battey Guards, recalled, the 38th Ga. Regt. was, "surprised and driven off, losing one man killed and two wounded, and I am sorry to say we lost in this little fight our battle flag that we had carried from Savannah, Georgia. Our color bearer was killed and in the confusion of the retreat it was forgotten."
This flag, lost on Sept. 19th, 1862 and attributed to the 31st Ga., may have instead been the flag mentioned by Capt. Mathews that belonged to the 38th Georgia Regiment. Further evidence connecting this flag to the 38th Ga. is found in soldier's descriptions of the flag. Lt. Hester of the Tom Cobb Infantry described the 38th Ga. battle flag, prior to the battle of 2nd Manassas, recalled, "the....flag of the 38th, that had been completely riddled in the battle of Cold Harbor." The battle of Cold Harbor referred to here is better known as the battle of Gaines Mill, fought June 27th, 1862. This flag certainly looks riddled with shot!
UPDATE....UPDATE....UPDATE....UPDATE....UPDATE....UPDATE
I asked Mr. Greg Biggs, well known Confederate flag expert, historian, and author, for his opinion on this mystery. Mr. Biggs examined the evidence I presented and he now agrees that this is the original battle flag of the 38th Georgia Regiment! He has contacted the Museum of the Confederacy in Richmond, Virginia, and requested the information attributed to this battle flag be updated to reflect the fact that it belonged to the 38th Georgia Regiment.
This is a huge step in preserving the tangible history of the 38th Georgia Regiment and identifying the only known surviving 38th Georgia Regimental battle flag, after being lost to history for the past 148 years!