On a nuclear submarine, all photographic equipment is prohibited, and cell phones with cameras are included in the prohibition. But sailors caught with phones generally just have them confiscated, according to Mcintosh, and returned at the end of the shift, after which sailors usually face disciplinary action for disobeying orders. So when the ship's duty officer saw Mcintosh's cell phone and confiscated it, that's what they both thought would happen.
Instead, at the end of Mcintosh's shift, he was told that the phone had been turned over to his commander who, in turn, turned the phone over to NCIS for a more thorough review. That's when Mcintosh got into real trouble -- because on his phone were pictures of Mcintosh and his boyfriend on vacation, as well as some pictures of a more intimate nature.
Although NCIS agents found no pictures of the submarine, the investigating officer asked his supervisor if they should report the pictures that indicated that Mcintosh had an intimate relationship with another man, and his supervisor said they should. The pictures, then, were forwarded up the chain of command.
But in March 2010, the Pentagon announced that there would be a change to the way Don't Ask Don't Tell cases were prosecuted. According to the American Forces Press Service, new cases under Don't Ask Don't Tell would be subject to stricted scrutiny -- and would exempt certain classes of information, including third-party heresay, information provided to medical and public health personnel or information developed in the course of a security clearance. But a security review of Mcintosh's phone wasn't a security clearance, and pictures found in the course of an investigation weren't considered hearsay. So, the Navy decided to proceed with the investigation against Mcintosh.
Under Gates' new policy, only higher-ranking personnel could conduct investigations and recommend dismissal. It was a move that many -- including Gates -- thought would bring clarity and "consistency" to the process. In Mcintosh's case, however, his captain's opinion -- which was that he should stay in the Navy -- carried no weight with the admiral who decided to pursue Mcintosh's discharge. Neither did the opinion of Mcintosh's commander, who recommended that Mcintosh only be disciplined for carrying the cell phone. Instead, the admiral -- who had never met nor served with Mcintosh directly -- recommended his dishonorable discharge.
With the help of a defense lawyer from the Judge Advocate General's office, who was advised by the Servicemembers Legal Defense Network, Mcintosh was able to secure a general dischange, which is far better for his standing. But his discharge means that Mcintosh will be completely ineligible for any of the benefits of the GI Bill -- the whole reason he joined the Navy in the first place. He told TPM in an interview, "My mom couldn't afford to send me to school, so the G.I. Bill was the big thing for me."
Mcintosh currently awaits the resolution of his discharge under DADT, and is holding out hope that it might be made an honorable one. He said to TPM that, despite the legal proceedings against him, "I definitely want to stay in the Navy."