“Presumed Guilty- and we will disregard any evidence that may prove you innocent.”
The USCG’s Discharge Review Board and DHS’ Board for the Correction of Military Records policies to presume propriety and infallibility on the part of the USCG officer corps wholly negates justice for junior personnel falsely accused of fictitious offensives.
“If a lack of ethics were helium, senior Coast Guard officers would have funny voices, and Flag Officers would just float away.”
It Is Not Clear Why…
I was administratively involuntarily separated with an Uncharacterized Discharge despite having been on active duty for three years. It took over four years and a Sisyphean effort on my part to force the Coast Guard to finally admit their error (Memorandum below). CAPT Jones, acting Commander, Personnel Service Center (PSC), did so with phrasing equivalent to a preteen: “Oh,my bad. I don’t know how that happened. Tell me again… you were discharged? That doesn’t seem right. Let me take a look. Well, certainly it is not clear why…”
“It is not clear why…”
Apparently, it was clear to CDR Meador, my C.O., who chose to ignore regulations to punish me with an Uncharacterized Discharge for an EEO Complaint that I filed naming his Admin Chief, YNC Fischer.
Apparently, it was clear to CAPT Matadobra, Commander of EPM who improperly authorized my “entry level” discharge.
Apparently, it was clear to CDR Fahey, PSC’s Staff Judge Advocate, who was aware of CDR Meador’s scheme but failed to intercede.
Apparently, it was clear to RDML Bouboulis, who withheld over two hundred esculpatory documents from me.
Apparently, it was clear to RADM Nunan, who instituted and led the cover-up of CDR Meador’s malfeasance.
Apparently, it was clear to Mr. Berkow, Director, CGIS, who withheld major portions of the germane CGIS investigation from me while improperly providing it to USCG and DHS military and civilian functionaries.
Apparently, it was clear to RADM Eric Jones, who took up RADM Nunan’s shameful banner of obufuscation and denial.
Apparently, it was clear to RADM Bert, whose feckless JAG minions reviewed my separation and discharge on multiple occasions but ignored the obvious regulatory and legal issues.
Apparently, it was clear to Ms. Claffie of the HQ FOIA Office, who illegally denied my FOIA Appeal for hundreds of esculpatory documents that RDML Bouboulis identified as germane but withheld from me.
What It is not clear is why USCG Human Resources (CG-1/PSC/EPM/EPM-1) defended this illegitmate discharge as proper for four years. It is completely clear that RADM Nunan and later RADM Jones had the authority to correct the error and chose not to. There is no viable explanation other than Coast Guard Officer cronyism: An improper discharge awarded to an E-4 with the loss of both his livlihood and over $100,000 in VA Benefits - to include the GI Bill - was far less important to these compassionless flag officers than asking a couple of “cuttermen” to simply admit an error. What incredibly loathsome individuals.
The Fallacy of Presumed Propriety
Per the applicable Code of Federal Regulations both the DRB and the BCMR assert that in reviewing a questionable discharge, “propriety” or “administrative regularity” on the part of the Coast Guard will be presumed. Yet, reviewing the propriety of an adverse, involuntary administrative separation under the premise that it was proper unjustly advantages the Coast Guard. This imbalance is exacerbated by further legal guidance that charges the Applicant with “proving the existence of an error or injustice”, yet ignores that the Coast Guard is not required to prove the accusation that led to a illegitimate administrative separation, a punishing Uncharacterized Discharge, and a DD-214’s libelous wording. Finally, both the DRB and the BCMR eschew any investigative action, limiting themselves to only scanning whatever germane paperwork is placed befor them.
The Coast Guard’s rank-skewed administrative discipline favors the accuser and is biased against the accused. Yet,our judicial syststem’s concept of “innocent until proven guilty” places the burden of proof on the accuser vice the accused. Although the Constitution does not cite it explicitly, “presumption of innocence” is widely held to follow the 5th, 6th and 14th Amendments and was established by Coffin v. United States over 125 years ago. By presuming propriety on the part of USCG personnel, the DRB and the BCMR place trust in those that initiated, plotted, effected, upheld, and covered-up my improper separation and Uncharacterized Discharge who verifiably lied, and ignored or circumvented regulations. Not only did UCCG personnel both invent various “charges” against me and fabricate “evidence” to support them, when confronted with facts that didn’t fit their illusion of truth, CG-1 personnel defaulted to more lies, deceit and obfuscation rather than admit and correct their flagrant error. Challenged by an insignificant former novice employee, nescient CG-1 officers defended their false narrative, in spite of contradictory evidence. The Coast Guard’s Advisory Opinion’s assertion of the impropriety of my Uncharacterized Discharge after a four-year ethical vacuum, speaks to the veracity of this position.
The CFR-dictated “presumed propriety” that prompts one to assume the innate integrity of USCG personnel is a relic of a fictional period in our shared history when “a man’s word was his bond” and a “handshake sealed a contract”. Today, we’re accustomed to a disturbing level of “truth stretching.” But even by the low standards of this era of “alternative facts”, the lack of integrity of those involved in my unjustified separation and improper, inequitable discharge, and later sham discharge appeal boards was appalling. Considering that the perpetrators and both complicit and peripherally-involved USCG personnel demonstrated only a distant relationship with the truth, the DRB and the BCMR should have allowed for the possibility of impropriety in my separation; and consider that a legally-dictated presumption of propriety is a probable causal factor in the Coast Guard’s frequent disregard of regulations.
In the absence of due process in my administrative separation and derivatively, the absence of my contradictory voice, my guilt was universally assumed by the Coast Guard. By imposing the presumption of USCG propriety on the DRB and the BCMR, federal code imposed a presumption of my guilt on both reviews, guidance that was neither fair nor impartial, nor in accordance with the U.S. Constitution.
“Semper parati ad abutere “
The BCMR’s unqualified two-person staff feels no obligation to read, consider, or give credence to any evidence submitted by the Appellant; nor share “evidence” held or provided by the Coast Guard. By policy, the BCMR considers all Coast Guard assertions and “evidence” to be factual and all Appellant assertions and evidence to be lies or forgeries. They are so deep into criminality as to even disregard any guidance in the USCG Military Separations manual that may support the Appellant’s position.
Withholding Evidence
The Coast Guard - in direct violation of both U.S. Code and Federal Regulations - illegally withheld exculpatory evidence that would futher establish the calculated impropriety of my separation and punitive discharge based on an unproven accusation.
Germane Federal Law:
a. Code of Federal Regulations, Subchapter B, Part 52 - Board for Correction of Military Records of the Coast Guard, Subpart C, §52.25 “Access to official records” states that I… “shall have access to official reccords or to any information pertiaining to the applicant which is in the custody of the Coast Guard.”
b. 10 United States Code, Chapter 79 - Correctioin of Military Records §1556 - “Ex parte communications prohibited” states that “The Secretary of each military department shall ensure that an applicant seeking corrective action… is provided a copy ofall correspondence and communications (including summaries of verbal communications) to or from the agency or board… with an entitiy or person outside the agency or board that pertain directly to theapplicant’s case or have a material effect on the applicant’s case.”
The Department of Justice on FOIA Appeals:
“The administrative appeal process serves an important screening function by providing agencies with "an opportunity to exercise [their] discretion and expertise on the matter" and “to correct mistakes made at lower levels and thereby obviate[] unnecessary judicial review.” Oglesby v. Dep’t of the Army, 920 F.2d 57, 61 (D.C. Cir. 1990). To maximize the effectiveness of this responsibility, agencies should ensure that administrative review is conducted by an appeal authority that is separate and distinct from the office or official that made the initial determination on the request.
Moreover, given that FOIA decisions are generally reviewed under the “de novo” standard in court, see 5 U.S.C. § 552(a)(4)(B),—meaning that for most matters the court will review the agency’s actions afresh—it is beneficial for agencies to use this same standard of review at the administrative appeal level as well. Employing a “de novo” standard of review at the administrative appeal level helps ensure that the agency is making a fully considered decision on appeal. Appeals analysts should review the initial decision, taking into account any arguments or facts presented by the requester and looking for any relevant information that may have been missed or applied incorrectly. “
My FOIA Request/Appeal for Documentary Evidence:
“Pursuant to the stipulations of COMMANDANT INSTRUCTION M5260.3, THE COAST GUARD FREEDOM OF INFORMATION (FOIA) AND PRIVACY ACTS MANUAL, I respectfully request digital copies of all electronic and hardcopy communication, files, logs, memos, notes or any other records or correspondence, to include video and audio recordings, initiated, received or held by the following units concerning or otherwise relevant to the suspicions, accusations, investigations, decision-making, and administrative processing leading to my uncharacterized discharge from the United States Coast Guard.
the USCG Base Elizabeth City Servicing Personnel Office,
the USCG Base Elizabeth City Coast Guard Police Department office,
the USCG Base Elizabeth City Coast Guard Investigative Service office
the USCG Base Elizabeth City Personnel Management office,
the USCG Base Elizabeth City Command building (to include the CO, XO and CMC),
the USCG EPM Separations branch (EPM-1),
the USCG Enlisted Personnel Management division (EPM), and
the USCG Personnel Service Center (PSC).”
The Coast Guard’s FOIA Appeal Denial: This complete denial was received 18 months after I submitted my FOIA Request. Directly counter to the Department ofJustice’s recommendation and standard practice throughout the Federal Government - including DHS - my FOIA Appeal was reviewed and denied by Ms. Kathleen Claffie, the Chief of the USCG HQ FOIA Office, who denied my FOIA Request 13 months prior.
“This letter explains our application of the exemptions as the basis for denying your appeal.
“Exemption 5 protects inter-agency or intra-agency memoranda or letters, which would not be available by law to a party other than an agency in litigation with the agency. Furthermore, it protects attorney-client privilege.” Exemption 5 of the FOIA cannot be employed to withhold pre-decisional reports from the subjects of the reports themselves. Exemption 5 is well-known to be the most abused FOIA exemption. It is most often used inappropriately to exempt records that may paint an agency in a bad light, reveal problems, or contain embarrassing information. The Washington Post characterized it as the “withhold it because you want to” exemption.
“Attorney-Client privilege refers to “confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice.” In this instance, documents were exchanged to aid the Coast Guard attorney in providing the agency with legal advice.” Did CDR Meador have an attorney? For what purpose? There was no UCMJ-sanctioned proceeding of any kind in this case. Thus, rules of legal practice and procedure do not apply. The USCG can’t administratively discharge someone involuntarily outside of any UCMJ process and then pretend that it took place in a legal setting.
“Exemption 6 protects the privacy interest of individuals contained in "personnel, medical and similar files" in general. This exemption applies because the names contained within responsive documents qualify as “similar files.” This exemption is inapplicable simply because the records I’ve requested are about me. The Coast Guard is not required to protect me from knowledge of events in which I was an active participant. For example, if I ask for a negative Page 7 entry initiated by my division officer, redacting her name is unnecessary but permissible. Redacting my name or refusing to provide the documents is not.
“Exemption 7(C) protects law enforcement information when the disclosure of such information could reasonably be expected to constitute an unwarranted invasion of personal privacy. It is applied in this situation because the Report of Investigation (ROI) is comprised of records compiled by an agency primarily engaged in law enforcement carrying out its mandated function.” Exemption 7(C) does not apply as in the “unwarranted invasion of privacy”, the privacy is mine. How can I invade my own privacy? CGIS’ Report of Investigation is about me.
“Exemption (b)(7)(E) protects information compiled for law enforcement purposes, the release of which would disclose techniques and/or procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions ifsuch disclosure could reasonably to be expected to risk circumvention of the law. The disclosure of audio interview techniques might provide insight into the typical techniques and procedures used in law enforcement investigations.” In order for this exemption to apply, the technique or procedure must not be well known to the public. Techniques such as wiretapping, the tagging of fingerprints, pretext telephone calls, and planting transponders on aircraft suspected of smuggling have been denied protection as courts have found them to be generally known to the public. Yet CGIS refused to provide me the audio/video interrogation recorded by SA Swann using a publically available laptop computer and software.
“Concerning the 23 pages of records created by the Naval Criminal Investigative Service (NCIS), they cannot be released by the USCG. Per the Department of Justice’s (DOJ) procedural requirements, the FOIA is limited to copies of existing agency records. The DOJ defines agency records as those that are, “…(1) either created or obtained by an agency, and (2) under agency control at the time of the request.” The records were obtained by CGIS and CGIS continues to retain them.
Acting President of the Coast Guard’s Discharge Review Board, CDR Jack “the Giant”Turd