Lt. Col. Victor Fehrenbach is asking a
federal court in Idaho to block the U.S. Air Force from discharging
him under “Don't Ask, Don't Tell,” the 1993 law that prohibits
gay troops from serving openly.
Fehrenbach has been under investigation
since 2008, when a civilian man accused him of sexual assault.
The military quickly placed him on desk
duty at Mountain Home Air Force Base in Idaho as the investigation
continued. In a statement to Boise police officers, the 40-year-old
officer acknowledged he had sex with his accuser but said it was
consensual. Within three weeks, Fehrenbach was cleared of the sexual
assault allegation. But the Air Force continued to investigate
whether to discharge the highly-decorated flight officer for
violating “Don't Ask.”
Fehrenbach, who is being advised by the
gay rights group Servicemembers Legal Defense Network (SLDN), filed
suit on Wednesday to block his discharge. The group says a recent
Air Force Personnel Board recommendation to Secretary Michael B.
Donley indicates the discharge is imminent. The board only moves a
case up to the secretary when recommending separation.
Under new regulations put in place by
Secretary of Defense Robert Gates, third party outings are placed
under greater scrutiny, but that policy has yet to be tested.
“Our nation is on the verge of firing
a highly decorated combat aviator, an American hero,” Aubrey
Sarvis, executive director of SLDN, said. “The Air Force Secretary
can do the right thing and retain Lt. Col. Fehrenbach under the
Pentagon's own recently revised regulations on 'Don't Ask, Don't
“If Secretary Donley does not step
in, this nation will lose a service member worth $25 million in
training whose skill sets are desperately needed today,” he added.
Fehrenbach is 13 months from a 20-year
retirement. If discharged, he would lose his right to a pension,
according to documents filed with the court.
The filing also says that Fehrenbach
served in the former Yugoslavia, Afghanistan and Iraq.
“He flew the longest combat sorties
in his squadron's history, destroying Taliban and Al Qaeda targets in
support of Operation Enduring Freedom and Operation Iraqi Freedom.
And after the Sept. 11th attacks, Fehrenbach was
hand-picked to protect the airspace over Washington, D.C.” the
The case relies heavily on the 2008
Witt vs. Department of the Air Force ruling, which found that
discharging troops for their sexuality was unconstitutional unless
the military could show an overriding government interest. The Witt
ruling only applies to the Ninth Circuit, which includes Idaho.
The House of Representatives voted in
May to repeal the policy, and the Senate is expected to debate the
issue in September. However, Republicans, led by Arizona Senator
John McCain, have said they'll fight against repeal.