The U.S. Air Force has agreed not to
discharge Lt. Col. Victor Fehrenbach under “Don't Ask, Don't Tell”
while a pending lawsuit is heard.
The 40-year-old officer asked a federal
court in Idaho last week to block the Air Force from discharging him
under the 1993 law that prohibits gay troops from serving openly.
“The agreement recognizes the
immediate harm to Lt. Col. Fehrenbach and insures that he will
eventually get to make his case at a full blown hearing without
losing his job,” Aubrey Sarvis, executive director of the gay
rights group Servicemembers Legal Defense Network (SLDN), which is
advising Fehrenbach, said. “This agreement is a victory for Lt.
Col. Fehrenbach and our nation.”
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.”
SLDN said that it acted because a
recent Air Force Personnel Board recommendation to Air Force
Secretary Michael B. Donley indicated the discharge was imminent.
The board only moves a case up to the secretary when recommending
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.
“The Air Force can still do the right
thing and retain Lt. Col. Fehrenbach under the Pentagon’s own
revised regulations on ‘Don’t Ask, Don’t Tell,'” Sarvis
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.
“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.