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Air Force Lt. Col. sues to block 'don't ask' discharge

By Ed O'Keefe

Eye Opener

Updated 5:24 p.m. ET
One of the highest-ranking military officers investigated for violating the military's "don't ask, don't tell" policy filed suit on Wednesday in an effort to block the Air Force from discharging him.

Air Force Lt. Col. Victor Fehrenbach filed a request for a temporary restraining order in U.S. District Court in Idaho, arguing a discharge will cause him irreparable harm and that the government cannot prove that his continued service hinders “morale, good order and discipline, and unit cohesion.” It's one of the first cases to use a legal line of reasoning established in a 2008 ruling by the U.S. Court of Appeals for the Ninth Circuit in the case of an Air Force Major who challenged the gay ban.

Fehrenbach flew almost 90 combat missions in Iraq, Afghanistan, and Kosovo, but has been on desk duty at Mountain Home Air Force Base in Idaho since 2008, when the Air Force launched an investigation into allegations that he sexually assaulted a civilian and violated "don't ask, don't tell."

“In the two years that I’ve been sitting at my desk rather than inside my jet, I’ve offered to deploy numerous times," Fehrenbach said Wednesday. "I’m ready, willing, and able to deploy tomorrow, but I’m barred from deployment, because of this unjust, discriminatory law."

The Air Force Personnel Board is still reviewing Fehrenbach’s case and government lawyers are reviewing his request for an injunction, the Air Force said Thursday. Fehrenbach, his lawyers and the nonpartisan Servicemembers Legal Defense Fund are calling on Air Force Secretary Michael B. Donley to retain Fehrenbach regardless of the board’s decision.

SLDN Executive Director Aubrey Sarvis said the Senate should follow the House and act quickly to pass the annual defense spending bill, which includes a repeal of "don't ask, don't tell."

"Why and how the hell do we end up firing our best and brightest when we’re fighting in two wars?" Sarvis said Wednesday. "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."

The case comes as the Log Cabin Republicans await a ruling in their constitutional challenge to "don't ask, don't tell" in federal court in California. A ruling in the group's favor would suspend the military's ability to discharge troops under the policy.

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This item has been updated and corrected from an earlier version.

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By Ed O'Keefe  | August 12, 2010; 6:10 AM ET
Categories:  Eye Opener, Military, Oversight  
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The Air Force Lt Col knew the rules. It's a little late to be crying the blues. He should be out of the AF now. He got caught, he's guilty and he knows he no longer has a right to wear the uniform. The rules are the rules. He should have been discharged before now. He knew it when he joined the AF. The money spent for his training is not the point. He should not have been in the AF in the first place. He sexually assaulted a civilian; he flaunted the don't tell rule--he deserves the consquences. It doesn't make any difference whether you like the rule or not--it's the law of the military. If you don't like it--don't join the military. It's not a singles club for gays. There are potential consequences to him staying in the AF. Other males may not want to serve with him in isolated circumstances and may feel uncomfortable around him. He also faces the potential for personal attacks. It's happened. It is better for him, the troops and the AF if he leaves now. He did this to himself. He should not make everyone else suffer because of his selfish actions. Get out and let the AF go on with its mission.

Posted by: nicholjo1 | August 12, 2010 10:29 AM | Report abuse

Nicholjo's comments are obviously those of an ignorant homophobe and are sadly indicative of a mindset that needs to be gotten rid of once and for all. The racists who live in America....and that does seem to be a significant portion of the populace...don't have the right to overrule the US Constitution. This officer's civil rights have been violated, and a court will and should rule in his favor. He has honored us all with his service.

Posted by: fourklines | August 12, 2010 12:07 PM | Report abuse

Don't ask don't tell is racist.

Posted by: jiji1 | August 12, 2010 12:21 PM | Report abuse

As the wife of a military retiree with 33 years of service, who grew up the son of one of the original drill instructors with the 82nd and 101st Airborne, when those units were formed after World War II, the "tough-as-nails" attitude of the previous poster is NOT the norm for the many military we know now.
That's the way attitudes used to be.
Men and women who serve their country professionally and don't try to mix personal or sexual relationships in with the job should not be a concern of the military.
I would like to correct a statement made by a previous poster.
Lt. Col. Fehrenbach did NOT sexually assault anyone.
Upon investigation, those charges were determined to be unfounded and dropped shortly after they were filed.
The armed services take a strange position in these cases.
They adamantly refuse to allow women serving in combat zones to file charges in cases of sexual assault (i.e., tacitly approving of criminal behavior), while command and control persists in persecuting anyone suspected of gay or lesbian orientation.
It makes no sense whatsoever.
It's time for all this discrimination against women serving in combat or against sexual orientation be terminated as a concern of the military.
President Obama has the ability, as CIC, to order suspension of investigatory activities in the case of the latter, pending action on this policy at the end of the year, as well as demanding women who report problems in service be treated with dignity and their problems taken seriously.
It's time for this circus to come to a halt and for our military to reflect our values of integrity and civil rights that we put forth as treasured goals in American society.

Posted by: Judy-in-TX | August 12, 2010 12:58 PM | Report abuse

It's been a long time since I served in Navy JAG - I left the service in 1979 - but I can attest to the fact that of all the things I had to do as a prosecutor or a defense counsel, the worst was dealing with administrative discharge cases involving homosexuals. The worst because invariably my clients - or those I had the obligation to proceed against when I represented the government side of the argument - invariably had terrific service records up to the time that they were "outed" in one way or another. It was a waste of highly trained and experienced sailors then, and it continues to be a waste now.

Let's end this farce once and for all. The generation now dominating the lower ranks of the armed forces - where most of the fighting and dying takes place - just don't give a damn about this issue. And for those few bigoted souls, give them the order to get over it, and they will. I daresay there are plenty of people in uniform who don't like serving with people of a different color or religion, but they do it any way. Likewise, they can deal with fellow soldiers and sailors with a different sexual orientation.

What always gets lost in this charade is how homosexuals actually behave. My experience has never involved a predator, and if that were the case, there's plenty of rules within the UCMJ to deal with inappropriate sexual activity without having a blanket rule that is totally misguided.

Posted by: dixs | August 12, 2010 5:52 PM | Report abuse

To forklines: You don't have to be ignorant not to want someone of your own sex hanging on you. I've had it happen and I don't like it. I take it you are that type or you don't mind it. The military doesn't approve of it and I don't blame them. If you are homosexual you know going in the military doesn't allow it. If you get caught, you know what the consequences can be going in, so why would you do it? And don't cry when it happens. This guy played the game and he lost. It's that simple. I'm just a person that doesn't need a person of my own sex but I can assure you I am quite normal and anything but ignorant. You had better think back about who is called ignorant. I won't get Aids either nor will I spread it. I agree with the military position for a number of reasons and political correctness is not my bag. If you are homosexual, fine, that is your call, but you don't have the right to force it on another in foxholes and isolated conditions where men will be together for long periods of time and that is the concern of the military. That's why they don't like the idea. Some of them have been killed in the military for just that reason and don't kid yourself that it hasn't happened--it has. So wise up. And by the way buddy, my idea isn't going away any time soon so suck up to it--pardon the pun!!

Posted by: nicholjo1 | August 12, 2010 8:43 PM | Report abuse

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