Fehrenbach Files to Block DADT Discharge

Lt. Col. Victor Fehrenbach, a highly decorated combat aviator on the verge of being booted from the Air Force because he is gay, filed a request Wednesday afternoon in federal court to stop his discharge under the military's "don't ask, don't tell" policy.

The request, filed in the U.S. district court for the district of Idaho, applies only to Fehrenbach, but its outcome could hold broader implications for the continuing legal and political battles against the discriminatory policy. If granted, it would mark the first such time such a court order would prevent the Pentagon from discharging a service member under "don't ask, don't tell." Granting the request would preserve the status quo until a more complete hearing can be held on the merits of the case.

Fehrenbach, just 13 months shy of his 20-year retirement, is believed to be the highest-ranking officer currently facing discharge under the "don't ask, don't tell" policy. His distinguished service record includes 90 combat missions flown in Iraq, Afghanistan, and Kosovo, with training that is estimated to be worth $25 million. The Air Force Personnel Board recently made a recommendation on his case to Air Force secretary Michael Donley, and barring a last-minute intervention from the secretary, without the emergency court order, he could be discharged within days.

"I have been waiting more than two years for the Air Force to do the right thing by letting me continue to proudly serve my country," said Fehrenbach in a statement issued by Servicemembers Legal Defense Network. "To say that I'm disappointed with where things stand would be a monumental understatement. I have given my entire adult life to the Air Force that I love. I have deployed six times and risked my life for my country. In the two years that I've been sitting at my desk rather than inside my jet, I've offered to deploy numerous times. I'm ready, willing, and able to deploy tomorrow, but I'm barred from deployment, because of this unjust, discriminatory law. Meanwhile, moms and dads, sons and daughters, and my friends go back for the third, fourth, fifth deployments. While our country is engaged in two wars, my service is needed now more than ever."

SLDN and Morrison and Foerster LLP, which filed the request on behalf of Fehrenbach, argue in their filing that "the government cannot establish that his continued service on active duty hinders 'morale, good order and discipline, and unit cohesion.'" They cite recent Pentagon revisions to the "don't ask, don't tell" policy and the case of Air Force major Margaret Witt in the U.S. court of appeals for the ninth circuit, which includes Idaho.

In Witt's case, according to SLDN, "The court held that discharging a service member violates the Constitution unless: (1) the government advances 'an important governmental interest;' (2) the government shows the intrusion 'upon the personal and private li[fe]' of a service member 'significantly furthers that interest;' and (3) the government shows the intrusion is 'necessary to further that interest.'"

Although limited to Fehrenbach at this time, how the court responds to the request filed Wednesday could shape subsequent legal efforts to end the policy.

"The emergency temporary restraining order applies to Victor directly, but the larger case would apply facially to all of 'don't ask, don't tell,'" said SLDN spokesman Trevor Thomas.

On the political front, the request arrives just weeks before the Senate is expected to vote on the DADT repeal that passed the House in May. The Fehrenbach case illustrates the urgent need for lawmakers to act.

"The discharge of Lieutenant Colonel Fehrenbach would dramatically underscore that 'don't ask, don't tell' is still the law and all gay and lesbian service members should be on notice," said SLDN executive director and Army veteran Aubrey Sarvis. "Clearly there is an urgent need for the Senate to act on legislation currently pending that would allow for repeal."