Gay, Military / Military Law

Air Force Colonel Sues To Block His Discharge Under 'Don't Ask, Don't Tell'

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The Proposition 8 case — a ruling on the motion to stay judgment pending appeal is expected any minute now — isn’t the only gay-related litigation going on these days.

As reported in the New York Times, lawyers for Lt. Col. Victor Fehrenbach filed a lawsuit yesterday in federal court in Idaho. They’re seeking a temporary order blocking his discharge from the Air Force for violating the military’s ban on homosexuality.

Discharge. Hehe. The NYT article actually contains several fun double entendres.

But there are interesting legal issues here, too….

According to the Times, the lawsuit claims that a discharge “would violate Colonel Fehrenbach’s rights, cause him irreparable harm, and fail to meet standards established in a 2008 federal court ruling on don’t ask, don’t tell.” Under Witt v. U.S. Department of the Air Force — decided by the Ninth Circuit, natch — discharging military personnel due to their homosexuality is unconstitutional, unless the government can establish that the discharge was necessary to significant further an important government interest.

There are other reasons why the military’s gay ban is problematic, according to Fehrenbach’s attorneys:

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His lawyers also assert that his case underscores the ways the ban hurts military readiness, the very thing it is supposed to protect. They say that Colonel Fehrenbach’s performance reviews were consistently glowing, including his most recent one, which says he was a “proven leader” who “raised morale” in his unit….

Alas, “raised morale in his unit” is apparently what got Fehrenbach in trouble in the first place. The investigation that uncovered his alleged homosexuality started after a civilian accused him of sexual assault:

Within three weeks, the sexual assault allegation was dismissed for lack of evidence. But the Air Force investigation into his sexuality continued. Now, just a year from completing his 20th year in the military, Colonel Fehrenbach, 40, believes he is about to be discharged under the policy known as “don’t ask, don’t tell.” He would be among the highest-ranking service members discharged under the policy.

The facts of the case are a bit odd. Colonel Fehrenbach has never publicly said he’s gay. But in defending himself against the sexual assault, he told Idaho law enforcement in an interview that he had consensual sex with his accuser. It turns out that Air Force investigators observed that interview, which led them to open a “don’t ask, don’t tell” investigation.

The last sentence of the Times article is (unintentionally?) amusing:

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During his 19 years in the service, Colonel Fehrenbach says, he deployed six times as a weapons systems officer, in charge of finding targets and guiding bombs or missiles. He flew combat missions over Kosovo, Iraq and Afghanistan.

“I would love to get back into the cockpit and deploy again,” he said.

We’re sure you would, Colonel.

Kidding aside, good luck in your battles, legal and otherwise. We’ll be watching your case with interest.

UPDATE: Fehrenbach may not be “officially” out, but he doesn’t seem very discreet.

Officer Sues to Block His Discharge Under Gay Ban [New York Times]

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