Lt. col. sues over ‘don’t ask’ - Military News | News From Afghanistan, Iraq And Around The World - Military Times

Lt. col. sues over ‘don’t ask’

An Air Force officer a year from retirement is suing to keep the service from kicking him out under the “don’t ask, don’t tell” ban on gay service members.

Lt. Col. Victor Fehrenbach, an F-15E weapons systems officer at Mountain Home Air Force Base, Idaho, admitted he was gay in 2008 after a civilian acquaintance accused him of rape. Fehrenbach’s attorney said he learned Aug. 4 that personnel officials were close to recommending his dismissal to Air Force Secretary Michael Donley.

Fehrenbach and his attorney responded with the lawsuit Aug. 11 asking a federal judge in Boise, Idaho, to declare “don’t ask, don’t tell” unconstitutional.

Fehrenbach’s fight to stay in uniform after almost 19 years of service has turned into one of the highest-profile cases of service members challenging the ban. The lieutenant colonel, assigned to the 366th Operations Support Squadron at Mountain Home, has appeared on television news shows and at events supporting gay rights, including a gay pride reception at the White House.

The Air Force began investigating Fehrenbach in May 2008, after a man he met on the Internet spent an evening at his home and then accused him of rape. Fehrenbach admitted he is gay to police but denied the rape accusation. He was never charged, but Boise police told Fehrenbach’s command that he admitted to being gay.

He has not been allowed to fly or deploy overseas since the investigation began, and a board of inquiry recommended his dismissal in April 2009. Since then, the case has continued up the chain of command but had not yet made it to Donley for a final decision.

Fehrenbach stands to lose about $46,490 a year in retirement pay, and medical benefits, if Donley dismisses him before his 20-year anniversary in September 2011, according to pay charts. He would get a lump sum of about $80,000, half of standard involuntary separation pay for an officer of his years, the charts show.

Fehrenbach’s civilian attorney, Drew Woodmansee, said the Air Force has failed to show Fehrenbach’s “continued service hurts morale, good order and discipline, and unit cohesion.”

The lawsuit asks a federal judge to halt Donley from dismissing Fehrenbach, to declare “don’t ask, don’t tell” unconstitutional and to allow Fehrenbach to resume a normal career.

In response, Donley’s office said in a statement that the service and Justice Department are reviewing the lawsuit and will file a response in federal court.

To bolster his case, Fehrenbach included in his lawsuit his most recent annual officer performance report, covering his work through January, eight months after Fehrenbach went public with his case.

In the OPR, squadron commander Lt. Col. Mark E. Thompson described Fehrenbach as “dynamic,” and said he “maintained infallible professional attitude despite huge personal challenges.”

Fehrenbach’s operations group commander, Col. James McGovern, added, “Proven leader/warrior; handles every task with steady, professional focus.”

Both raters recommended Fehrenbach’s next assignment be a staff assignment with a numbered air force, agency or wing.

Fehrenbach’s case puts Donley in a difficult situation.

In March, Donley told the Senate Armed Services Committee he backs repealing “don’t ask, don’t tell.”

“I support the president's efforts to change the policy and change the law in this area,” the secretary told lawmakers.

Donley has also said during Air Force gatherings that he would continue to enforce “don’t ask, don’t tell” until the law is changed.

In March, Defense Secretary Robert Gates announced changes to “don’t ask, don’t tell” that raised the threshold for dismissing gay service members. Among those changes, being outed by a third party was no longer enough to warrant a dismissal.

Fehrenbach’s lawsuit argues the changes give Donley the legal grounds to retain him because he admitted being gay to civilian police officers while defending himself against rape charges.

Fehrenbach also argues that his accuser was so unreliable that the allegations did not meet the new Defense Department standard for initiating an investigation based on information from “credible information from a reliable source.”

The lawsuit also relies on a ruling by the U.S. Court of Appeals, which has jurisdiction in Idaho, that prior to discharging a service member for being gay, the government must show that the dismissal “advances an important government interest and that government’s intrusion ... is justified by that interest.”