By Ed O'Keefe
Washington Post Staff Writer
Friday, August 13, 2010; B03
One of the highest-ranking military officers investigated under the military's "don't ask, don't tell" policy is trying to block the Air Force from discharging him by testing a legal argument that requires the federal government to prove a service member's homosexual conduct has been damaging to others.
Air Force Lt. Col. Victor Fehrenbach filed a request for a temporary restraining order in U.S. District Court in Idaho late Wednesday. He argued that 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."
The legal basis for his argument was established by a 2008 ruling by the U.S. Court of Appeals for the 9th Circuit, which said the government had to prove the homosexual conduct was affecting morale, discipline and unit cohesion before the service member could be discharged.
Fehrenbach, 40, has served in the Air Force for 19 years and is eligible for retirement in September 2011. Under military regulations, however, he will lose his retirement benefits if he is honorably discharged before reaching 20 years of service.
Fehrenbach flew almost 90 combat missions in Iraq, Afghanistan and Kosovo. He has been assigned to an office job at Mountain Home Air Force Base in Idaho since 2008, when the Air Force launched an investigation into allegations that he sexually assaulted a man and in the process violated "don't ask, don't tell."
The assault charges were dropped, but the Air Force investigation continued.
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 Servicemembers Legal Defense Fund (SLDN) are calling on Air Force Secretary Michael B. Donley to retain Fehrenbach regardless of the board's decision.
"Everybody on my base knows my story, and I think everybody in the Air Force knows it," Fehrenbach said Thursday in an interview. "And I've gotten absolutely zero negative reaction and nothing but positive support, comments, remarks and letters from thousands of people all over the world."
Fehrenbach's discharge should remind gay and lesbian service members that "don't ask, tell" remains law until Congress repeals the policy, SLDN Executive Director Aubrey Sarvis said. The House included a repeal of "don't ask, don't tell" in its version of the annual defense spending bill this year. The Senate may take up its version shortly after the body's August recess, according to aides.
A Pentagon study on the potential impact of repealing the policy is due to President Obama, Defense Secretary Robert M. Gates and Joint Chiefs of Staff Chairman Adm. Mike Mullen by Dec. 1. According to the Pentagon, 102,758 of the 400,000 surveys sent to service members have been completed and officials are urging troops to complete it by Sunday's deadline. About 150,000 military spouses will receive a similar survey by the end of the month, according to spokeswoman Cynthia Smith.
Fehrenbach's case comes as the Log Cabin Republicans await a ruling, expected by October, 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.