BOISE, Idaho — An Idaho aviator has reached an agreement with the U. S. Air Force to temporarily block his discharge under the “Don’t Ask, Don’t Tell” law that bars openly gay and lesbian military members from military service.
The Servicemembers Legal Defense Network, an advocacy group seeking equal treatment of gays in the military, says an agreement reached in federal court Monday prevents the Air Force from discharging Lt. Col. Victor Fehrenbach until a judge can consider its request for a court order to stop his ouster from the military.
The group is representing Fehrenbach in his legal fight to keep his job, and filed a federal lawsuit in Idaho last Wednesday asking for a temporary restraining order to stop the discharge until a full hearing can be scheduled. It also wants the law declared unconstitutional.
The deal reached this week dismisses a motion for a temporary restraining order and prevents the military from discharging Fehrenbach for 21 days.
This three-week window will allow time for a court hearing on a preliminary injunction seeking to halt the discharge, said M. Andrew Woodmansee, lead counsel for Fehrenbach.
“We are pleased that the Air Force has agreed to preserve the status quo until we can have a full hearing,” he said.
Fehrenbach, who has been decorated for his combat valor in Iraq, disclosed he was gay in 2008 as he defended himself against allegations investigated by the Boise Police Department that he sexually assaulted another man.
Fehrenbach said he had sex with the man but claimed it was consensual.
He was cleared of the rape allegations, including by the Air Force Office of Special Investigations, which found them to be without merit, according to court documents filed last week.
But he still faces ouster from the military under the “Don’t Ask, Don’t Tell” policy.
The policy prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or are discovered to be engaging in homosexual activity.
The U.S. House of Representatives voted May 27 for repeal, and the Senate is expected to take up the issue in September. In July, lawyers for a GOP gay-rights organization, the Log Cabin Republicans, asked a federal judge in California during a two-week trial to issue an injunction halting the military’s ban on openly gay members.
Government lawyers urged the judge to let lawmakers decide.
A decision is pending, though Judge Virginia A. Phillips may wait to see if Congress acts.
Servicemembers Legal Defense Network indicated it filed its lawsuit on behalf of Fehrenbach last week because the group believes his discharge is imminent.
Fehrenbach is stationed at the Mountain Home Air Force Base, about 50 miles east of Boise, where he is assistant director of operations for the 366th Operations Support Squadron.
In his 19-year tenure in the Air Force, Fehrenbach has flown nearly 90 combat missions in Iraq, Afghanistan and Kosovo.