The General Counsel’s Office to the Secretary of the Air Force confirmed to Morrison & Foerster and SLDN that the Air Force Personnel Board recently reviewed Lt. Col. Fehrenbach’s case and has sent a recommendation to Air Force Secretary Michael B. Donley’s designee.  According to Air Force regulations, had the Board  recommended to retain Lt. Col. Fehrenbach no further action would have been required by the Secretary or his designee (AFI 36-3206 Chapter 6.10 and Chapter 6.10.1).  Although SLDN and Morrison & Foerster understand the Secretary has delegated his authority to act on the Board’s recommendation, Secretary Donley has the power to step in and retain Lt. Col. Fehrenbach.  Without action by the Secretary, the Board’s recommendation is expected to stand and Lt. Col. Fehrenbach could be discharged within days.

A request for a temporary restraining order asks the court to prevent irreparable injury to the plaintiff and preserve the status quo until a more complete hearing can be held on the merits of the case.  If the court grants the request, the Air Force will be prevented from discharging Lt. Col. Fehrenbach until a full hearing can be scheduled.  The Fehrenbach case is among the first to challenge a discharge under DADT by applying the so-called Witt standard.  In the case of Air Force Maj. Margaret Witt, the United States Court of Appeals for the Ninth Circuit – which governs the District of Idaho – 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.”

Statement by Servicemembers Legal Defense Network Executive Director and Army Veteran Aubrey Sarvis:

“Our nation is on the verge of firing a highly decorated combat aviator, an American hero.  The Air Force Secretary can do the right thing and retain Lt. Col. Fehrenbach under the Pentagon’s own recently revised regulations on ‘Don’t Ask, Don’t Tell.’  Lt. Col. Fehrenbach signed up nearly 19 years ago willing to risk all and die for his country, flying nearly 90 combat missions in Iraq, Afghanistan, and Kosovo.  Why and how the hell do we end up firing our best and brightest when we’re fighting in two wars?  If Secretary Donley does not step in, this nation will lose a service member worth $25 million in training whose skill sets are desperately needed today.  The discharge of Lt. Col. 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.  Clearly there is an urgent need for the Senate to act on legislation currently pending that would allow for repeal.”

Statement by Morrison & Foerster’s M. Andrew Woodmansee:

“The Air Force's pending discharge of Lt. Col. Fehrenbach does not pass muster under the United States Constitution.  The Air Force did not prove—as it was required to—that his continued service hurts morale, good order and discipline, and unit cohesion.  They can’t prove it because it isn’t true.  Even while under investigation for the past two years, Lt. Col. Fehrenbach continues to be highly regarded by fellow officers and continues to receive excellent evaluations from his commanders.  As a combat-seasoned aviator, he is exactly the type of person this country needs while fighting two wars.  He should be overseas fighting for his country right now, but instead he has been fighting the Air Force because of this unconstitutional law."

Statement by Lt. Col. Victor Fehrenbach:

“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.  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.”

To read the filing in the United States District Court for the District of Idaho visit: http://bit.ly/dvTULR

BACKGROUND

BRIEF SUMMARY:

·         Lt. Col. Fehrenbach will reach his 20-year retirement in September of 2011; just 13 months from now.  He has been on desk duty at Mountain Home Air Force Base in Idaho awaiting the results of more than two years of investigations and discharge proceedings.  If Lt. Col. Fehrenbach is discharged, he will lose his retirement benefits.

·         In May of 2008, Lt. Col. Victor Fehrenbach was notified that his commander was seeking to separate him from the US Air Force under "Don't Ask, Don't Tell" (DADT) after the Air Force received information from a civilian.  He decided to fight his discharge after hearing then-Presidential candidate Barack Obama pledge to end Don’t Ask, Don’t Tell.

·         Lt. Col. Fehrenbach served in the Former Yugoslavia, Afghanistan, and Iraq.  He flew the longest combat sorties in his squadron's history, destroying Taliban and Al Qaeda targets in support of Operation Enduring Freedom and Operation Iraqi Freedom.  And after the Sept. 11th attacks, Fehrenbach was hand-picked to protect the airspace over Washington, D.C.

·         Lt. Col. Fehrenbach's awards include the Meritorious Service Medal, nine Air Medals -- including one for Heroism -- the Aerial Achievement Medal, five Air Force Commendation Medals and the Navy Commendation Medal.

TIMELINE OF INVESTIGATION:

·         May 16, 2008:  Lt. Col. Victor Fehrenbach meets with his commander and civilian authorities after a false allegation is made against him.  Due to the nature of the allegations and in an effort to explain the circumstances, Fehrenbach makes statement to his commander and civilian authorities.  The information resulting from this groundless accusation is later used as a basis to initiate discharge proceedings under “Don’t Ask, Don’t Tell.”  

·         May 19, 2008:  Lt. Col. Victor Fehrenbach contacts Servicemembers Legal Defense Network (SLDN), a national, legal services and policy organization dedicated to ending "Don't Ask, Don't Tell" (DADT), concerned that he is being investigated under DADT.  SLDN formally begins legally advising Fehrenbach. 

·         June 3, 2008:  After the investigation by civilian authorities is concluded, it is announced charges will not be filed.  The military investigation under DADT continues.

·         August 20, 2008:  The more extensive military investigation is concluded.  Once again, the allegations are found to be false and baseless, and military authorities decide that charges will not be filed.

·         September 11, 2008: Lt. Col. Victor Fehrenbach is formally notified that his squadron commander, Lt Col Mark Thompson, is recommending his separation from the US Air Force under "Don't Ask, Don't Tell."

·         September 12, 2008:  Lt. Col. Victor Fehrenbach receives formal notification from the Twelfth Air Force Commander, Lt Gen Norman Seip, that he is initiating separation actions.  This letter is know as the “Show-Cause” notification—Lt Col Fehrenbach must “show cause” for his retention in the US Air Force.  He has the option to waive his rights and accept immediate discharge, or to proceed with a formal Board of Inquiry (administrative discharge board) where the Air Force can bring evidence to support discharge and the respondent can show evidence to support retention.

·         September 22, 2008:  Lt Col Victor Fehrenbach submits his response to the “Show-Cause” notification.  Initially, he decides to waive his right to a board hearing and accept immediate discharge.

·         October 22, 2008:  After careful deliberation, Lt Col Fehrenbach reverses his decision and requests to proceed with the formal Board of Inquiry hearing.

·         January 15, 2009:  At a pre-board hearing, Lt Col Fehrenbach requests that the Air Force apply the “Witt Standard”—standing law in the 9^th US Circuit—to his case.  The Air Force denies this request.

·         April 15, 2009:  A formal military Board of Inquiry is convened.  The board recommends that Lt. Col. Fehrenbach be honorably discharged under “Don’t Ask/Don’t Tell.”

·         May 19, 2009: Lt. Col. Victor Fehrenbach announces on MSNBC’s The Rachel Maddow Show -- for the first time publicly -- that after more than 18 years of service, he is being separated from the US Air Force under "Don't Ask, Don't Tell."

·         February 16, 2010:  The international law firm of Morrison & Foerster LLP agrees to represent Lt. Col. Fehrenbach, pro bono, as co-counsel with SLDN.

·         May 3, 2010:  Morrison & Foerster sends a letter to the Secretary of the Air Force laying out Lt. Col. Fehrenbach’s exemplary service record and detailing the Air Force’s numerous violations of Lt. Col. Fehrenbach’s constitutional rights.  The letter requests a meeting with Secretary Donley before the Air Force decides to discharge Lt. Col. Fehrenbach.  No meeting is held.

·         May 17, 2010:  Morrison & Foerster sends a letter to the Deputy General Counsel of the Air Force, again requesting an opportunity to meet with Secretary Donley or the Air Force General Counsel prior to a final decision on whether to discharge Lt. Col. Fehrenbach.

·        June 7, 2010:  Morrison & Foerster and SLDN meets with the General Counsel of the Air Force and the General Counsel of the Department of Defense.

·        June/July, 2010:  SLDN and Morrison & Foerster continue informal discussions with Air Force General Counsel regarding Lt. Col. Fehrenbach’s pending discharge.

Servicemembers Legal Defense Network (www.sldn.org) is a national, non-profit legal services and policy organization dedicated to ending “Don’t Ask, Don’t Tell.”