A military pilot reached an agreement Monday with the U.S. Air Force to prevent his discharge under the "don't ask, don't tell" policy, which prohibits openly gay men and women from serving in the military.
The Servicemembers Legal Defense Network (SLDN) said Lt. Col. Fehrenbach, a 19-year military member who has been decorated for his combat valor in Iraq, cannot be discharged until the Air Force brings the request to oust him from the military to a court hearing.
"The agreement recognizes the immediate harm to Lt. Col. Fehrenbach and insures that he will eventually get to make his case at a full blown hearing without losing his job," SLDN Executive Director Aubrey Sarvis said in a statement.
Fehrenbach, represented by SLDN, an advocacy group seeking equality for gay men and women serving in the military, filed a federal lawsuit in Idaho last week. They argued that the government cannot establish that Fehrenbach's continued service on active duty hinders "morale, good order and discipline, and unit cohesion."
Fehrenbach disclosed he was gay in 2008 as he defended himself against allegations investigated by the Boise Police Department that he raped another man. Fehrenbach said he had sex with the man, but it was consensual.
He was cleared of the rape allegations, including by the Air Force Office of Special Investigators, which found them to be without merit, according to court documents filed with the lawsuit.
For two years now, Fehrenbach said he has been stuck at a desk, rather than being allowed to deploy as a weapons systems officer in an F-15E jet to combat theaters in Iraq or Afghanistan.
'Ready, willing and able to deploy'
"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," Fehrenbach said in a statement when his lawyers filed the suit. "To say that I'm disappointed with where things stand would be a monumental understatement. I'm ready, willing, and able to deploy tomorrow, but I'm barred from deployment, because of this unjust, discriminatory law."
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 this summer.
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 could wait to see if Congress acts.
Fehrenbach has expressed worry that he'd be discharged before any changes. For instance, an openly gay soldier was honorably discharged from the New York Army National Guard on July 22 under don't ask, don't tell.
His lawsuit notes that, if discharged before the twenty-year mark, he'd lose his right to pension and benefits.
Fehrenbach is stationed at Mountain Home Air Force Base, about 50 miles east of Boise, where he is assistant director of operations for the 366th Operations Support Squadron.