UPDATE: Rachel Maddow spent tonight’s entire show talking about DADT, including a segment with Lt. Col. Fehrenbach. See the end of the post for video.
We have news this evening (a billion blogs are calling it “breaking”) that attorneys for
Lt. Col. Victor Fehrenbach, who was outed when he defended himself against
false rape charges, have just requested a
temporary restraining order to halt his imminent discharge. Fehrenbach got word last Wednesday that his discharge had been sent to the Secretary of the Air Force. That means his discharge is days, if not hours, away.

Lt. Col. Victor Fehrenbach
From the Servicemembers Legal Defense Network:
Servicemembers Legal Defense Network (SLDN) and Morrison & Foerster LLP (MoFo) filed a request for a temporary restraining order on behalf of their client, Lt. Col. Victor Fehrenbach, seeking to block the Air Force from discharging him under “Don’t Ask, Don’t Tell” (DADT), the discriminatory law barring gay and lesbian service members from serving openly and honestly. The filing in the United States District Court for the District of Idaho, seeks a court order preventing the Air Force from discharging Lt. Col. Fehrenbach, arguing that the government cannot establish that his continued service on active duty hinders “morale, good order and discipline, and unit cohesion.”
The General Counsel’s Office to the Secretary of the Air Force confirmed to MoFo 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 MoFo 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.”
Fehrenbach is a many-times decorated 19-year veteran of the US Air Force, and on a personal note, a native of Dayton, Ohio, just a few miles from where I live. Fehrenbach has received nine commendations for 88 missions over the last two decades, including being hand picked to guard the skies over Washington, DC on September 11, 2001.
A statement tonight from Lt. Col. 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 am crushed. 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.”
I don’t know if it should, but maybe money will give people a reason to give a damn. It is now less than a year before Lt. Col. Fehrenbach’s 20 year retirement. If discharged under DADT, he will lose $46,000 every year for the rest of his life. If he gets a less-than-honorable discharge, which by custom he will because he’s fought his discharge, he will lose an additional $80,000 in separation pay.
Lt. Col. Fehrenbach appeared on The Rachel Maddow Show tonight. Video of that interview, as well as the rest of the night’s DADT show, is embedded below.
