Lt. Col. Victor Fehrenbach has been fighting for the right to stay in the Air Force for more than two years following a false criminal report that led to his outing.
Yesterday, following reports that the Secretary of the Air Force was about to order his discharge, his lawyers filed for a temporary restraining order to keep him in the military until the courts have their say, or the Obama Administration gets around to repealing Don't Ask Don't Tell.
So, how did a decorated combat aviator with 19 years in the Air Force end up riding a desk and hoping just to make it to his pension (for which he'd be eligible next year) instead of flying missions in one of his country's wars — despite much-heralded changes to the military's enforcement policies?
According to the Idaho Statesman, Fehrenbach got involved with the wrong guy: Cameron Shaner, himself an Army veteran who voluntarily left the military in 1999. Shaner, who suffers from a "100 percent service-connected disability," was out of the closet when he and a classmate approached the Air Force about a supposed plot against service members.
According to the Air Force Times, on May 7, 2008 Shaner and the classmate, who was a service member, went to the base to report their suspicions to the Office of Special Investigations. They told OSI Special Agent Karolyn DeRosier that there was a plot among HIV-infected gay men to invite service members to sex parties for the purpose of infecting them. DeRosier interviewed Shaner three times over the following forty-eight hours, asking him to take an oath to tell the truth. After speaking to him, she declined to use him as a confidential informant, deemed him unreliable and, eventually, closed the case due to lack of evidence.
Shaner, however, told investigators that DeRosier "swore him in as a confidential informant" and asked him to help investigate the case. For that purpose, Shaner told investigators, he began visiting gay bars at DeRosier's direction and signed up for the "Gay Dating, Chat and Hookups" site Manhunt. It was there, on May 11, 2008, that Shaner made contact with Fehrenbach. According to the Idaho Statesman:
In text messages the night they met, Shaner expressed sexual interest in Fehrenbach, admiring photos of Fehrenbach's naked body and calling him "stud." Arriving at Fehrenbach's home, Shaner disrobed and joined him in the hot tub. Observed Boise police detective Vucinich in his report: "It should be noted that (Shaner) could not give me an answer as to why he, himself, had gotten naked."
Just before 3 a.m. on May 12, 2008, Shaner called Boise police to report that he had been sexually assaulted by Fehrenbach, telling them that he was an informant for DeRosier and had gone there upon her orders. Shaner was not unknown to local law enforcement: OSI officials told the Air Force Times that Shaner had already made several other unsubstantiated rape allegations. As in the prior cases, the police were unable to find any physical evidence to substantiate Shaner's claims, though they did contact OSI to verify Shaner's claims that he was an informant; on May 14, 2008, Shaner admitted he was not sent to Fehrenbach's house by DeRosier and wasn't an informant.
But, the wheels of Fehrenbach's professional troubles were already set in motion. In an interview with police on May 16, 2008, he admitted a consensual sexual relationship with Shaner: a violation of the military's Don't Ask Don't Tell policy. According to Dixon Osburn, the former executive director of the Servicemembers Legal Defense Network, the military can request any police reports involving service members and it's not uncommon for local police to turn over their reports to military authorities if there is an interest in the case. That leaves many closeted LGBT service members loathe to contact law enforcement, especially in cases involving domestic violence and sexual assault.
Since Shaner had invoked his supposed cooperation with Air Force investigators from the outset, Fehrenbach was in an untenable position: tell the truth to the police to clear himself, and risk his career because of DADT; or stonewall investigators and hope that the allegations went away, which still would have risked his career. Fehrenbach chose to cooperate with law enforcement to clear his name.
On May 19, 2008, Fehrenbach contacted the SLDN to inform them he suspected he would be investigated under DADT; on June 3, 2008, local law enforcement concluded the investigation into Shaner's claims without charging Fehrenbach; on August 20, 2008 military investigators also declined to pursue charges based on Shaner's assault claims. But the DADT investigation continued.
On September 11, 2008, Fehrenbach was notified that the Air Force planned to initiate proceedings to discharge him under DADT, and was given the option of accepting a discharge or pursuing a legal hearing to try to stay. While he initially considered the former, he decided in October 2008 to pursue the latter option — based, he later said, on the hope that then-Senator Obama would win the election and keep his promise to repeal DADT.
In January 2009, the Obama Administration declined to pursue a further appeal against Maj. Margaret Witt, a Washington-based Air Force Reserve nurse who was also discharged under DADT. Witt had sued the government and the 9th Circuit Court of Appeals ruled that the government had to prove that Witt's sexual orientation had some impact on unit cohesion in order to discharge her. Fehrenbach's lawyers asked the Air Force's first review board to consider Fehrenbach's dismissal in a similar light, since Idaho is also in the 9th Circuit, but was denied. The first formal board against Fehrenbach was convened on April 15, 2009 and recommended his dismissal.
On May 19, 2009, Fehrenbach appeared on "The Rachel Maddow Show" to discuss his pending dismissal under DADT: unlike Dan Choi, he did not discuss his sexual orientation, and he did not discuss the terms under which the DADT investigation began.
This week, according to SLDN's communications director Trevor Thomas, Fehrenbach's lawyers received word that the Air Force Personnel Board — which reviews cases against officers — that they had sent the action against Fehrenbach forward. In their experience, this indicates that the board also recommended that Fehrenbach be discharged. According to Dixon, the final determination rests in the hands of Air Force Secretary Michael Donley, who need not abide by the board's recommendation. However, no one seemingly believes that Donley will buck the system, even with the new DADT guidelines, the pending repeal and the false accusations that led to the DADT investigation in the first place.
If the court grants Fehrenbach's restraining order, his discharge will remain pending until either the courts decide, like Witt, that the Air Force has to prove his sexual orientation had an effect on unit cohesion, or DADT is repealed.
Republished with permission from TalkingPointsMemo.com. Authored by Megan Carpentier. TPM provides breaking news, investigating reporting and smart analysis of politics.