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Lt. Colonel Challenges ‘Don’t Ask, Don’t Tell’

BOISE (CNS) - A much-decorated lieutenant colonel filed a constitutional challenge to the Air Force's "Don't Ask, Don't Tell" policy. Lt. Colonel Victor J. Fehrenbach is fighting the Air Force's proposal to honorably discharge him, and claims that it acquired information through an unlawful sequence of events.

In his 19-year career, Fehrenbach says, the Air Force spent approximately $20 million to train him as a specialized fighter weapons systems officer.

He has received numerous combat awards. He served as chief of scheduling for all F-15E combat operations over Kosovo in 1998; assistant chief of weapons and tactics, chief of wing training and flight commander at Seymour Johnson Air Force Base in North Carolina, from which he responded to the Sept. 11, 2001 attacks; flew "numerous sorties destroying Taliban and Al Qaeda targets" in Iraq and Afghanistan; and since 2007 has served as assistant director of operations and F-15E weapons systems officer in the 366th Operations Support Squadron at Mountain Home Air Force Base, Idaho, according to his federal complaint.

Fehrenbach says his career altered dramatically on May 16, 2008, when his commander ordered him to the Air Force Office of Special Investigations (AFOSI) to talk with police officers from nearby Boise.

In that meeting, Fehrenbach says, Boise Police Department Det. Mike Vuchnich did not inform him of his right to remain silent, and that his statements could be used against him in court, a right protected by Article 31 of the Uniform Code of Military Justice.

Fehrenbach says the detective did not inform him that he already was working with the Air Force and would share the information from the interrogation.

"Instead, the detective continually emphasized the need for Lt. Col. Fehrenbach to tell the truth in light of the serious accusation," according to the complaint.

"During the interrogation, Detective Vuchnich indicated that he was interrogating Lt. Col. Fehrenbach because a male civilian had accused Lt. Col. Fehrenbach of sexual assault at Lt. Col. Fehrenbach's private residence approximately sixty miles from Mountain Home Air Force Base, while Lt. Col. Fehrenbach was off-duty," according to the complaint. "Lt. Col. Fehrenbach became very concerned about this serious and false accusation.

"Lt. Col. Fehrenbach also became very concerned about the potential for Air Force involvement in the detective's investigation and the potential effects on his Air Force career. Before responding to the accusation, Lt. Col. Fehrenbach stressed that he wanted to cooperate but repeatedly asked the detective if any information that he provided would be shared with military authorities. The detective did not inform Lt. Col. Fehrenbach that he was already working together with AFOSI and would share the information from the interrogation. Instead, the detective continually emphasized the need for Lt. Col. Fehrenbach to tell the truth in light of the serious accusation. The detective did not advise Lt. Col. Fehrenbach that he was recording the interrogation and that the recording would later be shared with AFOSI investigators.

"Compelled by the necessity of exonerating himself, Lt. Col. Fehrenbach explained to the detective that he had engaged in sexual conduct, but it had been consensual."

Fehrenbach claims the Air Force and the Boise police knew "that the civilian who ha(d) made the accusation was not a reliable or credible source of information. At the time he made those false statements, the civilian was already known by both the AFOSI and the BPD to have made similar false accusations against others in the past and to be unreliable and untrustworthy."

Fehrenbach adds: "Ultimately, the BPD, the Ada County Prosecutor's Office, the AFOSI, and the 366th Fighter Wing Office of the Staff Judge Advocate (366 FW/JA), all of which investigated the accusation against Lt. Col. Fehrenbach, found the sexual assault accusation to be meritless."

But four months after his interrogation, Fehrenbach says, he received notice of administrative discharge proceedings against him for engaging in homosexual conduct. He says the proceedings were initiated just one day after his superiors had recommended him for promotion.

Fehrenbach's complaint cites these comments from his superiors who recommended him for promotion on Sept. 11, 2008: "Superstar! Top 2% / 400+ officers' ... '#1 USAF Strike Fighter Instructor'; 'Top 5% of all [field grade officers]' ... Multiple kills vs Al-Qaeda, high-value Iraqi targets ... 'flawless results' ... 'best I've seen' ... Top-tier officer ... 'My #1 officer/aviator'... War hero, leader, 11 on a scale of 10! ... Best on my staff!'" (All ellipses except the first as in complaint.)

The Air Force wants to grant him an honorable discharge. Fehrenbach objects. He claims that the "knowledge of his private, off-base and off-duty sexual life has not negatively impacted morale, order, discipline or unit cohesion." To the contrary, he says: his discharge will "harm the readiness, morale and combat effectiveness of the military" and that, particularly during this time of war, the Air Force and the country need his service.

The complaint adds: "During the voir dire of the officers comprising the BOI [Board of Inquiry] who would evaluate Lt. Col. Fehrenbach's administrative discharge, all but one expressed the opinion, based on their personal moral and religious beliefs, that homosexuality is wrong. Despite those admitted biases, all were seated as members of the BOI.

"The government submitted no evidence at the BOI that retention of Lt. Col.

Fehrenbach would injure morale, order, discipline or unit cohesion."

Fehrenbach claims he was denied due process, that his Board of Inquiry "held preconceived notions about homosexuality that prevented them from rendering an impartial verdict;" that his discharge process was begun without "credible information;" that his own statements were obtained through coercion and in violation of military rules, specifically Article 31; that the Air Force, the Secretary of Defense and his commanding officers denied him equal protection because of his sexual orientation; and that they violated his First Amendment right to free speech and "expressive association."

He seeks a restraining order and injunction and wants the "'Don't Ask, Don't Tell' statute, 10 U.S.C. § 654, and regulations issued under it, including, but not limited to Air Force Instruction 36-3206, entitled Administrative Discharge Procedures for Commissioned Officers, (declared) on their face null and void as violating the United States Constitution."

Fehrenbach's lead counsel is M. Andrew Woodmansee with Morrison & Foerster of San Diego.

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