Wednesday, August 26, 2009

Gay USAF Lt. Col. Victor Fehrenbach Not Adequately Covered By "Don't Ask, Don't Tell"; Did Not Disclose Homosexuality For Gratuitous Purposes


On August 23rd, 2009, the Idaho Statesman published an article entitled "Gay Boise Air Force Pilot 'outed' by false accusation". It is an account of the struggle of USAF Lt. Col. Victor Fehrenbach to remain in service until his retirement, even though he voluntarily disclosed his homosexuality. Since this is neither a new story, nor have there been any new developments in this case, the reason for the Statesman's attention at this time is unclear.

Lt. Col. Fehrenbach is a Notre Dame grad who has served in the U.S. Air Force since 1991. His closest brush with death occurred on April 3rd, 2003, when he flew his F-15E toward an Iraqi ambush site about a mile from U.S. Army troops advancing on Baghdad airport. Fehrenbach faced anti-aircraft fire, surface-to-air missiles and a mechanical problem on his wingman's plane. Still, he destroyed the enemy position and helped clear the way for the Army to take the airport that night. For his heroism, he earned an Air Medal with a valor device, one of his nine Air Medals to go along with five Commendation Medals, all reflecting over 2,180 hours of military flight time, including patrolling Washington, D.C., after 9/11; and a total of 400 hours combat flight time over Iraq, Afghanistan and Kosovo.

This is an officer who any airman would want to follow into combat.

But Lt. Col Fehrenbach is gay. Certainly, he knew when he signed on that the USAF frowned on homosexual conduct. But after President Bill Clinton, in response to excessive and arbitrary witch-hunting of gays by the military, instituted "Don't Ask, Don't Tell" after taking office, Fehrenbach understandably got the idea that if he was discrete and kept his mouth shut, he could continue to serve, even unto retirement.

And this strategy worked - until May 12th, 2008. Lt. Col. Fehrenbach was (and is) serving at Mountain Home AFB in Idaho. Fehrenbach had met 30-year-old Cameron Shaner on a gay website and invited him to his southeast Boise home, where they ended up having consensual sex. Or at least Fehrenbach though it was consensual, since Shaner had given every possible sign that it was consensual. 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.

So imagine Fehrenbach's surprise when Boise Police contacted him soon afterward and accused him of rape. Shaner had called Boise Police to report a sexual assault shortly before 3 A.M. on May 12th, 2008, and named Fehrenbach as the assailant. An outraged Fehrenbach was anxious to clear his name, and cooperated fully. But then a thought occurred to him...would word of the police investigation, and his admission of engaging in consensual homosexuality, make it back to his base? Detective Mark Vucinich said yes, his employer had a right to see his statement.

Fortunately, Fehrenbach was soon cleared by police and the Ada County prosecutor's office. The Air Force Office of Special Investigations (AFOSI) subsequently found no violation of the Uniform Code of Military Justice (UCMJ). AFOSI concluded that Fehrenbach and Shaner had consensual sex, and that Shaner was an unreliable source of information (Shaner suffers from post-traumatic stress disorder from his three years' service in the U.S. Army).

Unfortunately, even though AFOSI had found NO violation of the UCMJ, the Air Force still decided that Fehrenbach's admission of consensual gay sex was still a violation of the "Don't Ask, Don't Tell" law. As a result, the Air Force notified him in September 2008 that he would be discharged after 18 years of service, costing him a $46,000 annual pension and the dignity of retiring on his own terms. Fehrenbach was willing to compromise; he would agree to leave, taking a lump sum $80,000 severance check if they would give him an honorable discharge. But Cameron Shaner, angry that there would be no prosecution, wouldn't go away and was pressing the Air Force for a dishonorable discharge. So the Air Force is pressing for a separation on its own terms.

Capt. Jennifer Ferrau, a spokesperson for Air Combat Command, under which Mountain Home AFB is aligned, attempted to clarify this issue. Capt. Ferrau states that the phrase "Don't Ask, Don't Tell" is misleading, and affirmed that Lt. Col. Victor Fehrenbach is being discharged for homosexual conduct. "The commonly referred to 'don't tell' part of the law does not mean military members are permitted to engage in homosexual conduct as long as they 'don't tell' about same," Ferrau said.

The Idaho Statesman has thoughtfully provided a link to the "Don't Ask, Don't Tell" law HERE. Here is the most relevant portion in this case, complete with my suggested modification in red which would protect people like Lt. Col. Fehrenbach:

(b) Policy.--A member of the armed forces shall be separated from
the armed forces under regulations prescribed by the Secretary of
Defense if one or more of the following findings is made and approved in
accordance with procedures set forth in such regulations:
(1) That the member has engaged in, attempted to engage in, or
solicited another to engage in a homosexual act or acts UNLESS there
are further findings, made and approved in accordance with
procedures set forth in such regulations, that the member has
demonstrated that--
(A) such conduct is a departure from the member's usual and
customary behavior;
(B) such conduct, under all the circumstances, is unlikely
to recur;
(C) such conduct was not accomplished by use of force,
coercion, or intimidation;
(D) under the particular circumstances of the case, the
member's continued presence in the armed forces is consistent
with the interests of the armed forces in proper discipline,
good order, and morale; and
(E) the member does not have a propensity or intent to
engage in homosexual acts.

-- My suggested additional exception:
(F) the member voluntarily discloses consensual homosexual
acts in the course of a criminal investigation or an approach
by a foreign intelligence service, so long as no fraternization
between an officer and enlisted person occurred.


Adding subparagraph (F) would protect Lt. Col. Fehrenbach because he did NOT disclose his homosexuality for gratuitous purposes, namely, to promote the cause of homosexuality, but merely to clear his name in a criminal investigation. In addition, military personnel threatened with blackmail by a foreign intelligence service should be free to report such attempts without risking being chaptered out for consensual homosexuality. I also include the "fraternization" clause because fraternization between officer and enlisted is discouraged, and should remain so.

Although Barack Obama favors getting rid of "Don't Ask, Don't Tell", that would be too drastic of a step. Would we want to risk having "Folsom Street Fairs" on our military installations? Absolutely not. Merely reforming the existing policy to make it more fair would be sufficient. Besides, homosexuality in principle should still be considered incompatible with military service.

But dumping a decorated officer two years short of retirement simply because he cooperated in a criminal investigation is WRONG, WRONG, WRONG!!! Lt. Col. Fehrenbach deserves to be retained and allowed to serve his full 20 - or even beyond, if he so desires.

As of this post, Lt. Col. Fehrenbach is still on duty at Mountain Home AFB as assistant director of operations for the 366th Operations Support Squadron, a job typically held by an officer of his rank. He no longer is on active flight status. Fehrenbach has said he expects to be discharged this fall before reform takes place, but hopes to rejoin the service if the law is repealed. He was advised by the Servicemembers Legal Defense Network (SLDN) not to comment for this story because the Statesman is the first to report the underlying events that prompted his pending discharge.

Visit the SLDN's petition page for Lt. Col. Fehrenbach HERE. Watch Lt. Col. Fehrenbach's MSNBC interview HERE, and visit his Facebook page HERE.

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