Just in from SLDN:

 

BREAKING UPDATE:

 

U.S. Dept. of Justice, U.S. Air Force Reach Federal Court Agreement with Lt. Col. Victor Fehrenbach

 Highly decorated combat Air Force Aviator filed injunction in Federal Court to block “Don’t Ask, Don’t Tell” discharge

 

WASHINGTON, D.C. – Servicemembers Legal Defense Network (SLDN) and Morrison & Foerster LLP, representing their client, Lt. Col. Victor Fehrenbach, reached an agreement today with the U.S. District Court for the District of Idaho, U.S. Department of Justice, and the U.S. Air Force, on the pending request for a temporary restraining order.  The agreement prevents the Air Force from discharging Lt. Col. Fehrenbach under “Don’t Ask, Don’t Tell” (DADT), the discriminatory law barring gay and lesbian service members from serving openly and honestly, until the Court can schedule a hearing on the motion for a preliminary injunction.  Attorneys for Lt. Col. Fehrenbach filed a motion in U.S. District Court for the District of Idaho last Wednesday seeking 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.” 

 

Statement by Morrison & Foerster’s M. Andrew Woodmansee:

 

“This is exactly what we asked the Court to do in our motion on Wednesday, and we are pleased that the Air Force has agreed to preserve the status quo until we can have a full hearing.  Of course, we continue to hope that the Air Force will do the right thing and let this war hero continue to serve this country.”

 

Statement by Servicemembers Legal Defense Network Executive Director and Army Veteran Aubrey Sarvis:

 

“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.  This agreement is a victory for Lt. Col. Fehrenbach and our nation.  The Air Force can still do the right thing and retain Lt. Col. Fehrenbach under the Pentagon’s own revised regulations on ‘Don’t Ask, Don’t Tell.’  The Senate needs to act next month to get rid of this antiquated law that dishonors some of our finest and most talented service members.”

 

To read the agreement as filed in U.S. District Court for the District of Idaho visit: http://bit.ly/doM7Q9
 

This agreement was reached based on the following circumstances presented by Fehrenbach's counsel: 

         On March 25, 2010, Secretary of Defense Robert Gates and JCS Admiral Michael Mullen issued new Instructions with the goal of making the implementation of “Don’t Ask, Don’t Tell” more “humane.”  The Air Force followed by updating its own instructions, including AFI 36-3208, Administrative Discharge Procedures For Commissioned Officers, on April 2, 2010.  An Guidance Memorandum states, “[t]he changes set forth in this Guidance Memorandum are effective immediately and shall apply to all fact-finding inquiries and separation proceedings open on or initiated on or after 25 March 2010.”  Because Lt. Col. Fehrenbach’s separation proceedings are still open, the new instructions apply to the facts of his case.  In revising their “Don’t Ask, Don’t Tell” Instructions the Department of Defense and the Air Force raised the bar on so-called third party outings, by strengthening the “credible information from a reliable source” standard of proof necessary to start an investigation.  The revised Instructions now define a “reliable person” as “s
omeone who would be expected, under the circumstances, to provide accurate information.”  The revised Instructions go on to state that an example of an unreliable person is “[a] person with a prior history of untruthfulness or unreliability.”  And they also now say the commanders must examine “the source of the information, and the circumstances under which the information was obtained….”  Lt. Col. Fehrenbach’s accuser was known to have a prior history of untruthfulness and unreliability.  Given the source of the information and the circumstances under which it was obtained, Lt. Col. Fehrenbach should be retained.

 

         The investigation of Lt. Col. Fehrenbach was also improper and in violation of Air Force instructions in effect at the time the Air Force launched its “Don’t Ask, Don’t Tell” investigation, because it was never based on credible information from a reliable source.  Pursuant to then-current AFI 36-3206, Administrative Discharge Procedures For Commissioned Officers, § A2. 1.1, “[a] commander may initiate a fact-finding inquiry only when he or she has received credible information that there is basis for discharge.”  Under § A2.3.4, credible information was defined as when a “reliable person” came forward with evidence that a service member had violated “Don’t Ask, Don’t Tell.”  Lt. Col. Fehrenbach’s accuser was viewed by authorities as “unreliable,” having “a history of false reporting,” and “not a credible witness.”  Even under this weaker standard, the false allegation made by an unreliable witness could never be considered “credible,” and the investigation of Lt. Col. Fehrenbach should have been terminated.

·         Witt v. Department of the Air Force, 527 F.3d 806 (9th Cir. 2008) requires that prior to discharging Lt. Col. Fehrenach under “Don’t Ask, Don’t Tell,” the government must put forth evidence showing that as-applied to Lt. Col. Fehrenbach: 1) the government advances an important governmental interest, 2) that the intrusion into his private life significantly furthers that interest, and 3) that there are no less intrusive means to substantially achieve the government’s interest.  The Witt decision is currently binding case law in the 9th Circuit, home of Mountain Home Air Force Base, where Lt. Col. Fehrenbach is stationed.