Gay Air Force aviator files injunction to block 'Don't Ask' discharge

A highly decorated gay Air Force aviator whose pending discharge under “Don’t Ask, Don’t Tell” has been highly publicized has filed an injunction in federal court to prevent his expulsion from the U.S. military.

Servicemembers Legal Defense Network and Morrison & Foerster LLP filed a request for a temporary restraining order on Wednesday on behalf of Lt. Col. Victor Fehrenbach, according to a statement from SLDN. The injunction is pending before the U.S. District Court in Idaho.

In a statement, Fehrenbach, who, according to SLDN, is 13 months away from retirement, said he’s been waiting more than two years for the U.S. military to “do the right thing” and allow him to continue his service.

“I have given my entire adult life to the Air Force that I love,” Fehrenbach said. ”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.”

The injunction was filed after the General Counsel’s Office to the Secretary of the Air Force reportedly reviewed Fehrenbach’s case and sent a recommendation to Air Force Secretary Michael Donley. Without action by Donley, Fehrenbach could be discharged within days, according to SLDN.

In a statement, Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, urged Donley to employ the new regulations for “Don’t Ask, Don’t Tell” implemented earlier this year to keep Fehrenbach in service.

“Lt. Col. Fehrenbach signed up nearly 19 years ago willing to risk all and die for his country, flying nearly 90 combat missions in Iraq, Afghanistan, and Kosovo,” he said. ”Why and how the hell do we end up firing our best and brightest when we’re fighting in two wars?”

Sarvis said Fehrenbach’s discharge would “dramatically underscore that ‘Don’t Ask, Don’t Tell’ is still the law and all gay and lesbian service members should be on notice.”

The request asks the court for a restraining order to prevent the irreparable injury caused by discharging Fehrenbach until a more complete hearing on his case, arguing the U.S. government cannot establish that his continued service hinders “morale, good order and discipline, and unit cohesion.”

According to SLDN, the injunction is the first case to challenge a “Don’t Ask, Don’t Tell” discharge using the standard reached in the 2008 U.S. Ninth Circuit Court of Appeals ruling in Witt v. Air Force, which held that a plaintiff couldn’t be discharged from the U.S. military without proof that her presence was a detriment to unit cohesion.