11 August 2010

BREAKING: Lt. Col. Fehrenbach Files TRO To Stop his DADT Expulsion!

Servicemembers Legal Defense Network (emphasis added):

Servicemembers Legal Defense Network (SLDN) and Morrison & Foerster LLP (MoFo) filed a request for a temporary restraining order on behalf of their client, Lt. Col. Victor Fehrenbach, seeking to block the Air Force from discharging him under “Don’t Ask, Don’t Tell” (DADT), the discriminatory law barring gay and lesbian service members from serving openly and honestly. The filing in the United States District Court for the District of Idaho, seeks 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.”

The General Counsel’s Office to the Secretary of the Air Force confirmed to MoFo and SLDN that the Air Force Personnel Board recently reviewed Lt. Col. Fehrenbach’s case and has sent a recommendation to Air Force Secretary Michael B. Donley’s designee. According to Air Force regulations, had the Board recommended to retain Lt. Col. Fehrenbach no further action would have been required by the Secretary or his designee (AFI 36-3206 Chapter 6.10 and Chapter 6.10.1). Although SLDN and MoFo understand the Secretary has delegated his authority to act on the Board’s recommendation, Secretary Donley has the power to step in and retain Lt. Col. Fehrenbach. Without action by the Secretary, the Board’s recommendation is expected to stand and Lt. Col. Fehrenbach could be discharged within days.

A request for a temporary restraining order asks the court to prevent irreparable injury to the plaintiff and preserve the status quo until a more complete hearing can be held on the merits of the case. If the court grants the request, the Air Force will be prevented from discharging Lt. Col. Fehrenbach until a full hearing can be scheduled. The Fehrenbach case is among the first to challenge a discharge under DADT by applying the so-called Witt standard. In the case of Air Force Maj. Margaret Witt, the United States Court of Appeals for the Ninth Circuit – which governs the District of Idaho – held that discharging a service member violates the Constitution unless: (1) the government advances “an important governmental interest;” (2) the government shows the intrusion “upon the personal and private li[fe]” of a service member “significantly furthers that interest;” and (3) the government shows the intrusion is “necessary to further that interest.”

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