Law Change on Gays in the Military?
LtCol Victor Fehrenbach, a weapon system operator in the F-15E, is hoping the Secretary of the Air Force will rule against a board recommending his separation from the Air Force. Nearing retirement, Lt Col Fehrenbach will lose the right to serve long enough to be vested with a pension of nearly $50,000 a year for being identified as a homosexual.
Don’t Ask, Don’t Tell Law
Congressional hearings are slated this fall in both the House and the Senate to review the current law (10 USC § 654) upon which a review board judged Lt Col Fehrenbach and recommended his separation. The current “Don’t Ask, Don’t Tell” law holds the military society to a higher standard than the civilian community. The law cites fundamental differences from civilian life to include unit cohesion and numerous restrictions on personal behavior that “would not be acceptable in a civilian society.” The Law states those restrictions apply to a military member’s life 24 hours each day, whether on or off duty or whether on or off base. The reason the law uses a 24-hour clause is that military members must be ready for deployment and duty at all times.
Military Case Defense Theory
If LtCol Fehrenbach enjoyed the advice of military criminal defense attorneys for his show cause hearing, the defense theory must not have prevailed on the requirement for the government to prove that LtCol Fehrenbach’s personal actions interfered with his F-15 squadron’s good order and discipline. Additionally, the law states a member’s confession of homosexual tendencies for the purpose of termination coupled with an assessment that the member is need in the unit, may not be sufficient to justify his separation.
Burden of Proof
The defense theory, or strategy a military criminal defense attorney adopts, usually reflects the truth surrounding the incident. In this case, LtCol Fehrenbach’s off-base, after hours activities were reported to the military, probably with the full intention of getting him in trouble under the Uniform Code of Military Justice (UCMJ). Proving that his actions caused unit disruption is very difficult unless the military member admits such actions and his squadron members then become aware of and there is actual proof of disruption to good order and discipline.
Application of Military Law
The Secretary of Defense told reporters last month that he had asked his general counsel to look for ways to apply the law in “a more humane way.” An application of common sense when interpreting the law includes proving military unit disruption by private actions off base. All sexual activities in a deployed location are subject to UCMJ actions when discovered – even opposite sex activities. In the case of LtCol Fehrenbach, his own willingness to admit wrongdoing proved violation of 10 USC § 654, making the job of those seeking his discharge much easier. We do not know what legal advice he received, and we do not know the details of his hearing, because of Privacy Act protections on military personnel actions. But it seems that with a good defense theory based on his continued service being more valuable to the Air Force than the principal of prohibiting homosexuals from serving openly, he may have been able to save his military career.
