'Don't Ask, Don't Tell' Snags Decorated Veteran Air Force Aviator Lt. Col. Fehrenbach would be among highest-ranking officers outed under DADT.

WASHINGTON, Aug. 16, 2010 -- Air Force Lt. Col. Victor Fehrenbach has flown on dozens of combat missions over Iraq, Afghanistan and Kosovo as an F-15E Strike Eagle weapons officer. His commanders have called him a "war hero," "superstar" and "#1 officer/aviator."

But now Fehrenbach is flying into the fight of his career – this time in a federal courtroom and under fire from the military he's spent 19 years serving.

A U.S. Air Force panel has recommended Fehrenbach be discharged immediately under the military's "don't ask, don't tell" policy that bars openly gay and lesbian service members from the force. His attorneys are asking a federal judge to find the policy unconstitutional.

Fehrenbach is one of the highest-ranking military officers investigated for homosexual conduct. A discharge before September 2011 would cost him valuable military retirement benefits awarded to those who serve at least 20 years.

The case illustrates the continued threat of investigation and discharge for gay and lesbian service members, despite President Obama's desire to change the policy and Congress' initial steps toward a repeal.

The military investigation into Fehrenbach's sexuality was triggered in May 2008 when a civilian from Idaho accused Fehrenbach of sexually assaulting him. Police investigated the matter and later dismissed the charge as unfounded, acknowledging the accuser had a history of making false allegations.

Fehrenbach told police during an interrogation that he did have consensual sex with the man in the privacy of his home, 60 miles from the base. He did not know that military investigators were listening to his confession and obtained a recording of it.

Fehrenbach's lawyers argue he has never publicly said he's gay and kept his sexuality private as required under "don't ask, don't tell." They also argue Fehrenbach's conduct with a civilian in the privacy of his own home does not harm "morale, good order and discipline, and unit cohesion" in the military and that the government is unable to prove as much.

The Air Force has declined to comment on Fehrenbach's case while the charges are pending. But the Pentagon has made clear the "don't ask, don't tell" policy is still in effect and if someone outs themselves proceedings will continue.

Air Force Pilot Faces Discharge Over 'Don't Ask, Don't Tell'

In April, Defense Secretary Robert Gates announced new guidelines for how the military enforces "don't ask, don't tell," raising the bar on who can initiate an inquiry into allegations of misconduct by a gay or lesbian service member.

The changes included stricter scrutiny of information provided by third parties to military leaders, who, Gates said, "may be motivated to harm the service member."

While the modifications do apply to open and future cases, it's not clear how they might change the course of Fehrenbach's case, which relied initially on a third-party accusation.

"I have given my entire adult life to the Air Force that I love. 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," said Fehrenbach in a statement.

The Justice Department, Air Force and Fehrenbach's legal team have been negotiating a temporary stay on the impedning discharge to allow the legal case to play out in court, according to the Servicemembers Legal Defense Network, or SLDN, a gay advocacy group.

"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," said SLDN's Aubrey Sarvis. "Why and how the hell do we end up firing our best and brightest when we're fighting in two wars?"

Sarvis said the discharge of Fehrenbach could cost taxpayers $25 million in lost investment in training and education for an F-15 aviator.

The House included a conditional repeal of "don't ask, don't tell" in the annual defense spending package. The Senate is expected to consider the measure after the August recess.

The Pentagon Sunday concluded a voluntary survey sent to 400,000 military service members, polling their attitudes about possible changes to the policy regarding gays. Officials have estimated a 25 percent response rate. The results have not yet been released.