The high powered campaign for gays in the military has stalled in Congress, and the Obama Administration (so far) has refused to suspend enforcement of the 1993 law, which is usually mislabeled “Don’t Ask, Don’t Tell.” Trying to raise the temperature on the issue, advocates have shifted their focus to the human interest stories of a few military members who were found ineligible for service due to homosexual conduct.
One of these men, Air Force Lt. Col. Victor Fehrenbach, is an 18-year F-15 weapons systems officer (WSO) who is protesting a pending honorable discharge resulting from his admission of homosexual conduct. In recent months the story of Lt. Col. Fehrenbach has been promoted by the Washington Post, Air Force Times, and the left-leaning Center for American Progress (CAP). But on August 23, the Idaho Statesman published an investigative report about the aviator’s case that revealed a sordid story relevant to the national debate.
Prior to the Statesman report, advocates and media sympathizers claimed that it would be unfair to discharge Fehrenbach because he had been “outed” by a “third party.” Now we know that the “third party” was Cameron Shaner, a criminal justice student claiming Air Force authorization to investigate alleged “HIV parties” involving military personnel. (The Air Force Office of Special Investigations denied Shaner’s claims.) Shaner told the Boise police that he met Victor Fehrenbach through a gay website, and he had gone to the aviator’s home on May 12, 2008, after Fehrenbach sent him a text-message invitation and “stud” photographs.
According to the police report, Shaner did not explain why he “got naked” with Fehrenbach in a hot tub. At 3 a.m. Shaner called Boise police to report a sexual assault. Fehrenbach asserted that the encounter was consensual and was cleared of the rape charge, but his admission of homosexual conduct triggered discharge proceedings. Under the 1993 law, persons who engage in homosexual conduct at any time, on- or off-base, are not eligible for military service.
Lt. Col. Victor Fehrenbach deserves respect for participating in the 2003 liberation of Baghdad. The fact remains that despite provisions of the UCMJ (Article 131), which impose higher standards for “officers and gentlemen,” Fehrenbach showed very poor judgment. Air Force disciplinary records are not available, but his lawyers, provided by the activist Servicemembers Legal Defense Network, apparently did not challenge the Boise police report.
Instead, the SLDN has posted on their website videos of Fehrenbach TV appearances and a petition supporting his retention. (Defense Department figures provided to the 1992 presidential commission on which I served estimated training costs for fighter or bomber pilots to be $3.1 million — nowhere near the $25 million for Fehrenbach’s training that the SLDN petition claims.)
SLDN lawyer Emily Hecht told the Idaho Statesman, “Because of the criminal allegation, Victor confirmed the fact he was gay. That’s all the Air Force needed. Had his accuser been a woman, he’d have gone back to work with no further issue.” (Dozens of former naval aviators whose careers were ruined by the 1991 Tailhook scandal, even without evidence of misconduct, certainly would disagree.)
Consider what would happen if a military officer posted nude photographs of himself and used Craigslist to obtain sex from an unknown woman who subsequently accused him of rape. Even if assault never happened, under the UCMJ, that man’s career would be over. Fehrenbach and his allies are demanding special treatment just because his conduct was homosexual rather than heterosexual.
The same activists demand repeal of what they call “antiquated” rules governing personal sexual conduct. Legislation to impose a new “LGBT Law” (H.R. 1283) would mandate acceptance of lesbians, gays, and bisexuals,“whether real or perceived,” in all branches and communities of the military. Make the UCMJ consistent with the proposed LGBT Law, and “antiquated” personal conduct regulations would become a thing of the past, defining military discipline down.
The Fehrenbach story and others like it presage the type of demoralizing turmoil that the armed forces would have to face if Congress repeals the 1993 law. False allegations of rape are very bad; truthful ones are even worse. The armed services work hard to encourage discipline and mature behavior, but adding male/male and female/female sexual tension and incidents to those that already occur would weaken military culture and encourage more indiscipline, not less.
In June, Defense Secretary Robert Gates suggested he would consider a more “humane” way to enforce the law, possibly in cases when a “third party” “outs” the military person. Gates should consider whether such a policy might create perverse incentives for such revelations, making it necessary to accommodate openly-gay persons who remain ineligible for military service. It would help to drop Bill Clinton’s “Don’t Ask, Don’t Tell” administrative policy, and to provide the text of the law and its legislative history to all responsible officials and potential inductees.
There is no reason for Secretary Gates to violate his oath of office by circumventing or redefining the 1993 law. Lt. Col. Fehrenbach is not a “victim” of anything but his own poor judgment. His admitted misconduct supports retention of current law, not its repeal.
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