Fehrenbach v. Department of the Air Force et al

Filing 2

APPLICATION for Temporary Restraining Order and Preliminary Injunction ( Responses due by 9/7/2010)M Andrew Woodmansee, Jessica A Roberts, James J Cekola, Aramide O Fields appearing for Plaintiff Victor J Fehrenbach. (Attachments: # 1 Memorandum of Points and Authorities in Support of Application fro Temporary Restraining Order and Preliminary Injunction, # 2 Declaration of M. Andrew Woodmansee in support of Application for Temporary Restraining Order and Preliminary Injunction, # 3 Declaration of Lieutenant Colonel Victor J. Fehrenbach in support of his Application for Temporary Restraining Order and Preliminary Injunction, # 4 Certificate of Service)

M. ANDREW WOODMANSEE (CA SBN 201780) mawoodmansee@mo fo.com ARAMIDE O. FIELDS (CA SBN 239692) afields@mo fo.com JAMES J. CEKOLA (CA SBN 259443) jceko la@mo fo.com JESSICA A. ROBERTS (CA SBN 265570) jroberts@mo fo.com MORRISON & FOERSTER LLP 12531 High Bluff Drive, Suite 100 San Diego, CA 92130-2040 Telephone: [phone] Facsimile: 858.720.5125 AARON D. TAX (DC SBN 501597) [e-mail] JOHN GOODMAN (DC SBN 383147) [e-mail] SERVICEMEMBERS LEGAL DEFENSE NETWORK P.O. Box 65301 Washington, DC 20035-5301 Telephone: [phone] ext. 10 Facsimile: 202.797.1635 Attorneys for Plaintiff LIEUTENANT COLONEL VICTOR J. FEHRENBACH UNITED STATES DISTRICT COURT DISTRICT OF IDAHO LIEUTENANT COLONEL VICTOR J. FEHRENBACH, Plaint iff, v. DEPARTMENT OF THE AIR FORCE; ROBERT M. GATES, Secretary of Defense; MICHAEL B. DONLEY, Secretary, Department of the Air Force; LT. GENERAL GLENN SPEARS, Twelfth Air Force Commander; and COL. RONALD BUCKLEY, 366th Fighter Wing Commander, Defendants. Case No. DECLARATION OF LIEUTENANT COLONEL VICTOR J. FEHRENBACH IN SUPPORT OF HIS APPLICATION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

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I, Victor J. Fehrenbach, declare: 1. I am a citizen of the United States and I currently reside in Boise, Idaho. I am

stationed at Mountain Home Air Force Base in Mountain Home, Idaho. 2. I am honored to serve the United States as a Lieutenant Colonel in the United

States Air Force. I am currently an active duty Air Force officer assigned as Assistant Director of Operations in the 366th Operations Support Squadron. 3. I am trained, and have primarily served, as a Fighter Weapons Systems Officer,

flying the F-15E Strike Eagle, the Air Force's most advanced ground attack strike fighter which has played an important role in operations in Iraq and Afghanistan. 4. From an early age, I knew that I wanted to join the United States Air Force. My

father retired as a Lieutenant Colonel in the Air Force. In fact, I was born on a United States Air Force Base. For me, serving in the Air Force is not just a job. It has been my calling and is my "way of life." I attended the University of Notre Dame in South Bend, Indiana on a four-year Air Force Reserve Officers Training Corps ("ROTC") scholarship. 5. After graduating from the University of Notre Dame, I entered active duty service

in September 1991. Consequently, this year marks my nineteenth year as an active duty officer in the United States Air Force. 6. times. 7. My performance as an officer in the United States Air Force has consistently During my nearly 19-year career, I have deployed to major combat operations six

earned me high praise and stellar reviews. True and correct copies of my performance reviews during my career and a draft promotion recommendation from 2008 are attached hereto as Exhibits 1 through 15.

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8.

As an Air Force Officer, I have had many distinctions bestowed upon me. My

service has earned me one Meritorious Service Medal, nine Air Medals, five Commendation Medals, one Navy and Marine Corps Commendation Medal, and several other Combat Campaign and Achievement Medals. True and correct copies of the citations accompanying those medals are attached hereto as Exhibits 16 through 23. 9. The United States Air Force awarded me one of my nine Air Medals in 2003 for

heroism while participating in aerial flight and destroying enemy ambush targets under heavy enemy fire during Operation IRAQI FREEDOM. A true and correct copy of the 2003 USAF Air Medal for heroism is attached hereto as Exhibit 24. 10. On May 16, 2008, my Commanding Officer ordered me to accompany him to the

Air Force Office of Special Investigations ("AFOSI") at Mountain Home Air Force Base without telling me the purpose of the visit. During the trip to the AFOSI headquarters, I asked my Commander whether I was being accused or investigated for anything, and that if I was, I wanted to consult a lawyer first and have a lawyer present for questioning. Despite that request, my Commander declined to state the purpose of the meeting and issued a direct order, requiring me to accompany him to AFOSI headquarters. He brought me directly to AFOSI headquarters. 11. At that time, I did not know that AFOSI agents had requested that a Boise Police

Department ("BDP") detective come to AFOSI's office to interrogate me about my private life. I later learned that the AFOSI and the BDP had init iated an investigation of me based on a false claim of sexual assault by a male civilian. 12. No criminal charges were ever pressed against me by the Ada County District

Attorney or AFOSI, but the BDP detective intruded into my private life by asking me questions about my sexual history that were irrelevant to the alleged encounter with the civilian.

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13.

I later found out that the civilian in question had made the false allegations against

me after we engaged in consensual sexual relations at my private off-base residence on May 12, 2008. 14. Neither before, nor during, my interrogation did anyone read to me my rights

Under Article 31 of the Uniform Code of Military Justice ("Article 31"). Prior to being interrogated, I was not advised of the Department of Defense policy on homosexual conduct, and I was not told that I was being investigated under "Don't Ask, Don't Tell." 15. Alt hough I requested an attorney at least twice before the actual questioning

commenced, my requests were ignored. 16. I did not know that the interrogation was being observed by AFOSI agents, and I

also did not know that the interrogation was being recorded by the detective and that he later would provide a copy of the recording to the AFOSI. 17. On September 12, 2008, I received an Air Force Memorandum from Lieutenant

General Norman Seip, (former) Twelfth Air Force Commander, indicat ing that Lt. Gen. Seip had initiated administrative discharge proceedings against me for engaging in "homosexual conduct" at or near Boise, Idaho, on or about May 12, 2008. A true and correct copy of the September 12, 2008 Memorandum from Lt. Gen. Seip is attached hereto as Exhibit 25. 18. Fo llowing this Memorandum, Lt. Gen. Seip ordered on December 8, 2008, that a

Board of Inquiry ("BOI") be convened in order to make recommendations as to whether I should be retained on active duty. 19. An administrative BOI convened on April 14 and 15, 2009 to consider whether I

should be retained on active duty. During voir dire, four out of the five members of this BOI acknowledged having "moral or religious convictions" that made them believe that "homosexual

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conduct is wrong." Nonetheless, those members were seated on the Board hearing my case. During the Board proceedings, the Air Force did not produce any evidence whatsoever to support the claim that my continued service would be detrimental to good order and discipline, morale, and unit cohesion. Despite this lack of evidence and despite the fact that no one in my squadron or on my base (with the exception of my chain of command, legal, and AFOSI personnel) knew of the nature of the charges against me, the members of the Board made a finding that my continued service would be detrimental to good order and discipline, morale, and unit cohesion. On April 15, 2009, the members of this BOI recommended that I be discharged from the military. True and correct copies of relevant excerpts from the BOI hearing transcript are attached hereto as Exhibit 26. 20. Since that time, I have continued to serve on active duty and I report for daily

work at the Mountain Home Air Force Base. My colleagues have remained professional and respectful towards me, and I have continued to receive high ratings on my performance reviews. A true and correct copy of my latest performance review is attached hereto as Exhibit 14. 21. However, on August 4, 2010, my counsel was informed that the Air Force

Personnel Board (AFPB) had met and made a recommendation to Secretary Donley's designee, Mr. Joe Lineberger. Pursuant to Air Force regulations, a recommendation by the AFPB that I should be retained would not need to go to the Secretary or his designee. 22. I do not wish to be dis