A lawsuit challenging the "don't ask, don't tell" law regarding gays in the military has been filed in federal court in Boise, seeking a temporary restraining order to keep a decorated Iraq veteran from being discharged from the military, and asking to declare the law unconstitutional. Click below for a full report from AP reporter John Miller.

Idaho aviator sues to block 'don't ask don't tell'
By JOHN MILLER, Associated Press Writer

BOISE, Idaho (AP) — A gay rights group wants a federal court in Idaho to block the U.S. Air Force from discharging an aviator under the "don't ask, don't tell" law that bars openly gay and lesbian military members from service.

Servicemembers Legal Defense Network filed its lawsuit Wednesday in federal court in Boise, asking for a temporary restraining order to stop the Air Force from discharging Lt. Col. Victor Fehrenbach until a full hearing can be scheduled. It also wants the law declared unconstitutional.

Fehrenbach, a 19-year military member who has been decorated for his combat valor in Iraq, disclosed he was gay in 2008 as he defended himself against allegations investigated by the Boise Police Department that he raped another man. Fehrenbach said he had sex with the man, but it was consensual.

He was cleared of the rape allegations, including by the Air Force Office of Special Investigations, which found them to be without merit, according to court documents filed Wednesday.

But he still faces ouster from the military.

Servicemembers Legal Defense Network indicated it filed its lawsuit because it believes Fehrenbach's discharge is imminent, following the recent review of his case by officials on the Air Force Personnel Board.

"Lt. Col. Fehrenbach could be discharged within days," the Washington, D.C.-based group said.

For two years now, Fehrenbach said he has been stuck at a desk, rather than being allowed to deploy as a weapons systems officer in an F-15E jet to combat theaters in Iraq or Afghanistan.

"I have been waiting more than two years for the Air Force to do the right thing by letting me continue to proudly serve my country," Fehrenbach said in a statement. "To say that I'm disappointed with where things stand would be a monumental understatement. I'm ready, willing, and able to deploy tomorrow, but I'm barred from deployment, because of this unjust, discriminatory law."

The policy prohibits the military from asking about the sexual orientation of service members but requires discharge of those who acknowledge being gay or are discovered to be engaging in homosexual activity.

The U.S. House of Representatives voted May 27 for repeal, and the Senate is expected to take up the issue this summer.

In July, lawyers for a GOP gay rights organization, the Log Cabin Republicans, asked a federal judge in California during a two-week trial to issue an injunction halting the military's ban on openly gay members.

Government lawyers urged the judge to let lawmakers decide.

A decision is pending, though Judge Virginia A. Phillips may wait to see if Congress acts.

Fehrenbach fears he'll be discharged before any changes.

For instance, an openly gay soldier was honorably discharged from the New York Army National Guard on July 22 under don't ask, don't tell.

"If discharged, Lt. Col. Fehrenbach will lose his job, income, right to pension (since he is being discharged approximately one year short of the twenty year mark), health and life insurance, and all other benefits associated with being an Air Force officer," according to court documents filed Wednesday.

He "will be terminated from a career which is central to his life and identity, and has been for nearly nineteen years," the documents said.

Attempts to leave an after-hours phone message for the U.S. Department of Defense were unsuccessful and an e-mail seeking comment from the agency wasn't immediately returned.

A press official at the Mountain Home Air Force Base also didn't answer a phone call from The Associated Press seeking a comment late Wednesday.

Fehrenbach is stationed at the facility, about 50 miles east of Boise, where he is assistant director of operations for the 366th Operations Support Squadron.

Copyright 2010 The Associated Press.