'Don't Ask, Don't Tell' Snags Decorated Veteran Air Force Aviator

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.

VIDEO: The Pentagon softens its policy regarding gays in the military.

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.

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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.

Video of Defense Secretary Robert Gates on dont ask dont tell.
Don't Ask Don't Tell: Pentagon Adjusts Approach to Outing Gays in Military

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.

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