Gay Air Force Pilot Reaches Deal on Discharge

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AP / CBS
Updated at 1:10 a.m. ET

An aviator has reached an agreement with the U.S. Air Force to temporarily block his discharge under the "don't ask, don't tell" law that bars openly gay and lesbian military members from military service.

The Servicemembers Legal Defense Network says an agreement reached in federal court Monday prevents the Air Force from discharging Lt. Col. Victor Fehrenbach until a hearing on a court order to stop his ouster from the military is held.

The servicemembers advocacy group, which seeks equal treatment of gays in the military, is representing Fehrenbach in his legal fight to keep his job and filed a federal lawsuit on his behalf last Wednesday.

The case was filed in Idaho, where Fehrenbach is stationed at the Mountain Home Air Force Base, and asked for a temporary restraining order to stop the Air Force from discharging Fehrenbach until a full hearing can be scheduled.

It also wants the law declared unconstitutional.

Fehrenbach's case is still under review at the Air Force Review Boards Agency.

The new agreement stipulates that if Air Force officials formalize their decision to discharge Fehrenbach after reviewing his case, the military has to wait 21 days before they execute such a decision, according to court documents.

This three-week window will allow time for a both sides to make their case at a court hearing on a preliminary injunction to halt the discharge, said M. Andrew Woodmansee, lead counsel for Fehrenbach.

"We are pleased that the Air Force has agreed to preserve the status quo until we can have a full hearing," he said.

Fehrenbach, 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 sexually assaulted 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.

But he still faces ouster from the military under the "don't ask, don't tell" policy.

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.

Servicemembers Legal Defense Network indicated it filed its lawsuit on behalf of Fehrenbach last week because the group believes his discharge is imminent, Air Force officials review his case.