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DADT: Is the Witt Standard Alive and Well?

Over the very recent past, we have caught wind of the official discharges under Don’t Ask, Don’t Tell (DADT) of Dan Choi (US Army) and Robin Chaurasiya (US Air Force). While both received honorable discharges, as Kathy Griffin tried to convey, there is nothing honorable about discharging people from the military because they are gay.  One notable exception to the discharge list is Victor Fehrenbach.  Though his sexuality first came to light in 2008, LTC Fehrenbach is still serving this nation in the US Air Force.  I wish Choi, Chaurasiya and the thousands of others discharged merely for their sexuality were still in service but the current law and DoD policy has not allowed that.  Much like the real estate world, an item of note when examining Fehrenbach’s, Choi’s and Chaurasiya’s situations is location.   The true answer as to why Fehrenbach is still in service lies with the US Air Force but a supporting reason may be what is sometimes referred to as the Witt Standard.

In a recent US District Court case in California, Log Cabin Republicans v. The United States of America made numerous references throughout its proceedings to the Witt Standard.  The Witt Standard stems from Witt v. Department of the Air Force when Margaret Witt’s case was brought before the US Court of Appeals for the Ninth Circuit.   Part of the Ninth Circuit’s decision in looking at Margaret Witt’s discharge under DADT, which is now referred to as the Witt Standard, says the government has to show that a gay or lesbian’s presence (in this case, Maj. Witt’s) constitutes a threat to unit readiness and cohesion.  Since the Ninth Circuit only has jurisdiction over matters in the Western United States, the Witt Standard has barely seen the light of day in protecting gays and lesbians in the military…or has it?

The Ninth Circuit’s jurisdiction can be seen on this map, and includes the state of Idaho.  When Victor Fehrenbach’s case came to light back in May 2008, he was stationed in Mountain Home Air Force Base, Idaho.  The Witt Standard was delivered in the 9th Circuit decision on May 21, 2008, only days after the initial inquiry into Fehrenbach’s case began.  According to the Air Force Times, it wasn’t until September 2008 that his commanders determined Fehrenbach violated the DADT policy.  As noted in his July 15th, 2010 interview with Rachel Maddow, Fehrenbach will reach 19 years of service next month and continues to successfully serve in the US Air Force.  Whether protected by the Witt Standard or the slow bureaucracy of the Pentagon, every day that passes is a day closer to his retirement.

With the recent and continued discharges of gays and lesbians from the US military, it is clear the Witt Standard is not applied across the military.  Based on the Ninth Circuit’s decision, the US Government is under no legal obligation to apply that standard universally.  While the threat of discharge because of how one is born is unspeakable,  at least the continued awareness of cases like Fehrenbach, Choi and Chaurasiya gives us a better chance of righting this wrong known as DADT- an embarrassment that has been the law of the land for 17 years.