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   >>> here's the way it works now if you are a u.s. air force pilot getting fired by your commander in chief, barack obama , from the military under the don't ask, don't tell policy. here's how it works. whether somebody outs you or you out yourself, whether the accusation is true or not, your case goes to a review board . that review board makes a recommendation on whether or not you should be fired, and if you are a particularly high-ranking person being fired from the military by barack obama because uruguay, that recommendation will go to, if you're in the air force , it will go to the office of the secretary of the air force . at that point, once the recommendation is received, the clock starts ticking. there's a ten-day period, a ten-day window for one of three things to happen. the secretary of the air force can reject the review board recommendation and say, no, actually this person is going to stay in, we are not going to separate them from the military because of this policy. that's one option. or the secretary of the air force could accept the recommendation and say, yes, all right, we're going to kick that person out. or the secretary of the air force could do nothing, in which case the review board decision stands and the person still gets kicked out. that ten-day ticking time bomb has been tick, tick, ticking since at least a week ago now for lieutenant colonel victor ferinback. he and his lawyers learned that that review board recommendation was at the office of the secretary of the air force last wednesday. we don't know exactly when it was sent there and when the ten-day ticking started, but we know we're well into it. and that means unless drastic action is taken, lieutenant colonel victor fehrenbach is in his last day or two of of of his career. but he has told us multiple times on this show he is fighting back weather thyme with a legal case to try to block the air force from firing him, on the front page of "the new york times" right now. joining us in his first tv interview since filing the lawsuit is the lieutenant colonel and he's appearing for the first time on this show with his lawyer. gentlemen, thanks very much for joining us tonight.

   >> thank you, rachel .

   >> thank you, rachel .

   >> colonel, let me start with you. i know you received word last wednesday that your case had been sent to the secretary of the air force with a recommendation. is it your understanding that that means the recommendation is almost surely that you should be separated from the military?

   >> that is our understanding, rachel , because the way the regulation reads, if the personnel review board decided to retain me, then there'd be no reason for my case to be forwarded to the secretary of the air force . the only reason it would be forwarded to the secretary was for a recommendation of discharge so as you mentioned, he could agree with that action by signing off on it, let it happen on its own, dor the right thing and apply the new enforcement standards and retain me, which we still hope is the case.

   >> by applying the new standards, those reflect the new restrictive interpretation of don't ask, don't tell implemented by secretary gates, and you believe that that -- that interpretation of the don't ask, don't tell rule should have excluded you from being fired in this case.

   >> absolutely, rachel , and when the secretary announced these new standards in march, he said that they did apply to open cases, and my case is still open to this date. and those -- each one of those factors that he announced applies to my case, and if they don't apply to my case, then, rachel , they don't apply to any they do take this opportunity to apply those new enforcement standards and also, as my lawyer will talk about, the law of the land in the ninth circuit, we hope they take the opportunity to follow the law and to follow the new enforcement standards that they, themselves, announced.

   >> well, drew, let me ask you about that with the whit standard. i mean, what's going on right now legally is don't ask, don't tell has been in place for 17 years. its expected repeal is coming through the policy process, not through the courts. what is it that makes you think victor , colonel fehrenbach, has a shot at stopping this policy legally?

   >> well, rachel , part of it has to do with the man's stroords record. he's a war hero . he's been recognized by the air force as a war hero . his record is so extraordinary the air force has zero in evidence the record that would warrant him under don't ask, don't tell. the case the colonel just referred to was decided in 2008 by the ninth circuit. prior to the case, the burden was on the service member to show that his remaining in the air force was not a detriment to morale, good order, and cohesion of the unit. now, after whit, the burden is on the air force to come forward with air force and to meet its heavy burden of proof to show that retaining him would, in fact, harm morale, would actually harm the unit, and the in evidence the record is quite clear that retaining him is great for the unit, great for the air force . his 2010 officer performance report from february 2010 specifically said that he, quote, raised morale. and when you apply the whit standard and against that record, it is clear that he should not be discharged under this policy.

   >> drew, what do you think is the likelihood that a federal judge will step in and actually injungt the government from separating victor from service at this point? they would have to actually stop the government, stop the military from doing something it seems like it is steamrolling toward doing.

   >> rachel , it's always hard to give percentages on these things and it's hards to predict with certainty. however, i have great faith in the court system in this country when an objective member of the judiciary takes a look with a fresh eye in light of the whit standard and in light of this man's extraordinary record of service to this country, i'm highly optimistic we'll get some relief and at least have a window of opportunity where the status quo is preserved until a full hearing can be held on this with all the evidence that the court wishes to hear so the court can make a determination on a full record. we ire asking the court in the meantime to preserve the status quo to allow him to continue serving his country.

   >> colonel, the last time you were here on the show, you said you and your legal team had tried to arrange essentially a meeting between you and the review board so that you could make your case. but that request was denied. what would you have wanted to say to them if they had give youn that chance to defend yourself and your record?

   >> just as drew alluded to, rachel , to present my record but then also again to stress to them that certain aspects of the law as it stood, you know, when i went to my review board , they were not followed by the air force , and certainly the new enforcement standards apply as well as the whit standard. you know, even before my first discharge board in april of 2009 , we actually had a preliminary board hearing and we asked the air force to use the whit standard in my case, and they refused that request. and, in fact, when it came to that one prong of the policy that said, you know, whether i was detrimental to good order, discipline, morale, unit cohesion, the air force proved nothing. they brought nothing to that discharge board . all they said was the law states that as fact and that presumption the law is based on is false. so i hope is based on is false. i hope we don't just help my career where i can deploy again so i can serve 20 or more years, because that is all i want to do, serve my country, we hope to help everyone out there going through this process right now.

   >> victor , nobody right now says -- nobody will argue with the sort of outlook don't ask, don't tell is on its way to being repealed. we know what that process would look like in washington. we know that is heading toward that standard. the president personally looked you in the eye and told you this will get done. do you think it is conceivable, from your experience in the air force , your experience in the military all this time, would it be impossible for the president to stop implementation of the policy, to hold implementation of the policy until the repeal process could be completed. couldn't he just do that?

   >> i have read several reports that he could. he could use stop loss procedures. what the service members legal defense network and other organizations are promoting is we need to change the don't ask, don't tell. this law was enacted by congress and the only way to get permanent change and a permanent solution is congress to change this law. that doesn't mean we don't need presidential leadership and courage. we need the president to step up and change this uncushion a.m. law.

   >> colonel victor ferenbach and your attorney. i understand things may happen. keep us posted on the outcome.

   >> if i could add it is my mother's birthday. i want to tell her happy birthday and thanks for all the love and support.

   >> as if people didn't love you already enough already, really? you had to put the cherry on top like that. happy birthday to victor 's mom.

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