Metropolitan News-Enterprise


Monday, September 15, 2003


Page 1


Gay Doctor’s Suit Over Military Benefits Repayment Revived


By DAVID WATSON, Staff Writer


A gay doctor’s suit over benefits he was asked to repay after being discharged from the Air Force under the “Don’t Ask, Don’t Tell” policy should not have been dismissed, the Ninth U.S. Circuit Court of Appeals ruled Friday.

A divided three-judge panel revived the action by John D. Hensala, who sued after the government demanded he repay the more than $71,000 cost of his medical education borne by taxpayers under the Armed Forces Health Professional Scholarship Program.

Hensala was discharged after stating he was gay, and Air Force officials determined he made the statement to avoid completing his military service obligation.

Scholarship Program

Terms of the scholarship program require repayment if a term of active duty is not completed due to voluntary separation or misconduct, including homosexuality. Under a policy embodied in a 1994 memorandum by then-Deputy Secretary of Defense John M. Deutch, while separation based on a “coming out statement”-required under “Don’t Ask, Don’t Tell” in the absence of evidence of celibacy-does not in itself necessitate repayment of benefits, recoupment is appropriate “where, based on the circumstances, it is determined that the member made the statement for the purpose of seeking separation.”

Hensala used the scholarship benefits to attend Northwestern University Medical School and upon graduating in 1990 was appointed an Air Force Reserve captain. He twice deferred active duty to complete a psychiatric residency and a fellowship in child psychiatry.

In 1994 he notified the Air Force that he was willing to perform his required active duty service but was gay and intended to live with his partner while serving.

Writing for himself and Judge Richard A. Paez, Judge Sidney R. Thomas said Hensala raised issues of fact as to whether the Air Force violated his right to equal protection of the law and his First Amendment free speech rights. U.S. District Court Judge William H. Alsup of the Northern District of California erred in granting summary judgment for the government on those causes of action, Thomas said.

The appellate judge explained that constitutional violations could be established if Hensala could demonstrate that recoupment was demanded only of gay servicemen, and not of similarly situated heterosexuals.

Thomas noted that since 1957, the Uniform Code of Military Justice has criminalized sex between service members of the same gender. The provision is codified at 10 U.S.C. Sec. 925, and applies to all service members regardless of sexual orientation, he observed.

Thomas wrote:

“The Deutch Memo does not account for the fact that the ‘Don’t Ask, Don’t Tell’ policy also is applied against heterosexual service members who violate [Sec.] 925. If it is demonstrated that the recoupment policy only targets individuals who identify themselves as gay, the recoupment policy is treating similarly-situated individuals differently based on their sexual orientation status alone. Unlike the ‘Don’t Ask, Don’t Tell’ policy that applies against service members of all sexual orientations who engage in sexual acts with someone of the same gender...the record demonstrates that there are genuine issues of material fact as to whether the recoupment policy applies exclusively to service members who are gay and not simply to all service members who violate [Sec.] 925.”

He added:

No Presumption

“Moreover, unlike the ‘Don’t Ask, Don’t Tell’ policy, there is no presumption under the recoupment policy, that a coming out statement presents a rebuttable presumption that the service member has violated [Sec.] 925. The statement thus is not admissible evidence of conduct, but rather, presents a genuine issue of material fact that the armed forces impermissibly is directing its policies against a service member based on his sexual orientation. If it is demonstrated that the armed forces is discriminating based on status, Hensala’s equal protection and first amendment claims present genuine issues that need to be resolved at trial.”

Thomas pointed out that Alsup ruled in the case before the U.S. Supreme Court decided Lawrence v. Texas, 123 S.Ct. 2472 (2003). The Ninth Circuit delayed considering Hensala’s appeal until Lawrence was decided, and on remand Hensala would be free to litigate whether that ruling, which found that anti-sodomy laws are unconstitutional, has any effect on the issues involved, Thomas said.

The appellate jurist said Alsup had properly granted summary judgment on Hensala’s claims the government’s decision to demand recoupment violated the Administrative Procedure Act and his procedural due process rights under the Fifth Amendment.

Judge A. Wallace Tashima dissented from the portion of the court’s ruling reviving Hensala’s equal protection and First Amendment claims.

“John Hensala received a free medical education at taxpayer expense to the tune of $71,429.53,” Tashima declared. “In return, he promised to serve as a physician in the United States Air Force for four years. Quite simply, Hensala refused to perform his part of the bargain—he reneged on his promise. Because I can see no legal reason why Hensala should not be held to his bargain and required to repay the government for his medical education, I dissent from so much of the majority opinion as remands this case for further proceedings.”

Hensala’s separation from service was voluntary because it was based on his deliberate violation of the “Don’t Ask, Don’t Tell” rules, and therefore triggered the repayment provisions of the agreement he signed under the Scholarship Program, Tashima said.

The case is Hensala v. Department of the Air Force, 01-16791.


Copyright 2003, Metropolitan News Company