Doctor’s Case Against Military Reexamined

A federal appeals court on Friday ruled that a gay doctor discharged from the Air Force may not have to pay $71,500 to the government for his medical education.

John Hensala, 38, obtained free medical school funding from the Air Force in exchange for a promise to serve four years as a military doctor.

However, when Hensala was ordered to report for duty, he notified the military that he is gay and told authorities he would be living with his boyfriend at Scott Air Force Base in Illinois, where he was to report in 1995.

The military discharged him under the “don’t ask, don’t tell” policy applying to service by homosexuals, and demanded that he return the $71,500 the government had spent on his education.

Hensala sued, saying that he didn’t have to pay.

The military promised to pay for his medical education if he fulfilled his four-year obligation. But the deal also demanded that he pay for it if he did not fulfill the deal.

The case does not test the military’s ability to discharge homosexuals.

That policy has already been upheld by the San Francisco-based U.S. 9th Circuit Court of Appeals, which said the discrimination was justified to promote “unit cohesion” and military preparedness.

But Judge Sidney Thomas and Judge Richard Paez of the 9th Circuit announced Friday that it may be discriminatory to require gays to pay the government back for their education if they were forced from the service against their will.

In dissent, Judge A. Wallace Tashima said the Air Force, under its so-called “recoupment policy,” does not discriminate against gays.

The Air Force, Tashima said, routinely requires repayment for education expenses if the beneficiaries do not honor the terms of their contracts, regardless of service members’ sexual orientation.

The majority ordered the case returned to U.S. District Judge William Alsup, possibly for a trial.

In 2001, Alsup dismissed Hensala’s suit against the Air Force before trial.

Alsup said Hensala should be required to repay the government for his medical education because he voluntarily came out as gay and should have known the consequences of violating the military’s “don’t ask, don’t tell” policy.

Hensala said he had no reason to believe he would be automatically discharged after his announcement, but did so to come out of the closet.

The Air Force has contended Hensala announced he was gay simply to avoid active duty.

“Making him pay is adding insult to injury. It’s a further penalty. He wants to serve, but he cannot,” said Hensala’s attorney, Clyde J. Wadsworth. “That’s not a justified reason to discriminate against a gay service member.”

Maj. Karen Finn, an Air Force spokeswoman, said the military was not immediately prepared to comment.

Tashima, meanwhile, said he believed that Hensala had revealed his homosexuality to the Air Force solely to get out of active duty and therefore should pay the military back.

In addition, Tashima said that, between 1994 and 2000, the Air Force sought repayment in 23 of 28 cases in which an Air Force doctor or medical student had announced being gay.

During that same time, Tashima said, the Air Force sought repayment in 274 of 277 cases in which doctors or medical students had not abided by the terms of their contracts.

The case is Hensala vs. Air Force, 01-16791.