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A federal judge has upheld the military’s right to recoup more than $71,000 in educational costs from a former Air Force Reserve captain, saying there is “substantial evidence” that the man purposely announced that he is gay to escape his service obligations. The ruling supports an Air Force policy that demands repayment of educational costs when a service member resigns voluntarily. John Hensala Jr., now a psychiatrist in San Francisco, had argued that he was discharged from the military in 1997 against his will. But Air Force officials contended that Hensala effectively resigned when he volunteered his sexual orientation in 1994 despite the military’s controversial “don’t ask, don’t tell” policy. Federal Judge William Alsup of the U.S. District Court for the Northern District of California agreed with the Air Force in a 22-page ruling issued last Friday. “While it is disappointing that [an Air Force investigator] neglected to ask … a key question, i.e., whether plaintiff knew at the time of his declarations that discharge would be a likely consequence,” Alsup wrote, “there is still substantial evidence supporting the conclusion that plaintiff made the declarations for the purpose of seeking separation. “Since plaintiff had counsel,” he added later, “he presumably understood that the Air Force would follow its own rules and what the likely consequences of his acts would be. It is not unreasonable to infer that one intends the probable and foreseeable consequences of deliberate conduct.” Alsup’s ruling in Hensala v. Department of the Air Force, 00-01793, not only grants summary judgment to the Air Force on the recoupment issue, but it also rejects Hensala’s claim that the Air Force has a blanket policy of seeking recoupment from discharged gays. In doing so, he pointed to three cases in which recoupment was not sought from gays. “These cases,” he wrote, “confirm what defendants have maintained from the outset of this litigation — that in recoupment cases the Air Force makes an individualized determination based on the facts surrounding a service member’s statement of sexual orientation.” Hensala came out to his commanding officers around Christmas of 1994, shortly before he was to report for active duty at Scott Air Force Base near St. Louis. Hensala, a psychiatrist, said he felt it was the correct thing to do for himself and his patients. Air Force officials weren’t sympathetic. Following a drawn-out investigation, they discharged Hensala in 1997 under the service’s “don’t ask, don’t tell” policy. They then demanded he repay the $71,429.53 the military had paid for his education at Northwestern University Medical School. Hensala is believed to be the first former airman to challenge a recoupment order resulting from a discharge based on sexual orientation. Gay rights activists had hoped he would set a precedent that would help others fight similar recoupment moves, but military lawyers had fretted that a positive ruling for Hensala could undermine the Air Force’s efforts to recruit and retain professionals. Hensala had also sought discovery in other recoupment cases in which sexual orientation was an issue to support his argument about a blanket policy. But Alsup shot that down, too. “Yet more discovery into the 24 cases in which recoupment was ordered,” he wrote, “would be, at this stage, simply a last-ditch fishing expedition.” Daniel Bensing, the Air Force’s lawyer from the U.S. Department of Justice in Washington, D.C., could not be reached for comment Tuesday. But Clyde Wadsworth, who represented Hensala, vowed to take the case to the 9th U.S. Circuit Court of Appeals. “Dr. Hensala has said repeatedly that he wanted to satisfy his service obligation,” said Wadsworth, a special counsel at San Francisco’s Heller Ehrman White & McAuliffe. “It was the Air Force that prevented him from serving, by discharging him against his will. And to say now that Dr. Hensala was somehow responsible for his own discharge is a perversion of the truth and a perversion of the law.”

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