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The Air Force’s attempt to recoup the $71,000 it paid for a San Francisco psychiatrist’s medical education before discharging him for being gay could depend on its handling of three other “don’t ask, don’t tell” cases in which it didn’t seek repayment. On Thursday, U.S. District Judge William Alsup all but ignored 23 cases in which the Air Force claims it sought repayment from ousted gay service members, and focused instead on the three in which the military organization chose not to seek recoupment despite admissions of homosexuality. Plaintiff’s lawyer Clyde Wadsworth “raises legitimate questions about what we know about what happened in those three cases,” Alsup said at the end of a 90-minute hearing in San Francisco federal court. He then ordered Justice Department lawyer Daniel Bensing, who represents the Air Force, to file a declaration with the court that accurately summarizes the information in the three cases. He also told him to turn over complete files with redacted names to Wadsworth, a special counsel at San Francisco-based Heller Ehrman White & McAuliffe who’s handling the case pro bono. “Clearly,” Wadsworth said afterward, “he wants the record to include information concerning those three files, and he wants us to be able to see them.” In Hensala v. Department of the Air Force, 00-1793, John Hensala Jr., 36, is challenging an Air Force policy that demands recoupment for educational costs when someone leaves the Air Force voluntarily. Hensala insists he was discharged against his will after he came out of the closet in 1994, but the Air Force contends that Hensala effectively resigned when he volunteered his sexual orientation despite the military’s “don’t ask, don’t tell” policy. Hensala, who is in private practice in San Francisco’s Inner Richmond district, got his medical degree from Northwestern University in 1990, four years after entering into a Health Professions Scholarship Contract with the Air Force. The case is being widely watched because Hensala — who attended Thursday’s hearing with two friends — is believed to be the first former airman to challenge a recoupment order that resulted from a discharge based on sexual orientation. Gay advocates say a victory could set a precedent for future cases in all branches of the Armed Forces, but the Air Force worries that it could undermine the military’s effort to recruit professionals through service agreements. Plaintiff’s lawyer Wadsworth is trying to prove that the Air Force has engaged in a pattern of unconstitutional discrimination in its handling of recoupment orders involving gays. But on Thursday, Justice Department lawyer Bensing offered statistics that he claims show that recoupment for gays is no more pervasive than for any other group, such as conscientious objectors and people with medical problems. Of 322 cases involving what the Air Force contends are voluntary resignations for various reasons, he said, recoupment was sought in 289. Of the 28 involving sexual orientation, he said, recoupment was sought in 23. “My point,” he said, “is there is no discrimination in recoupment cases against service members who announce their sexual orientation. There is no blanket policy [against gays].” Wadsworth argued later that Hensala doesn’t have to prove that recoupment was sought in 100 percent of all sexual orientation cases, only that there was “a pattern or practice of discrimination.” Even so, Alsup apparently believes that the key to the dispute lies in why the Air Force chose not to seek recoupment in three of the sexual orientation cases. Bensing said one involved a serviceman who felt he had to disclose his sexuality to be properly treated for depression, a second involved a man involuntarily outed by another person, and the third involved a longtime servicewoman who got support from several acquaintances. In all three, he said, it was determined that the disclosures “had not been made for the purposes of seeking separation from the Air Force.” The military contends that Hensala came out to avoid fulfilling his Air Force commitment. At one point, Alsup questioned why Bensing was claiming recoupment had been sought in only 23 sexual orientation cases when an Air Force publicist said in news stories last year that the Air Force sought recoupment from about 100 gay service members discharged between January 1996 and July 1999. Bensing, of Washington, D.C., called the publicist’s comments an “erroneous statement.” “Did you put in a declaration by the Air Force publicity officer that he goofed?” Alsup asked. Bensing said no. Later, Alsup said he didn’t mind ordering Bensing to provide information on the three cases in question, saying it was the Air Force’s fault that the discrimination issue had arisen. “This was all started by somebody who apparently didn’t know what they were talking about,” he said. “Or maybe they did. Maybe they were being truthful.”

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