X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
A few months before he would have headed to his first post as an Air Force psychiatrist, John Hensala Jr. decided to tell his commanding officers he was gay. It was around Christmas 1994. He had just completed eight years of medical training on the military’s dime and felt that coming out to his superiors was not only honorable, but also therapeutically important for his professional life. “In my line of work, I felt it was important to be honest about who I was,” the 36-year-old San Franciscan said late last week. Air Force officials weren’t sympathetic. In 1997, following a lengthy investigation, they honorably discharged Hensala based on “homosexual conduct.” To Hensala’s dismay, they also ordered him to repay the more than $71,000 the Air Force said it had paid for his education. Hensala reluctantly accepted the discharge, but challenged the so-called recoupment order in court. The case reaches a critical point Thursday in San Francisco federal court, when U.S. District Judge William Alsup hears Air Force lawyers argue for dismissal. The outcome could hinge on what is and isn’t considered voluntary. Air Force policies demand recoupment only when someone leaves the Air Force voluntarily. Hensala insists he was discharged against his will, but Air Force lawyers contend that he effectively resigned when he volunteered his sexual orientation. “It is absurd,” they wrote in court papers, “to suggest that [Hensala] … could have seriously believed that the Air Force would ignore the law and permit him to serve in violation of [the 'don't ask, don't tell'] policy.” Emotions are high on both sides. Hensala is believed to be the first former airman — of a group the service admits numbers at least 100 — to challenge a recoupment order resulting from a discharge based on sexual orientation. Similar cases were brought against the Navy and the Army — which tried to force dischargees to pay for their educations at the U.S. Naval Academy and at West Point, respectively — but both settled early. As a result, gay advocates say a victory by Hensala could set a precedent for future dischargees. But Air Force officials contend that a loss could undermine their efforts to recruit professionals through scholarships and service agreements. “It does not take great imagination,” Justice Department lawyer Daniel Bensing wrote in court papers, “to foresee that every scholarship recipient, gay or heterosexual, who would rather pursue a lucrative civilian practice, could … walk away from his service obligation after receiving a professional school education paid for by the American taxpayer.” Bensing did not return telephone calls seeking comment. According to court papers in Hensala v. Department of the Air Force, 00-01793, Hensala, who’s now in private practice in San Francisco’s Inner Richmond, entered into a Health Professions Scholarship Contract with the Air Force in 1986. He was named a captain in the Air Force Reserve Medical Corps upon getting his medical degree from Northwestern University in 1990, then got a deferment to pursue a three-year psychiatric residency at Yale University and a two-year fellowship in child psychiatry at the University of California-San Francisco. Air Force officials contend that impressive education cost them $71,429.53, and they claim Hensala owes them a reimbursement based on military policy requiring recoupment when a recruit leaves the service voluntarily. Hensala, they argue, volunteered his sexual orientation, which resulted in his discharge based on the military’s anti-gay “don’t ask, don’t tell” policy. “Further,” Washington, D.C.-based Bensing wrote, “the Air Force reasonably concluded that in light of the timing and circumstances surrounding [Hensala's] disclosure, he disclosed his sexual orientation for the purpose of avoiding his service obligation.” Hensala’s lead lawyer, Clyde Wadsworth, a special counsel at Heller Ehrman White & McAuliffe, said last week that there’s nothing further from the truth, that Hensala wanted to remain in the Air Force. “He was involuntarily discharged,” Wadsworth said, “so there is no statutory basis for recoupment.” For his part, Hensala said he began identifying as a gay man only during his Yale residency and chose to tell his superiors when he was nearing active duty because he didn’t want to be dishonest with them or himself. “I believed, as a psychiatrist,” he said in court documents, “that my own mental health and ability to serve in my professional capacity required that I be honest and not conceal my sexual orientation.” Hensala said he also didn’t fear being discharged because of news accounts at the time about gay service members — notably Navy Petty Officer Keith Meinhold — who had gone to court and won the right to stay in the military. Those cases, however, were decided under old policies that were declared unconstitutional. “Subsequently,” said Wadsworth, whose firm is handling the case pro bono, “the constitutionality of the ‘don’t ask, don’t tell’ policy was upheld.” Hensala contends that the Air Force, unlike other branches of the military, has a blanket policy for seeking recoupment from discharged gays. The Air Force denies that, pointing to recoupment efforts for service members discharged for illegal drug use, failing to maintain weight standards, and for being a conscientious objector. Yet Stacey Sobel, legal director of the Washington-based Servicemembers Legal Defense Network, a group that helps service members allegedly harmed by “don’t ask, don’t tell,” agrees that the Air Force takes a hard line on recoupment from gays. “We have seen more cases out of that particular branch of the service,” she said late last week. “There have been limited numbers of cases in the other branches, but we’ve been able to work with them to drop recoupment orders. The Air Force is still actively pursuing people.” Hensala and Wadsworth know they have a hard case on their hands, what with U.S. courts’ normal deference to military policies. But Hensala believes it’s good for his own mental health as well as his self-respect to persevere. “It was an unfair situation,” he said, “and to not fight it would be unfair to myself. I thought it was important I take a stand.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.