By Advocate.com Editors
Originally published on Advocate.com October 11 2002 12:00 AM ET
A gay psychiatrist ordered to repay the U.S. Air Force $71,000 for his education argued to an appeals court Wednesday that he doesn't owe the government anything and that the military's policy is discriminatory. John Hensala, 38, attended medical school at Northwestern University, served his three-year residency at Yale University, and received a two-year fellowship at the University of California, San Francisco--all with the understanding that, in exchange, he owed the Air Force four years of active-duty service. Shortly before he began his service, he announced that he is gay. The Air Force promptly discharged him and demanded its money back, saying Hensala voluntarily failed to complete his service commitment. In June 2001, a federal judge ruled in the Air Force's favor, dismissing the case.
Ray Hawkens, a Department of Justice lawyer arguing for the Air Force, told a three-judge panel of the ninth circuit U.S. court of appeals that an internal investigation revealed that Hensala intentionally disclosed his homosexuality solely to avoid military service. "This is not an unsophisticated plaintiff," Hawkens said in court. "He himself concedes he was aware of the 'don't ask, don't tell' policy."
But Hensala's lawyer, Clyde Wadsworth, argued that when Hensala came out in 1994, the military's policy was untested. "When he disclosed, the policy was new, and there was a lot of discussion in the media that it wouldn't be upheld," Wadsworth told the judges. "You have to understand this in terms of what he knew at the time, rather than 10 years later."
The judges peppered both lawyers with questions during their 20-minute arguments. They were particularly interested in learning what Hensala knew about Air Force policy and when he knew it. Judge Richard Paez asked the government's lawyer, "Did he have knowledge that if he made these statements [announcing his homosexuality] that that would be considered a voluntary separation," hence making him responsible for repayment? Defying the 'don't ask, don't tell' policy" was the "functional equivalent of a voluntary separation," Hawkens said. Hensala has contended all along he was willing to serve but that the Air Force simply refused to allow that. The judges have no deadline to make a decision.