SAN FRANCISCO – A federal judge delayed a decision for a second time Thursday in the case of a gay U.S. Air Force doctor who was discharged and ordered to pay back $70,000 the government spent sending him to medical school.
John Hensala, 36, a San Francisco psychiatrist in private practice who sued last May, said he shouldn’t have to repay the money because he wanted to serve but the Air Force refused to let him because he announced he was gay.
Hensala was honorably discharged after telling his superiors in 1994 that he is gay. He claimed he wanted to serve honestly and had no reason to believe he would be automatically discharged after his announcement.
The Air Force contends Hensala announced he was gay simply to avoid active duty military service, and has asked for the case’s dismissal.
Hensala’s lawyer, Clyde Wadsworth, said the Air Force has a discriminatory policy of ordering gays to pay back tuition costs.
He said the Air Force’s own guidelines for investigating whether a service member announced he was gay just to avoid service are discriminatory.
“The recoupment guide ... says these statements of an officer’s willingness to serve are not relevant,” Wadsworth argued in court. “Short of recanting ... the gay service member can’t say anything to rebut the presumption that he’s coming out to avoid service.”
But the Justice Department’s lawyer, Daniel Bensing, says the Air Force only ordered recoupment in 23 of 27 cases similar to Hensala’s.
In three cases, the Air Force’s investigation determined the individual was not coming out as gay to avoid military service.
One person was under psychiatric care and came out as part of treatment, a second person was outed by another service member and a third person was determined to be a good doctor and valuable to the service, Bensing said.
“It’s not that there’s nothing the service member can say to avoid recoupment,” Bensing argued.
“Nothing in the supplemental record supports there is a blanket policy of discrimination,” he said. “The Air Force ... does have a policy of aggressively seeking recoupment.”
U.S. District Judge William Alsup asked Bensing to provide additional information about the three cases in which repayment was not sought.
In January, Alsup delayed his decision on the Air Force’s request for dismissal when he asked for information about other people who were discharged for being gay and whether they were asked to pay back education money.