When a participant does not complete the active-service requirement, the
issue arises of whether he or she is required to repay the cost of the
education to the United States. In this regard, the statute provides
"that if such person, voluntarily or because of misconduct, fails to
complete the period of active duty specified in the agreement . . . such
person will reimburse the United States in an amount that bears the same
ratio to the total cost of advanced education provided such person."
10 U.S.C. § 2005(a)(3) (emphasis added). The statute further provides
that when a person might owe a debt that is disputed, "the Secretary
shall designate a member of the armed forces or a civilian employee under
the jurisdiction of the Secretary to investigate the facts of the case
and hear evidence presented by the person who may owe the debt and other
parties, as appropriate, in order to determine the validity of the debt.
That official shall report the official's findings and recommendations to
the Secretary concerned." 10 U.S.C. § 2005(g)(1).
In this case, an investigating officer, the Secretary of the Air Force
and subsequently an administrative review board all determined that
plaintiff "voluntarily" failed to complete his active-service
requirement. He was ordered to repay the cost of his medical education,
$71,429.53. Judicial review is sought herein. After three rounds of
briefing and two rounds of court-ordered discovery, the Court is
convinced that summary judgment for defendants is required as a matter of
Plaintiff's Education at Public Expense
Plaintiff John Hensala entered the Armed Forces Health Professions
Scholarship Program on June 18, 1986, and was appointed to the grade of
second lieutenant in the Air Force Reserve as a medical services corps
officer. His contract provided that the Air Force could recoup the
medical-education expense, "[i]f I fail to complete the period of active
duty required by this agreement because of voluntary separation for any
reason (e.g. conscientious objector, pregnancy, etc.) or involuntary
separation because of substandard duty performance, misconduct (e.g.
homosexuality)" (AR at 20). The contract required him to seek review of
any recoupment determination by the Board for Correction of Military
Records before requesting judicial review (AR at 17).*fn1
From 1986 to 1990, plaintiff attended Northwestern University Medical
School and actively served twenty weeks in the Air Force before
graduating. According to him, during the course of his medical training
he gradually became aware of his sexual orientation and told a few close
friends he was gay in 1988. When he graduated Northwestern with an M.D.
degree in 1990, he was appointed captain of the Air Force Reserve,
Medical Corps. He deferred active duty while he completed a psychiatric
residency at Yale University in 1993 and a fellowship in child psychiatry
at the University of San Francisco in 1995.
The "Don't Ask Don't Tell" Policy
On July 19, 1993, President Clinton promulgated a "don't ask don't
tell" policy regarding sexual orientation and the military. On November
30, 1993, this policy was codified in the United States Code. It provided
and still provides that once a
service member admits to being gay, a
On May 17, 1994, Deputy Secretary of Defense John M. Deutch sent a
memorandum to the secretaries of military departments, interpreting the
recoupment statute, by then long on the books, in light of the new "don't
ask don't tell" statute. The memo stated that some confusion existed over
when recoupment was proper under the "don't ask, don't tell" policy,
because the recoupment statute was passed when homosexuality alone was
grounds for discharge. The memo discussed the differences in the statutes
governing recoupment in various contexts, noting that some require
recoupment as a matter of course, while others — such as the one at
issue in this case — contain the language "voluntarily or because
of misconduct."*fn2 The memorandum then came to the following
[A] member's statement that he or she is a
homosexual, though grounds for separation under the
current policy if it demonstrates a propensity or
intent to engage in homosexual acts, does not
constitute a basis for recoupment, as defined above.
This does not preclude recoupment, however, if the
member making such a statement has otherwise failed to
complete his or her term of service `voluntarily or
because of misconduct.' In particular, recoupment
would be appropriate where, based on the
circumstances, it is determined that the member made
the statement for the purpose of seeking separation.
This language means, both sides agree, that "recoupment may be pursued in
cases involving statements of homosexuality when such statements are made
for the purpose of obtaining separation" (AR at 34).
Plaintiff's Violation of the "Don't Ask Don't Tell" Policy
By letter dated November 30, 1994, the Air Force notified plaintiff
that he was required to complete a physical examination and that his
active-duty obligation would begin in 1995. On December 12, 1994,
plaintiff sent a letter to Colonel Daniel Degracias of the Directorate of
Medical Service Officer Management. The letter declared (AR at 32):
In light of recent policy changes concerning
homosexuality on the part of the Air Force and other
branches of the U.S. military, I have given the
following matter substantial thought. I have decided
that I should inform you, prior to beginning active
duty service, that I am gay. I do not believe this
will affect my ability to serve in the Air Force as a
child psychiatrist, but in light of the recent change
in policy, I think you should know this prior to my
assuming an active duty assignment.
On April 4, 1995, plaintiff was ordered to report for active duty with
the 375th Medical Operations Squadron, at Scott Air Force Base near St.
Louis, Missouri on June 26, 1995.