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HENSALA v. DEPARTMENT OF AIR FORCE

May 25, 2001

JOHN D. HENSALA, PLAINTIFF,
v.
DEPARTMENT OF THE AIR FORCE, AND F. WHITTEN PETERS, SECRETARY OF THE AIR FORCE, DEFENDANTS.



The opinion of the court was delivered by: William H. Alsup, U.S. District Judge

ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANTS

INTRODUCTION

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 law.

STATEMENT

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 conclusion:

[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.

In the same period, plaintiff spoke by phone with Colonel Jay Weiss, Consultant to the Surgeon General for Psychiatric Affairs. Plaintiff inquired whether he could bring his boyfriend with him to Scott Air Force Base. Colonel Weiss purportedly told plaintiff that he could bring his boyfriend, but that he should not bring him into the housing office or publicize their relationship. Plaintiff's discharge letter stated that this conversation occurred between April of 1995 and May of 1995 (SAR at D81). In June of 1995, plaintiff's orders to report for duty were suspended.

The Air Force Investigation and Decision

On August 4, 1995, Colonel J. Conley Meredith, the head of the legal office of the Air Reserve Personnel Center ("ARPC"), sent a letter to Colonel Frank P. Cyr, the commander of the ARPC, indicating that Colonel Buraglio had volunteered to be the investigating officer in plaintiff's case (SAR at D33). By letter dated August 9, 1995, Colonel Cyr officially appointed Colonel Buraglio to investigate into whether the Air Force would discharge plaintiff and seek recoupment (SAR at D31).

On August 22, 1996, Colonel Buraglio conducted a recorded interview of plaintiff, who was represented by counsel. During the interview, plaintiff stated the following. He realized that he was gay in 1988 and told a few close friends at the time (AR at 45). An attorney helped him write the letter declaring his sexual orientation that he sent to Colonel Degracias in 1994 (AR at 37). At the time he wrote the letter, he knew that the Air Force had a "don't ask, don't tell" policy (AR at 38). Based on the advice of his counsel, some time in the Spring of 1995 he gave his attorney the list of people and organizations who could confirm that he was gay (ibid.).

In response to Colonel Buraglio's questioning, plaintiff gave the following account of his phone conversation with Colonel Weiss. Plaintiff told Colonel Weiss "I was homosexual and wanted to bring my boyfriend to Scott with me" (ibid.). Colonel Weiss replied "Okay, but don't bring him into the housing office" (ibid.). Plaintiff stated that around the time of this conversation (although whether it was before or after is unclear), his attorney explained the Air Force policy on homosexuality to him, but that he had not been briefed on the Air Force's policy before then, although he was generally aware of the "don't ask don't tell" policy from media reports (AR at 39-40).

Plaintiff told Colonel Buraglio during the interview that he did not know about the recoupment policy at the time he wrote the letter to Colonel Degracias or talked to Colonel Weiss, and it had no bearing on the statements he made to them (AR at 46). He stated that he first became aware that the Air Force could seek recoupment was in the Spring of 1995, after his conversation with Colonel Weiss (AR at 47).

When Colonel Buraglio asked him why he wrote the letter to Colonel Degracias, plaintiff stated that he had "reached a point where I was out, more open about my sexuality to my supervisors and co-workers, and did not feel that I could be in a situation where I wasn't able to be open with my co-workers about that important part of my life" (AR at 41). When asked about the timing of his letter, plaintiff stated that he was concerned about "how I was going to be received" at Scott before he arrived (AR at 41-42) and that he ...


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