By CP Staff
By Olivia LaVecchia
By Chris Parker
By Jesse Marx
By John Baichtal
By Olivia LaVecchia
By Jesse Marx
By Olivia LaVecchia
0930 hours, 29 September 1998.All the uniforms are pressed, the shoes spit-polished. Three colonels, their temples streaked with gray, sit shoulder to shoulder at the head of the small conference room deep inside the Air Reserve Personnel Center (ARPC) in Denver, Colorado, preparing to pass judgment on one of their own.
Lt. Col. Dartt Demaree sits behind a lectern to their right, acting as legal advisor for today's discharge hearing. To his right, two military attorneys, Maj. Brent Landis and Capt. Carla Peyton Etheredge, are calmly preparing to unveil the government's case against Ronald William Falcon, a third-year resident physician and a captain in the Air Force Reserves who lives in Roseville, Minnesota. For the brass gathered here, the hearing is rather routine--another Social Security number, another box of paper clips.
Falcon's table has been placed front and center. The fit 30-year-old, his reddish hair trimmed above his freckled ears, sits arrow-straight, flanked by the only civilians in the chamber: Kyle White, Falcon's St. Paul-based pro bono attorney, and Phil Duran, a second-year law student from the University of Minnesota.
Before the proceedings get under way, Colonel Demaree explains to those assembled that this is not a court of law, but an administrative discharge board. The rigors of "reasonable doubt" don't apply. The three colonels are simply to weigh the evidence and make a recommendation, which will be reviewed by the Secretary of the Air Force in Washington, D.C. If the results of similar discharge hearings are any gauge, the ruling reached here will with little fanfare be rubber-stamped by the Pentagon.
"Who is Captain Ronald Falcon? What did he do?" Etheredge asks as she stands to deliver the government's opening statement. "You're going to receive some documents showing that he was enlisted from 1986 to 1990. And he was honorably discharged. In 1992 he came back to the air force and he signed a fiscal year '92 Health Profession Scholarship Program contract. And, by that contract, he entered into medical school. In exchange for the air force paying for his medical school education, he was going to serve four years active duty, four years in the Ready Reserve after his graduation. And so he went to Temple Medical School from 1992 to 1996. And the total amount that the air force spent on his education was $84,491.22. After he completed medical school, he got a deferment. And the deferment was strictly for the purpose of his going to a residency. And he went to a civilian residency in Minneapolis in July of '96. Actually, he's still in a residency he's not due to complete until 1999.
"Now let's talk about what he did. On the first of September, 1997, Captain Ronald Falcon wrote a letter. On the basis of that letter, Colonel Humphrey, our commander at the ARPC, appointed an investigating officer, Captain Andy Kirkpatrick, to conduct a homosexual inquiry. In the course of the investigation, the investigating officer found Captain Falcon to be homosexual, and to have made a statement that he is homosexual. And he also found that Captain Falcon has the propensity to engage in homosexual acts. He also concluded that this statement was made voluntarily, and for the purpose of seeking separation [from the military].
"We are asking that you ask the Secretary of the Air Force to discharge Captain Falcon with an honorable characterization discharge. And that the Secretary also order that...we get the benefit of the monies that we've expended. That's basically it, sirs."
Kyle White rises from his seat next to Falcon and smoothes his tie. The attorney realizes his client's chances of remaining in uniform are minuscule (months later White will term the government's case against Falcon a "slam-dunk"). His primary purpose is limited: to convince the panel that Falcon should not be forced to submit to the military's demand for "recoupment"--reimbursement of the $84,000-plus the armed forces paid for his medical-school tuition.
White recounts a simple story--of a gay man, a newly minted doctor, a decorated captain, who much to his dismay discovered in August 1997 that he had been "outed" to the air force, thanks to an anonymous e-mail sent by a vindictive fellow officer (who is also gay and who remains in the army). Days later, fearing that his superiors had opened an investigation into his sexual orientation, Falcon had confirmed that he was a homosexual. Falcon's intent, his attorney asserts, was to avoid a lengthy probe into his private life--to put the matter to rest, abide by his contract, and, he hoped, continue his military service.
Moreover, White tells the tribunal, the military violated its own rules regarding gay service members--the "Don't Ask, Don't Tell" policy instituted in 1994--when it began looking into the allegations after receiving the anonymous e-mail but before his client stepped forward. About that policy, White adds, "We're not here to change it. We're here to see that it's applied equally, both to the air force and to Captain Falcon."
Then White calls his only witness other than Falcon himself. Eli Coleman, the director of the Program in Human Sexuality at the University of Minnesota Medical School who conducted a psychological evaluation of Falcon, testifies via speakerphone. During cross-examination, Coleman insists he that finds Falcon to be utterly sincere in his desire to remain in the air force: "He was devastated by this and wanted desperately to preserve his career in the military, and I think that's what he's fighting for now."
The panel takes less than 45 minutes to sift through the testimony of the daylong hearing. White's attempts to paint his client as an honorable victim and to cast doubt on how the investigation was carried out notwithstanding, Capt. Ron Falcon is a homosexual. He is likely to engage in homosexual acts. He failed to satisfy the terms of his contract with the air force. Therefore, he will be honorably discharged. He will also be required to reimburse the government for his medical education. Case closed.
When President Clinton proposed a policy of "Don't Ask, Don't Tell" early in his first term, the move was framed as a compromise between gay constituents and the Joint Chiefs of Staff. The military still wouldn't allow its troops to engage in openly gay behavior, nor would recruits be asked about their sexual orientation when signing up. Homosexuals in uniform could stop worrying, the president claimed, about being victimized by what he and Gen. Colin Powell called "witch-hunts"--fact-finding missions based on rumor and innuendo that had occurred frequently in the past.
Though the policy was trumpeted as evidence of a more tolerant military, statistics suggest otherwise. Figures released by the U.S. Department of Defense in January show that the various branches of the armed forces discharged 1,145 lesbians and gay men and in 1998, a 13 percent increase over 1997 and nearly double the number dismissed in 1993, the year before "Don't Ask, Don't Tell" took effect. According to a study by the General Accounting Office (the U.S. government's budget watchdog), the cost of training replacements for gay enlistees discharged in the past five years has exceeded $131 million.
Legal challenges to the policy have become increasingly frequent, in part because the regulation itself is by all accounts ambiguous. For instance, a soldier's sexual orientation may come under scrutiny based on "credible" information--though what is credible and what is not has never been clearly defined. Those who "out" themselves in order to avoid their military obligations are clearly subject to recoupment. But the policy is unclear when it comes to enlistees who are outed by others and who, like Falcon, still want to serve. By filing appeals, opponents aim to expose procedural inconsistencies that might one day pave the way for a constitutional challenge to the policy. They pin their hopes on cases like Falcon's--and for good reason: His is one of the rare appeals they believe a discharged gay officer has a chance of winning.
"When this all got started, Kyle asked me if I wanted to be a gay poster boy," Falcon recalls. "He asked me if it was my intention to really take on the air force. At first, that was not my intention. I just wanted what was right for me. But over time I began to realize that someone has to stand up to this thing."
They met in cyberspace in the summer of 1997, in an America Online chat room. They had a lot in common: Both were in their thirties, lived in the Upper Midwest, and were onetime members of the Mormon Church. As they got better acquainted, they learned they were both military men--officers in the reserves. And they were both gay.
In the few years before the AOL correspondence started up, Ron Falcon, who sports the online handle "GayMnDoc," had come out to his family, close friends, and co-workers at St. Paul-Ramsey Medical Center, where he was a resident physician. His e-mail pal, who used the handle "Jammer," wasn't as anxious to step out from the shadows. Outing himself, he figured, could easily lead to tarnishing his spotless 16-year record with the Army National Guard. It would also shock his loved ones--a risk he wasn't willing to take. (When City Pages contacted Jammer to participate in this story, he declined.)
"I talked with him in a private room that you can just converse back and forth via typing," Falcon recalls. "Initially he served as a sounding board to bounce issues and ideas off, since we had a similar background with the military. But he was at a much different place in his acceptance of his sexuality. And it became apparent early on that there was some attraction and feelings that were unilateral--that he had for me that I didn't have for him. And as that went on, it became more of a counselor role that I felt that I was playing with him to help him come to grips with the things that I had gone through five years before in the coming-out process. Do you tell people? Do you not tell people? How do you meet people? How did you find a partner? How do you do this?"
It's not surprising that someone in Jammer's shoes might look to Ron Falcon as a kind of role model, a "big brother" as Jammer put it in one online exchange. Falcon's biography is a tale that might well by taken to heart by a man coming to terms with his own homosexuality. At age 18 he was an expert ski bum with a grade point average that barely registered on the chart. Adrift and craving direction, he enlisted, completed basic training, and was appointed as an instructor at Fairchild Air Force Base in Spokane. A rock climber, avid outdoorsman, and unabashed flag-waver, he thrived in the military environment. "The thing is," he says, "if it weren't for the military, I don't think I'd be a doctor today. I'd probably be a long-haired, pot-smoking loser living out of a van."
By the time he took leave from the military to return to school in 1990, he'd developed the self-discipline to "bust his ass" and complete an undergraduate degree in two years with a 3.96 GPA. Recalling the fun he'd had riding with the local volunteer ambulance corps in high school, and that his favorite courses at boot camp had centered on trauma treatment, Falcon settled on medicine as his vocation. "I think it was always in me," he says. "If you ask my mom, she'll tell you I couldn't wait to see the pediatrician as a kid." Thanks to the air force's generous scholarship program, he was able to enroll at Temple University in 1992.
Falcon says he didn't begin to grapple with his homosexuality until 1994--long after he'd signed up for the scholarship program. The University of Minnesota's Eli Coleman believes that Falcon, like many gays, avoided coming to terms with his sexuality not only because society tends to discourage same-sex attractions, but because his heterosexual experiences were not altogether unpleasant. Indeed, Falcon says, in high school in Pennsylvania he had dated girls, and during his first stint in the air force he often flirted with women and followed up with one-night stands. Still, he says, he often felt isolated from the other men at his base. "Most of the guys were into the bar scene, the ugliest girl contests," Falcon recounts. "You know what I mean: 'Let's go out, get drunk, and beat up the locals.' I was more of a loner."
He says he had his first homosexual encounter after a year at Temple. Though the relationship was brief, he describes the experiences as "the 'aha!' moment" when he realized he was gay. Over the ensuing year, the doctor-in-training began hanging around with a group of gay undergrads at Temple, played on a gay softball team, chatted with other men online, and eventually came out in a sexuality class.
"It's hard to explain," Falcon says, searching for a way to describe his feelings at the time. "Imagine it's wintertime and you're in bed with someone on a Sunday morning. The room is cold, really cold. Well, I could never find the motivation to stay in bed with a woman. It was as cold in the bed as it was in the room. I want an emotional experience and have only been able to find that with men."
Before his fourth and last year at Temple, Falcon was sent to an air base near San Francisco for a six-week stint of active duty as a family practitioner. On his way there, he convinced himself that it would be impossible for him to pretend he wasn't gay, and he began planning ways to out himself, perhaps before graduating. Once he'd arrived at the base, though, he quickly discovered that he wasn't the only homosexual in uniform. It was common knowledge, he recalls, that one major was a lesbian. In short order, he met other gay officers who told him of a general acceptance that some personnel were gay, while others were straight. "The bottom line is that there are tens of thousands of gays in the military, especially in the air force," Falcon insists. "If you're into uniforms, it would make the most sense to join the Navy. But most people don't want to be on a ship. So what you have is a lot of queers signing up for the air force, which has a reputation for being better educated and less prone to send you into combat."
By the time he returned to Temple, Falcon says, he'd decided to grit it out in the military, imagining that he could remain in the air force, continue to be cautious around straight officers, and stay true to himself at the same time. And if he hadn't logged onto AOL in the summer of 1997 and begun telling all of this to the man who called himself Jammer, there's a good chance he'd now be serving as a decorated captain and physician in the U.S. military.
"He would call me at all hours of the day and night," Falcon testified in Denver when asked about Jammer's state of mind by mid-July 1997. "I was getting e-mail messages from him, at least daily, several times a day. He would go from 'Oh, you're my best friend' to 'I hate you. I can't believe you would do this to me. I'm seeing a therapist. I'm overdosing on fen-phen to lose weight.' One day it would be a letter telling me how horrible I am with big, bold print. The next day it would be 'You're the only person I know and I can trust.'"
Falcon tried to pull the plug on the friendship, which had turned from a simple exchange of messages into a disturbing roller-coaster ride. He suspected that Jammer, who had at first seemed to be a fairly stable man in search of guidance, was volatile and unpredictable. "I know you are a decent guy who's scared to death on the inside," Falcon e-mailed him on July 30, 1997. "Scared of who he really is. Scared of what people really think. Scared his family will reject him. Scared he will never find love and have the life he really wants."
Falcon concluded that same message by writing, "You have some serious personal issues with being gay to deal with still and I do not have the energy to be the one to go through them with you. Not as a boyfriend, anyway. I just don't. I've done it before and it's too draining. I am available as a friend to help you and give my opinion and advice, but that's all I am capable of right now."
It was not what Jammer wanted to hear. As Falcon tells it now, over the next few weeks his "confused" friend became "obsessed"--flooding his home computer with disjointed e-mails threatening to out him to his military superiors, phoning and hanging up at all hours, even cruising past Falcon's Roseville rambler late at night with his headlights off, presumably to keep tabs on who came and went from the house.
On August 28, 1997, Jammer followed through on his threats, addressing an anonymous e-mail message to a U.S. Air Force major. "I am an Army national guard officer who recently met a medical officer from the Air Force doing a family medicine practice," he wrote. "One thing led to another and we became friends. The thing is he is gay, and he wants to leave the Air Force before he starts serving his medical obligation at the end of the next year. He told me all the ways he can get around serving and getting out and not even pay the money back."
That initial e-mail runs two single-spaced pages in print. "If you trust me or tell me who to talk to I will gladly turn myself in for questioning," it continues. "I have a full time job, career, school, godsons, family. I am worried, but again I am more afraid now he's going to do something to hurt me, or others. If you are interested I will reveal his name, address, phone, and other pertinent facts. Thanks, I am so scared I do not know where to turn. A friend."
Falcon says that Jammer called him after hitting the "send" button. "I outed you," he recalls his former friend saying. "Be prepared. You better call your lawyers."
Over the next three days, Falcon paced the floor, ate little, and slept hardly at all. He was pretty sure Jammer wasn't bluffing. Based on tales he'd heard from fellow gay officers, he believed the military would launch an investigation. He called his residency's program director for advice, and also contacted Servicemembers Legal Defense Network (SLDN), a nonprofit advocacy organization formed after the passage of "Don't Ask, Don't Tell." He even spoke with a military defense counsel at an air base in Grand Forks, North Dakota. But because he was not engaged in active duty, they refused to help.
Having gathered as much information as he could, Falcon decided to make a preemptive strike: "I decided that the most forthright thing was to disclose to the air force and to send them a letter stating, 'This is who I am, this is a part of who I am, but I wish to continue my military career.'"
As it turned out, Falcon's instincts about both Jammer and the military's probable response were right on target. Even as he was drafting his letter, the officer in charge of making physician assignments for the air force was responding to Jammer's e-mail. "I share your concerns that any physician who is evasive, secretive, manipulative and disrespectful of authority may not be the type of officer we're looking for," the officer wrote. "I am interested in what you had to say but it is difficult to pursue your leads without knowing who you are talking about."
That response, attorney Kyle White contends, constitutes a clear violation of the military's policy not to "ask."
Jammer sent back another, longer note in which he identified himself, named Falcon, made assurances that he wasn't a "flake," and chalked up his own sexual self-questioning to an identity crisis. Based on this second e-mail, according to the so-called Report of Inquiry that was submitted into evidence at Falcon's hearing, the air force "began processing the matter as a potential discharge case almost immediately."
In his report, Capt. Andrew Kirkpatrick states that he received Falcon's letter before a formal investigation was under way. And according to military protocol, service members who voluntarily disclose their homosexuality--who essentially out themselves--must be relieved of their duties.
According to C. Dixon Osburn, co-director and co-founder of SLDN, in discharge hearings Kirkpatrick's line of reasoning usually wins. "When it's all said and done, the military investigators don't hold their people accountable," says Osburn, who has worked with hundreds of officers in similar dilemmas. "No one has been disciplined for asking. There's been 100 percent tolerance for pursuance. But there's been zero-percent tolerance for service members who've been outed, no matter how that information comes to light."
In 1996 a Twin Cities attorney with the firm Robins, Kaplan, Miller and Ciresi and a retired lieutenant colonel in the Air Force Reserves challenged "Don't Ask, Don't Tell" on constitutional grounds. Tom Kayser's client, Rich Richenberg, was a captain at Offutt Air Force Base near Omaha. Soon after the policy went into effect, he informed his commander that he was gay, but swore that he had not and would not engage in homosexual activity while serving his tour of duty. In December 1995 Richenberg was given an honorable discharge. Even if he had not been sexually involved with other men, the discharge board concluded, he had not kept his sexuality private as required by "Don't Ask, Don't Tell."
Kayser appealed the dismissal to the U.S. District Court in Omaha, hoping the judge would conclude that barring Richenberg from the military simply for being gay was a violation of his constitutional rights. When the appeal failed, he took the case to the Eighth District Circuit Court of Appeals, where a three-judge panel ruled 2-1 that serving in the military was not a constitutional right. Finally Kayser petitioned the U.S. Supreme Court, which refused without comment to take up the case.
In the past five years, the court has turned away eight such requests. "The Supreme Court doesn't seem to have any inclination to review this policy, which is too bad," Kayser says. "Because this is governmentally mandated bigotry. If we were talking about any other group, pick your ethnic or religious group, these cases would be heard."
Lt. Col. Tom Begines, a Defense Department spokesman on personnel matters, rejects the idea that the military's intolerance for homosexuality has anything to do with prejudice, and he is quick to point out that no one has a "right" to be in the military. He argues that the nation's armed forces don't allow openly gay and lesbian service members because their presence would erode "unit cohesion"--a phrase Gen. Colin Powell used when pitching "Don't Ask, Don't Tell" to President Clinton in 1991. "It's important to maintain the quality of the relationship between individuals in the military unit that causes them to work together as a team and to support and defend their teammates and to work together to achieve a mission," Begines says, defining the term. In other words, if one member of the troop is uncomfortable with another's sexual preference, it could cause a breakdown in morale.
Baker Spring, a senior policy analyst at the Heritage Foundation, a conservative public-policy think tank in Washington, D.C., also cites unit cohesion as a fair reason to keep gays out of the military (and women out of combat). Like many military traditionalists, Spring believes "Don't Ask, Don't Tell" is a failure, a vague policy that has already resulted in too much litigation. "Homosexuality is incompatible with military service. Period," he maintains. "Military service is a privilege, not a right. In my judgment, sexual identity is a clear personal characteristic that tends to distract from unit cohesion, from attention to one of the most stressful duties any human being can take."
Retorts Kayser: "Sound familiar? White boys won't follow Negro officers. White boys will not take orders from Negro officers. White boys don't want to be in close proximity with Negroes. White boys don't want to be on a ship with Negroes or sleep in a bunk next to them. Now you take out the words whiteand Negroand insert straightand gayand you have exactly, word for word, the excuses used for 'Don't Ask, Don't Tell.'"
What both sides do agree on is that until the U.S. Supreme Court decides to hear a case that challenges "Don't Ask, Don't Tell," the policy, with all of its nuances and gray areas, will not be discarded. And the court is not likely to do so anytime soon.
Which is why gay advocates believe it crucial that Ron Falcon and other discharged gay personnel come forward and force the military not only to clarify its policy, but to publicize every alleged instance of commanders flouting the rules. Somewhere along the line, they hope, a lower civilian court might hand down a decision in their favor and set a precedent for future litigation.
In Falcon's case, two key issues come into play: Jammer's credibility and the air force's desire for recoupment. According to its "Guidelines for Fact-Finding Inquiries Into Homosexual Conduct," the military believes credible information exists "when the information, considering its source and the surrounding circumstances, supports a reasonable belief that a service member has engaged in homosexual conduct. It requires a determination based on articulable facts, not just a belief or suspicion." Given that definition, Kyle White believes, when an official solicited a second e-mail from Jammer, the air force was "asking" about Falcon's sexual orientation in the absence of reliable facts. But because Jammer's information was accurate, and because Falcon wrote a letter disclosing that he was gay, White admits that winning an appeal of his client's dismissal isn't likely.
Phil Duran, the law student who assisted White in Denver, believes there is room to challenge the air force's request for recoupment, however. "Ultimately I believe this is a procedural case, a contract case," says Duran, who is spending his summer in Chicago working as a law clerk for the Lambda Legal Defense and Education Fund, the oldest and largest agency litigating for the civil rights of gays and lesbians. "The military doesn't exist in a vacuum. They have to abide by their own rules."
The "rules" to which Duran refers were cited in White's closing argument in Denver. An update from the Office of the Under Secretary of Defense issued in April 1998 declared that "statements acknowledging homosexuality generally do not provide a basis for recoupment, unless it is determined that the service member made the statement for the purpose of seeking separation from the military." And when the colonels in Denver decided to grant Falcon an honorable discharge, they also concluded that he did not disclose his homosexuality in order to be let go from the air force.
"Bottom line: Ron was honorably discharged because he was being honest," the SLDN's C. Dixon Osburn emphasizes. "They couldn't prove he was saying he was gay to get out of the military. If they could have, believe me, they would have. And when the discharge is honorable, a good case can be made that there's no grounds for recoupment."
It has been nearly a year since the Denver panel ruled, and no final decision has yet been rendered by the Pentagon in Falcon's case.
"It's been a diarrhea kind of night," Dr. Ron Falcon quips as he moves briskly between examination rooms at the HealthPartners Clinic and Family Medical Center in Woodbury. During this night's five-hour shift in urgent care, he will attend to 17 patients, including a kid who has been hit in the mouth with a golf ball, a desperate man begging for a painkiller prescription, and a father and son both suffering from stomach flu ("Man, you gotta love twofers!").
During his residency, Falcon, like most fledgling M.D.'s, has been moonlighting a couple of shifts each month, at $65 an hour. Besides paying the bills, Falcon says the action-packed shifts have prepared him for his first full-time job, at HealthPartners' Uptown clinic, where he began work as a family practitioner in August. The many colleagues who have worked with Falcon over the years have nothing but praise for him. He is perpetually upbeat, they say, always willing to take an extra minute to listen to patients' concerns. Traits, in short, that go a long way toward "unit cohesion" among medical staff.
Tonight Falcon looks like the man he was ten months ago in Denver, conservatively dressed in a pressed pair of khakis and sensible brown loafers. What's different about his appearance could easily pass without notice: a thin band on the ring finger of his left hand, a silver hoop in each ear, a rainbow sticker on his stethoscope. "Sometimes when I walk into the room, people do a double take," he chuckles.
Besides his job at the Uptown clinic, Falcon plans to work with at-risk kids in the St. Paul schools and make weekly visits to the HIV clinic at St. Paul's Regions Hospital. He says he'll also be the first openly gay doctor profiled on HealthPartners' Web site, which offers biographies of all their network physicians. "There's a real need in this city for gay doctors. Believe me, I ought to know," he says, rolling his eyes. "So I expect initially to have a predominantly gay clientele. But I don't want to deal exclusively with those issues. I love pediatrics and I'm really well versed in women's health issues." A few years down the line, he says, he also hopes to do further research on gay health matters. "I have had people ask me, 'So, if I'm having anal sex regularly, am I going to have to wear a diaper when I'm 70?'" Falcon says with signature frankness. "No one knows the answers to those questions. And hey--they're good questions."
No matter how the military ultimately rules in regard to the $84,000 the government claims he owes, or whether his attorney manages to win on appeal, Falcon accepts the possibility that he will never practice medicine as an officer again. Either way, there will be no more pretending, he says. His stethoscope hangs across his chest. His military uniform hangs in the closet.