By JULIE WATSON
SAN DIEGO — Former Air Force officer Michael Almy’s five-year battle to get back into the military after being discharged for being gay is still far from over despite the end of the policy that halted the decorated war veteran’s 13-year career and left him curled up on his bathroom floor, crying.
The repeal of “don’t ask, don’t tell” coincides with the most competitive time in recent history to get into the military because of the sluggish economy, and the Defense Department says it has no plans to give priority to those discharged for being gay, even if they still meet the military’s age limits, fitness standards and cutoffs for time out of service.
Many, like Almy, a 41-year-old former Air Force major, see the only way back to active-duty as being through the courts.
He and two other discharged officers — one from the Air Force officer and one from the Navy — are suing the Justice Department to demand they be reinstated, and they hope a federal appeals court will help their efforts by upholding a lower court ruling last year that declared the law unconstitutional.
Activists believe if the ruling stands it could open the legal doors for a class-action suit or settlement for many of the nearly 14,000 military members discharged under the nearly 18-year-old policy that prohibited the military from asking about the sexual orientation of service members but required discharge of those who acknowledged being gay or were discovered to be engaging in homosexual activity.
“The sad truth is repeal really does nothing for people thrown out of the military,” Almy said. “There is no restitution, no reparations, no special personnel process to help those to get back in the military who were thrown out.”
Almy said he never admitted to the military he was gay, but was discharged under the policy in 2006 after a service member snooped through his emails on a government-issued computer in Iraq when Almy’s deployment there ended.
Almy testified for the Log Cabin Republicans at a trial last year. U.S. District Judge Virginia Phillips temporarily halted the policy after the trial, declaring the law violated the constitutional free speech and due process rights of gay military members.
Shortly before being honorably discharged, Almy was recognized as one of the top officers in the Air Force for his leadership skills in running an exemplary unit that helped maintain control over the vast majority of Iraq’s air space during the war.
Even after his discharge, his wing commander formally recommended to the Air Force promotion board that he be promoted to lieutenant colonel, ahead of his peers, because of his outstanding performance, according to his testimony under oath.
Almy estimates his discharge cost him $1.5 million in retirement benefits, the amount he says he would have received if he had been allowed to complete his 20 years in the service.
Dan Woods, an attorney for the Log Cabin Republicans, said if the lower court ruling is upheld by the U.S. 9th Circuit Court of Appeals it could bolster the cases of thousands of former service members, like Almy, who “are still suffering the collateral consequences of being discharged under this unconstitutional law.”
“A lot of people lost opportunities for promotion, a lot people might want to re-apply but can’t because now they’re too old,” Woods said. “Those people ought to have the right to use our case to try to get their discharged status changed, or to try to get reinstated, or try to get back pay.”
Woods said the Obama administration wants his case dismissed because it does not want “to deal with some 14,000 people making claims for back pay and reinstatement. That’s really what it’s about.”
Justice Department officials declined to comment. DOJ attorneys have argued in their court filings that the lower court made its decision before the repeal process began and that repeal of a statute invalidates such constitutional challenges.
The 9th Circuit will hear arguments from both sides Sept. 1 at a hearing in Pasadena, Calif.
The law is scheduled to be abolished Sept. 20. But if the policy’s fallout is still having an impact on people’s lives then the court could still rule on the constitutionality of the case, said Erwin Chemerinsky, University of California, Irvine’s law school dean.
For Almy, the victory of repealing the policy has been bittersweet as he celebrates for today’s gay service members while struggling to get back the life he feels was stolen from him. “To get back on active duty is really next to impossible without the lawsuit,” he said.
The Defense Department has said that the negative re-entry codes on the discharge paperwork of those kicked out under the policy will be waived, and that applicants with honorable discharges will be treated like other prior service applicants and accepted based on need. But that need is dwindling.
Traditionally, the military services bring in prior-service recruits for certain specialties, but even those positions are far fewer today, said Defense Department spokeswoman Eileen Lainez. The percentage of prior-service members among the active-duty recruits has dropped from 5 percent to 3 percent.
All military branches are at full capacity as people flock to the military for jobs or choose to stay in longer. With budget tightening and the expectation the Afghanistan war is winding down, the branches plan to trim their numbers.
The Army is looking to cut 22,000 starting in October after getting a temporary surge in troops in 2009, while the Marine Corps plans to slim down from 202,000 down to 186,000 in the next few years.
The Navy will cut 3,000 officers in the next few months because the promotion lines are so clogged “there is no place for anybody to go,” Navy Adm. Gary Roughead, the chief of naval operations, told The Associated Press. The Air Force at the same time is going to start letting go several hundred of its 9,000 officers.
Jenny L. Kopfstein said she applied in March to be a Navy attorney but was turned down.
The former decorated Navy officer from San Diego, who has testified three times about her 2002 discharge, said she doesn’t know if she was rejected because “don’t ask, don’t tell” is still in place or because there were no positions available for her.
She’s going to try again in the fall but time is running short for the 36-year-old to meet the military’s age limits. If she doesn’t get in, Kopfstein said she might become a civilian lawyer who works with the military or another kind of government attorney.
Almy said he is not ready to let go of his dream.
“This is what I had dedicated all my life to doing,” said Almy, who followed in the footsteps of his father and uncles, all former Air Force officers. “That’s where my heart is. That’s what my passion is — to be an officer, a leader in the Air Force. I miss the missions, the camaraderie, the esprit de corps.”
“I never had a desire to do anything else when I was growing up, and I still don’t to this day,” he said.