DATE: Tuesday, May 13, 1997                 TAG: 9705130278

SECTION: FRONT                   PAGE: A1   EDITION: FINAL 

SOURCE: BY DALE EISMAN, STAFF WRITER 

DATELINE: WASHINGTON                        LENGTH:   80 lines

COURT REFUSES TO HEAR GAY OFFICER'S CHALLENGE THE JUSTICES AGAIN DECIDE TO LET STAND THE ``DON'T ASK, DON'T TELL'' POLICY.

A former Norfolk-based submariner's 4 1/2-year challenge to the Pentagon's ``don't ask, don't tell'' policy on service by homosexuals ended quietly Monday, as the U.S. Supreme Court refused to hear his case.

Without detailing its reasons, the high court let stand a ruling by the 4th U.S. Circuit Court of Appeals that the policy did not violate the free speech rights of former Lt. j.g. Richard ``Dirk'' Selland.

The decision was the latest in a series of setbacks for gay rights advocates challenging the policy. It was the second time the Supreme Court has declined to consider the matter. In October, the high court turned down an appeal by former Navy Lt. Paul Thomasson, who wrote a letter to his commanding officer admitting that he was gay. Circuit Courts in four different regions of the country now have upheld at least part of the policy.

``You wish you could go to another court, another hearing . . .'' a reflective Selland said shortly after the decision was announced ``(But) there's nowhere else to go.''

Kirk Childress, a lawyer for the Servicemembers Legal Defense Network, said cases pending in two other federal circuits mean the fight is not over. A circuit court ruling against the policy would increase the chances of Supreme Court intervention, he said; the high court often declines appeals unless circuit courts disagree over the issues involved.

``We're fighting an uphill battle,'' Childress acknowledged, one made harder by ``the traditional deference the courts like to give the military.''

Selland is among a dozen or more gay troops who disclosed their homosexuality in the months after President Clinton was elected in 1992, apparently relying on his campaign promise to lift a longstanding ban on their service.

But after that promise brought an outcry from senior military leaders, the president retreated and embraced a compromise that permits service by gays so long as they keep their orientation private and do not engage in homosexual acts.

Pentagon regulations implementing the policy include a presumption that service members who declare their homosexuality have engaged in or will engage in homosexual acts. To discharge those troops, the military does not have to produce evidence of specific acts.

Selland, who for some time had quietly endured the jokes of shipmates who suspected his orientation, acknowledged his homosexuality to his commanding officer aboard the submarine Hammerhead on Jan. 21, 1993, the day after Clinton took office. He figured a ban on gay service members, which was then in effect, would soon be lifted, he said, and hoped his commanding officer, Cmdr. Karl M. Hasslinger, would shield him from hazing in the meantime.

Instead, Hasslinger ordered Selland to leave the Hammerhead immediately, and the Navy quickly began proceedings to discharge him.

That sent Selland to court. He managed to stay in the Navy - in a series of assignments ashore - for more than three years after declaring his orientation, as judges blocked his discharge while the case was pending.

But last summer, after being denied a promotion despite glowing recommendations from his bosses, Selland agreed to leave the service with an honorable discharge. He is now a law student at the University of Baltimore and said Monday he hopes for a career as a prosecutor.

The heart of Selland's challenge to the Pentagon policy centered on the presumption of homosexual conduct by service members who declare their homosexuality. That amounts to a restriction on his constitutionally guaranteed freedom of speech, Selland argued.

But the 4th Circuit Court ruled that the regulation had ``a rational factual basis'' and said that in such cases the courts generally should not substitute their judgment for that of military leaders.

Selland said Monday that his lawyers, who donated their services, put in more than $500,000 worth of work on the case. ``It does consume you,'' he said. ``I don't think there's anything we could have done differently.''

And Selland argued that his success in several assignments given him by the Navy while his case was pending demonstrates the weakness of arguments that the presence of gay sailors is disruptive to the rest of the force.

By the time he left the service last summer, his co-workers at the Atlantic Fleet Industrial Supply Center had long since stopped insulting him or trying to make jokes about his sexuality, Selland said. ``People saw that as long as an individual does his job, that's what's important,'' he said. ILLUSTRATION: Color photo

``Dirk'' Selland, a former Norfolk-based submariner. KEYWORDS: GAYS IN THE MILITARY U.S. NAVY

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