A Federal Court Is Considering Whether To Overturn Pentagon Restrictions On Troops With HIV

Jul 24, 2020

Service members with HIV are suing the military over a longstanding policy that prohibits them from deploying or commissioning as officers.

Medical advancements allow many people with HIV to live healthy lives with a once-daily pill. A military study published in April found 99 percent of service members with HIV are able to suppress the virus to undetectable levels within a year of regular treatment.

Sgt. Nick Harrison, 43, is one of those people. For him, it's the military policy about HIV, not the virus itself, that's making him suffer. Pentagon rules prevent people with HIV from deploying or being commissioned as officers.

"I'm kind of the prime textbook example of why this policy is ludicrous," he said.

After serving more than a decade in the Army National Guard, including multiple deployments as an infantryman, Harrison went to law school and accepted a job offer with the D.C. Guard's Judge Advocate General Corps.

As part of the application process, he took a physical exam at Walter Reed Military Hospital, and his results placed him at the highest level of medical readiness. But because he tested positive for HIV about a year prior, he was denied the job. Officials said giving him the position violated the military's ban on people with HIV becoming officers.

"It seems moving me over to a courtroom and letting me practice law would probably be the best use of my skills, probably in the best interest of the Army," said Harrison, who filed a lawsuit in 2018. "But because they have this sort of outdated policy, they say, 'No, we don't make any exceptions for HIV.'"

"We're not a danger"

The Air Force took the ban a step further in 2018. It ordered some airmen with HIV to be discharged, even though their doctors said they were fit for duty and their commanders supported retention.

The Air Force said the airmen were non-deployable.

A logistics airman who is suing the military under the pseudonym Richard Roe recalled his shock after seeing a form from a military physical evaluation board that recommended his discharge.

"It said I was going to be a 'burden on my coworkers' if I was allowed to stay in the military because of my HIV," he said.

Roe challenged the decision, along with another affected airman using the alias Victor Voe and the LGBTQ advocacy groups Lambda Legal and the Modern Military Association of America.

"We're not a danger, we're perfectly capable of doing our jobs, and most of us want to do our jobs," said Voe, who has served for about nine years and works in a maintenance unit.

Last year, U.S. District Judge Leonie Brinkema of the Eastern District of Virginia issued an injunction blocking the discharges while the legal challenges continue. She determined the plaintiffs would likely succeed in their claims that their separation violates the Constitution. In January, an appeals court upheld that injunction.

In the hearing scheduled for August 4, Judge Brinkema is expected to decide whether to rule on the case without a formal trial.

Why they can't deploy

Military officials would not comment on the lawsuits. Nor would the Department of Justice, which is also involved in the defense.

But in court documents, lawyers for the military said the government's policies "stem from the military's goal of 'maximiz[ing] the lethality and readiness of the joint force' and the military's judgment that 'all Service members [should be] expected to be deployable.'"

The latter statement is a reference to the 2018 policy commonly known as "deploy or get out," implemented by former Defense Secretary Jim Mattis to trim the number of non-deployable service members.

Lawyers argued that courts historically have deferred to the military to make its own decisions about how to run its forces, because its operations are so different from civilian organizations. The government also said that people who are HIV positive in combat zones pose a risk to themselves and potentially to other troops, because although the risk of HIV transmission from blood-to-blood contact is low, "it is not nonexistent."

"It goes back to, fundamentally, the need for continuing medication," said retired Lt. General Thomas Spoehr, Director of the Center for National Defense at the Heritage Foundation, a conservative think tank. "Because the military deploys people to all kinds of austere locations where you may not have a pharmacy and you may not be able to get refills of those pills."

Spoehr said that's why the military often also does not allow people with other chronic conditions to deploy.

"There's just this belief that they cannot look after these people adequately in a combat zone, and they don't want to take that risk," he said.

However, former Navy Secretary Ray Mabus said that argument may hold up for extreme missions, but not for a blanket ban on deployment.

Mabus, along with former Army Secretary Eric K. Fanning and former Air Force Secretary Deborah Lee James, who all served during the Obama administration, backed the plaintiffs in court filings last year. During his time as Secretary, the Navy expanded its policies to allow personnel with HIV to deploy on large-platform ships and certain bases globally.

"These are people who want to serve, these are people we've invested huge amounts of time and money in, who have amazing experience, who are patriots, who have raised their hands and said, 'send me,'" Mabus said.

Mabus said he suspects the military policies are less about readiness issues and more about a culture that makes LGBTQ service members feel unwelcome.

The lawsuit does not directly challenge another military rule that bans people with HIV from enlisting in the armed services in the first place. But plaintiffs hope a ruling in their favor would help lead to that policy changing as well.

"These cases are designed to achieve a change in policies that will affect all service members living with HIV," said Scott Schoettes, Counsel and HIV Project Director at Lambda Legal. "If Plaintiffs are successful in taking down the categorical bar and replacing it with a set of medical criteria allowing people living with HIV to deploy, then the policies preventing their enlistment, appointment, commissioning, and retention should all fall as well."

This story was produced by the American Homefront Project, a public media collaboration that reports on American military life and veterans. Funding comes from the Corporation for Public Broadcasting.