Service members living with HIV will be in court in early August. They’re suing the military for discrimination over a longstanding policy that prohibits them from deploying or commissioning as officers.
Medical advancements in HIV treatment have transformed the condition from what some considered a death sentence in decades past to one that allows many people to live healthy lives with a once-daily pill. A military study published in April found 99 percent of service members with HIV were 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, that's making him suffer.
“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 around the same time Harrison got some bad news: because he tested positive for HIV about a year prior, he was denied the position. Officials said giving him the job would have 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probably be the best use of my skills, probably in the best interest of the Army, but because they have this sort of outdated policy they say, ‘No, we don't make any exceptions for HIV, you're just sort of stuck there.’" said Harrison, who filed a lawsuit against the military in 2018 after spending years exhausting all the channels of appeal within the military.
“We’re not a danger”
The Air Force took things a step further that same year. It ordered some airmen with HIV to be discharged even though their doctors also said they were fit for duty and their commanders supported retention.
Military policy does not allow for the separation of service members who get HIV after enlisting if the decision is solely based on their diagnosis.
But The Air Force said they were not discharged because they were HIV-positive, but instead because they were non-deployable.
Central Command does not allow service members with HIV to deploy to its Area of Responsibility, which includes the Middle East, Central Asia and North Africa, without a waiver. The Air Force said 80 percent of its deployments are to that area, and that these airmen were in career fields with high likelihoods of deploying. Because they could not go, they were unfit to serve. The airmen were not evaluated for waivers.
A logistics airman who is suing the military under the pseudonym Richard Roe recalled his shock after reading the comments section of the form a formal physical evaluation board gave him recommending 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, along with another affected airman using the alias Victor Voe and the LGBTQ advocacy groups Lambda Legal and the Modern Military Association of America, challenged the decision.
“It’s frustrating to say the least, we’re not a danger, we’re perfectly capable of doing our jobs and most of us want to our jobs, like I want to do my job and it’s frustrating that they [the Air Force] won’t let us do that,” said Voe, who has served for about nine years and works in a maintenance unit.
Last year Judge Leonie M. Brinkema with the U.S. District Court for the Eastern District of Virginia ordered an injunction to block the discharges while the legal challenges continue after she determined the plaintiffs would likely succeed in their claims that their separation violates the Constitution. In January, an appeals court upheld that injunction, but the case could still go to trial.
Why they can’t deploy
The military would not comment for this story, nor would the Department of Justice which is also involved in the defense.
But in court documents filed in Nick Harrison’s case, which has since been merged with the one filed by Roe and Voe, lawyers for the military said:
“Defendants’ policy regarding deployability and retention of military members deemed to be non-deployable 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.’”
Lawyers also argued historically courts have typically deferred to the military to make its own decisions about how to run its forces because its operations are so different from civilian organizations.
They said that people who are HIV positive in combat zones pose a risk to themselves, and potentially their troops because although the risk of HIV transmission from blood-to-blood contact is low, “it is not nonexistent.”
As for why the airmen weren’t evaluated for waivers, the military told the court that past failed attempts by personnel with HIV to get waivers to deploy to CENTCOM set a precedent for Air Force officials to assume it was “extremely unlikely.”
CENTCOM Officer Kevin Cron said although he had conducted “thorough risk assessments” for past waiver requests, he ultimately “determined in each case that the risks of deploying a HIV-positive Service member were too great to justify waiver approval.”
The policy makes sense, according to retired Lt. General Thomas Spoehr, Director of the Center for National Defense at the Heritage Foundation, a conservative think tank.
“It goes back to, fundamentally, the need for continuing medication,” he explained. “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.
But former Navy Secretary Ray Mabus doesn’t agree. He said that argument may hold up for extreme missions but not for a blanket ban on deployment.
HIV medications are easily transportable and don’t need special storage. And medical experts testifying on behalf of the plaintiffs told the courts routine viral load testing required of all service members with HIV could be done by a general practitioner, and if one wasn’t available, blood samples could be shipped to a lab.
They also said risk of transmission via open wounds is extremely rare even for those with untreated HIV. And that while the odds of transmission via blood transfusion are high, service members with HIV are one of several categories of people who are not allowed to donate blood anyway.
Arguments for change
Mabus, along with former Army Secretary Eric K. Fanning and former Air Force Secretary Deborah Lee James, who all served under 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.
Mabus said the military needs to update its policies even further.
"These are people who want to serve, these are people we've [the military] invested huge amounts of time and money in, who have amazing experience, who are patriots, who have raised their hands and said, ‘Send me,’” he said.
Mabus said he suspects the reason the military has resisted changing its policies is less about readiness issues and more about a culture that makes LGBTQ service members feel unwelcome.
While lawyers with the Modern Military Association of America and Lambda Legal say they have had service members with HIV come to them with complaints about mistreatment during their time in the service, Harrison, Voe and Roe all say they have received a great deal of support from supervisors and members of their unit.
“The people who know Nick, know Victor and Richard, they know they can do their jobs, and that’s the medical people as well as their command,” said Peter Perkowski, Legal and Policy Director at the MMAA. “So the second-guessing that’s going on is frustrating, it’s puzzling, and I think it’s based on a lack of information or a fear that for some people, the decision-makers, people living with HIV are going to cause problems if they have certain assignments or deployments, and that’s just not the case.”
While the injunction blocks service members from being discharged under the policy, troops who are HIV positive are still banned from deploying or becoming officers.
In the upcoming hearing scheduled for August 4, Judge Brinkema is expected to decide whether to rule on the case without a formal trial.
This case does not directly challenge the military's rule that bans people with HIV from enlisting in the armed services. 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, who mentioned the groups are representing two cadets denied commissions after graduating from military academies in another case that more directly challenges the ability of people with HIV to join the military.
“And the lynch pin to all of these cases is the categorical bar to the deployment of people living with HIV,” Schoettes said. “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.