Service members sue Pentagon over HIV policy

An Army National Guard sergeant seeking to become a judge advocate general (JAG) and an unnamed Air Force veteran are suing the Pentagon over its policy on HIV, saying it is out of step with medical progress.

Department of Defense (DOD) policy bars anyone living with HIV from enlisting or being commissioned and places geographic limitations on the service of those who first test positive while on active duty.

“After serving in Afghanistan and Kuwait, I knew I wanted to become an officer in the U.S. Army and a leader for all of the great men and women in our armed forces,” Sgt. Nick Harrison said in a statement Wednesday. “I spent years acquiring the training and skills to serve my country as a lawyer. This should be a no-brainer.

“It’s frustrating to be turned away by the country I have served since I was 23 years old, especially because my HIV has no effect on my service. It was an honor to be chosen to join the JAG Corps for the D.C. National Guard, and I look forward to my first day on the job.”

Lambda Legal and Outserve-SLDN filed a lawsuit on Harrison’s behalf Wednesday in the U.S. District Court for the Eastern District of Virginia. The two organizations also filed a companion lawsuit on behalf of the Air Force veteran in the U.S. District Court for the District of Columbia.

{mosads}Harrison served in Afghanistan and Kuwait, and was diagnosed with HIV while deployed in Kuwait in 2012. In 2013, he was chosen for an open position in the D.C. National Guard’s JAG Corps, but was denied a medical waiver and three appeals.

The Air Force veteran, referred to in the lawsuit as Voe, enlisted in 2009 and was accepted to the Air Force Academy in 2012. Voe was diagnosed with HIV midway through his second year at the academy, but was given a waiver to continue. Upon graduation, though, he was denied commission and kicked out of the military.

The lawsuits allege the military’s HIV policy violates the Fifth Amendment’s guarantee of equal protection under the law in part because medical advances have made HIV much less consequential to daily life and rendered the policy outdated.

“These oppressive restrictions are based on antiquated science that reinforces stigma and denies perfectly qualified service members the full ability to serve their country,” Scott Schoettes, counsel and HIV project director at Lambda Legal, said in a statement. “The Pentagon needs to catch up with the 21st Century. Recruitment, retention, deployment and commissioning should be based on a candidate’s qualifications to serve, not unfounded fears about HIV.”

Further, Harrison’s lawsuit argues, the Pentagon’s new “deploy or get out” policy could mean hundreds of service members diagnosed with HIV could soon be kicked out altogether. That policy, announced in February, says that anyone who has been considered nondeployable worldwide for 12 months or more will be separated. 

“The military has spent thousands of dollars training Nick to be a soldier, a lawyer, and a leader — now they are turning their backs on him,” Peter Perkowski, legal director of OutServe-SLDN, said in a statement. “The Air Force likewise spent tens of thousands educating Voe at one of the premier military academies in the country, yet then sent him packing. What happened to them could happen to any service member with HIV, especially given the DoD’s recent ‘Deploy or Get Out’ policy. It is time for the DoD to come out of the dark ages, update its HIV policies and revise its thinking on the deploy or get out mentality.”