Testing positive for HIV was difficult enough. Getting forced out of the military by the Air Force because of the diagnosis proved even harder.
So say two U.S. airmen who filed suit on Wednesday against Defense Secretary Jim Mattis in the U.S. District Court for the Eastern District of Virginia, arguing that the Pentagon’s decision last month to discharge them from the military owing to their HIV status violates the Constitution’s equal protection clause and federal law. They have asked the court to strike down the decision.
Both active-duty airmen said they tested positive for HIV last year during Air Force screenings. After they started antiretroviral treatments, their doctors deemed them asymptomatic and physically fit to deploy, and their commanders backed their continued service. They intended to pursue lengthy Air Force careers after serving for more than half a decade in logistics and maintenance roles.
Last month, however, the two airmen received word that they had been deemed unfit for military service and would be discharged. The stated reason: The U.S. military bans personnel with HIV from deploying to the Middle East, where the majority of Air Force members are expected to go.
“Policies singling out service members living with HIV for starkly different treatment are an unfortunate vestige of a time when HIV was untreatable and invariably fatal,” the airmen argued in the complaint. “These anachronistic policies are no longer justified in light of modern medical science.”
Both airmen maintain they can head to the Middle East with no problem, so long as they take a supply of medication with them. But the ban on HIV-positive service members there officially renders them unfit to deploy worldwide, placing them in a category of service members Mattis wants pushed out of the military. They weren’t offered alternative jobs, which both airmen said they would have accepted.
Since taking over at the Pentagon almost two years ago, Mattis has made it a priority to whittle down the number of U.S. service members unable to deploy for various reasons.
Known colloquially as “deploy or get out,” the policy he spearheaded came into effect this fall. Under its guidelines, any service member who is deemed unable to deploy for 12 consecutive months will be evaluated for separation. Pregnant and postpartum service members are excluded. Those suffering from wounds received in action receive “special consideration.”
“You’re either deployable, or you need to find something else to do. I’m not going to have some people deploying constantly and then other people, who seem to not pay that price, in the U.S. military,” Mattis told reporters in February. “If you can’t go overseas [and] carry a combat load, then obviously someone else has got to go. I want this spread fairly and expertly across the force.”
The two airmen, who filed suit using the aliases Richard Roe and Victor Voe to avoid the stigma of publicizing their HIV status, say they can in fact go overseas and carry a combat load. Their doctors agree.
The ban on them deploying to the Middle East, they say, is forcing them out of their jobs, even though those living with HIV elsewhere in the military have been retained.
The Defense Department and the Air Force declined to comment on the legal case, which LGBT civil rights group Lambda Legal prepared with the assistance of LGBT military association OutServe-SLDN and pro-bono counsel at Winston & Strawn LLP.
All airmen diagnosed with progressive illnesses are referred for disability evaluation, according to a spokeswoman for the Air Force. The service evaluates their ability to perform duties, whether the condition represents a risk to their health or that of other service members, and whether the condition imposes unreasonable requirements on the military to protect them, the spokeswoman said.
“The Air Force does not find all airmen with asymptomatic HIV unfit, and has returned more than 150 such Airmen to duty,” the spokeswoman said. She said airmen in career fields with a low possibility for deployment or who are unlikely to deploy because of rank or experience may be returned to duty, “whereas airmen in career fields with a high possibility for deployment may be found unfit.”
In particular, the spokeswoman said, airmen with laboratory evidence of HIV are precluded from deploying to Central Command’s area of operations or the Middle East. The implication is that because the two airmen were in career fields that could deploy there, the Air Force discharged them.
Neither the Air Force nor Central Command provided a rationale for why HIV-positive service members are precluded from deploying to the Middle East, where the U.S. military sees active combat.
Scott Schoettes, a counsel at Lambda Legal representing the plaintiffs, said the ban is arbitrary and inconsistent with the current medical reality for those serving with HIV.
It is easy for such service members to bring sufficient supplies of medication on a deployment, Schoettes said. For most people living with HIV, medication renders the virus inconsequential to their daily lives, and the virus is suppressed to a degree that they no longer can transmit it to others, the complaint said.
“What we’re really asking for here is that HIV be treated the same as any other medical condition in terms of evaluating whether or not you can deploy with it,” Schoettes said. “It shouldn’t be carved out and specifically categorized as ‘you are non-deployable once you have this.’”
Those diagnosed with HIV are still prohibited from joining the military.
In an interview with The Washington Post, one of the two plaintiffs, a 26-year-old maintenance airman from California, said he had already deployed twice to the Middle East and his job didn’t require him to leave the confines of a base where medical personnel were on hand. He expressed confidence that he would still be able to do his job there and elsewhere.
“It’s disheartening to say the least,” the airman said. “I know for a fact that I am very good. I know I’m good at what I do, and I’m not being afforded the opportunity to give the Air Force what I know I’m capable of doing.”