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Pentagon discriminates against HIV-positive service members, suit claims

The lawsuit claims two service members were fired from the military "solely because they have tested positive" for HIV.

Two LGBTQ advocacy organizations filed a lawsuit this week against Secretary of Defense James Mattis and Secretary of the Air Force Heather Wilson on behalf of two service members who say they were fired due to their HIV status.

The service members, referred to in the lawsuit as “Richard Roe” and “Victor Voe” to protect their medical privacy, tested positive for HIV last year during military health screenings. Then last month, they both received notice that they would not be able to continue their careers in the military.

“Roe and Voe are being discharged despite the contrary recommendations of their commanding officers and physicians solely because they have tested positive for the human immunodeficiency virus (“HIV”),” the suit, filed by Lambda Legal and OutServe-SLDN, states. “Even though they are asymptomatic, they adhere to a treatment regimen that has been scientifically established to halt the progression of HIV, and their viral loads are undetectable. As such, their discharges violate the U.S. Constitution and federal statutes and regulations.”

Image: Defense Secretary James Mattis during a joint press conference with Afghan President Ashraf Ghani and NATO Secretary General Jens Stoltenberg in Kabul
File photo: Defense Secretary James Mattis during a joint press conference with Afghan President Ashraf Ghani and NATO Secretary General Jens Stoltenberg in Kabul, Afghanistan.Jawad Jalali / EPA file

The suit challenges the current Department of Defense (DoD) deployment policy outlined in a February 2018 memorandum. The policy, dubbed “Deploy or Get Out,” mandates that service members who have been non-deployable for the last 12 months be separated from the military. Secretary Mattis, who this week announced his impending retirement in February, said such a policy is necessary in order to “ensure our military is ready to fight today and in the future.”

Approximately 11 percent of the 2 million military personnel serving on active duty, in the reserves or in the National Guard (about 235,000 people) are currently considered non-deployable for various reasons, according to Military Times. With certain exceptions, such as pregnancy, application of the so-called Deploy or Get Out policy would mean discharging many of these individuals.

“Unfortunately, current military policies make Service members with HIV who are allowed to deploy the exception rather than the rule, even though one’s HIV status has no effect on deployability for the vast majority of Service members with HIV,” the suit states.

This latest case joins two other lawsuits that take aim at the military’s policies when it comes to service members with HIV. In Harrison v. Mattis and Deese and Doe v. Mattis, the plaintiffs claim they were denied the rank of officer because of their HIV status.

“It’s disgusting that the Trump Administration is sending some men and women in uniform home for the holidays without jobs simply because of their HIV status,” Scott Schoettes, an attorney and the HIV Project Director at Lambda Legal, said in a statement. “These decisions should be based on science, not stigma.”

Citing the Air Force’s own long-standing policy on retention of HIV-positive service members, Schoettes said “HIV status alone is not supposed to be the basis for discharge.”

“They are violating their own policies and statements on this,” Schoettes added. “People living with HIV can be part of the best military in the world, and that’s really our point.”

Schoettes said his organization will keep fighting in court “until President Trump understands that there’s not a job in the world a person living with HIV cannot safely perform, including the job of soldier.”

Peter Perkowski, the legal and policy director of OutServe-SLDN, echoed Schoettes.

“Our clients and others living with HIV are fit. Period. They can do any job they are asked to do,” Perkowski told NBC News. “Anyone willing to put their life on the line to defend our country deserves respect, not discrimination.”

“These Airmen are acknowledged leaders and good at their jobs. They have served honorably for many years,” Perkowski added. “They have the support of their commanders and medical personnel, who state that having HIV will not affect their ability to do their jobs. There is simply no justification for this decision.”

Deployability is determined on a “case by case basis,” a spokesperson for the Air Force said in a statement provided to NBC News.

“The Air Force does not find all Airmen with asymptomatic HIV unfit, and has returned more than 150 such Airmen to duty,” the spokesperson explained. However, the statement continued, “Airmen in career fields with high possibility for deployment may be found unfit.”

The Department of Defense did not respond to NBC News’ request for comment on the case.