The Air Force ruled the airmen’s HIV status means they can’t deploy around the world without a waiver, and must be discharged, according to the lawsuit filed Wednesday in the U.S. District Court for the Eastern District of Virginia.
The airmen argue that these policies are discriminatory, unconstitutional and — because they don’t reflect how far HIV treatments have advanced in recent years — anachronistic.
The airmen, a staff sergeant who enlisted in 2012 and a senior airman who enlisted in 2011, adhere to a treatment regimen that has left them without any HIV symptoms and with an undetectable viral load that cannot be transmitted, according to the lawsuit.
“At best, DoD and Air Force 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 suit states. “These anachronistic policies are no longer justified in light of modern medical science. … They currently constitute outright discrimination.”
The airmen were told their appeals were denied a few days before Thanksgiving, even though they passed their fitness assessments, were being medically treated, and had the support of their commanding officers, according to a news release from the organizations Lambda Legal and OutServe-SLDN, which represent the pseudonymously-identified airmen. The lawsuit names Defense Secretary Jim Mattis, Air Force Secretary Heather Wilson and the Defense Department as defendants.
“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, counsel and HIV project director for Lambda Legal. “These decisions should be based on science, not stigma.”
Air Force spokeswoman Capt. Carrie Volpe said the service would not comment on the litigation. Typically, however, airmen with chronic or progressive illnesses are referred to the disability evaluation system for a medical evaluation to determine whether they are fit to continue serving. That evaluation decides, on a case-by-case basis, whether the airman can reasonably do his job, whether the condition represents a decided medical risk to the health of that airman or the welfare and safety of other service members, and whether it imposes unreasonable requirements on the military to maintain or protect him.
Airmen who have laboratory evidence of HIV are not worldwide deployable without a waiver approved by the combatant commander of the deployed location, Volpe said, and are barred from deploying to the Central Command area of responsibility — or the Middle East — which represents the bulk of Air Force deployments.
“The Air Force does not find all airmen with asymptomatic HIV unfit, and has returned more than 150 such airmen to duty,” Volpe said. Airmen who are less likely to deploy, due to their job, rank or experience, may be returned to duty with HIV because the Air Force decides they can still do their jobs. But airmen in a job with a high possibility of deployment may be found unfit, Volpe said.
The airmen who filed suit want their impending discharges ruled unconstitutional and stopped, and to be allowed to re-enlist and continue serving, or for their eligibility for continued service to be re-evaluated in light of a possible order from the court, and for reimbursement of their costs and attorney’s fees.
The lawsuit also seeks to prevent the Air Force and Defense Department from limiting the deployability of HIV-positive troops in the future.
The lawsuit asserts that the airmen, who now expect to be discharged in 2019, are exemplary airmen. The staff sergeant has been stationed in two foreign countries, was made a non-commissioned officer earlier than anticipated, and wants to earn his commission as an officer one day. He was diagnosed with HIV in October 2017, and serves as a logistics specialist.
The senior airman, a munitions systems technician, has deployed to the Middle East twice before his March 2017 HIV diagnosis. The lawsuit said that after his first six-month deployment, he received permission to cut short his dwell time at home and return to the Middle East for a second deployment.
Defense Department and Air Force policies say service members living with HIV should be classified as “deployable with limitations” and not separated, according to the lawsuit.
However, the deploy or get out policy issued by the Pentagon earlier this year requires troops who are deemed not able to be deployed anywhere around the world for 12 months to be separated, unless they receive a waiver.
The airmen were recommended for discharge with a 10 percent disability rating by physical evaluation boards because they were ruled no longer worldwide-deployable, and later lost their appeals.
The lawsuit argues that the two airmen are still able to deploy anywhere, and should be allowed to stay in the Air Force. One airman’s treatment consists of one pill taken daily, the other takes two pills at the same time each day, and the pills do not require any special storage conditions.
The daily medication also means that their HIV is predictable and not expected to progress — contrary to the conclusion of the staff sergeant’s board in February that his HIV condition is “subject to sudden and unpredictable progression" and limits his deployability.
Their commanding officers supported them, the suit said, and their doctors said they should be returned to active duty and did not recommend restricting their work. The suit quotes Lt. Col. Jason Okulicz, director of the HIV Medical Evaluation Unit at San Antonio Military Medical Center in Texas, as saying there was no “medical reason to explain why [the staff sergeant] would not be returned to duty.”
If those airmen can be kicked out, the lawsuit says, so can possibly hundreds of other HIV-positive troops. The lawsuit says that the Air Force and Navy diagnosed 181 airmen and 388 sailors with HIV from 2011 to 2016. And in 2016, about two-thirds of them — 119 airmen and 266 sailors — were still serving. The Air Force also allowed at least 13 airmen with HIV to serve overseas as of late 2017, the suit says.
The Army had 480 soldiers serving on active duty with HIV in 2011, some of whom served for more than 20 years after their diagnosis.
“Anyone willing to put their life on the line to defend our country deserves respect, not discrimination,” said Peter Perkowski, legal and policy director of OutServe-SLDN. “These airmen are acknowledged leaders and good at their jobs. They have served honorably for many years. 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.”
Stephen Losey covers leadership and personnel issues as the senior reporter for Air Force Times. He comes from an Air Force family, and his investigative reports have won awards from the Society of Professional Journalists. He has traveled to the Middle East to cover Air Force operations against the Islamic State.