Airmen Sue Defense Department over Discharges for HIV Status

A view of Pentagon with the Washington Monument in the background. (DoD Photo)
A view of Pentagon with the Washington Monument in the background. (DoD Photo)

Two U.S. Air Force airmen are suing the Defense Department and Defense Secretary Jim Mattis on grounds they were wrongfully terminated from the service because they were diagnosed with HIV last year.

According to a suit filed in the U.S. District Court for the Eastern District of Virginia, plaintiffs "Richard Roe" and "Victor Voe" argue that their discharges from the military violate their constitutional rights because individuals with the human immunodeficiency virus are allowed to serve in the armed forces.

"Roe" and "Voe" -- pseudonyms used to protect the plaintiffs' medical privacy -- are being discharged "despite the contrary recommendations of their commanding officers and physicians solely because they have tested positive for ... HIV," the court documents said. "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," the documents add. News of the lawsuit was first reported by The Washington Post.

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In addition to the constitutionality of the discharges, the case takes on another issue: whether the airmen are considered deployable, which they say ultimately led to their discharges.

In February, Mattis announced a "deploy-or-out policy," signaling that the U.S. military has no place for service members who are non-deployable for more than 12 months. The policy was introduced as an effort to create a more ready force.

HIV-positive personnel in the Air Force must undergo medical evaluation for the purpose of determining status for continued military service.

While the service may not dismiss an airman for having HIV, often the service member becomes non-deployable.

Both airmen in the lawsuit have deployed; they were both diagnosed with HIV last year. The suit argues that "anachronistic policies are no longer justified in light of modern medical science," given they can deploy as long as they take their medications as prescribed.

The airmen are represented by Lambda Legal, OutServe-SLDN and partner law firm Winston & Strawn.

According to the suit, which cites DoD data, "the Air Force allowed at least 13 airmen living with HIV to serve overseas and support vital missions," as of late 2017.

"According to DoD publications, from 2011 to 2016, the Air Force diagnosed 181 airmen and the Navy diagnosed 388 sailors with HIV. In 2016, 119 of those airmen -- more than 65 percent -- and 266 of those sailors -- more than 68 percent -- were still serving," the filing also noted.

Roe and Voe said they weren't given any alternatives to serve in a non-deployable capacity, even though their commanders and physicians recommended they be retained.

"When Roe and Voe attempted to simply maintain the status quo and continue to serve in their present capacities while living with HIV, they faced ill-informed, categorical limitations on their deployability that will have the consequence of prohibiting them from serving at all," the court documents state.

"Roe and Voe were separated because they were classified as non-deployable. But Roe and Voe were classified as non-deployable not because there is any physical or medical reason they cannot deploy, but solely because they are HIV seropositive. Roe and Voe were therefore separated 'solely on the basis of laboratory evidence of HIV infection,' " the documents continue.

Plaintiff Voe enlisted in 2011, has been stationed in two foreign countries, and deployed to the Middle East twice. Plaintiff Roe enlisted in the Air Force in 2012. He also has been stationed in two foreign countries, the suit said.

"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," said Scott Schoettes, counsel and HIV project director at Lambda Legal.

Lambda Legal and OutServe-SLDN, LGBT civil rights and activist groups, issued statements following the Post's story.

"These airmen are acknowledged leaders and good at their jobs. They have served honorably for many years," said Peter Perkowski, legal and policy director of OutServe-SLDN.

"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," he said.

-- Oriana Pawlyk can be reached at oriana.pawlyk@military.com. Follow her on Twitter at @Oriana0214.

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