Judge overturns Pentagon restrictions on HIV-positive service members

A federal judge on Wednesday struck down longstanding Department of Defense restrictions that bar HIV-positive military service members from becoming officers and deploying in active duty outside the U.S.

District Judge Leonie Brinkema of the Eastern District of Virginia ruled in favor of three service members in two separate cases, according to court documents shared by Buzzfeed News.

The plaintiffs in one case, under the pseudonyms Richard Roe and Victor Voe, had sued after being discharged by the Air Force in relation to a ban on overseas deployment because they were HIV-positive.

In the other, Nicholas Harrison had brought a lawsuit after his application to commission as a military lawyer with the Judge Advocate General Corps was denied.

In the former case, Brinkema ruled that the Defense Department cannot separate or discharge Roe and Voe or any other asymptomatic HIV-positive service member “with an undetectable viral load” because their HIV leads them to be deemed ineligible for “worldwide deployment” or to be deployed to U.S. Central Command.

She further ruled in the latter case that applications to commission as officers made by service members in the same condition cannot be denied for those reasons.

She also ordered the secretary of the Air Force to rescind the discharge papers given to Roe and Voe and the secretary of the Army to rescind her decision to deny Harrison’s application, ruling that both officials must reevaluate the decisions in a way that is consistent with her orders.

Wednesday’s rulings follow a 2019 directive from Brinkema in which the judge approved a preliminary injunction halting the pending discharges of Roe and Voe because they were “likely to succeed” in their legal action.

The pair filed a lawsuit in December 2018 after they received discharge papers just days before Thanksgiving. The papers said they were unfit for service because of their conditions despite the secretary of the Air Force acknowledging they were asymptomatic, complying with treatment and had an undetectable HIV viral load.

They alleged in the lawsuit that the Pentagon was discriminating against them because of a long-standing policy preventing HIV-positive service members from deploying overseas without a waiver.

The Trump administration expanded on that policy when it instituted a rule declaring any service member who cannot deploy outside the U.S. for more than one year should be separated.

Current military policy puts military members who test positive for HIV into a database.

Under the Americans with Disabilities Act, which was enacted in 1990, discrimination against any person because they have HIV is illegal.

While there is no cure for HIV, the virus is treatable with medicine. Most people are able to get it under control within six months, according to the Centers for Disease Control and Prevention.