HIV Status Will No Longer Automatically Disqualify Troops from Deployment, Retention

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June 8, 2022
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Most HIV-positive troops will no longer face involuntary separation or be barred from deploying as a result of their condition under an update to the Pentagon’s policy on HIV status.

According to a memo released by Defense Secretary Lloyd Austin on Tuesday, commanders no longer will be allowed to involuntarily separate troops with asymptomatic HIV. They also may not restrict them from deploying or bar any currently serving enlisted personnel, cadets or midshipmen with HIV from seeking a commission as an officer.

HIV, however, will continue to be a disqualifying condition for enlistment or commissioning for those not currently serving, meaning HIV-positive persons interested in joining the U.S. military still may not, regardless of whether their viral load is deemed low enough to not be transmissible.

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In the memo sent to senior combatant commanders and military leadership, Austin said the policy change reflects the “significant advances in the diagnosis, treatment and prevention of Human Immunodeficiency Virus.”

The policy change follows a ruling in April by a U.S. District Court judge in Virginia that barred the Defense Department from discharging service members or denying them commissions based solely on their HIV infection status.

U.S. District Court Judge Leonie Brinkema ruled in favor of two airmen facing discharge as a result of their HIV-positive status and an Army National Guard soldier who sought to become a member of the Judge Advocate General Corps.

Brinkema said the DoD’s categorization that HIV-positive troops were nondeployable was “at odds with current medical evidence concerning HIV treatment and transmission.”

“[It] is a policy for which there is no rational basis,” she wrote in her April 22 decision.

In the case, the Justice Department had argued that, although new treatments lower the risk of transmission, it continues to be a danger on the battlefield where service members may come into contact with blood.

According to the advocacy group Lambda Legal, roughly 2,000 service members in the U.S. military are HIV-positive. About 350 are newly diagnosed each year, according to a 2019 Congressional Research Service report.

On Wednesday, Lambda Legal attorneys who represented Army National Guard Sgt. Nicholas Harrison in the case praised the Pentagon for dropping what they called a “discriminatory policy.”

“Because HIV disproportionately impacts LGBTQ+ people and people of color, this discriminatory policy is not only outdated, but is also a serious equity issue that has had a significant impact on communities that already face many other systemic barriers to accessing the full range of opportunity in America,” Kara Ingelhart, a senior attorney at Lambda Legal, said in a statement.

The new policy stipulates that service members who are asymptomatic and have an undetectable viral load, as confirmed by a physician, will have “no restrictions applied to their deployability or ability to commission.”

Service members who test positive while serving will be referred for medical treatment and evaluation on a case-by-case basis. If their infection is not controllable, their case will be reviewed by a medical board before they are discharged, according to the memo.

The new policy creates a Pentagon working group to develop the standards for conducting the case-by-case determinations. It also requires the service secretaries to report, every six months, the number of HIV-positive members they have separated, those who have the virus but are asymptomatic, and those who were denied accession as a result of their status.

— Patricia Kime can be reached at Patricia.Kime@Military.com. Follow her on Twitter @patriciakime

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