Judge Overturns Military Ban on HIV-Positive Troops Getting Commissioned as Officers

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April 9, 2022
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A federal judge has struck down the military’s policy of denying commissions to HIV-positive service members in a lawsuit filed in 2018.

U.S. District Judge Leonie Brinkema ruled Wednesday that the Department of Defense must reconsider Nicholas Harrison’s application to become a JAG officer for the D.C. National Guard without taking into account his HIV-positive status. The ruling also applies to “any other asymptomatic HIV-positive service member with an undetectable viral load.”

The lawsuit, originally filed several years ago, was brought by Harrison, who joined the Army in 2000 at 23. According to his complaint, Harrison left active duty for the reserves after three years as a sergeant to focus on college. He subsequently earned both a bachelor’s and law degree while with the Oklahoma Guard.

While in law school, Harrison says he deployed twice — to Afghanistan and Kuwait. The latter deployment came before he could sit for his bar exam.

After returning from Kuwait in 2012, court documents say that he tested positive for HIV.

“Sgt. Harrison was immediately placed on antiretroviral combination therapy, and soon thereafter, he had an undetectable viral load,” the complaint said. “He has been virally suppressed or had an undetectable viral load ever since that time,” it added.

In 2013, after being accepted to the Presidential Management Fellows (PMF) program, Harrison was offered a position in the Judge Advocate General Corps for the D.C. National Guard as a captain. However, his HIV status prevented his commissioning, despite the fact he received top marks in every category of his commissioning medical exam, the complaint said.

Harrison asked for a waiver and appealed the subsequent denial to the deputy chief of staff for the Army and under secretary of defense for personnel and readiness with no success.

Court records say that Harrison was told by the service’s chief of staff that his request was “not in the best interest of the Army.”

Harrison sued, arguing the military’s long-standing policy on HIV-positive service members was discriminatory, especially in light of medical advances that have allowed people with managed infections to lead largely unaffected lives.

“These medical advances should have resulted in an overhaul of military policies related to people living with HIV,” Harrison argued in his complaint.

“Instead, the Department of Defense and the Army maintained the bar to enlistment and appointment of people living with HIV, as well as the restrictions on deployment, when they revisited these policies in recent years,” the document added.

When asked about the judge’s Wednesday ruling, a spokesman for the Pentagon directed Military.com to the Department of Justice. The Department of Justice did not reply before publication.

The allegation that the military’s HIV regulations, originally developed in the 1980s, are out of touch is not new.

At one point in the 1980s, service members who tested positive were being charged with sodomy under the Uniform Code of Military Justice, and HIV-positive troops reported being forced to live in a special barracks at Fort Hood that became known as “the leper colony.”

One regulation that has drawn particular attention and criticism is the so-called “safe sex order” that HIV-positive service members are required to sign, which restricts them from more banal activities like sharing toothbrushes or razors all the way to the mandated use of contraception to prevent pregnancy and spread of HIV to a potential child.

In an editorial published in 2019, former Secretary of the Navy Ray Mabus argued that it is “long past time” for the military to revisit some of these rules. Though people still are not allowed to enlist while positive, Mabus noted that the Navy expanded the places HIV-positive sailors could serve to include “large-platform ships and certain bases globally.”

“These individuals can do the job as well as anyone else,” he wrote.

As Harrison’s case wound its way through the legal process, the government’s lawyers tried unsuccessfully to have it dismissed several times.

Among the government’s arguments to toss the suit was the fact that the court “has no power to direct that Plaintiff Harrison be commissioned” since that is a “power expressly reserved for the President alone,” court filings said. Plus, they argued that people with HIV aren’t a group “that is entitled to special consideration under the Equal Protection Clause.”

The lawsuit never reached trial, instead handing a victory to Harrison on summary judgment. The judge’s full opinion remained under seal as of Thursday evening. It is not clear whether the government will appeal the decision.

— Konstantin Toropin can be reached at konstantin.toropin@military.com. Follow him on Twitter @ktoropin.

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