By Spring 2020 M-VETS Student-Advisor Holly Kresge

Since the introduction of the human immunodeficiency virus (“HIV”) to the United States in the 1970s, the medical field has made significant advancements in the treatment of HIV. Prior to the 1990s, testing positive for HIV almost certainly led to death. However, people living with HIV today can live nearly as long as their HIV-negative counterparts.  Unfortunately, stigma and misinformation about HIV persist despite medical advances and educational campaigns. Such misinformation permeates current U.S. Department of Defense (“DoD”) policy and the individual polices of the branches of the U.S. Armed Forces, negatively impacting servicemembers living with HIV.

Current HIV Treatment

When infected with HIV, the virus attacks the individual body’s immune system and makes them more likely to contract infections and other serious illnesses or conditions.  If untreated over a period of time, HIV can weaken the immune so significantly that the cells in the body are unable to fight diseases and infections, leading to acquired immunodeficiency syndrome (“AIDS”).   Even without treatment, transmission of HIV is quite rare in comparison to other viruses, like influenza or coronavirus.  HIV can be transmitted to another person through certain types of bodily fluids and only when the fluids are in contact with the blood stream or through sexual activity.  In addition to the few avenues for transmission, the actual risk of transmission is relatively low in cases of sexual activity or needle sharing.  Blood transfusions pose a high risk for HIV transmission, but HIV-positive individuals are prohibited from donating blood, even in the military.

While no cure is available for HIV, the development of a combination of antiretrovirals in the mid-1990s created significant treatment measures to allow people living with HIV to have relatively healthy and normal lives.  Antiretroviral therapy (“ART”) acts to reduce the viral load, or the amount of HIV, in a person’s body.  When an HIV-positive individual adheres to ART treatment, their viral load “becomes ‘suppressed within several months and the virus reaches ‘undetectable’ levels shortly thereafter, meaning there are less than 50 virus copies per milliliter of blood.”  Upon reaching undetectable levels of viral load, HIV-positive individuals are effectively no longer able to transmit the virus to other individuals through any means other than blood transfusions.  Currently, ART is administered through one or two tablets taken daily by 75% to 80% of people living with HIV.  The ART pills “have no special handling or storage requirements[,]…tolerate extreme temperatures[,]…have minimal side effects and impose no dietary restrictions.”  As such, many people living with HIV are able to take a simple daily medication, which allows them to enjoy a healthy, long life.

DoD Policies on Servicemembers Living with HIV

Initially, anyone who tests positive for HIV is barred from entering the military through enlistment or commission, as the presence of HIV is a disqualifying medical condition under DoD Instruction (“DoDI”) 6130.03.  Once a member of the Armed Forces, a servicemember who tests positive for HIV cannot be involuntarily discharged solely for their HIV-positive status, unless they are unable to perform their military duties.

However, this policy can lead to involuntary discharge based on HIV status alone under the DoD’s “deploy or get out” policy. Under DoDI 1332.45, the DoD instituted policy begin administratively separating or referring servicemembers to the Disability Evaluation System who are “considered non-deployable for more than 12 consecutive months.”  Furthermore, the DoD specifically designated HIV as a “medical condition usually precluding contingency deployment.”  The DoD based this preclusion as “due to the potential lack of access to needed medical care or medication in austere environments, as well as the military risks inherent in the mission assigned that could lead to illness exacerbation and compromise unit readiness and mission completion.”  Those HIV-positive servicemembers must obtain a waiver in order to deploy, which may be granted upon a medical assessment of the “climate, altitude, rations, housing, duty assignment, and medical services available in theater.”  Therefore, if an HIV-positive servicemember is not granted a waiver for deployment, then that servicemember will likely be subject to an involuntary discharge under current DoD policy.

Litigation in the Fourth Circuit

Currently, two cases are pending trial in the U.S. District Courts within the Fourth Circuit concerning HIV-positive servicemembers negatively impacted by current DoD policy. In both cases, Lambda Legal and the Modern Military Association of America (“MMAA”) filed suit on behalf of current servicemembers.

In Harrison v. Esper, the U.S. Army denied Sergeant Nick Harrison a position in the Judge Advocate General (“JAG”) Corps after he tested positive for HIV upon return from his second deployment.  Despite adhering to ART treatment and maintaining an undetectable viral load, the U.S. Army denied commissioning Sergeant Harrison because (1) DoDI 6130.03 and 6485.01 prohibited the commissioning of HIV-positive individuals, and (2) he was classified as non-deployable solely on his HIV-positive status.  After an unsuccessful petition to the Army Board for Correction of Military Records, Harrison filed suit in the U.S. District Court for the Eastern District of Virginia with MMAA, arguing DoD and U.S. Army accession policies for people living with HIV “violate the equal protection component of the Fifth Amendment’s Due Process Clause, both on their face and as applied to Harrison.”  The suit is currently pending trial in the Eastern District of Virginia.

Most recently, the U.S. Court of Appeals for the Fourth Circuit weighed in on the issue of servicemembers living with HIV. In Roe v. Esper, the U.S. Air Force attempted to involuntarily discharge two servicemembers solely based on their HIV-positive status.  Both servicemembers adhered to proper ART treatment of one or two pills per day and maintained undetectable viral loads.  Despite the support of their commanding officers, colleagues, and military medical professionals, the Air Force referred both servicemembers to the Disability Evaluation System, where both the Informal and Formal Physical Evaluation Boards recommended them be discharged.  Upon review by the Air Force Personnel Council, the Council made nearly identical statements in both cases, asserting that the member’s HIV-positive status precludes him from deployment and because “deployability is a key factor in determining fitness for duty…and [the servicemember] belongs to a career field with a comparatively high deployment rate[,]…the Board determined he is unfit for continued military service.”

Consequently, the servicemembers brought suit for declaratory and injunctive relief in the Eastern District of Virginia to halt their discharges and challenge the military’s decisions and policies in court.  In particular, the servicemembers claim “the Air Force’s discharge decisions and the military’s deployment policies violate the Administrative Procedure Act (“APA”) and the equal protection component of the Fifth Amendment’s Due Process Clause.”  On February 15, 2019, the Eastern District of Virginia granted the preliminary injunction, which the Federal Government subsequently appealed to the Fourth Circuit.

Approximately a year later, the Fourth Circuit affirmed the lower court’s preliminary injunction, finding the Plaintiffs are likely to succeed on the merits of at least one claim.  First, the Fourth Circuit found the Plaintiffs showed they were likely to succeed on the merits on their claim that the Air Force violated the APA by acting arbitrarily or capriciously in their discharge of the servicemembers based only on their HIV-positive status and without any individualized evaluation of their fitness for military service.  DoD policy requires individualized assessments using objective evidence when determining a servicemember’s fitness for duty under the Disability Evaluation System.  In this case, however, the Air Force failed to make such individualized assessments and determinations for each of the affected servicemembers. Instead, the Air Force utilized identical language for each servicemember, stating their HIV-positive status precluded them from deployments, which rendered them unfit for duty.  The court found this decision inconsistent with DoD policy, which not only required individualized determinations, but also permitted medical waivers for servicemembers living with HIV to deploy.  Thus, the court determined the Air Force’s discharge orders here were arbitrary and capricious under the APA.

Second, the Fourth Circuit found the Plaintiffs showed they were likely to succeed on the merits of their claim that the DoD’s deployment policies violate APA requirements in creating policy “by failing to offer an explanation that is reconcilable with scientific and medical evidence available to it.”  Here, the court emphasized that the justifications for the DoD’s HIV-positive deployment policies and effective ban are “outmoded and at odds with current science.”  Countering the DoD’s argument that HIV requires ‘highly specialized’ treatment, the court highlighted that current ART treatments of single daily pills with no special storage requirements can be prescribed in the same manner the military does for other manageable chronic conditions.  Furthermore, medical evidence shows that disruption of ART treatment causes no immediate negative health impacts, and will take weeks for a person’s viral load to return to detectable levels. Lastly, the court dismissed the military’s concerns of battlefield blood exposure and blood transfusions, pointing to the low risk of any HIV transmission and the DoD’s own policy of not allowing HIV-positive servicemembers to donate blood for transfusions.  Therefore, the court found the government failed to follow APA requirements to articulate a satisfactory explanation for the HIV-positive deployment policy when it was adopted.

Based on these findings, the Fourth Circuit affirmed the district court’s preliminary injunction, barring the DoD and the Air Force from discharging these servicemembers, and those similarly situated, based solely on their HIV-positive status. As of April 2020, the DoD has not chosen at this time to appeal the Fourth Circuit’s decision. Currently, the case is pending trial in the Eastern District of Virginia with companion case, Harrison v. Esper.

The Need for Updated DoD Policy

As evidenced in the Fourth Circuit’s opinion in Roe v. Esper, current DoD policy regarding servicemembers living with HIV is significantly outdated. The original justification for prohibiting the enlistment and deployment of people living with HIV cannot be upheld with the advancement of ART treatment and low risk of HIV-positive servicemembers with suppressed viral loads to transmit the virus to their fellow soldiers. Discharging otherwise healthy and fit servicemembers solely based on their HIV-positive status is not only discriminatory and stigmatizing, but also counterintuitive to the core philosophy and purpose of military service. As such, the DoD needs to update its policies to better align with modern science and allow servicemembers living with HIV to continue their military service.