Airmen sue Pentagon over discharge after testing positive for HIV

Two active-duty airmen on Wednesday sued the Pentagon over its policy on HIV, saying they were unfairly discharged after they were denied waivers to serve.

The lawsuit, filed as Roe and Voe v. Mattis, challenges the Pentagon’s current deployment policies. The policy identifies service members living with HIV as non-deployable if they first test positive while on active duty, pending a waiver.

The policy also bars anyone living with HIV from enlisting or being commissioned. 

Lambda Legal and OutServe-SLDN filed the lawsuit against the Pentagon in the U.S. District Court for the Eastern District of Virginia on behalf of the airmen, who they say were given discharge orders just days before Thanksgiving. 

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Both airmen tested positive for HIV last year during Air Force screenings and quickly started antiretroviral treatments. Doctors and commanding officers recommended the two be returned for duty, according to the lawsuit. 

But the Pentagon found the two “unfit for continued military service,” and told them they would be discharged. 

The Washington Post reported that the two were not offered alternative jobs, which they said they would have accepted. 

“Anyone willing to put their life on the line to defend our country deserves respect, not discrimination,” Peter Perkowski, the legal and policy director of OutServe-SLDN, said in a statement announcing the lawsuit.

“These Airmen are acknowledged leaders and good at their jobs. They have served honorably for many years. 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.”

The Pentagon’s new “Deploy or Get Out” policy, announced in February, says that anyone who cannot be deployed outside the United States for 12 months or more will be separated from the military, which means service members with HIV face immediate discharge under the new Trump administration policy.

“Requiring Service members to secure a waiver or exception to policy from those who lack both medical training and a complete understanding of HIV in 2018 often invites or facilitates discrimination,” the lawsuit states.

“This case highlights two such examples: Air Force personnel ignored the recommendations of their own medical officers and operational commanders and instead arbitrarily and wrongly decided to separate Airmen based solely on their HIV status.”

This is the third time this year that service members have sued the Pentagon over its policy on HIV.

In May, Lambda Legal and Outserve-SLDN filed lawsuits on behalf of Sgt. Nick Harrison, an Army National Guard sergeant seeking to become a judge advocate general (JAG) and an unnamed Air Force veteran.

And in August the two firms also filed a lawsuit on behalf of Kevin Deese and an anonymous client who the Navy and Air Force refused to commission as officers based on their HIV-positive status after they graduated from their respective military academies.