ALEXANDRIA, Va. (CN) – Contrasting their treatment with how the military treats other service members who become wounded or ill, two airmen claim in a federal complaint that they were illegally discharged because of their HIV-positive status.
Represented by attorneys at Winston & Strawn, along with advocates at Outserve-SLDN and Lambda Legal, the pseudonymous plaintiffs Richard Roe and Victor Voe say they are asymptomatic and were cleared for duty when they were barred from deployment earlier this year.
“When faced with other conditions or illnesses, each service member is given due consideration that takes into account his or her circumstances and physical condition,” the complaint states. “By contrast, when Roe and Voe attempted to simply maintain the status quo and continue to serve in their present capacities while living with HIV, they faced ill-informed, categorical limitations on their deployability that will have the consequence of prohibiting them from serving at all.”
Filed in U.S. District Court for the Eastern District of Virginia, the complaint notes that the Defense Department issued a “Deploy or Get Out Policy” this past February, which mandated the discharge of all service members who were not “worldwide deployable” for 12 months.
“This directive arguably would have applied to almost all service members living with HIV,” the complaint states.
Though the department modified the memo in July, stating that service members living with HIV would be categorized as “deployable with limitations,” the plaintiffs say this runs contrary to an already established Air Force policy that says service members need evaluation, treatment and an annual check-up to be approved for continued service once they are diagnosed as HIV positive.
“Singling out service members with HIV for starkly different treatment is a vestige of an unfortunate time when HIV was untreatable and invariably fatal,” the complaint states.
Air Force policy also plainly states that HIV-positive status alone is “not grounds for medical separation or retirement for active-duty Air Force members,” according to the complaint.
The policy says Air Force service members must be retained “so long as they are able to perform the duties of their office, grade, rank and/or rating… they may not be separated solely on the basis of laboratory evidence of HIV infection.”
Roe, a staff sergeant, says he enlisted in 2012 in hopes of “fulfilling a family legacy.” While serving in two foreign countries, Roe says he received stellar reviews and was even promoted.
After being diagnosed with HIV last October, Roe underwent treatment that has made his viral load “undetectable,” according to the complaint.
He received multiple letters of support, including one from a specialist who found “no medical reason” why Roe should be discharged.
In February, as required, Roe went before the Air Force’s informal physical evaluation board for a final say.
A decision typically takes weeks or months, but Roe says his was rendered within three hours: It allegedly recommended Roe be discharged because his condition was “subject to sudden and unpredictable progression [that would] result in deployment restriction.”
Voe alleges his circumstances were nearly identical – except his hearing lasted 20 minutes and deliberations for just 30. The board scheduled Voe, a senior airman who served two tours in the Middle East, for discharge in 2019.
Lead attorney Andrew Sommer notes in the complaint that HIV is manageable though incurable and doesn’t equate to a terminal diagnosis. “In fact, the average life span of a 25-year-old who is diagnosed in a timely fashion and provided appropriate treatment is only a few months shorter than that of a 25-year-old who does not have HIV,” the complaint states.
If the military doesn’t re-examine its “irrational and arbitrary” deployability policies for service members living with HIV, Sommer says Roe, Voe and others in the same situation will be forced out because of their status.
“Even though hundreds of individuals living with HIV, including Roe and Voe, have served honorably in the Armed Forces after being diagnosed,” he added.
Representatives for the Defense Department have not returned a request for comment.