Metro Weekly

HIV-positive veteran sues Defense Department over policy classifying him as “non-deployable”

Lawyers for Nick Harrison say the Pentagon's approach to HIV is outdated and not based on science

Nick Harrison – Photo: Salma Mohammed and Lambda Legal.

An HIV-positive veteran and sergeant in the D.C. Army National Guard is suing the Defense Department over a policy that could see him forcibly discharged because of his HIV status.

Nick Harrison, an openly gay veteran of two overseas combat zones, was denied a position in the Judge Advocate General Corps because the Pentagon’s current policy classifies service members with HIV as “non-deployable,” meaning they cannot be deployed to military posts outside the United States for more than 12 consecutive months.

As such, those who are HIV-positive, like Harrison, can face immediate discharge under a Pentagon policy, unveiled in February, that stresses deployability as essential to ensuring military readiness.

The policy, nicknamed “Deploy or Get Out,” also prohibits HIV-positive people from enlisting in the military or being appointed as officers.

Harrison’s lawyers argue that the “Deploy or Get Out” policy is not based on current scientific understanding of HIV, and relies on outdated stereotypes about the disease and how it is treated.

 “Today, though still incurable, HIV is a chronic, manageable condition rather than the terminal diagnosis it once was,” they argue in their complaint, which was filed in U.S. District Court for the Eastern District of Virginia. “In fact, a 25-year-old who is timely diagnosed and provided appropriate treatment has a life expectancy within four to six months of a 25-year-old who does not have HIV.”

His lawyers also argue that the Pentagon policy violates his Fifth Amendment rights to due process and equal protection under the law, and discriminates against HIV-positive people in a way that triggers heightened scrutiny.

“Defendants routinely permit similarly situated individuals who are not HIV positive, including but not limited to people with comparable chronic, manageable conditions, to enlist in the military and to commission as officers, including for positions such as attorney in the Judge Advocate General Corps for the D.C. National Guard,” the lawsuit reads.

“Defendants’ disparate treatment of Plaintiff Nick Harrison and other individuals living with HIV deprives them of their right to equal dignity and stigmatizes them as second-class citizens in violation of equal protection guarantees,” it continues. “There is no longer a valid purpose for this disparate treatment, and neither is the classification at issue — HIV status — adequately tailored in service of any governmental interest.

“This disparate treatment is not even rationally related to a legitimate governmental interest, let alone is there an important or compelling governmental interest to justify it. Thus, the enlistment ban and service restrictions cannot withstand any form of scrutiny and are invalid.”

“Nick’s situation is the perfect example of just how archaic and harmful the military policies regarding people living with HIV really are,” Scott Schoettes, counsel and HIV Project Director at Lambda Legal, said in a statement.

“These oppressive restrictions are based on antiquated science that reinforces stigma and denies perfectly qualified service members the full ability to serve their country…. Recruitment, retention, deployment and commissioning should be based on a candidate’s qualifications to serve, not unfounded fears about HIV.”

Peter Perkowski, the legal director of OutServe-SLDN, noted that the military has already spent thousands of dollars on Harrison’s training to be a soldier and lawyer, and is now attempting to cut ties with him.

“It is time for the DoD to come out of the dark ages, update its HIV policies and revise its thinking on the deploy or get out mentality,” he said.

In addition to representing Harrison, Lambda Legal and OutServe-SLDN are also involved in a companion lawsuit, Voe v. Mattis, brought on behalf of an anonymous service member living with HIV who the Air Force denied the opportunity to commission as an officer after his graduation from the Air Force Academy, despite recommendations from medical personnel to do so.

Harrison says he’s wanted to become an Army officer since serving in Afghanistan and Kuwait, and spent years receiving training to serve as a military lawyer.

“This should be a no-brainer,” he said in a statement. “It’s frustrating to be turned away by the country I have served since I was 23 years old, especially because my HIV has no effect on my service. It was an honor to be chosen to join the JAG Corps for the DC National Guard, and I look forward to my first day on the job.”

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