Metro Weekly

Pentagon to Pay $1.3 Million to Military Members with HIV

Settlement covers legal fees incurred by service members who the Defense Department attempted to discharge for living with HIV.

Sergeant Nick Harrison of the D.C. Army National Guard – Photo by Todd Franson.

The Department of Defense will pay $1,325,000 to settle claims for attorneys’ fees and costs incurred by the Modern Military Association of America and three service members who sued over the Pentagon’s ban on service members living with HIV.

The settlement comes in two cases dealing with U.S. military service members who were denied commissions or threatened with discharge due to their HIV status. One of the plaintiffs, Sgt. Nick Harrison of the D.C. Army National Guard, sued after he had his request for a medical waiver rejected after he tried to commission as a Judge Advocate General’s Corps (JAG) officer.

Two airmen, using the pseudonyms Richard Roe and Victor Voe to protect their identities and private medical information, sued after the Air Force tried to forcibly discharge them on the grounds that their HIV status made them “unfit for military service” — despite testimonials to the contrary from their commanding officers and personal care providers.

Both the Harrison and Roe cases were combined for purposes of discovery and argument, with the plaintiffs challenging the military’s longstanding ban on active-duty service members with HIV. The Modern Military Association of America joined the case in the interests of its members, including active service members who are living with HIV.

In April, a federal judge struck down the ban as discriminatory, ordering the Department of Defense to stop discriminating against service members living with HIV, and to allow them to deploy and commission as officers in the U.S. military.

In that ruling, Judge Leonie Brinkema, of the Eastern District of Virginia, found that the categorical ban on service members with HIV was unlawful because it is at odds with current medical science and treats service members with HIV differently from service members with other chronic conditions that require medication during deployment.

In June, the Biden administration announced that it would no longer defend discriminatory restrictions preventing people with HIV from deploying and commissioning as officers in the U.S. military. A month later, the defendants in the cases, including the Department of Defense and Defense Secretary Lloyd Austin III, voluntarily dismissed their appeal of Brinkema’s decision.

Austin also issued a memo in July outlining changes to the military’s policy and confirmed that already enlisted service members with HIV who are asymptomatic and have confirmed undetectable viral loads “will have no restrictions applied to their deployability or to their ability to commission while a Service member solely based on their HIV-positive status.”

Current Defense Department policy bars any HIV-positive individual from enlisting in the military, but that policy may soon change due to pending federal court cases. Additionally, there is another pending federal lawsuit — which is currently stayed by a federal court amid settlement negotiations — challenging another portion of the military’s restrictions on HIV with respect to service academies, which was brought by two cadets who contracted HIV while in school, who were prevented from joining the Navy and Air Force upon graduating from their respective service academies.

Advocates for service members living with HIV celebrated the settlement, which resolves the case following Brinkema’s ruling.

“We are pleased that service members living with HIV, once affected by an outdated, discriminatory policy, no longer face discharge, bans on commissioning, or bans on deployment simply because they are living with HIV,” Kara Ingelhart, a senior attorney at Lambda Legal — which represented Harrison, Roe and Voe — said in a statement. “However, long and expensive litigation like the Harrison and Roe cases shouldn’t be necessary to prove that a positive HIV status alone has no impact on a service member’s ability to serve.”

“We are honored to have been a part of this historic ruling alongside the legal teams and service members involved,” Jennifer Dane, the CEO of the Modern Military Association of America, said in a statement. “We hope the settlement sends a message that discrimination is both wrong and expensive. There is still much to do in addressing and eradicating discrimination against those living with HIV who are serving or wish to serve in the Department of Defense, and we remain committed to that fight.”

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