The Advocate July/Aug 2022
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HIV-Positive Vet Sues for Right to Serve

Nick Harrison

An Army veteran is suing the Department of Defense over its policy of excluding people with HIV from enlisting, being deployed overseas, or being commissioned as officers.

Sgt. Nick Harrison, who has served in the Army and the National Guard, was denied a position in the Judge Advocate General Corps because he is HIV-positive, according to the suit filed today on his behalf by Lambda Legal and OutServe-SLDN.

Under current Defense Department policy, people with HIV are not deployable overseas. But that is based on science from the 1980s and ’90s, before the development of treatments that keep HIV-positive people healthy and make it almost impossible to transmit the virus, if they have an undetectable amount of the virus in their body, the legal groups point out.

“There really should be no impediment whatsoever,” Harrison told Military Times. “[The Pentagon policies] are kind of a relic of the ’80s or early ’90s when they were put in place. At the time, they were probably an enlightened policy, but with all the medical research and advancements in pharmaceuticals, they’re no longer relevant to the medical condition anymore.”

The Defense Department has let some service members who become HIV-positive after joining stay in the military, outside of combat zones, but the department released its new “deploy or get out” policy in February providing for the discharge of any service member who can’t be deployed overseas for more than 12 consecutive months. As HIV-positive troops are considered nondeployable, those “living with HIV could be subject to immediate discharge when the policy goes into effect,” expected this fall, according to Military Times.

Harrison was deployed in Afghanistan and Kuwait while he was in law school and serving in the Oklahoma National Guard, the paper reports. He was diagnosed as HIV-positive after returning from his second deployment. After he finished law school and passed the bar exam, he took a position in Washington, D.C., and joined the D.C. National Guard. In 2013 the D.C. JAG Corps offered him a job, but two years later he was denied the post.

“After serving in Afghanistan and Kuwait, I knew I wanted to become an officer in the U.S. Army and a leader for all of the great men and women in our armed forces,” Harrison said in a Lambda Legal-OutServe press release. “I spent years acquiring the training and skills to serve my country as a lawyer. This should be a no-brainer. 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 D.C. National Guard, and I look forward to my first day on the job.”

To Military Times, he added, “It’s kind of a weird situation. People look at my medical records and they see, ‘oh, he’s perfectly physically and medically fit.’ But I’ve got this ‘you can’t be deployed, you can’t go anywhere’ that blocks me from advancing, blocks me from commissioning and so forth.”

“Nick’s situation is the perfect example of just how archaic and harmful the military policies regarding people living with HIV really are,” said Scott Schoettes, counsel and HIV Project director at Lambda Legal, in the press release. “These oppressive restrictions are based on antiquated science that reinforces stigma and denies perfectly qualified service members the full ability to serve their country. The Pentagon needs to catch up with the 21st century. Recruitment, retention, deployment, and commissioning should be based on a candidate’s qualifications to serve, not unfounded fears about HIV. The U.S. Department of Defense is one of the largest employers in the world, and like other employers, is not allowed to discriminate against people living with HIV for no good reason.”

Peter Perkowski, legal director at OutServe-SLDN, expressed high hopes for the lawsuit. “We could set a precedent that HIV cannot be used solely as a reason to prevent someone who is enlisted from commissioning as an officer,” he told Military Times. “The broadest relief that we’re seeking would be a constitutional decision that finds the policies as they’re written now, that limit service members’ ability to enter the officer corps, unconstitutional.”

OutServe-SLDN is also an organizational plaintiff in Harrison’s case to advance the interests of its members who are living with HIV and serving in the military. The suit was filed in U.S. District Court for the Eastern District of Virginia.

Lambda Legal and OutServe-SLDN are representing an anonymous HIV-positive service member in a companion lawsuit. The Air Force refused to commission him as an officer after he graduated from the Air Force Academy, despite recommendations from medical personnel to do so.

Tags: Military, HIV

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