Sergeant Sues Defense Dept. Over ‘Outdated’ HIV Policies

Army Sgt. Nick Harrison learned he was infected with HIV six years ago, but the once-fatal diagnosis has barely changed his routine at work or at home because he keeps the virus in check with a once-a-day pill. The only thing HIV crippled was his military career.

The military bars anyone with the virus that causes AIDS from joining. Policies crafted in the 1980s allow troops who contract the disease while in the military to stay as long as they remain otherwise healthy, but bars them from deploying in nearly all cases.

The question of how to treat healthy troops with HIV was hardly an issue a few decades ago, when few with the infection lived long. Now that they can lead long and healthy lives, however, the restrictions meant to control a deadly epidemic have stifled careers. Many have been shut out from coveted specialties or denied promotions. And under a new policy that requires troops to be readily deployable or be discharged, nearly 1,823 otherwise healthy troops with HIV may be forced to leave the military.

Now Harrison, who served 18 years in the Army and National Guard and deployed to Afghanistan and Kuwait, is suing the Defense Department, arguing that the HIV policies are outdated and discriminatory and have cost him a promotion to captain.

“In the Army we are taught that we are all one team, and as long as you can fulfill the mission, any differences don’t matter,” Harrison said in an interview. “These policies seem to fundamentally oppose that core philosophy.”

In a complaint filed in U.S. District Court for the Eastern District of Virginia this week, lawyers from the public interest groups Lambda Legal and Outserve-SLDN, who represent the sergeant, say the blanket policies discriminate against people with HIV and violate the constitutional right to equal protection.

Military rules, the complaint argues, have not kept pace with tremendous progress in HIV treatment, including a widely available oral medication that can keep virus levels so low that people can live with no symptoms and almost no risk of passing on the disease to others.

“It’s outdated policy based on unfounded fears that doesn’t recognize all the advances we’ve made,” said Scott Schoettes, one of the lawyers representing the sergeant.

The Defense Department declined to comment on the lawsuit, but in a statement said its policies on HIV are “evidence-based, medically accurate, and are reviewed regularly and updated as practices, guidelines, and standards of care evolve.”

The military has long disqualified recruits for a broad range of medical conditions that could impact performance, including bad knees, heel spurs, diabetes and even peanut allergies. But it also regularly grants waivers for people who can show their condition will not affect their duties or pose a hazard to other troops.

HIV was added to the list of disqualifying conditions in 1985 as the military scrambled to control the spread of the disease during the peak of the AIDS crisis. That year, the military began regularly testing all troops. Those who tested positive were sidelined. Pilots were grounded. Leaders were pulled out of command positions. On one Army post in Texas, HIV-positive troops were quarantined in barracks that soldiers quickly began calling “the leper colony.” “Anyone who tested positive stayed in the military, and we treated them. It was seen as the compassionate thing to do,” said Dr. Craig Hendrix, an infectious disease specialist at Johns Hopkins University who ran the Air Force’s HIV monitoring program for most of the 1990s. “But the expectation was that they would soon become too sick to perform their duties and be medically discharged. No one was expected to last long. At the time the best drugs would only buy a year or two.”

Hendrix, who has been out of the military for nearly 20 years, was surprised to hear that policy has changed little.

“It’s one of many, many conditions fully compatible with being on active duty,” he said. “I suspect there are a number of people in the military taking a pill each day for blood pressure or cholesterol. This is hardly different.”

Advances in antiretroviral drugs have resolved most of the medical hurdles in treating HIV, if not the stigma, according to Marguerita Lightfoot, director of the Center for AIDS Prevention Studies at the University of California, San Francisco. “In the early days treatment was multiple pills, multiple times a day,” she said. “Often they had to be refrigerated. Some were toxic, they made people sick. So maybe at one time the Army’s policy made sense.

“But now it’s so easy. And if properly treated, the virus is no longer a risk to the patient or others.”

In September, she noted, the Centers for Disease Control and Prevention announced that patients following a proper treatment plan, who have an undetectable level of virus in blood tests, pose “effectively no risk” of transmitting the virus to others.

“I work with doctors and nurses who are HIV positive and there is no risk to patients. I don’t see why it would be different in the Army,” Lightfoot said.

Today, policies differ within the military. The Navy allows sailors with HIV to serve on some large ships and overseas bases. The Army does not.

Harrison, 41, who now works as a civilian lawyer in the Washington area, grew up in a small town in Oklahoma and enlisted in 2000 as an airborne infantry soldier. After a stint stationed in Alaska, he moved to the National Guard and used his military benefits to attend college, then law school. His schooling was interrupted by deployments to Afghanistan and Kuwait, where he earned medals for good conduct.

In 2012, with a law degree from the University of Oklahoma, he passed the Oklahoma bar exam. The National Guard then offered him a job as an Army lawyer in the Judge Advocate General’s Corps.

Around the same time, Harrison learned that he had contracted HIV through a sexual partner.

The sergeant was cleared medically to become an officer, and his leaders approved. But because the job would require him to leave his enlisted position and re-enter the Army as an officer, the policy barring new recruits with HIV prohibited the move.

“It makes no sense to me that they say I’m healthy enough to be an infantryman, but not a lawyer,” he said.

Harrison applied for a medical waiver in 2014, but was denied. He appealed to the Army’s head of personnel in 2015, then to the office of the secretary of defense in 2016. Both refused to give him an exception.

The lawsuit filed this week seeks to give the sergeant his commission as a captain and strike down current HIV policies affecting recruiting and deployment across the military.

“Logistically, there is no problem. All my medical exams show I’m in top physical shape. I’ve had complete support from my units. My commanders signed off on the promotion,” Harrison said. “But up at the upper levels, the Pentagon, I get the feeling things are a little outdated.”