Did the Air Force wrongfully discharge HIV-positive airmen?

On Behalf of | Dec 24, 2018 | Employee Discrimination

Two former airmen who are HIV positive claim that the Air Force discharged them in violation of the law and its own policies. The two men are asymptomatic and had been cleared for duty when they were suddenly barred from deployment and discharged earlier this year. And, they suspect there are many others who may have been affected by violations of the service’s policy.

The issue arose in connection with the “Deploy Or Get Out” policy that was issued in February 2018. That policy mandated that all service members who were not “worldwide deployable” for 12 months should be discharged. In July, the policy was updated to reflect that HIV-positive service members would be considered “deployable with limitations,” meaning that they could be discharged.

However, the Air Force already had a policy in place that required evaluation, treatment and an annual check-up for HIV-positive service members but then classified them as approved for continued service.

Moreover, Air Force policy clearly states that being HIV positive itself is “not grounds for medical separation or retirement for active-duty Air Force members,” reads the two men’s legal complaint.

That policy also states that Air Force service members are to 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.”

The men filed their lawsuit using the pseudonyms Richard Roe and Victor Voe.

“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 reads. “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.”

Roe says he enlisted to fulfill a family legacy. He has served in two foreign countries, received excellent reviews and was promoted. He had made staff sergeant by last October when he was diagnosed with HIV. Since then, he has undergone treatment has no longer has a detectable viral load.

In February, he was required to go before the Air Force’s informal physical evaluation board for a determination on whether he was deployable. He had gotten several letters of support, including one from a specialist who said there was “no medical reason” by Roe should be discharged.

After only three hours of deliberation, the board recommended Roe be discharged. His condition, it allegedly determined, was “subject to sudden and unpredictable progression [that would] result in deployment restriction.