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Military Law,
Judges and Judiciary

Jun. 5, 2020

How the military handle another viral disease, HIV

The Pentagon has already issued COVID-19 guidance, and then reversed itself. Before further COVID-19 policies are formulated, it is critical the military examine its history with HIV.

Moore eileen web

4th Appellate District, Division 3

Eileen C. Moore

Associate Justice, California Courts of Appeal

In a former life, Justice Moore served as a combat nurse in Vietnam in the Army Nurse Corps. She was awarded the Vietnam Service Medal, the National Defense Service Medal, and the Cross of Gallantry with Palm. She is a member of the Vietnam Veterans of America. Since 2008, she has chaired the Judicial Council's Veterans and Military Families Subcommittee. For nine years, she served as a mentor in a Veterans Treatment Court, primarily to women veterans. In 2015, her book "Gender Results" received a Benjamin Franklin award. (Cool Titles, 2014)

The American military has long been recognized as a distinct society with a value system somewhat divergent from that of the dominant civilian community. Nonetheless, civilians more and more have questioned the military's policies, such as its exclusion of blacks, limitations placed on women, and treatment of gays. Many claim they were harmed by the way the military regulated HIV over the years.

The Pentagon has already issued COVID-19 guidance, and then reversed itself. Before further COVID-19 policies are formulated, it is critical the military examine its history with HIV.

Regarding the coronavirus presently plaguing society, the press is reporting that Asian-Americans fear the pandemic will be blamed on them. There are also reports the virus attacks people of color at higher rates. Additionally, COVID-19 has been detected in sperm. In other words, there's plenty of room for harm in whatever rules are adopted. Let's hope the military has learned some lessons from how it has regulated service members and applicants for service positive for HIV.

COVID-19

According to a May 22 article in the Military Daily News, the military issued guidance to recruiters that anyone with a reported history of COVID-19 would be disqualified from military service. That guidance was rescinded by the Pentagon on May 21. The defense undersecretary for personnel and readiness cautioned reporters, however, that those who have had the virus may still be found unfit to serve.

Already there's reason for concern. We know that people of color are exposed to the virus in disproportionate numbers. If the Pentagon's caution to reporters comes about, people of color will end up being barred from military service in disproportionate numbers.

HIV/AIDS

The New York Times reported in July 1981 that a rare cancer was showing up in homosexuals. In 1983, scientists discovered the virus that causes AIDS, human immunodeficiency virus or HIV.

With regard to the HIV virus, the military adopted a policy in 1985, and it remains essentially the same today. Each branch of the military has its own regulations but they stem from the one adopted by the Department of Defense. The DOD regulation states: "Deny eligibility for military service to persons with laboratory evidence of HIV infection for appointment, enlistment, pre-appointment, or initial entry training for military service." However, when an active duty member of the services tests positive for HIV, the service member will be referred for appropriate treatment and a medical evaluation of fitness for continued service. If determined to be fit for service, the member will be allowed to serve in a manner that ensures access to appropriate medical care.

In 1987, the military began testing all active duty and reserve personnel for HIV antibodies on a regular basis. Also, all inductees are tested and those who are HIV-positive are denied admission into the services.

No doubt, there has been reason for concern. By 1995, AIDS was the leading cause of death for adults 25 to 44 years old. About 50,000 Americans died of AIDS-related causes. But as the years went by and medical science advanced, effective multidrug therapy became widely available. Death rates began to decline. Today, HIV is largely controlled with one daily pill.

The military's HIV policy has many critics. But the military contends its policy is needed to assure that all its members are ready for combat. Opponents of the policy insist the military has not kept up with medical discoveries and developments.

Could it be that the early policy has somehow assumed unwarranted precedential value, despite medical science advances? That's possible. But most of the policy's critics attach a more sinister motive, bias against gays.

Recent legal actions against the military

In Roe v. Shanahan, 359 F.Supp.3d 382 (2019), two airmen sued when the Air Force sought to discharge them because they are HIV-positive. Some refer to the policy of the Air Force as "DOGO," deploy or get out.

Their complaint alleges violation of equal protection, and that the decision to separate them was arbitrary, capricious and in violation of the Administrative Procedure Act. The complaint also alleges the Air Force HIV policy is based on outdated thinking that does not comport with the current state of HIV medical science. Both of the service member plaintiffs started on medication as soon as they were diagnosed and the treatment has been successful in suppressing their viral loads. Both say they are capable of carrying out all required duties.

Before the court was expert evidence that when people who are HIV-positive have their viral load suppressed with daily medication, they cannot transmit HIV to another person. The government's position was that, even if current treatment is successful, check-ups are required every few months. Defendants also pointed out the risks of a battlefield blood transfusion.

A federal trial judge issued a preliminary injunction prohibiting the Air Force from separating or discharging plaintiffs from military service. The injunction also prohibits the Air Force from discharging any other similarly situated active duty members because they are ineligible for deployment due to their HIV-positive status, unless the service member does not wish to be retained.

The government appealed. By then, Mark Esper replaced Patrick Shanahan as secretary of the Department of Defense, so the name of the Roe v. Shanahan case changed. In Roe v. Department of Defense, 947 F.3d 207 (4th Cir. 2020), the government argued the Air Force has sufficient justification for its policies in that HIV infections have the potential to undermine a service member's medical fitness and readiness, noting that in the best scenario, individuals who are HIV-positive must take daily action to ensure that their viral loads stay suppressed in order to remain healthy and minimize the risk they will infect others. Its brief states that this need for regular treatment and monitoring could impair the ability of an HIV-positive service member to serve worldwide. It pointed out that a 2018 report from the Centers for Disease Control and Prevention states that clinical, pharmacy and laboratory services are limited in some deployment settings, and that adequate testing is not available in smaller medical facilities. Additionally, the government informed the court that some pharmacies have insufficient stock of medication for use for HIV treatment so that not every service member who needs the medication can obtain it. Plus, in light of unpredictable training and mission schedules, recommended three-month follow-ups can be difficult. If treatment is interrupted, the government contended, the vast majority of HIV-positive individuals will experience plasma viral rebound regardless of the level of HIV. Additionally, the government argued that wounded soldiers often require blood transfusions in the field, and when teams are small, the inability of even one or two soldiers to give blood may create unnecessary risks.

The American Public Health Association and others filed an amici curiae brief stating in part: "HIV-related stigma and discrimination are fueled by deeply ingrained prejudice against the groups disproportionately affected by the epidemic, including gay men, people who inject drugs, and people of color, as well as widespread ignorance about the nature and risk of HIV transmission. Historically, HIV has been characterized as a gay plague and God's punishment of gay sexual conduct. ... More recently, medical advances have transformed HIV into a chronic, controlled health condition that no longer leads to debilitation. HIV-related stigma persists nonetheless." Amici urged the circuit court to affirm the district court's grant of preliminary injunction.

The 4th U.S. Circuit Court of Appeals held that the district court did not abuse its discretion in defining the broad scope of the preliminary injunction. The circuit court affirmed the grant of a nationwide injunction. The next step will be the trial.

Another similar action was filed against the Army by a man who received the highest possible score in every component of his medical examination. He was classified as non-deployable based solely upon his HIV-positive status and was denied a commission. In Harrison v. Shanahan, 2019 WL 2216474, he sued for violation of his rights under the equal protection component of the Fifth Amendment's due process clause.

A magistrate ordered the government to produce documents. The district court affirmed the order in part. The next step will likely be the trial.

Two months after the Roe v. Department of Defense decision, the DOD reaffirmed its policy. Whether the military's HIV regulations are tainted by historical prejudice will likely be decided by some federal court soon. The big stumbling block for those who contend the current policy is based on ignorance is the traditional judicial deference to military expertise in personnel matters.

Actions against the Department of Veterans Affairs

Matters have been essentially the same for veterans with HIV who contend they contracted HIV in the military. When they file claims in the Department of Veterans Affairs, the VA often turns them down, finding their diseases are not service-connected.

In Atkins v. Wilkie, 2018 WL 4380801, the U.S. Court of Appeals for Veterans Claims presided over an appeal from a ruling by the Board of Veterans' Appeals denying a service connection claim of a veteran with an HIV infection. The veteran served on active duty and in the Reserves from 1985 to 1993. The man tested positive for HIV antibodies in 1989. He told the board he believed he contracted HIV when he was date raped while on active duty. He named the rapist. The board determined the veteran did not develop HIV while on active duty, concluding that even if the assault occurred, the lack of medical diagnosis for many years after service weighed against the claim.

The appeals court reversed and remanded for further proceedings, concluding the board's decision was problematic, stating: "First, it is difficult to understand how the Board could find that Mr. Atkins was not diagnosed for many years after service, since he had periods of active duty in 1986, 1987, 1988, 1989 and 1990, and tested positive for an HIV antibody in July 1989 and was diagnosed with HIV in November 1989. The Board did not provide a reason for disregarding these periods of active duty."

In Z.N. v. Brown, 6 Vet.App. 183 (1994), the United States Court of Appeals for Veterans Claims reversed the denial of Z.N.'s claim that he contracted HIV while in the military. The veteran told the Board of Veterans Appeals he was unable to verbalize his suspicion he had AIDS while on active duty "due to discrimination concerns." The veteran's doctor examined the medical records and found indications of the disease about 11 years before the veteran was diagnosed with AIDS, explaining the average length of time from the initial infection until significant HIV-related symptoms appear is ten years. The appeals court found the board did not follow 38 U.S.C. Section 5107. Under that statute, the veteran claimant must be given the benefit of the doubt when faced with "an approximate balance of positive and negative evidence."

Conclusion

Concerns of detractors of the military's policy notwithstanding, it is undisputed there is no vaccine for HIV. Also, the package literature for a leading HIV medication states that hepatitis has been reported when the medication is stopped, and that liver function must be closely monitored. It also states that administration of the HIV medication is not recommended when other antiviral medications are being taken.

The American Bar Association is presently considering two resolutions concerning the DOD policy. One states the ABA declares that HIV status, alone, has no impact on a service member's ability to serve, and the other urges the military to not disqualify persons for enlistment, appointment, commissions, deployment or retention based upon HIV status alone. The House of Delegates is expected to vote on those resolutions at this summer's annual meeting.

With COVID-19, scientists expect there will be a vaccine within the near future. The DOD must carefully examine the many criticisms of its HIV policies when it issues policies regarding COVID-19. Whatever the future rules, regulations and guidance mandate, it is essential they not reflect institutional bias and that they allow for modification as medical science makes new discoveries and offers up-to-date treatment. 

#357970

Ben Armistead

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