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HIV and Converging Policies

 

 

 
 
   
   
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Like a busy intersection, it is difficult to navigate the varied military policies that govern medical accessions, standards of medical fitness for continued service, separation of non-deployable Service members, and medically-based assignment limitations. Soldiers diagnosed with the human immunodeficiency virus (HIV) lay at the busy intersection of these converging areas of law and life. Commanders tasked to maneuver these areas rely on legal and medical professionals to provide grounded advice so they may issue the right orders and avoid collisions.

Imagine that you are a brigade judge advocate in a United States Army Forces Command (FORSCOM) unit scheduled to deploy in six months. Medical providers just notified one of your commanders that a Soldier in their unit—who is scheduled to attend the Advanced Leader Course (ALC) next month—tested positive for HIV. The medical provider instructed the commander to escort the Soldier to the military treatment facility for in-person notification. What happens next? What are the commander’s counseling requirements? May the Soldier still attend ALC? May he deploy? Is he automatically subject to a medical evaluation board (MEB)? Must he or can he be administratively separated from service? If he can be separated, should he be? If so, how? Is he subject to the Department of Defense’s (DoD) and Army’s recent non-deployable Service member policies?

Rules governing HIV-infected Soldiers are subject to much litigation and debate. Judge advocates (JAs) dealing with these cases should—and practically must—work closely with the Office of The Judge Advocate General (OTJAG), as well as the U.S. Army Litigation Division (LITDIV), and the Headquarters, Department of the Army (HQDA), G1, Military Personnel Management (DMPM). What follows is a short discussion of the basic rules that will allow JAs to engage in meaningful discussions as they seek guidance through these technical channels. This article also provides the framework and resources to tackle some of the basic questions posed by commanders and staff.

Accessions, Probationary Officers, and Initial Entry Enlistees.

Generally, the DoD medical accessions policy allows applicants for military service who do not meet physical and medical standards to request a waiver.1 Waiver authorities, usually within the military departments, make determinations based on “all available information” regarding the condition, as well as “the specific needs” of the service.2 Having a history of immunodeficiency—and in particular the presence of HIV—is among the list of disqualifying conditions.3 The DoD medical accessions policy does not explicitly prohibit medical waivers for HIV.

The DoD has, however, published stricter guidance in a separate HIV policy.4 Without exception, the DoD HIV policy denies military eligibility to HIV-infected applicants. 5 It directs testing for all applicants and current Service members6 and defines the standards for evaluating fitness for continued service.7 Similarly, the Army has published two separate regulations governing medical accessions and HIV. Both regulations explicitly prohibit accessions and waivers for HIV-infected applicants.8

Pursuant to the Army’s HIV regulation, it will dis-enroll HIV-infected applicants pending appointment in any officer procurement program, including the Reserve Officers’ Training Corps, direct commissioning, and Officer Candidate School.9 Likewise, the United States Military Academy will separate and discharge HIV-infected cadets under its own regulations.10 Finally, the Army will separate HIV-infected probationary officers and enlisted personnel identified within 180 days of their appointment or initial entry onto active duty, for failure to meet medical fitness standards.11

Active Duty Personnel Policies and Procedures

Moving past accessions and initial entry, there are specific rules and limitations for HIV-infected Soldiers who contracted the virus while in service. According to the Army’s HIV regulation, “[e]very effort will be made to ensure that…HIV infected personnel are treated no differently than other Soldiers.”12 While that remains true as it relates to their medical treatment, fitness for duty standards, and physical disability processing, the impact of assignment limitations and additional restrictions for HIV-infected Soldiers makes equality more difficult in everyday life.

Medical Fitness Standards, Command Responsibility, and Additional Rules

Unlike applicants identified during the accessions process, currently serving HIV-infected Soldiers are subject to the same medical fitness standards as other Soldiers. Unless there is also “progressive clinical illness or immunological deficiency,”13 the Army cannot separate HIV-infected Soldiers based solely on their infection. In fact, although medical providers annotate Soldiers’ HIV status in the Medical Protection System (MEDPROS), their individual physical, upper, lower, hearing, eyes, psychiatric (PULHES) values remain the same.14 Providers are required to refer HIV-infected Soldiers for appropriate treatment and evaluate their fitness for continued service in the same way they would for anyone else with a “chronic or progressive illnesses.”15

The Army allows HIV-infected Soldiers determined to be fit for duty to continue serving and provides them with appropriate medical care.16 However, medical providers must refer HIV-infected Soldiers who show signs of immunological deficiency or a progressive illness to an MEB, regardless of the clinical stage of the disease.17 Those with “rapidly progressive” clinical illness or immunological deficiency do not meet medical retention standards, and medical providers must refer them for physical disability processing.18 The Army will then separate or retire those determined to be unfit for duty using the existing procedures under that process.19

That said, HIV-infected Soldiers are treated differently in other ways, beginning from their initial diagnoses. Following a positive HIV result, the local HIV “program coordinator” adds medical deployment restrictions to their medical profile.20 The program coordinator then notifies the HIV-infected Soldier’s immediate commander.21 Under strict instruction not to inform the Soldier of the test results, the commander is required to accompany the Soldier to the military treatment facility, then issue the Soldier a written counseling.22

In it, commanders are required to place verbatim regulatory language imposing various orders and restrictions. Commanders must order HIV-infected Soldiers to advise all prospective sexual partners of their infection prior to engaging in any sexual activity; use condoms when they engage in oral, vaginal, penile, or anal sex with a partner; notify medical, dental, and emergency health care workers of their HIV infection; and comply with all HIV medical management directed by their infectious disease physician.23 Further, commanders must order them not to donate blood, blood products, sperm, semen, eggs, breast milk, or tissues, and to report previous donations to the HIV program coordinator.24 Finally, the commander must notify them that they are “non-deployable” and may not go on temporary duty (TDY) outside of the continental United States (OCONUS)—subject to updated guidance discussed below.25

In turn, HIV-infected Soldiers are required to acknowledge the commander’s orders and restrictions using similar language in the “plan of action” section of the counseling. 26 They must agree to “cooperate fully” with their HIV program coordinator and “confidentially reveal the identity of all persons with whom [they] have had sex or shared needles for the period starting [three] months prior to [their] last negative HIV test,” so that contacts may receive counseling and testing to break the chain of transmission.27 In addition to revealing their identities, HIV-infected Soldiers must agree to inform their contacts, including their spouse, of their HIV infection and recommend that those individuals seek medical consultation.28 Finally, HIV-infected Soldiers must agree that potential sexual partners will not be under the influence of alcohol, drugs, or prescription medication that could alter their judgment during any HIV disclosure discussion.29

While tied to the mission, it is easy to see how these restrictions make it hard for commanders to treat HIV-infected Soldiers “no differently than other Soldiers.”30 To be sure, the HIV program coordinator verifies that spouses are informed31 and, as discussed below, HIV-infected Soldiers may be subject to discipline for failing to comply with any of the commander’s written orders.32 While this accounts for some of the personal restrictions, HIV-infected Soldiers also face professional restrictions.

Assignment Limitations

The Army’s HIV regulation restricts HIV-infected Soldiers from deployments or assignments overseas.33 In fact, it prohibits them from performing official duties overseas for any duration of time, and those confirmed to be HIV-infected while stationed overseas will have their foreign service tour “curtailed,” to be “expeditiously reassigned” to the United States.34 Within the United States, the Army will not assign HIV-infected Soldiers to any “table of organization and equipment” or “modified table of organization and equipment” (MTOE) units, which are designed and structured for combat deployments.35 Installation commanders may reassign HIV-infected Soldiers already serving in those units to a “table of distribution and allowances” (TDA) unit, designed and structured for a garrison mission, upon completion of their “normal tour” (three years from their report date).36 However, reassignment is limited to an authorized position for the Soldier’s grade, primary or secondary military occupational specialty (MOS), and other regulatory management and assignment criteria.37 If no local assignment is available, commanders will refer HIV-infected Soldiers to Human Resources Command (HRC) for new assignment instructions.38

In addition, the Army precludes HIV-infected Soldiers from participating in military-sponsored educational programs that result in an additional service obligation.39 This includes advanced civilian schooling, professional residency, fellowships, training with industry, and “equivalent educational programs,” regardless of whether civilian or military organizations conduct the training.40 For Soldiers already assigned to such programs at the time of their HIV diagnoses, the Army will dis-enroll them at the end of their current academic term.41 Those Soldiers may, however, retain any financial support they received through the end of the term.42 Likewise, the Army will not recoup any money, and it will waive any additional service obligation incurred due to enrollment in the program.43 Notably, this does not include professional military education (PME) schools that are required for career progression in a Soldier’s MOS, branch, or functional area—such as Noncommissioned Officer Education System (NCOES) schools, Captains Career Course, or intermediate level education.44

Last, the Army will not assign HIV-infected Soldiers to any recruiting command, cadet command, or military entrance processing command. This is especially true if their medical condition requires frequent medical follow-up and the projected duty station is geographically isolated from an Army medical treatment facility capable of providing it.45 Apart from these specific restrictions, commanders may not change an HIV-infected Soldier’s assignment based solely on their infection.46 Nor may commanders group all HIV-infected Soldiers within a command into the same subordinate unit, duty area, or living areas unless no other units, positions, or accommodations are available.47 The majority of the above are restrictions that the Army has placed upon HIV-infected Soldiers and do not come from United States Code or DoD policy. Therefore, a Soldier may request an exception to policy, such as serving in an MTOE unit.48

Administrative Separation of Enlisted Soldiers and Officers

Section 705(c) of the 1987 National Defense Authorization Act has been interpreted to prohibit discharging a service member solely for having HIV.49 Enlisted HIV-infected Soldiers who otherwise meet medical retention standards may still be subject to both voluntary and involuntary administrative separation for reasons other than their diagnosis of HIV. For example, HIV-infected Soldiers may voluntarily submit requests for discharge under regulatory provisions governing unfulfilled enlistment commitments,50 or alternatively, voluntarily under the Secretary of the Army’s plenary authority.51 In such cases, the Army’s HIV regulation requires a JA to counsel the Soldiers and, at a minimum, provide them with information regarding their post-discharge eligibility for medical care.52 Commanders may also use the regulatory provisions governing the failure to meet procurement medical fitness standards for Soldiers identified as HIV-infected within 180 days of initial entry onto active duty.53 Further, commanders may involuntarily separate HIV-infected Soldiers for misconduct if they violate any of the orders contained in their preventative medicine counseling or, like any other Soldier, for other misconduct.54 The commander also has the option to use the secretarial plenary authority if a Soldier is not complying with their counseling, but the conduct does not constitute misconduct.55

Similarly, HIV-infected officers may voluntarily submit an unqualified resignation or request for release from active duty (REFRAD).56 This includes resignations for probationary officers who test positive for HIV but were infected prior to accepting an appointment.57 As with enlisted Soldiers, a JA must counsel these officers.58 With that said, commanders may also involuntarily separate probationary officers identified as HIV-infected within 180 days of their appointment for substandard duty performance.59 Finally, commanders may involuntarily separate HIV-infected officers for misconduct if they violate any of the orders contained in their preventative medicine counseling.60

Non-Deployable Service Members Policy

Recent military retention policies add to the complexity of issues surrounding HIV-infected Soldiers.61 The DoD policy requires military departments to make retention determinations for Service members who are non-deployable for more than twelve consecutive months—or sooner under certain circumstances.62 Under the Army policy, permanent, non-deployable Service members are unqualified to hold any MOS, absent an exception to policy.63 Notably, this includes Service members with medical conditions that permanently prevent their deployment.64

Based on a reading of the Army’s current HIV regulation, this appears to include HIV-infected Soldiers. Specifically, HRC places a formal “non-deployable flag” in their record,65 the HIV program coordinator adds a deployment restriction code to their file in MEDPROS and changes the “non-deployment module” to “YES,”66 and the commander notifies them that they are “non-deployable” in a written HIV counseling.67 If true, this would render them unqualified to hold any MOS, in direct conflict with the Army’s HIV regulation.

Recognizing the inherent conflict between these two policies, the Army has published a memorandum with additional guidance, which modifies the categorization of those infected with HIV.68 The memo directs that HIV-infected Soldiers be characterized as “deployable with limitations”—as opposed to non-deployable—unless there are other underlying legal, administrative, or medical reasons that justify the latter.69 This exempts HIV-infected Soldiers from the Army retention policy and its elimination requirements. However, several questions still remain: Will the Army update its HIV regulation to match its recent retention guidance? What about OCONUS duty assignments and TDY? How will Combatant Command policies70 and agreements with host nations influence these decisions?71 How do commanders, HRC, and medical providers address the deployment issue in a Soldier’s written counseling, flag, and MEDPROS in the interim?

Conclusion

Soldiers with HIV lay at the busy crossroads of converging military policies and regulations. Active lawsuits and practical considerations demand a careful, deliberate approach to each of the many complex issues involved. Current regulations task unit commanders with some requirements, and HRC with others. In all cases, JAs should work through their technical channels at OTJAG and LITDIV for guidance. Understanding the basic rules and policies will enable JAs to engage in meaningful conversations, protect the process, and serve as trusted advisors to commanders who must maneuver through this complex area of the law. TAL

 


MAJ Morjal is a litigation attorney in the military personnel law division at the U.S. Army Legal Service Agency at Fort Belvoir, Virginia.



Notes

1. U.S. Dep’t of Def., Instr. 6130.03, Medical Standards for Appointment, Enlistment, or Induction into the Military Service para. 1.2.d. (6 May 2018) [hereinafter DoDI 6130.03].

2. Id. para. 4.2.c.(1).

3. Id. para. 5.23.a-b.

4. U.S. Dep’t of Def., Instr. 6485.01, Human Immunodeficiency Virus (HIV) in Military Service Members para. 1.2.d. (7 June 2013) [hereinafter DoDI 6485.01].

5. Id. para. 3.a.

6. Id. encl. 3, para. 1.b, 1.c.(1)-(2).

7. Id. encl. 3, para. 2.c., 2.e.

8. U.S. Dep’t of Army, Reg. 40-501, Standards of Medical Fitness para. 2-2.b. (27 June 2019) [hereinafter AR 40-501]; U.S. Dep’t of Army, Reg. 600-110, Identification, Surveillance, and Administration of Personnel Infected with Human Immunodeficiency Virus paras. 1-16.a., 5-3.c. (22 Apr. 2014) [hereinafter AR 600-110].

9. AR 600-110, supra note 8, para. 5-3.h.(2)-(3).

10. Id. para. 5-3.h.(1).

11. Id. paras. 6-13.d., 6-14.b.

12. Id. para. 6-1.c.

13. Id. para. 1-16.e.

14. Id. para. 4-11.d.

15. DoDI 6485.01, supra note 4, encl. 3, para. 2.c.

16. Id. encl. 3, para. 2.c.

17. AR 600-110, supra note 8, para. 6-15.b.

18. Id. para. 1-16.k. (citing AR 40-501, supra note 8).

19. DoDI 6485.01, supra note 4, encl. 3, para. 2.e.

20. AR 600-110, supra note 8, para. 4-11.d.

21. Id. para. 4-4.a.

22. Id. para. 4-4.b.-e.

23. Id. para. 4-9.a.(1)(a), (c), (d).

24. Id. para. 4-9.a.(1)(b).

25. Id. para. 4-9.a.(1)(e).

26. Id. para. 4-9.a.(2).

27. Id. para. 4-9.a.(2)(a).

28. Id.

29. Id. para. 4-9.a.(2)(d).

30. See id. para. 6-1.c.

31. Id. para. 4-5.b.(4).

32. Id. paras. 6-13.e., 6-14.c.

33. Id. para. 6-3.a.

34. Id. paras. 6-3.a., 6-8.a.(1).

35. Id. para. 6-3.b.(1).

36. Id.

37. Id.

38. Id.

39. Id. para. 6-3.b.(2)

40. Id.

41. Id.

42. Id.

43. Id.

44. Id.

45. Id. para. 6-3.b.(3).

46. Id. para. 6-3.d.

47. Id.

48. Id. para. 1-9.f.

49. National Defense Authorization Act for Fiscal Year 1987, Pub. L. No. 99-661, § ٧٠٥(c), 100 Stat. 3816, 3904 (1986).

50. AR 600-110, supra note 8, para. 6-6.c.(1) (referencing U.S. Dep’t of Army, Reg. 635-200, Active Duty Enlisted Administrative Separations ch. 7-16 (19 Dec. 2016) [hereinafter AR 635-200]).

51. Id. para. 6-14.a. (referencing AR 635-200, supra note 50, ch. 5-3.c.).

52. Id. para. 6-14.a.(1).

53. Id. para. 6-14.b. (referencing AR 635-200, supra note 50, ch. 5-11).

54. Id. para. 6-14.c (referencing AR 635-200, supra note 50, ch. 14-12).

55. Id. (referencing AR 635-200, supra note 50, ch. 5-3.c-d.).

56. Id. para. 6-13.a. (referencing U.S. Dep’t of Army, Reg. 600-8-24, Officer Transfers and Discharges ch. 2, 3 (8 Feb. 2020) [hereinafter AR 600-8-24]).

57. Id. para. 6-13.a. (referencing AR 600-8-24, supra note 56, ch. 3-7).

58. Id. para. 6-13.b.

59. Id. para. 6-13.d. (referencing AR 600-8-24, supra note 56, ch. 4-2.a.(15)).

60. Id. para. 6-13.e. (referencing AR 600-8-24, supra note 56, ch. 4-2.b.).

61. U.S. Dep’t of Def., Instr. 1332.45, Retention Determinations for Non-Deployable Service Members (30 July 2013) [hereinafter DoDI 1332.45]; U.S. Dep’t of Army, Dir. 2018-22, Retention for Non-Deployable Soldiers (8 Nov. 2018) [hereinafter Army Dir. 2018-22].

62. DoDI 1332.45, supra note 61, para. 1.2.b.(1).

63. Army Dir. 2018-22, supra note 61, para. 4.d.

64. DoDI 1332.45, supra note 61, para. 3.6.a.(1).

65. AR 600-110, supra note 8, para. 4-7.b.

66. Id. para. 4-11.d.

67. Id. para. 4-9.a.(1)(e).

68. Memorandum from Asst. Sec’y of Army to Principal Officials of Headquarters, Dep’t of Army et al., subject: Characterization of Human Immunodeficiency Virus (HIV) Positive Soldier Deployable Status for the Purposes of Calculating Non-Deployable Time (9 Nov. 2018).

69. Id. para. 2.

70. See, e.g., Roe v. Dep’t of Def., 947 F.3d 207, 221-224 (4th Cir. 2020) (noting Modification Thirteen to USCENTCOM Individual Protection and Individual/Unit Deployment Policy (23 Mar. 2017), providing that personnel who are found to be medically non-deployable, including those with HIV infections, may not enter the CENTCOM area until the non-deployable condition is completely resolved or an approved waiver is obtained, which to date, CENTCOM has never granted and is “extremely unlikely” to ever do so). See also Modification Fourteen to USCENTCOM Individual Protection and Individual-Unit Deployment Policy, USCENTCOM (3 Oct. 2019), https://usarcent.army.mil/Portals/1/Directorates/Surgeon/MOD14-Final_combined.pdf?ver=2019-11-26-091007-320 [hereinafter MOD14].

71. MOD14, supra note 70 (referencing MOD14-Tab A: Amplification of the Minimal Standards of Fitness for Deployment to the CENTCOM AOR, USCENTCOM To Accompany MOD Fourteen to USCENTCOM Individual Protection and Individual/Unit Deployment Policy (noting that some nations within the CENTCOM AOR have legal prohibitions against entering their country(ies) with a positive HIV diagnosis)).