Can the Military Discharge Me for Being HIV Positive?
Answered by Sharra E. Greer, legal director of the Servicemembers Legal Defense Network. May 21, 2004.
Q: Dear Sharra,
I am HIV-positive and in the military. Do they have the ability to discharge me on this basis? Do I have any legal rights that will allow me to remain on active duty?
John
A: Dear John,
Active duty service members who test HIV-positive while on active duty are allowed to continue serving, so long as they remain healthy (i.e., "medically fit for duty").
There are some duty assignment limitations placed on HIV-positive members. For example, HIV-positive members generally may not serve overseas, in combat specialties, or in billets designated as "deployable."
Generally, Department of Defense and Service policies provide for medical treatment for HIV-positive members via military medical facilities. They also require that HIV-positive members' health status be treated confidentially.
Active duty personnel who show symptoms of any HIV-related condition are evaluated for medical fitness and, if found unfit for duty, medically separated from service. Service members who are medically unfit with at least a 30 percent disability rating (using the Department of Veterans Affairs’ "Schedule for Rating Disabilities") will probably be medically retired (i.e., retire from active duty with a pension along with access to military health care facilities). Service members who are medically unfit with less than a 30 percent disability rating usually receive a one-time disability severance payment rather than disability retirement. These members are then eligible for limited health care through VA medical facilities.
Reserve and National Guard service members, even if they are activated to active duty, who test HIV-positive are generally involuntarily separated from the Service, unless they are eligible for an available "non-deployable" billet.
If you have additional specific questions, feel free to contact the Servicemembers Legal Defense Network to speak to an attorney via email at legal@sldn.org.