Navy Effort to Oust AIDS Victims Draws Protests

In a decision that has outraged the local gay community, the Navy is seeking to discharge two San Diego sailors who are dying of AIDS.

The Navy contends that there is information in the men’s medical records that indicates they are homosexuals and therefore should be discharged under Navy policy without benefits, according to an attorney representing the sailors.

Petty Officer 2nd Class Daniel Abeita, 28, apparently eager to spend time with his family in Texas, chose not to fight the action and accepted an administrative discharge, said Charles T. Bumer, the attorney for both men. Abeita’s discharge will become effective Monday.

Petty Officer 3rd Class Brian Kinney, 28, a medical corpsman for seven years, plans to contest the Navy’s attempt to discharge him. He is scheduled to go before an administrative discharge board Monday. But Bumer said he may move to postpone the hearing until later next week.

Under an administrative discharge, which is a punitive action, a sailor is denied all medical and retirement benefits. But Bumer said that Kinney and Abeita, whose condition is deteriorating, should be eligible to receive medical treatment through Veterans Administration hospitals.

AIDS (acquired immune deficiency syndrome) is a fatal disorder of the immune system that is believed to be caused by a virus. Most of its victims are homosexual men, and researchers believe it is transmitted through sexual contact. Haitians, drug users and hemophiliacs, as well as members of the general population, have also contracted AIDS.

When Abeita and Kinney were diagnosed as having the fatal disease, an application for medical retirement was automatically forwarded by Navy doctors, said Kathleen Gilberd, Bumer’s legal assistant.

This set in motion the series of events that eventually led to the Navy’s decision to discharge the men. The application was sent to the Department of the Navy in Washington, where a review board denied the applications for medical retirement and recommended discharge based on the evidence in the medical records, Gilberd said.

The attorneys argue that information given to a doctor by a patient is confidential and should not be admissible in the hearing. They also argue that it is inhumane to discharge dying men without benefits.

A Navy spokesman in Washington declined comment on the specific cases. He said, however, that the Navy has no policy protecting the confidentiality of the relationship between patient and doctor.

The decision to discharge the men has enraged the gay community in San Diego, whose leaders liken the decision to “throwing dying men on the street.” The American Civil Liberties Union is keeping a close eye on the case, and has authorized an attorney to work with Bumer and Gilberd, who specializes in military law.

“The way the Navy is handling this case is really, really frightening, not to mention inhumane,” said Tom Homann, the ACLU attorney on the case. “We’re going to defend Kinney whole hog.”

Abeita was undergoing medical treatment Tuesday, and Kinney was too sick to speak with a reporter, Bumer said.

Lt. Stephen Pietropaoli, a spokesman for the Department of the Navy in Washington, said, “Homosexuality is incompatible with military life and seriously impairs the accomplishment of the military mission such as mutual confidence, good morale and active recruitment,”

“It is the Navy’s policy that all homosexuals be separated from the Navy,” he said. “No punitive action is taken when someone has AIDS, that is a medical diagnosis . . . there is only punitive action when a person is homosexual.”

Abeita was a cook for seven years, but since his diagnosis last May he has been assigned to the 32nd Street Naval Station, where he is required only to telephone the base from home every morning, Bumer said.

Kinney, who was first diagnosed as suffering from AIDS in October, is also assigned to the 32nd Street naval base and, like Abeita, is required to call in once a day.

Both men had served in the Navy for seven years, and Gilberd described them as “squared-away sailors” who had unblemished records.

Gilberd said that the medical records contain general comments from doctors during examinations such as, “Patient is active homosexual.”

“There are statements of assertion, but nothing says that patient said he was a homosexual,” Gilberd said.

There is no evidence linking Kinney to being homosexual other than the medical records, Gilberd said.

In May, a Marin County attorney, R. Charles Johnson, successfully convinced the Navy to allow medical retirement to an Oakland sailor stricken with AIDS. The Navy backed down from the discharge proceedings after it failed to prove the man was homosexual, said Johnson.