S.D. Man Faces Ouster Without Benefits : ACLU Sues Navy in Behalf of Sailor Dying From AIDS

The American Civil Liberties Union filed suit Thursday to block the Navy from discharging without medical retirement benefits a San Diego sailor who is dying of AIDS.

The lawsuit, filed in federal court in San Diego, alleges that the constitutional rights of Petty Officer 3rd Class Bryon G. Kinney were violated and that he was denied due process of law when the Navy decided to discharge him.

A Naval administrative board in June found that the 28-year-old sailor, who was a medical corpsman for seven years and reenlisted in December, 1981, knew he was homosexual and therefore enlisted in the Navy fraudulently. Homosexuality violates Navy policy, and anyone found to be homosexual is processed for discharge, said Julie Swan, a civilian Navy spokeswoman.

Kinney was initially given a general discharge under honorable conditions, but the Navy Military Personnel Command in Washington decided to upgrade it to an honorable discharge. Under the conditions of the honorable discharge, however, Kinney would not receive medical or disability benefits through the Navy, Swan said.

Although the Department of the Navy has forwarded the decision to the Naval Base in San Diego, Kinney has not officially been discharged from the service because he is hospitalized at the Navy hospital in Balboa Park, Swan said. He is reportedly very weak and is scheduled to undergo chemotherapy.

“It is not our position to discharge him while he is (an) inpatient at the Naval hospital,” Swan said.

The ACLU, along with the Military Law Task Force of the National Lawyers’ Guild, is using the case to challenge the Navy to change policy so that victims of aquired immune deficiency syndrome will receive medical benefits like any other terminally ill service member, said Greg Marshall, the San Diego ACLU legal director.

“I hope that this case forces the Navy to rethink its policy regarding this situation,” said Thomas Homann, an ACLU attorney on the case. “There is no rationale to discharge anybody such as Bryon Kinney who is suffering from an incurable disease.”

At Kinney’s June hearing, the Navy said there was evidence in his medical records that indicated he was homosexual. He was first diagnosed as suffering from AIDS in November, while stationed on Okinawa. Since the diagnosis, Kinney has lost more than 40 pounds and suffers from Kaposi sarcoma, a rare form of skin cancer that causes disfiguring lesions throughout the body.

The suit names as defendants Secretary of the Navy John Lehman; Rear Adm. David L. Harlow, commanding officer of the Naval Military Personnel Command in Washington, and Cmdr. N.L. Richards, commanding officer of the Transient Personnel Unit at the Naval Station in San Diego.

The U.S. attorney’s office in San Diego will represent the Navy in the suit, which will be heard by U.S. District Judge Judith Keep. A hearing to ask for a temporary restraining order to stop the discharge could be held within two weeks, said Kathleen Gilberd, a member of the defense team.

The suit also alleges that Kinney’s Fifth Amendment rights were violated when his medical records were used as evidence against him. “Mr. Kinney’s ability to obtain competent medical treatment for his disease” was compromised, the suit said.

The suit also states that the administrative discharge hearing in June was “fundamentally unfair and violated Mr. Kinney’s right to due process of law” because he was denied the opportunity to introduce relevant evidence relating to the prosecution’s evidence.

In July, Congressman Jim Bates wrote to the Department of the Navy questioning its decision to discharge the sailor and asking the Navy why the case was handled as it was. The Navy has not responded to Bates’ queries, according to his office.