11 Navy Recruits Win Interim Injunction on AIDS Test Ousters

A federal judge on Saturday temporarily barred the Navy from discharging 11 recruits whose blood tested positive for exposure to AIDS, pending a review of the case by the U.S. Court of Appeals here.

U.S. District Judge Louis F. Oberdorfer said, however, that he doubted that the recruits would win their case.

Still, he told the Navy that it could not discharge the seamen for at least 10 days, while they bring their suit before the appeals court.

“It seems quite likely that, unless restrained, plaintiffs will be discharged within minutes” of the expiration Saturday of an earlier order that had temporarily prohibited the discharges, he said.

“Thus, there is an enhanced risk that if the Court of Appeals views the matter differently, swift action by the Navy would deprive the Court of Appeals of an opportunity to review this court’s action,” the judge wrote.

Judge’s Opinion of Case

In his 11-page opinion, Oberdorfer said: “It is unlikely that plaintiffs would prevail on the merits of their claim that the honorable discharge of these plaintiffs would be arbitrary and capricious or in violation of constitutional requirements.”

He said that the Pentagon’s new system of testing the blood of recruits for exposure to the deadly AIDS virus and refusing to induct those who test positive “does not appear, on the record to date, to be irrational.”

The blood test does not indicate if a person has acquired immune deficiency syndrome or will get it, but reveals the presence of antibodies that are produced when a person is exposed to the virus. AIDS, which attacks the body’s immune system, so far has afflicted mostly male homosexuals, intravenous drug users and recipients of contaminated blood transfusions.

During oral arguments on Friday, the government announced that Navy Secretary John F. Lehman Jr. had agreed that the 11 recruits in question would be given honorable discharges instead of being “administratively separated” from the service, as originally intended.

Tested After Induction

Deputy U.S. Atty. Michael J. Ryan said Saturday that the government would have no comment until it had studied the opinion.

The recruits’ lawsuit does not challenge the military’s blood-screening policy on AIDS. It applies only to a small number of Navy recruits with positive test results who joined the service just before or during the start of the blood screenings of all military recruits last fall.

The 11 plaintiffs had already begun basic training when the Navy enacted the blood-testing policy that Defense Secretary Caspar W. Weinberger had signed in October. Their situation is different from that of later recruits, since new recruits would not be accepted if they tested positive, and thus the issue of discharge would not arise.