United Press International - Monday, March 22, 1999
Michael Kirkland

The case involves an HIV-positive, heterosexual Air Force major at a Texas base who disobeyed a commanding officer's orders to practice safe sex.

HIV is the virus that causes AIDS, and is principally transmitted by sex. Like any other disease, its presence alone is not grounds for forcing someone out of the military.

Court records say Maj. James Goldsmith was ordered by his commanding officer at Randolph Air Force Base in San Antonio to tell prospective sex partners that he was HIV-positive, and to use condoms or some other safe-sex practice when having intercourse.

Goldsmith was later convicted of disobeying orders and assault after having unprotected vaginal sex with two women, one civilian and one military. Neither woman contracted HIV.

A court-martial sentenced him in 1994 to up to six years in a military prison and forfeiture of $2,500 for each month of his sentence.

In 1996, the Air Force told Goldsmith that under a new law it was going to terminate his service, -- drop him from the military "rolls" -- because of his conviction. Because it is a less than honorable discharge, dropping him from the rolls would have a drastic effect on Goldsmith's pension and VA medical benefits.

The 1996 federal law allows the president, and by extension the Pentagon, to "drop from the rolls" any officer who has served at least six months of a court-martial sentence.

Goldsmith -- who needed only one more year in service to reach 20 years for retirement -- asked the U.S. Court of Appeals for the Armed Forces to review his termination.

The court ruled in Goldsmith's favor in 1997, saying that dropping him from the rolls after imprisoning him would constitute double jeopardy. The court also said the president and the Air Force had violated the "ex post facto" ban in the Constitution, which bars the retroactive application of laws.

Two months later, Goldsmith's shortened imprisonment ended and he returned to active duty, where he still serves until retirement in July, despite his medical condition.

The Clinton administration asked the Supreme Court for review.

In today's argument, Deputy U.S. Solicitor General Michael Dreeben said dropping Goldsmith from the rolls amounted to "collateral consequences," and was administrative in nature.

Dreeben said the military appeals court has the power to review court-martial sentences. But federal law, he said, did not give the military appeals court the "authority to become an all-powerful administrator," and certainly does not give it the authority to issue an injunction to the president.

Speaking for Goldsmith, San Antonio, Texas, lawyer John Economidy ("ee-KAHN-oh-MID-ee") said the military appeals court "can act on this sentence under Article 67" of the Uniform Code of Military Justice.

Fielding questions from the justices, Economidy spent much of his argument time defending his decision not to take his case to a separate military Board of Corrections, which deals with administrative rather than legal issues.

As opposed to the appeals court, Economidy said, "The Board of Corrections does not have the power to declare these statutes unconstitutional."

Economidy said he did not have time to explore every avenue, especially one he felt would be useless, because, "My client, at the time, was dying."

The Supreme Court is expected to hand down a decision in the case this spring.

(No. 98-347, Clinton vs. Goldsmith)
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UP990301

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