The Military’s Next Big Problem

November 26, 2013

He was a top-performing Staff Sergeant with the Air Force, but since 2011 David Gutierrez has languished in a small cell at Fort Leavenworth prison, proclaiming his innocence to anyone who will listen. When he is released in 2018, his punishment is not over: he must register for life as a sex offender and will be dishonorably discharged from the military.

But now, in an unprecedented development initiated by the Office of Medical and Scientific Justice (OMSJ), Gutierrez’ case has the potential to make history when the U.S. Court of Appeals for the Armed Services decides whether the evidence used to convict him of assault “likely to produce grievous bodily harm” was “insufficient.”

Trouble at the HIV Lab

A member of the 22nd Maintenance Squadron at McConnell Air Force Base, Technical Sergeant Gutierrez consistently received top performance evaluations for managing the service and repairs for the 22nd Refueling Wing.  But his unconventional personal life ended his 20-year military career.  Routinely tested for HIV roughly every two years — as mandated by the military for all service members — Gutierrez tested positive in 2007 and again in 2010.  He was healthy, had no symptoms or illnesses commonly associated with AIDS and still doesn’t six years later.  When he and his former wife began to join swinger parties, he did not inform his multiple sex partners that he had tested HIV positive.  Not a good guy, one might conclude, but as with most stories, there is much more beneath the surface.

Through the HIV Innocence Group, OMSJ became involved with Gutierrez’ appeal in 2011, and since then the non-profit organization’s legal and medical experts have been successful in five other military cases by establishing that the science underlying HIV tests and testing protocols is flawed and unreliable.  In every OMSJ case, prosecutors were forced to withdraw all HIV-related charges after learning the many problems with HIV testing.

In OMSJ’s most recent case in November 2013, an airman at Seymour Johnson AFB in North Carolina also faced eight years in prison, but his defense successfully argued that according to FDA-approved labeling, results from the airman’s tests provided no reliable evidence with any degree of scientific certainty that he ever was infected with HIV.  Prosecutors withdrew all HIV charges against him.

Based on these and other cases, OMSJ believes that hundreds — if not thousands — of service members may have been improperly tested and misdiagnosed as HIV-infected since the 1990s. Based upon these unreliable HIV tests and reckless testing practices that deviated from published military and Defense Department directives, officials at the US Military HIV Research Program (MHRP) may have improperly tested and misdiagnosed thousands of healthy and honorable service members who lost their careers or have been subjected to dangerous human drug testing experiments on behalf of the US Government and pharmaceutical industry, while some – like Sgt. David Gutierrez – received lengthy prison sentences in a maximum security lock-up.

On December 09, 2014 in Washington D.C., the highest U.S. military court will review the Gutierrez case to determine whether the evidence was sufficient to convict Gutierrez.  If successful, this single case has the potential to remap the entire landscape of HIV testing and prosecution throughout the United States military – and possibly the US.  The review had originally been set for 2013, but that was cancelled on a technicality.


I. HIV Tests

The Gutierrez case illustrates the core problems with HIV tests and the widespread misunderstanding among most medical practitioners who administer and evaluate test results.  These same problems have appeared in every military and civilian case OMSJ has undertaken, which to date numbers more than 50 cases since 2009.  With the assistance and support of the HIV Innocence Group, defense attorneys have begun to force prosecutors to find medical experts willing to testify under oath about the accuracy and reliability of HIV tests and their diagnoses.  Few can.  In two of OMSJ’s more recent cases, top HIV experts from the Balboa Naval Hospital and Walter Reed Army Medical Center failed to explain how the defendants were competently diagnosed with HIV. And when the government prosecutors pushed charges against Marine Corps Cpl. RL and Army Sergeant TD, they lost.

When someone is accused of exposing others to HIV, the first question is whether they are infected or not.  It’s not enough to receive a positive test result because as yet, no one – not even the so-called “experts” – have demonstrated the training or expertise to adequately diagnose an HIV infection because, as you’ll see, the tests themselves are notoriously unreliable.

This undisputed fact about HIV tests stuns most people when they first learn about it: No individual test has been approved for diagnosis of HIV in an individual, even though that is what doctors and labs use them for.  None of the 35 HIV-related diagnostic tests or devices currently marketed and listed on the FDA’s website, claim to confirm the actual presence of the virus in any sample with any degree of scientific accuracy.  The tests do not even detect antibodies.

Instead, the most common HIV tests – ELISA and Western Blot – identify “protein markers” that doctors and test manufacturers presume to be associated with HIV antibodies.  Antibodies do not represent viruses any more than flu antibodies carried since childhood can prove infection in adults today.  HIV test package inserts caution that there is no agreement even on how to diagnose HIV antibodies – let alone the virus itself.  “Therefore [current] HIV tests are an assumption,” explains OMSJ expert Donna Banks, M.D., a board certified gynecologist and sexually transmitted disease specialist, “but not direct proof, that the markers identified on these tests are from a unique HIV virus.”

Even though these are facts about HIV tests – not assumptions – the standard protocol followed by health workers around the world today is: if someone tests positive on ELISA, followed by a positive on WB, they are presumed to be infected with HIV.

During the early days of the AIDS scare, OMSJ expert Rodney Richards, Ph.D., supervised the development of the first HIV diagnostic test when he was a senior chemist at biotech giant Amgen.  Originally intended only to rule out HIV antibodies in blood donor supplies, HIV tests proliferated into mainstream medical practice and became the standard used to diagnose actual HIV infection.

“The problem with these tests is that people use them to diagnose infection with a virus called HIV, and they’re not approved for that purpose,” says Richards. “The manufacturers clearly state in package inserts that the products that they develop are not intended to be used for diagnosing HIV.”

After reviewing Gutierrez’ medical history, Richards wrote that according to the FDA and manufacturers of FDA-approved test kits, “the significance of a reactive ELISA followed by a positive WB in persons without symptoms is completely ― unknown.  As such, there is no reliable evidence in the [medical] records that can be used to reasonably conclude with any degree of scientific certainty that (Gutierrez) was positive either for antibodies to HIV, or infected with HIV, as of August 10, 2010.”

Most physicians and medical scientists know that the only direct reliable method to test for HIV infection would be to culture the virus from the blood or other body tissue but “this has never been accomplished,” Richards adds.

II. False Positives

Although he was healthy and never assigned to hostile combat zones, Sgt. Gutierrez cooperated with the military’s experimental vaccination program and received more than 40 vaccinations (for such diseases as anthrax, hepatitis, tuberculosis, and pneumonia), 17 of which he received in 2007 at roughly the same time he submitted to the initial HIV tests.  Another elephant in the room — false positives — produced by the two main tests used today — ELISA and Western Blot.

“The ‘HIV’ antibodies are notoriously non-specific,’ explains OMSJ expert Donna Banks, M.D., a board certified gynecologist and sexually transmitted disease specialist. “It’s a well-recognized problem attributed to what’s known as cross-reactivity. In other words, antibodies to germ A may coincidentally react to germ B.  So this has been well known, although not well advertised in the area of HIV testing.”

So it’s baffling why Gutierrez’ physician, Donna Sweet, M.D. who owns and operates the Wichita Internal Medicine clinic, didn’t attempt to rule out known cross-reactors when she evaluated the sergeants’ test results, especially since vaccinations are high on the reactive list.  “False-positive reactions are known to be caused by various vaccines that contain pathogens,” says Banks. “These pathogens are known to compromise immune function, cause injury and death.  This is why the package insert contains the disclaimer that the test is not definitive for assessing the presence of a unique HIV virus.”  (More about problems with HIV testing is posted at this link.)

Respected science and medical journals have established there are at least 70 factors that can produce false positive test results, including vaccines for the flu (1, 2, 3, 4, 5, 6, 7, 8) and hepatitis (9, 10, 11, 6), autoimmune diseases (12, 13, 10, 11, 14, 6), and pregnancy  (15, 16, 17, 18, 19, 20, 21 & 22).

Another bewildering oversight: There is no evidence that Donna Sweet or any of Gutierrez’ other clinicians made any attempt to identify which HIV tests were used to diagnose their patient to ensure that his test was not subject to an FDA recall.  Sweet, one of the leading HIV specialists in Kansas, claimed that HIV tests are “sensitive and specific,” but she never mentioned HIV test unreliability — nor did the defense and prosecutors ask.  A true “HIV expert” would have known that there have been repeated recalls of HIV antibody tests during the past decade. Between 2004 and 2011, the FDA Biologic Website listed no fewer than 12.

The consequences of these errors fall, sometimes tragically, on millions of people who are tested.  “The two major problems are that physicians use these tests to tell people they’re infected with a deadly virus,” says former Amgen senior chemist Rodney Richards, “and decisions to initiate drug therapy are based on these tests as well.”

III. The Gold Standard

There is only one gold-standard tool used for observing HIV — an electron microscope — but EM is completely off-limits to the public and has never been approved by the FDA to test for HIV.  The powerful microscope can reveal the structure of smaller objects, like viruses, and produce a magnified image. But staunch resistance to using EM to test for HIV is nearly universal in the military and medical establishment, and anyone who attempts it, meets with retaliation, largely because all oversight of testing labs is assigned to boards that rely upon funding from HIV test manufacturers.  The College of American Pathologists (CAP) is not likely to authorize EM when their major donors include test manufacturers like Abbott Labs.

In the weeks leading up to the North Carolina airman’s trial, OMSJ found an EM expert at the University of Massachusetts (U. Mass) who was willing to examine the airman’s blood to establish whether HIV was visible in the Defendant’s blood.  The military intervened quickly.

In her well-hedged affidavit to USAF prosecutor Cpt. Mark Rosenow, Sheila Peel, Ph.D., MHRP’s Director of the HIV Diagnostics, wrote that CAP does not authorize the use of EM for testing or diagnostic purposes and that U. Mass might be operating their EM laboratory outside of CAP regulations.

Rosenow and Peel knew – or should have known – that licensed investigative agencies and university scientists are permitted to use EM much like they use binoculars, microscopes and telescopes to observe evidence that is not ordinarily seen with the unaided eye without CAP oversight.

But rather than question the alleged improprieties with the court, opposing counsel, or OMSJ, Cpt. Rosenow addressed several emails directly to the U. Mass Department Chair of Cell Biology.  After several exchanges, OMSJ’s witness, Gregory Hendricks PhD, withdrew his assistance from the case and several others, which resulted in what could be a lifetime confinement of a factually innocent defendant.  (see Motion to Dismiss)

Like MHRP, U. Mass receives millions of dollars each year from the National Institutes of Health (NIH).  OMSJ’s successful use of EM exposes NIH-funded corruption and incompetence, which threatens billions of dollars in funding and revenues for U. Mass, MHRP, its pharmaceutical partners – not to mention the liability, years of litigation, and negative press.

Throughout the US, witness intimidation is a felony, punishable by years of prison in many states.  When asked about Rosenow’s improprieties, Dr. Peel testified that she has a “vested interest” to prevent OMSJ from utilizing EM to examine the airman’s blood samples.

Indeed she does.  As director of the military’s HIV lab, Peel oversees HIV screening testing for U.S. Army personnel. Each year, according to MHRP’s website, the lab administers approximately one million tests in the U.S., and another 80,000-100,000 tests for the European and Central Commands.  If true, OMSJ’s discoveries could implicate MHRP in the improper testing, diagnosis, and treatment of HIV and other diseases among thousands of service members who might actually be suffering from the effects of anthrax and other experimental and dangerous vaccines, or carcinogenic toxins like those that now pollute the drinking water at military bases like Camp Lejeune.  If true, the US Military would have many reasons to blame a service member’s vaccine and environmental injuries on an unobservable retrovirus that can only be found by MHRP’s unscientific diagnostic practices.

Sounds inconceivable, but it’s all true.

IV. Black Box Drugs

What happened next to Sgt. Gutierrez happens to millions of alleged HIV positive people around the world.  During the three years after he first tested “positive,” the clinicians who tracked Gutierrez’ health indicated that he was “asymptomatic”, meaning that they found no visible sign or evidence of disease.  A heterosexual, Gutierrez falls into the low-risk group for HIV infection, and yet, Sweet’s Wichita clinic issued him a prescription for Atriplia, one of the many toxic “black box warning” drugs manufactured to treat AIDS.

According to the product label information, Atripla is known to cause Like AIDS, those symptoms can include fever, night sweats, weight loss, fatigue, enlarged lymph nodes, a cough, chest or abdominal pain, nausea, vomiting, diarrhea, bloating, headache, joint pain/swelling, back pain and skin lesions.  The same is true for many other AIDS drugs, Sustiva, Retrovir (AZT), Isentress and Norvir, among them.  Atripla contains the highly addictive psychotropic drug called Sustiva, which produces an intensely hallucinogenic high when smoked like crack cocaine or methamphetamines. – Hamilton’s Pharmacopeia: Getting High on Sustiva (Efavirenz)

ABC News Report


Why would responsible physicians prescribe such harmful drugs to their patients based on test results that are notoriously unreliable?

V. Follow The Money

Criminal HIV statutes were passed in the 1980s to prosecute HIV-positive people who knowingly expose others to the alleged virus through sexual activity.   The Ryan White Comprehensive AIDS Resources Emergency Act made billions of dollars available to states that arrest people who test positive for HIV. The 32 states that passed such laws received $1.84 billion in 2010 alone.

HIV/AIDS is above all a multibillion-dollar industry, in which so many doctors, scientists and hundreds of health organizations have acquired a financial stake that the views of researchers who challenge the orthodox position on HIV and its many tests are actively suppressed through retaliation.  The intimidation of EM specialist Gregory Hendricks is but one example.  Medical experts and PhDs found on websites like this are generally comprised of physicians who face retaliation if they deviate from the HIV theology.

During the past decade, the HIV testing market has seen huge growth and high profits. The global market for HIV/AIDS testing is projected to exceed $3.5 billion by 2015, according Global Industry Analysts. Increased profits are now largely driven by the popularity of new Rapid and home HIV tests kits, the question of their accuracy still being debated.  These “rapid” and “home” tests do not detect HIV are designed to produce fear, sending consumers to clinics for more testing with other equally unreliable testing devices.  For example, a careful look at the OraQuick package insert reveals several clues about the new test’s unreliability:

“A positive result with this test does not mean that you are definitely infected with HIV, but rather that additional testing should be done in a medical setting.” (emphasis added)

Industry is now so inextricably tied to medical science through massive funding that it’s nearly impossible to discern which agenda — science or sales – is at the forefront.  Conflicts of interest blanket the medical landscape.  Weeks after Donna Sweet MD testified against her own patient (Gutierrez) in January 2011, she received a $2.9 million grant from Bristol-Myers Squibb (BMS) to use her medical credentials to promote HIV tests and drugs for the company.  Since 2009, the pharmaceutical industry has paid “thought leaders” like Donna Sweet $2.1 billion in kickbacks and bribes to illegally promote and prescribe drugs that kill or injure 2~4 million Americans annually.

Coincidentally, Sweet had unnecessarily prescribed Atripla for Gutierrez, which contains the highly addictive psychotropic drug Sustiva.  The license holder?  BMS.

AIDS drugs are far more profitable than HIV tests.  Since the first HIV medication, AZT, killed more people than it saved (roughly 300,000), more than 50 other so called anti-retrovirals have been come on the U.S. market.  There’s no stopping the industry.  “As HIV continues to spread companies large and small alike will continue to keep hauling in billions of dollars treating the disease,” says one Motley Fool report.   From HIV biotech leader Gilead Sciences to major big pharma companies like Merck, “there are numerous good options for investors looking to get a piece of the HIV treatment market – and 2012 proved to be a banner year for the industry.”

Gilead Sciences generated $6.3 billion from HIV drugs in 2010, largely from sales of Atripla, the three-drug combination pill approved in 2006 that is the most widely used AIDS medicine. Pfizer also did exceptionally well – $128 million – with the drug Selzentry and its partner, GlaxoSmithKline had 2010 sales of $1.1 billion for Isentress.

“There’s no safer bet in the HIV treatment industry right now than Gilead,” Motley Fool concludes. “HIV fighter Atripla continues to lead the way as a blockbuster drug for the company, and Gilead’s stock surged an astronomical 75% in 2012.”


After winning more than 50 criminal HIV cases, with many more civil and criminal cases in the legal pipeline, OMSJ’s HIV Innocence Group has become another kind of elephant in the room.  A thorn in the side of the military and establishment academics and physicians, OMSJ nevertheless continues to provide sound medical and scientific expertise to attorneys whose clients face HIV-related charges.  Because of the technical nature of these cases and the volume of pharmaceutical propaganda pushed by the CDC and NIH, there is little information for prosecutors, defense attorneys and courts that can be helpful to these cases.

With few established scientific standards, corrupted oversight, and continued OMSJ exposure, the science underlying HIV and HIV tests may one day go the way of forensic science in the U.S.  Long thought to be infallible, modern forensics, including the analysis of fingerprints, bite marks, ballistics, hair, and tool marks, sent hundreds of innocent men and women to prison, some to death row, based on invalid or improperly handled forensic tests.  In Massachusetts, one chemist may have wrongfully sent 40,000 innocent defendants to prison.

In 2005, the National Academy of Sciences (NAS), the most prestigious scientific organization in the U.S., examined the shaky state of forensics and issued a blistering report.  It noted “serious deficiencies” in the nation’s forensic science system and advocated extensive reforms. It specifically noted that apart from DNA, there is not a single forensic discipline that has been proven “with a high degree of certainty” to be able to match a piece of evidence to a suspect.

Hope is on the horizon for seeing HIV tests for what they are: inaccurate and based on unsupported science.  Defense attorneys who expected to plea bargain their mostly black and homosexual clients — groups that are alleged to have the highest rate of HIV infection — are beginning to see HIV’s pseudoscientific gibberish for what it is.  Cases that involve Olympic athletes, sexual convicts and ordinary men are looking less certain as their attorneys take a closer look at HIV.

Many AIDS activist and legal groups, including LAMDA and the Center for HIV Law & Policy, are pushing to end laws and policies that subject people with HIV to arrest and punishment based on human rights violations. OMSJ supports ending the laws as well, on humanitarian grounds, and for another reason that these groups won’t acknowledge — gross ignorance about HIV tests and the nature and transmission of the virus.

On December 16, when the military appeals court reviews the HIV evidence in the Gutierrez case, “with any luck,” says his attorney, Kevin B. McDermott, “we will soon see the end of HIV test results being used as a basis to convict a serviceman for aggravated assault.”

Tags: , , , , , , , , , , , ,

You must be logged in to comment

Log in