Senior Airman claims Air Force discharged him after sexual orientation and HIV status revealed

Posted at 10:50 AM, Aug 03, 2018
and last updated 2018-08-08 15:12:21-04

Senior Airman Branden Gutierrez was court martialed in 2017 for having unlawful sexual contact and failing to disclose his HIV status.

He was found not guilty of the first charge while the other was ultimately dismissed. However, he wouldn’t return to work for long.

Shortly after his case concluded, a Commander in the 21st Logistical Readiness Squadron put a plan in place to discharge him.

Now, Gutierrez is speaking with News 5 Investigates to clear his name and save the benefits he believes he earned after the commander was successfully able to discharge him.

Because he was not “honorably discharged”, Gutierrez loses access to certain benefits like his GI Bill.

“When I first found out and was diagnosed with HIV, it was pretty tough,” Gutierrez told News 5.

The challenge of getting treatment for HIV was nothing compared to what happened next.

“I was accused of not disclosing my HIV status to someone,” he said.

Gutierrez says he met people through Grinder—a dating app for gay men.

After having a sexual encounter with another airman, that airman filed a report alleging Gutierrez did not disclose his status.

Gutierrez adamantly denies this, but that didn’t stop him from being court-martialed and charged with engaging in unlawful sexual contact and failing to inform his partners of his status.

More than one sexual partner was interviewed during the court-martial hearing.

On Gutierrez’ public profile on the social media app, he clearly lists his status as “HIV-positive undetectable”.

Gutierrez says he has not spread the virus to any of his sexual partners.

On December 6, 2017, the charge related to not disclosing his HIV status was “dismissed” according to this document obtained by News 5 Investigates.

Meanwhile, Gutierrez was found “not guilty” at trial for the unlawful sexual contact charge, but his life wouldn’t return to normal.

“A month after that (the court-martial) in late January 2018, my commander issued me a letter of reprimand for the same exact thing that I was tried for in my court martial which didn’t make sense to me as to why he was doing that,” Gutierrez said.

In this administrative action letter, Lt. Col. Joshua Schaad continued to “reprimand” Gutierrez for allegedly violating military orders by failing to disclose his HIV status—the same charge that was dismissed a month prior in December 2017.

“During the court martial, I proved that I was up front about my status since Day 1,” Gutierrez claims.

Two months after sending Gutierrez the letter of reprimand, the same commander issued another letter on March 5, 2018—recommending Gutierrez be discharged for misconduct and specifically mentioning Gutierrez’ HIV status.

When the March 5, 2018 discharge letter was issued, surely the Air Force knew they needed more concrete evidence or other misconduct examples to kick someone out.

The United States Air Force found it—and listed 3 other disciplinary infractions that had been resolved three years ago in 2015 when Gutierrez had just enlisted.


April 2015: Gutierrez received a counseling letter for sleeping instead of studying for an exam

November 2015: Gutierrez was reprimanded for not unlocking a building door on time at 0600 hours

December 2015: Gutierrez was reprimanded for missing a physical fitness test

Beyond those infractions from three years ago, News 5 Investigates could not find any other issues Gutierrez had with the Air Force prior to the court martial hearing. The Air Force didn’t disclose any further issues to News 5 either.

All three of the above issues from 2015 were ultimately used to discharge Gutierrez with a status of “General–Under Honorable Conditions”.

“An Under Honorable Conditions (General) service is warranted when significant negative aspects of the airman’s conduct or performance of duty outweigh positive aspects of the airman’s military record,” a spokesperson for Peterson Air Force Base said.

“I know people who have gotten DUI’s and of course they got Article 15’s (a punishment) but were able to finish their enlistment,” Gutierrez said.

A spokesperson confirmed this is true, but referred us back to the three incidents Gutierrez had back in 2015.

“Shortly after I got the discharge notification, I was really at a low point in my life,” Gutierrez said. “I had to go into a psych ward because I was feeling suicidal. During that time nobody from my chain of command really cared and when I was released, their top priority was to just get me discharged.”

Gutierrez was officially discharged April 16, 2018, but without a discharge “status” change, he won’t get his GI Bill.

“I served for that GI Bill,” he said. “I feel like I deserve it. I don’t have a job and it has been really hard to get a job because of the characterization of discharge that I got.”

Gutierrez says he wants to pursue a degree in logistics at Pikes Peak Community College, but can’t without his GI Bill or a full-time job to help pay the costs.

Although he feels the Air Force turned its back on him, he says he wishes he was still there.

“I miss the Air Force,” he said. “I miss my job. I miss wearing the uniform everyday.”

It’s still hard for Gutierrez to hold back tears for the life he once loved.

“I did my best everyday and I did it with pride,” he said. “The Air Force was my number 1 priority.”

HIV Disclosure requirements: 

“There is no law or regulation in Colorado that requires a person to disclose his or her own HIV status,” Danielle Oller, a spokesperson with the El Paso County Health Department said.

However, the Air Force does have a policy and gives specific orders that HIV-status disclosure is required. It’s a policy Gutierrez confirms he was provided.

Official statement from the 21st Space Wing at Peterson Air Force Base:

The dates for the infractions you list in 2015 are correct. In addition, in February of 2016, Mr. Gutierrez’s commander ordered him to “Follow Preventive Medicine Requirements” (a safe sex order) and Mr. Gutierrez violated this order in December of 2016 . In February of 2017, two charges were preferred against Mr. Gutierrez. The charges included violation of Article 92, Failure to obey order or regulation, and violation of Article 128, Assault. A Special Court-Martial was convened at Peterson AFB.  Airman Gutierrez was found not guilty of assault and guilty of violating the safe sex order. Upon his conviction, the court-martial sentenced Airman Gutierrez to no punishment. In response to a clemency request from Mr. Gutierrez, his wing commander at the time exercised his discretion as the court martial convening authority and set aside the findings of the court-martial conviction. In his request, Mr. Gutierrez asked to have the conviction removed and replaced with a letter of reprimand. Such a grant of clemency is not to be confused with a finding of “not guilty.” The wing commander forwarded the case to Mr. Gutierrez’s squadron commander for administrative action, and the squadron commander then gave Mr. Gutierrez a letter of reprimand for disobeying a direct order. This letter of reprimand, combined with the three other previous administrative disciplinary actions, prompted his commander to recommend him for discharge for a pattern of misconduct. Airman Gutierrez’s pattern of misconduct was the primary basis for his discharge. He was separated from the Air Force on April 16, 2018, with an Under Honorable Conditions (General) service characterization. An Under Honorable Conditions (General) service “is warranted when significant negative aspects of the airman’s conduct or performance of duty outweigh positive aspects of the airman’s military record.”

In response to the concern that Mr. Gutierrez is being retaliated against for his sexual orientation:

The Air Force took administrative actions against Mr. Gutierrez to address his failure to meet one of the fundamental requirements of military service: obeying the orders of those appointed over you. We hold all Airmen to the same standard regardless of their sexual orientation.  When Airmen demonstrate they cannot meet those standards, they are subject to discharge; again, this is without regard to sexual orientation. It is important to note that the reprimand Mr. Gutierrez received after his court-martial was given at his request, to substitute for the court-martial conviction he requested be set aside and handled at a lower level.

Documented evidence disputing official statement from the 21st Space Wing public affairs office: 

News 5 Investigates requested any document or letter stating that Gutierrez received “clemency” but was “still guilty of the charge” as the Air Force indicated in its statement.

As of 10 p.m. Thursday, the Air Force has not been able to provide such documentation, but did confirm they have a copy of this report reversing the “HIV status disclosure” charge.

It reads: 

“In the case of Senior Airman Branden D. Gutierrez, United States Air Force, 21st Logistics Readiness Squadron, the findings of guilty and the sentence are disapproved. The charge is dismissed. All rights, privileges and property of which the accused has been deprived by virtue of the findings of guilty and the sentence will be restored.”

HIV Statistics in El Paso County: 

2015: 28

2016: 42

2017: 33

2018 (through June): 21

*New cases only