OMSJ Appeal of Sgt David Gutierrez: The Case Against HIV False Positives Due to Vaccinations

Clark Baker, along with his stable of AIDS Denialist “experts” Rodney Richards and Nancy Banks, are trying to make a military court believe that Sgt David Gutierrez is not HIV positive. The bulk of their reasoning hinges on the tired and exaggerated AIDS Denialist trope of false positives caused by cross reactive antibodies due to vaccinations.  From Baker’s Press Release of August 2014:

OMSJ expert Nancy Banks, M.D., a board certified gynecologist and sexually transmitted disease specialist, further challenged the medical evidence used to convict Gutierrez. “Even if standard FDA-proved tests had been used,” she stated, “the tests are subject to false positives for a variety of reasons, and particularly for vaccinations.”


Although he was healthy and never assigned to hostile combat zones, 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.

NOTE: There is no “Military Experimental Vaccination Program”.  You have to love Mr. Baker’s use of hyperbole and scare tactics.  But I digress.

However, Sgt David Gutierrez supplied an affidavit in his Appeal Request which clearly contradicts Baker’s Press Release. (I will summarize the pertinent information from Gutierrez’s Affidavit. I have the affidavit because Baker included it as part of Baker’s lawsuit against me. Why? That is a post for a later date.)

·         First, Gutierrez says that he received 49 vaccinations over his 20 year enlistment.

·         Second, Gutierrez says that he received an influenza vaccine in November of 2006.

·         Third, Gutierrez says 5 months later, on April 25, 2007, he received vaccines for typhoid and anthrax and had an HIV test on that same day.

Nowhere in Gutierrez’s affidavit does he say that he received 17 vaccinations “roughly the same time he submitted to the initial HIV tests.”  Let’s give more points to Baker for sheer vagueness.

None of these vaccines could be causing a false positive due to cross reactions. The typhoid and anthrax vaccines definitely could not because they were administered the same day as his blood was drawn for the HIV Test. The human body does not respond to the vaccines, produce antibodies and circulate those antibodies all in the same day. That is ludicrous. (Also, Gutierrez does not specify if the blood was drawn before the vaccines were administered or vice versa.) HERE is a good source about white blood cells and how antibodies are produced after a vaccination.

This response from your immune system, generated by the B lymphocytes, is known as the primary response. It takes several days to build to maximum intensity, and the antibody concentration in the blood peaks at about 14 days.

Your body continues making antibodies and memory B cells for a couple of weeks after vaccination. Over time, the antibodies will gradually disappear, but the memory B cells will remain dormant in your body for many years.

Clearly the influenza vaccination from November 2006, 5 months prior to the HIV test, would not cause a false positive, either. The antibodies do not persist for that long. It is widely known and accepted that the influenza vaccine can cause false positives under the right conditions. Most notably, the HIV test must come soon after the vaccination. A person will test as positive on the ELISA but the WB is indeterminate. (That’s how we know the test is a “false positive”.) This report from the New England Journal of Medicine shows that a man tested HIV false positive 11 days after a flu vaccine, but was negative when tested one month later. Therefore it would be statistically unlikely that Sgt Gutierrez would test false positive 5 months after his influenza vaccine.

This is just one more example of Mr. Baker not presenting the facts accurately and the second example from the press release. It was in this post in August where I highlighted the deceptive nature of the same press release. In that post I showed how Mr. Baker made a comment by the attorney for Sgt Gutierrez, Kevin McDermott, seem as if the appeal strategy was centered on questioning the science of HIV:

“This one case has the potential to remap the entire landscape of HIV testing and prosecution in the United States military,” said Gutierrez attorney Kevin B. McDermott, “and to halt this national injustice.”

But the full quote shows the deceptive nature of Mr. Baker’s truncated, out of context quote. (No where could I find Mr. McDermott say “halt this national injustice”. Could Mr. Baker be taking poetic license?)

The attorney for David Gutierrez said Monday his case could potentially remap HIV testing and prosecution in the U.S. military. The Court of Appeals for the Armed Forces is expected to hear arguments this year. Attorney Kevin McDermott says existing case law reflects attitudes from the mid-1990s, and the hope is that the case will get the military up to speed on current issues with HIV.

And this longer article further proves that Mr. McDermott is not relying on challenging the science of HIV as Mr. Baker implies in his duplicitous press release:

Defense attorney Kevin McDermott said the military’s case was based on old attitudes about AIDS and the virus that causes it “and how infectious it was and how much of a death sentence it was at that particular time.” The virus isn’t as easily transmitted through heterosexual sex as once thought, he said, and people can now live a long time with it.
“Really what this case is hoping to do is to get the Court of Appeals for the Armed Forces and every other military panel up to speed with what is going on with HIV today and to perhaps change those attitudes and mores,” McDermott said.

Who knows what Mr. Baker’s intention is with his strange press release? But this case is high profile enough that once the dust settles, we should know the facts and how this played out. Hopefully Baker will not be able to bury the transcript in this military case.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: