Posted on 09/07/2018 2:15:55 PM PDT by jazusamo
Full title: Judicial Watch Victory: Judge Orders Army to Reconsider Granting Purple Heart to Sgt. Joshua Berry for Injuries Sustained in 2009 Fort Hood Terror Attack
9min video. Judicial Watch Defends "The Forgotten Soldier"
(Washington, DC) Judicial Watch announced today that U.S. District Court Judge Christopher R. Cooper issued an order stating that the Army must reconsider its decision denying a Purple Heart to Sgt. Joshua Berry for injuries sustained in the 2009 international terrorist attack at Fort Hood, Texas.
The August 22 order calls for the Army to reconsider its decision and to act appropriately. If the Army wishes to stick with the denial, it must sufficiently explain why Sgt. Berry is not entitled to the Purple Heart.
On remand, the Army, assuming it wishes to stick with its determination, must explain why Berry is not entitled to a Purple Heart and do so with sufficient clarity that a court can measure the denial against the arbitrary or capricious standard of the [Administrative Procedures Act].
Judicial Watch on October 12, 2017, filed a lawsuit on behalf of Sgt. Berrys father, Howard M. Berry, who is challenging the Armys denial of the Purple Heart under the Administrative Procedures Act (APA) ( Howard M. Berry v. Mark Esper, Secretary of the Army, et al. (No. 1:17-cv-02112)).
Following the Fort Hood attack, the Secretary of Defense declined to recognize the mass shooting as an international terrorist attack against the United States. Instead, the attack was characterized as workplace violence. As a result, active duty servicemembers injured in the attack were ineligible for the Purple Heart, among other awards and benefits.
In response, Congress enacted legislation in 2014 mandating that servicemembers killed or wounded in an attack targeting members of the armed forces and carried out by an individual in communication with and inspired or motivated by a foreign terrorist organization be eligible for the Purple Heart.
As a result, in 2015, the Secretary of the Army announced that servicemembers injured or killed in the Fort Hood attack were eligible for the Purple Heart if they met the regulatory criteria.
The Purple Heart is not a recommended decoration for soldiers killed or wounded in combat or under attack. Rather, a soldier is entitled to a Purple Heart upon meeting specific criteria. Sgt. Berry met the regulatory criteria for an award of the Purple Heart.
Sgt. Berry suffered a dislocated left shoulder during the November 5, 2009, terrorist attack on Fort Hood by Maj. Nidal Hasan. Hasan, who admitted during his 2013 court martial that he had been influenced by Al Qaeda, killed 13 people and injured 30 others.
In witness statements given to the U.S. Army Criminal Investigative Command (CID) and in a separate statement given to a Texas Ranger, Sgt. Berry had estimated that Hasan fired 30-40 rounds outside Building 42004 at Ft. Hood. Sgt. Berry told those around him to get down on the floor and stay away from the doors and windows. When Sgt. Berry heard gunshots hit the metal doors near him, he leaped over a desk to take cover and, in so doing, dislocated his left shoulder. He then heard Hasan trying to kick in the doors. According to a witness statement from another individual, Hasan fired three rounds at the briefing room doors.
Mr. Berry applied for a posthumous award of the Purple Heart to his son. The U.S. Army Decorations Board denied Mr. Berrys application. In April 2015, the Army awarded the Purple Heart to 47 servicemembers injured in the Fort Hood attack. Sgt. Berry was not among them.
On April 17, 2016, upon Mr. Berrys application for review, a three-member panel of the Army Board for Correction of Military Records recommended that all Army records concerning Sgt. Berry be corrected to award Sgt. Berry the Purple Heart. The panel found [t]here is no question that [Sgt. Berry]s injury met the basic medical criteria for award of the [Purple Heart]. The Boards eight-page determination provided a detailed analysis of the degree to which the enemy (i.e., the terrorist) caused [Sgt. Berrys] injury.
A few months later, however, Deputy Assistant Secretary of the Army (Review Boards) Francine C. Blackmon issued a single paragraph memorandum rejecting the Corrections Boards recommendation:
I have reviewed the findings, conclusions, and Board member recommendations. I find there is not sufficient evidence to grant relief. Therefore, under the authority of 10 U.S.C. § 1552, I have determined that the facts do not support a conclusion that his injury met the criteria for a Purple Heart.
In his ruling Judge Cooper said the court could not meaningfully evaluate the reasoning behind Blackmons decision. Decisions which are utterly unreviewable, the judge added must be vacated as arbitrary and capricious. Judge Cooper noted the Armys final memorandum:
provides no meaningful analysisonly a boilerplate determination that the facts do not support a conclusion that [Berrys] injury met the criteria for a Purple Heart. Why not? Was there conflicting evidence regarding how immediate of a threat Hasan posed to Berry as he sat inside the building? Was the evidence clear but the Deputy Assistant Secretary thought that Berry could have taken cover without injuring himself? Or did she read the regulations as categorically taking the Purple Heart off the table for servicemembers injured while taking cover?
The denial letter provides no hints. In turn, the Court cannot meaningfully evaluate the reasoning behind it. That is enough to warrant remand.
We are thrilled by the courts ruling and hope the Army quickly comes to its senses and finally awards Sgt. Berry a well-deserved Purple Heart, said Judicial Watch President Tom Fitton.
Off the Wall Ping!
Contact to be added.
Obama wanted to deny dead Americans their due.
Time to rectify the travesty.
Soldiers wounded at the Pentagon on 9/11 received Purple Hearts. This soldier should receive one as well, but that decision is not a judicial function and Judges need to stay out of it.
The denial of the obvious — that it was a terrorist act — is addressed by Stephen Coughlin when he notes that in the later edits of various reports the truth has been sanitized.
>>Obama wanted to deny dead Americans their due.
Time to rectify the travesty.<<
I agree but the judiciary is NOT the way to do it.
Judges should keep their noses out of the military. COMPLETELY.
The initial decision not to award any Purple Hearts under the 0bama administration for the Ft. Hood terror attack was overturned.
Sgt. Berry dislocated a shoulder and was turned down and now the Army has to give a reason he was turned down or award the Purple Heart.
I think that sums it up accurately.
If Obama had it his way they’d give pink hearts to transgenders who experience homophobia in the military.
I have a problem with civilian courts ordering our military to do anything. This may sound like the right thing to do in this particular case, but it sets a dangerous precedent, especially considering what passes for judicial restraint these days.
Obama wanted to deny that it was a terror attack, even though everyone knew it was.
Correct, under 0bama they tried to claim it was workplace violence, thank the Lord that was overturned.
This judge has gone out of his jurisdiction. He should be removed from the bench!
Thank you for your response,I didn’t read this completely.Good to know that Sgt Berry will get some recognition.
My view of ANYTHING the African's illegal regime says or thinks is the direct opposite.
If John Kerry got a Purple Heart anyone that stumps their toe should get one.
Couldnt agree more. Just because we
Might agree in the result doesnt mean judges should be ruling on whether the military should give a medal
When I read this John F Kerry came to mind also.
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