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Judicial Watch Victory: Judge Orders Army to Reconsider Granting Purple Heart to Sgt. Joshua...
Judicial Watch ^ | September 7, 2018 | Tom Fitton

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. Berry’s father, Howard M. Berry, who is challenging the Army’s 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. Berry’s 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. Berry’s 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 Board’s eight-page determination provided a detailed analysis of “the degree to which the enemy (i.e., the terrorist) caused [Sgt. Berry’s] 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 Board’s 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” Blackmon’s decision. Decisions which are “utterly unreviewable,” the judge added “must be vacated as arbitrary and capricious.” Judge Cooper noted the Army’s final memorandum:

provides no meaningful analysis—only a boilerplate determination “that the facts do not support a conclusion that [Berry’s] 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 court’s 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.

###


TOPICS: Crime/Corruption; Foreign Affairs; News/Current Events; War on Terror
KEYWORDS: fthood; fthoodmassacre; fthoodterrorattack; gwot; judicialwatch; jw; linguisticgymnastics; nidalhasan; obamaadmin; purpleheart; sgtjoshuaberry; terrorism; usarmy; workplaceviolence
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1 posted on 09/07/2018 2:15:55 PM PDT by jazusamo
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To: GOPJ; Diana in Wisconsin; ColdOne; Art in Idaho; Conservative Gato; ptsal; onyx; Tucker39; ...

Off the Wall Ping!

Contact to be added.


2 posted on 09/07/2018 2:18:56 PM PDT by jazusamo (Have You Donated to Keep Free Republic Up and Running?)
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To: jazusamo

Obama wanted to deny dead Americans their due.

Time to rectify the travesty.


3 posted on 09/07/2018 2:19:12 PM PDT by goldstategop (In Memory Of A Dearly Beloved Friend Who Lives In My Heart Forever)
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Comment #4 Removed by Moderator

To: jazusamo

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.


5 posted on 09/07/2018 2:20:47 PM PDT by centurion316 (Back from exile from 4/2016 until 4/2018.)
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To: jazusamo
.
Protecting Obama’s pals coming to an end?
6 posted on 09/07/2018 2:21:39 PM PDT by editor-surveyor (Freepers: Not as smart as I'd hoped they'd be)
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To: jazusamo

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.


7 posted on 09/07/2018 2:23:50 PM PDT by Rurudyne (Standup Philosopher)
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To: goldstategop

>>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.


8 posted on 09/07/2018 2:26:28 PM PDT by freedumb2003 (As always IMHO)
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To: goldstategop; Del Rapier

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.


9 posted on 09/07/2018 2:26:32 PM PDT by jazusamo (Have You Donated to Keep Free Republic Up and Running?)
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To: goldstategop

I think that sums it up accurately.


10 posted on 09/07/2018 2:28:22 PM PDT by DoughtyOne (01/26/18 DJIA 30 stocks $26,616.71 48.794% > open 11/07/16 215.71 from 50% increase 1.2183 yrs)
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To: jazusamo

If Obama had it his way they’d give pink hearts to transgenders who experience homophobia in the military.


11 posted on 09/07/2018 2:30:04 PM PDT by Telepathic Intruder
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To: jazusamo

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.


12 posted on 09/07/2018 2:31:03 PM PDT by IronJack
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To: goldstategop

Obama wanted to deny that it was a terror attack, even though everyone knew it was.


13 posted on 09/07/2018 2:31:43 PM PDT by BenLurkin (The above is not a statement of fact. It is either satire or opinion. Or both.)
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To: BenLurkin; goldstategop
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.

14 posted on 09/07/2018 2:36:06 PM PDT by jazusamo (Have You Donated to Keep Free Republic Up and Running?)
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To: jazusamo

This judge has gone out of his jurisdiction. He should be removed from the bench!


15 posted on 09/07/2018 2:37:09 PM PDT by Retvet (Retvet)
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To: jazusamo

Thank you for your response,I didn’t read this completely.Good to know that Sgt Berry will get some recognition.


16 posted on 09/07/2018 2:44:15 PM PDT by Del Rapier
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To: goldstategop
Obama wanted to deny dead [or injured] Americans their due.

My view of ANYTHING the African's illegal regime says or thinks is the direct opposite.

Honest and obvious difference of opinion

17 posted on 09/07/2018 2:45:39 PM PDT by publius911 (Rule by Fiat-Obama's a Phone and a Pen)
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To: jazusamo

If John Kerry got a Purple Heart anyone that stumps their toe should get one.


18 posted on 09/07/2018 2:51:12 PM PDT by Herman Ball (2)
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To: centurion316

Couldn’t agree more. Just because we
Might agree in the result doesn’t mean judges should be ruling on whether the military should give a medal


19 posted on 09/07/2018 2:51:16 PM PDT by j.havenfarm ( 1,500 posts as of 8/10/18. A FReeper since 2000; never shutting up!)
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To: Herman Ball

When I read this John F Kerry came to mind also.


20 posted on 09/07/2018 2:56:07 PM PDT by jazusamo (Have You Donated to Keep Free Republic Up and Running?)
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