Judge Rules U.S. Army Must Explain Denial of Purple Heart to Ft Hood Survivor
U.S. District Court Judge Christopher R. Cooper issued an order that the Army must reconsider its decision to deny a Purple Heart to Sgt. Joshua Berry for injuries he sustained in the 2009 international terrorist attack at Fort Hood, Texas. The order calls for the Army to reconsider its decision and to act appropriately. If the Army decides again to deny the award, it must explain its reasoning. On remand, the Army 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],” according the August 22 ruling.
Judicial Watch filed a lawsuit in 2012 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 in 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 it as an international terrorist attack against the United States. Instead, the attack was characterized as “workplace violence.” As a result, active duty service members injured in the attack were ineligible for the Purple Heart, among other awards and benefits.
In response, Congress enacted legislation in 2014 mandating that service members 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 service members 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 he 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.
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