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Judge: Army must reconsider purple heart denial for soldier in Fort Hood ‘workplace violence’ terror shooting

Lt. Gen. Robert Cone, commanding general of III Corps and Fort Hood, provides details of an attack at the installation by a lone gunman to media members outside Fort Hood's main entrance, Nov. 6. 2009. (Expert Infantry/Flickr)
September 13, 2018

Judicial Watch announced another legal victory last week. This time, it was a victory to recognize the heroism of a fallen soldier.

After nearly a year of legal action, U.S. District Court Judge Christopher Cooper ordered the Army to reconsider withholding the Purple Heart to Sgt. Joshua Berry for his injuries sustained in the 2009 Fort Hood terrorist attack, Judicial Watch said in a press release.

Because the Fort Hood attack was originally declared a “workplace violence” incident, those injured in the attack were not eligible for awards or benefits.

Howard Berry has been fighting for justice for his son “for over five years,” he told American Military News on Tuesday; “since he died.”

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After a year-long deployment in Afghanistan, Sgt. Berry was in a transition program at Fort Hood, awaiting redeployment to Fort Knox. When U.S. Army Major Nidal Hasan opened fire on Nov. 5, 2009, Sgt. Berry helped personnel get to safety in a briefing room. When gunshots hit the room’s door, Sgt. Berry leaped over a desk to take cover, then dislocating his shoulder.

The injury was surgically repaired and deemed to be caused by the shooting in the line of duty. He was eventually deemed unfit for military service due to post-traumatic stress disorder, his shoulder injury suffered during the Fort Hood attack, and degenerative spinal arthritis.

Sgt. Berry continued to struggle with PTSD, and died by suicide in February 2013 at age 36. He left behind a daughter, now 7 years old.

A year later in 2014, Congress passed legislation changing the criteria for the Purple Heart, mandating the award for “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”

Forty-seven members of the military were awarded the Purple Heart in April 2015 for their injuries at Fort Hood. Sgt. Berry was not one of them, despite multiple Army officials stating that he’d met the criteria. His application was denied without a provided reason.

A year later in 2015, the three members on the Army Board for Correction of Military Records determined “[t]here is no question that [Sgt. Berry]’s injury met the basic medical criteria for award of the [Purple Heart],” Judicial Watch explained in a press release last year.

Still, the award was withheld.

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Berry reached out to newspapers, magazines, primetime news programs and members of Congress to tell his son’s story. “I had contacted everybody and their brother,” he explained.

He heard about Judicial Watch and reached out to them, although it took time and several phone calls to get them on board. Together, Judicial Watch and Berry sued Secretary of Defense James Mattis and Acting Secretary of the Army Ryan McCarthy in 2017.

“The politicians have proven beyond a reasonable doubt that there’s no political solution for my son,” Berry said. “I wanted to see if the judicial system did.”

Deputy Assistant Secretary of the Army (Review Boards) Francine C. Blackmon asserted, “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 Aug. 22 ruling, Judge Cooper said Blackmon’s decision was “arbitrary and capricious” and could not be “meaningfully evaluate[d]” by the court.

The judge challenged the Army memo, which provides no basis for the rejection. He criticized the Army’s decision with the following statement: “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?”

“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.

Berry hopes the Army will do the right thing in following through on their promise to award the Purple Heart to his son. He wants to pass on the award to his granddaughter, so she knows her father was a hero.