Retired U.S. Army Lt. Gen. Keith Kellogg and former Veterans Affairs Secretary Robert Wilkie joined a legal brief on Monday arguing for the U.S. Supreme Court to grant a Purple Heart decoration to U.S. Army Staff Sgt. Joshua Berry.
Berry was injured in the Nov. 5, 2009 Fort Hood shooting attack. He continued to suffer from PTSD after the attack and took his own life in 2013. His family has been fighting for Berry to receive a Purple Heart for injuries he incurred during the attack, but the Army has blocked Berry from receiving it.
Kellogg and Wilkie joined a “friend of the court” amicus brief arguing in favor of granting Berry a Purple Heart for his injuries. The brief was organized jointly by First Liberty Institute and the Constitutional Litigation Partnership (CLP) at the America First Policy Institute (AFPI).
Kellogg served on President Donald Trump’s National Security Counsel and is the co-chairman of AFPI’s Center for American Security. Wilkie served in the U.S. Navy Reserve and U.S. Air Force Reserve before becoming Secretary of the VA during the Trump administration.
“The Army’s denial of SSG Berry’s Purple Heart and the court system’s unwise deference to military leaders is a miscarriage of justice,” Kellogg said on Monday. “Military leaders are not above the law or beyond the constraints of the Constitution. We hope the Supreme Court rights this wrong.”
The Army’s criteria to award a Purple Heart states a soldier must have been wounded by the actions of an established enemy of the U.S., an international terrorist attack or wounded in action by friendly fire.
The Fort Hood shooting was carried out by U.S. Army Maj. Nidal Hasan.
During the attack, Berry helped other personnel on base get to safety in a briefing room. When gunshots hit the room’s door, Berry leaped over a desk to take cover, but dislocated his shoulder in the process.
“The Army initially recommended that SSG Berry receive the Purple Heart posthumously,” First Liberty Institute said in a statement. “But then, the Deputy Secretary of the Army reversed that decision. The Berry family sued in federal court to ensure his daughter will receive SSG Berry’s Purple Heart.”
First Liberty Institute said lower courts argued in favor of the Army’s decision to deny Berry’s Purple Heart, granting “unusual deference” to the military’s decision-making.
The 2009 attack was originally declared a “workplace violence” incident, but Congress expanded eligibility for Purple Heart awards in the 2015 National Defense Authorization Act (NDAA). The new provision in the 2015 NDAA allowed Purple Heart awards for the 13 people directly killed in the Fort Hood shooting, as well as dozens of others wounded in the attack.