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.
Sgt. Berry commited suicide on February 13, 2013, leaving behind his daughter and grieving father. Mr. Berry applied for a posthumous award of the Purple Heart to his son. The U.S. Army Decorations Board denied Mr. Mr. Berry’s application. In April 2015, the Army awarded the Purple Heart to 47 service members injured in the Fort Hood attack. Sgt. Berry was not among them.
On April 17, 2016, upon 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 service members 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.”