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Judicial Watch • Berry v. Sec Army Esper denial 02112

Berry v. Sec Army Esper denial 02112

Berry v. Sec Army Esper denial 02112

Page 1: Berry v. Sec Army Esper denial 02112


Number of Pages:3

Date Created:December 19, 2018

Date Uploaded to the Library:December 31, 2018

Tags:Esper, enemy, injuries, caused, Berrys, heart, Sec, 02112, Regulation, purple, joshua, Berry, Injury, Army, denial, military, Force, Howard, states, Washington, district, united

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251 137 srnEErsourN. suns
ARLlNGtON. 22202-3531
DEC 2018
AR20180011836 SSG Joshua Berry
United States District Court
for the District Columbia
510 Street, NW, Third Floor
Washington, 20001
For the Honorable Court: accordance with order from the District Court for the District
Columbia, dated August 22, 2018, hereby provide for the Court explanation
October 26, 2016 deosion regarding Mr. Howard Berry application the Army Board
for Correction Military Records (ABCMR) have the Army award the Purple Heart
his son, Staff Sergeant (556) Joshua Berry.
the reason denied the application. which explain more fully below, that the
criteria fortne Purple Heart award not match the circumstances SSG Berrys
The Purple Heart was established George Washington during the
Revolutionary War and bestowed upon members the United States Armed Forces
who have been wounded result enemy action against the United States.
general terms, each approved award the Purple Heart must meet each the
following criteria: (1) the wound must result from enemy hostile action, international
terrorist attack, friendly re; (2) the wound must have requined tneatmont medical cer: and (3) the records medical treatment must have been made part the
wounded Soldiers medical record. review $86 Berry records indicates injured his shoulder during the
November 2009 terrorist attack Fort Hood, Texas. The injury required medical
treatment and SSG Berry treatment records were made part his official Army
records. Consequently. two the three criteria (terrorist incident and medical treatment
documentation) appear have been met.
The key issue SSG Berrys case, however, whether the injury itself qualities wound for purposes the Purple Heart award. The Army Military Awards
regulation defines wound injury any part the oody from outside force Army Regulation (AR) acne-22, Military Awards, paras 2.5m) (r5), (June 75, 7015).
agent2 When contemplating the merits ofa Purple Heart case, the key issue
consider the degree which the enemy caused the
The facts 586 Berry case indicate that was injured when leapt over
desk take cover and. doing so. dislocated his shoulder. Consequently. the speci
issue presented whether these particular circumstances indicate injury resulting
from outside force agent and whether there sufficient degree enemy (in this
case, terrorist) causation relative the injury. The applicable regulatory framework
implies requirement that the wound result from affirmative offensive action initiated opposing military actor. examples for qualifying injuries, the regulation cites injuries caused enemy
bullet. shrapnel, other projectile created enemy action; caused enemy-placed
trap mine; caused enemy released chemical, biological nuclear agent.5
These examples all contemplate force energy initiated the enemy or, more
broadly, someone other than the injured Soldier himself.
Specifically excluded from the regulation qualifying injury criterion are
frostbite trench foot immersion foot; heat stroke food poisoning not caused
enemy agents; riemical, biological, nuclear agents not released the enemy;
battle fatigue; and disease not directly caused enemy agents. Thus, the
regulation excludes injuries not directly caused the enemy even though the injuries
might severe and might have been sustained Kinetic combat environment.
When applied the facts and circumstances this case. these pmVlsions
not immediately suggest that $56 Berry injury satisf the criteria for qualifying
wound, The force agent that separated SSG Berry shoulder was the force
himself exerted order leap dive the oor take cover. Although SSG Berry
would not have dived the floor but for the terrorists attack. the greater weight the
evidence indicates that 556 Berry injury resulted from his effort take cover
reaction the gunfire heard emanating from outside the building and outside the that and others were occupying. Consequently. with regard 336 Berrys
separated shoulder. difficult conclude that there existed high degree enemy
causation that the injury was icted outsrde force.
The regulation specifically excludes self inflicted wounds from consideration for
the Purple Heart, but does make allowance such wounds are sustained the
ZAR 60078722 oara siei
SAR 20078722 para 243(1) See generally, zoo-52, paras zrsle), iii. 20043722. Dare. 241(9).
unwed-22, .251
heat battle and not involving gross negligence. Although this provision might
appear cover SSG Berry injury. the phrase self-inflicted wound implies
accidental discharge one own weapon, this regard, separated shoulder from
tactical dive the ground could not plausibly deemed self-inflicted any more
than could broken leg suffered during tactical leap into foxhole. Furthermore,
the time was injured. SSG Berry had not yet entered the heat battle,
Consequently, determination that SSG Berrys injury does not fit within this
particular exception.
Based the foregoing, find that $88 Berry injury was not the result
outside force agent and that there insufficient causal connection between the
injury and the terrorists attack.
Buttressing overall assessment this regard the Naw/ policy regarding
the categories injuries that qualify, and not qualify, Purnle Heart wounds. Like
the Army/s policy, the Navy policy emphasizes the degree which the enemy caused
the injury. The applicable Navy regulation provides:
Injuries suffered due accident that neither directly nnr indireme caused the effects enemy weapons not meet the eligibility requirements for the
[Purple Heart]. even the accident occurs combat zone orduring
engagement with the enemy. Examples such acmdentai wounds injuries that
would not quaiify for the [Purple Heart] are: Injuries sustained while seeking
shelter, escaping, evading.
This language seems specifically exclude injuries sustained under circumstances
similar those this case. Although not controlling Army Purple Heart decisions,
the Navy regulation indicates that finding with regard SSG Berry case not
inconsistent with how the other armed services assess Purple Heart cases. summation, regretfully must that preponderance evidence this
case does not demonstrate error injustice. therefore deny the relief requested Mr. Howard Elerry behalf his son, SSG Joshua Berry.
lmaw new.
Deputy Assistant Secretary the Army
(Review Boards)
TAR 200-8 22, para. 2-B(h)(9). See All Navy (ALNAV) Message 079/11, SUBJECT: Department otthe Navy Standards for Award the
Purple Heart, para. 3(a). (December 2011).