A sergeant who was sentenced in May to 25 years in prison for fatally shooting a Black Lives Matter protester in Texas is still in the Army, according to the service.
Daniel Perry fatally shot Garrett Foster during an Austin protest in July 2020. The law firm representing Perry told Military.com it is aiming to keep him in the Army pending a military separation board decision or a pardon from Texas Gov. Greg Abbott.
Foster, an Air Force veteran who was carrying an AK-47 rifle, was protesting the Minneapolis Police killing of George Floyd when Perry shot him with a handgun. Both Perry and Foster are white and were legally carrying their weapons at the time of the shooting, according to the Texas Tribune.
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"Sgt. Perry's current duty status is in civilian confinement and is pending separation from the Army," Bryce Dubee, a service spokesperson, told Military.com on Thursday, adding that Perry is not getting paid by the military and his status in the Army is administrative.
After he was convicted in April, the Army said it reviewed the evidence released by the Travis County District Court where Perry was tried and sent the information to the service's Criminal Investigation Division "to conduct an independent review of the allegations contained within the document," Dubee told Military.com before Perry's sentencing in May.
A spokesperson for Perry's Alaska-based unit told Military.com in May that the 11th Airborne Division "initiated an administrative separation under Army Regulation 635-200 due to his conviction."
So far, that separation board has not executed a final action as to whether Perry is going to stay in the military or not, or what kind of discharge he would receive if he were kicked out.
Military.com asked the Army why it has taken this long to determine Perry's separation status, what would happen if the CID's "independent review" proved at odds with the civilian sentencing, and whether there is any chance that Perry could return to duty as his lawyers hope.
Dubee, the Army spokesperson, did not directly answer the questions but showed the publication a regulation that says a soldier subject to discharge based on a conviction would not be booted until the outcome of an appeal is determined, among other legal thresholds.
Legal representatives for Perry said that they have sought to appeal the noncommissioned officer's sentencing and have previously indicated they would try for a new trial after what they categorized as "political prosecution."
Perry, who was working as a ride-share driver at the time, argued in court that Foster raised the AK-47 at him first, but witnesses testified otherwise and prosecutors highlighted the Army NCO's use of violent online rhetoric prior to the deadly shooting as motivation. He was then sentenced by judge and jury to 25 years in prison.
Last month, Perry's attorneys submitted a petition to the Texas Board of Pardons and Paroles. Ashley Haisler, a paralegal with the O'Connell West law firm that is representing Perry, told Military.com that if the pardon petition goes through, their goal is to keep Perry in the Army.
"We did the board and they said they have to send it up and it's going to be a much higher decision, but they haven't gotten back to us," Haisler said. "So we're letting that be, [but] if he is pardoned and hasn't been removed from the Army, then he'll still be in the Army. So, that's our ultimate goal."
Haisler said that Perry's attorney, Doug O'Connell, went to Fort Wainwright, Alaska, over the summer to request an honorable or other than honorable discharge from Perry's separation board in the event that his pardon is rejected or the Army moves to separate him anyway.
While unlikely, allowing Perry -- who was sentenced by a judge and jury of his peers for murder -- to remain in the Army if pardoned would present a contentious and largely unprecedented legal question for the service.
Haisler said that Perry's attorneys have not received a response from either the Army separation board or the Texas pardon board yet.
Abbott's office did not return Military.com's requests for comment asking whether Perry's pardon has been initiated or if the governor still intends to approve one. Online records state that Perry is up for parole in October 2035. The Texas Board of Pardons and Paroles said it had not yet determined whether to recommend a pardon for Perry.
The Associated Press reported in May that the board "which is stacked with Abbott appointees -- is reviewing Perry's case on the governor's orders."
Military.com submitted a request for records with the Texas Department of Justice to determine the status of Perry's pardon.
Meanwhile, court records showed that Perry fantasized about shooting "looters" in the months leading up to the protest in 2020.
"I am imagining standing on a rooftop with a megaphone and a MAGA [Make America Great Again] hat saying looters will be shot, leave the area immediately and then count down to zero or when they start breaking down the front door just opening up like it is open season," Perry wrote in a message to another user on Facebook, according to the court records.
"I might go to Dallas to shoot looters," he said in another message law enforcement extracted from Perry's social media accounts.
Perry has served in the Army as an infantryman since 2012. He deployed to Afghanistan once in 2012 and, as of the spring, was assigned to 1st Brigade Combat Team, 11th Airborne Division, at Fort Wainwright.
Following the sentencing in May, Foster's mother, Sheila, addressed the court, according to The Associated Press.
"After three long years, we're finally getting justice for Garrett," she said. "Mr. Perry, I pray to God that one day, he will get rid of all this hate that is in your heart," she said.
-- Drew F. Lawrence can be reached at drew.lawrence@military.com. Follow him on Twitter @df_lawrence.
