US Court of Military Justice Had Jurisdiction to Court Martial Servicemember with Autism

United States v. Fry, 70 M.J. 465, 2012 CAAP Lexis 201 (February 12, 2012)

The Armed Forces Court of Appeals has held that the United States Military Court had jurisdiction to court martial a servicemember with autism who had been adjudicated incapacitated by the State of California and had had a conservator appointed. Joshua D. Fry, a private in the U.S. Marine Corps, was subjected to court martial for two counts of being absent without leave and four specifications of possessing child pornography, and was sentenced to a bad conduct discharge, confinement for four years and forfeiture of all pay and allowances. The sentence in excess of twelve months was suspended for twelve months. The U.S. Navy-Marine Corps Court of Criminal Appeals affirmed.

As a 16-year old, Fry initially met a Marine Corps recruiter while living in California, but was leaving at that time for Colorado to attend a school for adolescents with psychiatric, emotional or behavioral problems. Prior to his departure, his grandmother petitioned a California court for a limited conservatorship because of his autism and arrest for stealing and carrying a “dirk or dagger,” alleging that her grandson was unable to provide for his needs for health, clothing and shelter, and that he could not control his impulsivity. At the uncontested hearing, the court entered an order restricting Fry’s ability to choose a residence, access confidential papers and records, contract and give or withhold consent to medical treatment and make all decisions concerning his education. When he was 20 years old, Fry returned to California still subject to the conservatorship, met the same recruiter, and enlisted in the Marine Corps. He passed the Armed Services Vocational Aptitude Battery, certified that he understood the terms of his enlistment and obtained his birth certificate and Social Security card from his grandmother. He thereupon undertook the obligations, duties and training of a Marine and received pay and allowances.

Fry first began to have issues in basic training. He stole peanut butter and hid it in his sock, urinated in his canteen, refused to eat, and failed to shave and lied about it. He informed medical staff that he was autistic and asthmatic, and medical staff recommended that he be sent home. He nonetheless remained, convincing Marine Corps staff that he was motivated and wanted to return to training. He was found mentally fit to do so, completed his basic training and his grandmother attended graduation, never objecting to his service. He committed his offenses two or three months after being assigned to routine duty.

On appeal, Fry argued that the military court had no jurisdiction to try him because a California court had previously found him mentally incapable of contracting, and that the military court owed the California judgment full faith and credit. In upholding the military court, the appellate court found that the scope, nature and legal incidents of the relationship between a servicemember and the Government are fundamentally governed by federal authority and not state law. The Court held that court martials need not concern themselves with the legal effect of other provisions in contracts or law. Article 2(c) of the Uniform Code of Military Justice relating to court martial specifically states that it applies “notwithstanding” any other provision of law. The Court stated that the only issue therefore is whether the person was serving in the armed forces and 1) voluntarily submitted to military authority; 2) met mental and age requirements; 3) received military pay or allowances, and 4) performed military duties, and finally whether he was mentally competent within the meaning of the statute.

The Military Court found that everyone had acted as though Fry was validly enlisted, including his grandmother conservator. His actions in enlisting were not compelled by outside influence, nor was there any evidence that he was under duress or coercion or that he could not understand the nature or significance of his actions. Two experts testified at trial. One testified for the prosecution that Fry was able to appreciate the nature and quality of his wrongful conduct. Another psychologist testified that he did not remotely have the ability to consider the long-term consequences of his actions. The military judge found that the evidence did not support a claim of impulsivity and Fry was mentally competent to enlist. His findings were supported by the record and therefore the Appellate Court would not overturn them as “clearly erroneous.” The Court of Appeals therefore found that the Military Court had jurisdiction to court martial the servicemember.

Found in DMHL Volume 31 Issue 4