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Monday, October 31, 2011

Marine Recruit with ASD Appeals Court-Martial

Michael Doyle reports at McClatchy Newspapers:

Los Angeles native Joshua D. Fry had been diagnosed as autistic and was living in a group home for people with mental disabilities when a Marine Corps recruiter signed him up for service.

Fry's enlistment three years ago helped the recruiter meet his quota. It turned out far worse for Fry, who ended up being court-martialed on child pornography and other charges. Now his fate is posing a mind-boggling question for military judges:

Was Fry never really in the Marine Corps in the first place?

Citing his autism and a reported IQ of 70, Fry's attorneys say he lacked the mental capacity to enter into an enlistment contract. If they're right, it means that Fry wasn't a Marine even while attending boot camp and infantry school. He always was a civilian, immune to military prosecution.

Fry's "enlistment contract was void, (so) he was never subject to court-martial jurisdiction," Navy Lt. Cmdr. Brian L. Mizer, Fry's attorney, declared in a legal brief.

The blog of the National Institute of Military Justice offers more legal detail:

The appellant’s brief sets forth a sad history of appellant’s upbringing, many run-ins with law enforcement and social services agencies, and the eventual appointment of a limited conservatorship. This history forms the basis for the appellant’s incapacity to contract and therefore incapacity to enlist. The brief challenges the N-MCCA’s finding that the appellant retained the right to enter into contracts under the conservatorship as an inaccurate interpretation of California law, and cites federal firearms prosecutions for the principle that federal courts should look to state law determinations of capacity.

The government’s brief restates the position that the appellant retained the capacity to contract under state law, but also argues that a state cannot bind the federal government’s authority to enlist under the provisions of Article 2, UCMJ. The government then parses the Article 2 standard (summarized as: enlist voluntarily and have the capacity to understand the significance of the enlistment) to support the position that the appellant had the capacity to enlist, or that his conduct resulted in a constructive enlistment.

In the reply brief, the appellant attacks the government’s position through analysis and interpretation of 10 U.S.C. § 504 and 505, which list disqualifications from enlistment.