Was autistic man really a Marine? Military court to decide

Michael Doyle - McClatchy Newspapers

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WASHINGTON — 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.

Mizer will confront his Navy counterpart next Thursday, when the U.S. Court of Appeals for the Armed Forces hears the unusual case in Washington.

For Fry, the outcome will determine whether he drags around a bad-conduct discharge and criminal record in addition to his disabilities. He already has spent a year in the brig.

For the government, the case is important in part because of the precedent it will set for future cases in which recruits challenge the validity of their enlistments. The Pentagon wants to ensure that military officials, not state courts, determine enlistment eligibility.

In Fry's case, a California court had concluded that he had developmental disabilities, but the Marines found him competent.

"Congress did not cede determination of the validity of an enlistment contract to a state court's conclusion as to 'capacity' to contract, but rather retained the authority to set its own definition of 'capacity' to enlist," the U.S. Navy-Marine Corps Court of Criminal Appeals agreed last year in siding with the government.

Fry himself, government attorneys contend, knew what he was getting into when he left an Irvine, Calif., group home at the age of 20 and joined the Marines.

He "was sane, sober and old enough to enlist when he submitted voluntarily to military authority," Navy Lt. Kevin Shea argued in a government brief, noting that Fry had further become a Marine when he "received pay and allowances and performed military duties."

Fry was born to drug addicts who lived on the Los Angeles streets. His father was a shoplifter. His mother was a prostitute. When he was 3, he went to live at his grandmother's house.

After a 2006 arrest, an Orange County Superior Court judge subsequently granted Fry's grandmother limited conservatorship over his affairs.

"The court found that Joshua ... was unable to provide for his needs for physical health, clothing, food and shelter," Mizer noted.

Nonetheless, his attorneys say, Fry desperately wanted to be a soldier or policeman, going so far as to impersonate them in public. In January 2008, a recruiter who'd met Fry at a "Young Marine" event signed him up.

Fry struggled in boot camp and at the Marine Corps School of Infantry. Eventually, he was caught with child pornography on two cell phones and laptop computers.

The government says Fry hid details about himself when he enlisted, including his autism diagnosis and the fact that he'd undergone 15 months of psychological counseling for an alleged porn obsession. His 2009 conviction included the child pornography charges as well as a charge of fraudulent enlistment, for hiding his past.

"He feared this would keep him from enlisting in the armed forces," Shea explained in a brief.

No charges were ever publicly brought against the Marine gunnery sergeant who recruited Fry, though Fry's court-martial briefly drew public attention to broader questions about recruiter misconduct. Confirmed military recruiter "irregularities" jumped to 629 in 2005, up from 409 the year before, according to a 2006 Government Accountability Office study.

In Fry's case, his attorneys say, the irregularity resulted in the Marines landing a man who under California state law was supposed to be ruled out.

"Once a court has adjudged one to be incompetent, his contract is deemed to be void," Mizer argues, "because the degree of incompetency was notice to the world of his incapacity to make a valid contract