UNITED STATES, Appellee

v.
Joshua D. FRY, Private
U.S. Marine Corps, Appellant
No. 11-0396
Crim. App. No. 201000179
United States Court of Appeals for the Armed Forces
Argued November 3, 2011
Decided February 21, 2012
STUCKY, J., delivered the opinion of the Court, in which RYAN,
J., and COX, S.J., joined. BAKER, C.J., filed a dissenting
opinion, in which ERDMANN, J., joined.

Counsel

For Appellant:
(argued).

Lieutenant Commander Brian L. Mizer, JAGC, USN

For Appellee: Lieutenant Kevin D. Shea, JAGC, USN (argued);

Brian K. Keller, Esq. (on brief); Colonel Kurt J. Brubaker,
USMC.

Military Judges:

J. G. Meeks and John R. Ewers Jr.

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.

United States v. Fry, No. 11-0396/MC

Judge STUCKY delivered the opinion of the Court.
We granted review to determine whether jurisdiction existed
pursuant to Article 2, Uniform Code of Military Justice (UCMJ),
10 U.S.C. 802 (2006), to try Appellant in a court-martial,
despite an order from a California court that established a
limited conservatorship over Appellant.

We hold that

jurisdiction existed pursuant to Article 2(c).1

I.
In accordance with Appellants pleas, a general courtmartial by military judge alone found Appellant guilty of two
specifications of being absent without leave, four
specifications of possessing child pornography, and fraudulent
enlistment in violation of Articles 83, 86, and 134, UCMJ, 10
U.S.C. 883, 886, 934 (2006).

Appellant was sentenced to a

bad-conduct discharge, confinement for four years, and

forfeiture of all pay and allowances.

The convening authority

approved the sentence but suspended all confinement in excess of

twelve months for twelve months in accordance with the pretrial
agreement.

The United States Navy-Marine Corps Court of

United States v. Fry, NMCCA

Criminal Appeals (CCA) affirmed.

1

Oral argument in this case was heard at the Global Reach

Conference Planning Center, Scott Air Force Base, Illinois, as
part of the Courts Project Outreach. See United States v.
Mahoney, 58 M.J. 346, 347 n.1 (C.A.A.F. 2003). This practice
was developed as part of a public awareness program to

United States v. Fry, No. 11-0396/MC

201000179, 2011 CCA LEXIS 5, at *14*15, 2011 WL 240809, at *5
(N-M. Ct. Crim. App. Jan. 27, 2011) (unpublished).
A.
Appellant was sixteen years old and living in California
when he met Gunnery Sergeant (GySgt) Matthew Teson, a Marine
Corps recruiter, at a Young Marine function.

When Appellant

became an appropriate age for recruitment, GySgt Teson contacted

Appellant.

Appellant, however, was unavailable for enlistment

because he was leaving the recruiting district for a school in

Colorado for adolescents with psychiatric, emotional, or
behavioral problems.
Before Appellant left for Colorado, his grandmother
petitioned a California state court to establish a limited
conservatorship over Appellant, because Appellant had autism,2
had been arrested for stealing and carrying a dirk or dagger,
and was alleged to be unable to provide for his needs for
health, food, clothing, or shelter.

The petition further

alleged that Appellant could not control his impulsivity.3

Based on these allegations, the California court, after an

demonstrate the operation of a federal court of appeals and the

military justice system.
2
Evidence in the record indicated that Appellant has a high
functioning variety of autism.
3
One doctor diagnosed Appellant with an impulse disorder, NOS
[not otherwise specified]. Although the opinion may discuss
Appellants condition in other words, it is in light of this
diagnosis.
3

United States v. Fry, No. 11-0396/MC

uncontested hearing, entered an order that both restricted
Appellants ability to, and gave Appellants grandmother the
power to choose a residence, access confidential papers and
records, contract, have the exclusive right to give or withhold
medical treatment, and make all decisions concerning Appellants
education.
B.
When Appellant was approximately twenty years old, he
returned from the Colorado school still subject to the limited
conservatorship.

Shortly after returning, he contacted GySgt

Teson about enlisting in the Marines.

After passing the Armed

Services Vocational Aptitude Battery (ASVAB), certifying that he

understood the terms of his enlistment, and obtaining his birth
certificate and social security card from his grandmother,
Appellant undertook the obligations, duties, and training of a
Marine and, in turn, received pay and allowances.
initially had issues in basic training:

Appellant

he stole peanut butter

and hid it in his sock; he urinated in his canteen; he refused

to eat; and he failed to shave and then lied about it.
During these struggles, Appellant visited the medical staff
and informed the medical officer that he was autistic and an
asthmatic.

When Appellants limited conservator was called and

asked about the autism diagnosis, she acknowledged that

Appellant was autistic.

A medical officer informed the limited

United States v. Fry, No. 11-0396/MC

conservator that Appellant would be sent home.

However,

Appellant remained, because he indicated that he was motivated

and desired to return to training and was found medically fit to
do so.
After the incident in medical, Appellant returned to
training and completed initial drill, first phase, the initial
physical fitness test, second phase, rifle qualification, the
series commander interview, final drill, and the Crucible4
without a recorded incident.

The limited conservator not only

voiced no explicit objection to Appellants becoming a Marine,

she also attended Appellants graduation ceremony.

Appellant

committed his offenses approximately two to three months after

being assigned to routine duty while waiting to attend infantry
school.

Appellant objected at trial that the court-martial

lacked personal jurisdiction over him.

II.
Perhaps no relation between the Government and a citizen
is more distinctively federal in character than that between it
and members of its armed forces.

United States v. Standard Oil

Co., 332 U.S. 301, 305 (1947), result superseded by statute,

The Crucible is a fifty-four-hour test of a Marine recruits

skills that emphasizes teamwork, perseverance, and courage. It
is the final test before a recruit becomes a Marine. The
Crucible: The Recruits Final Test, United States Marine Corps,
http://www.marines.com/main/index/making_marines/recruit_trainin
g/training_matrix/the_crucible (last visited Jan. 25, 2012).
5

United States v. Fry, No. 11-0396/MC

Medical Care Recovery Act, Pub. L. No. 87-693, 1, 76 Stat. 593
(1962).

For this reason, the scope, nature, legal incidents

and consequences of the relation between persons in service and

the Government are fundamentally derived from federal sources
and governed by federal authority.

Id. at 305-06 (citing

Tarbles Case, 80 U.S. 397 (13 Wall. 397) (1872); Kurtz v.

Moffitt, 115 U.S. 487 (1885)).

Federal law, not state law, is

the benchmark by which courts measure whether a person is

subject to court-martial jurisdiction.

See United States v.

Blanton, 7 C.M.A. 664, 66566, 23 C.M.R. 128, 129-30 (1957).

Appellant, however, asserts that his situation is
different.

He claims that the decision of the California court

as to his capacity to contract is binding on courts-martial

under the federal full faith and credit statute, 28 U.S.C.
1738 (2006).

This statute, which dates to 1790, states that

authenticated state judicial proceedings are entitled to the

same full faith and credit in every court within the United
States as they have in the courts of their own state.
We have our doubts that the full faith and credit statute
was ever intended to import state statutory or case law into an
enlistment contract, which is governed by federal law.

Standard

Oil, 332 U.S. at 305; Lonchyna v. Brown, 491 F. Supp. 1352, 1353
n.1 (N.D. Ill. 1980); Colden v. Asmus, 322 F. Supp. 1163, 1164
(S.D. Cal. 1971).

In considering the issue, however, we remain

United States v. Fry, No. 11-0396/MC

mindful of the Supreme Courts warning that [c]ourts should
think carefully before expending scarce judicial resources to
resolve difficult and novel questions of constitutional or
statutory interpretation that will have no effect on the
outcome of the case.

Ashcroft v. al-Kidd, 131 S. Ct. 2074,

2080 (2011) (quoting Pearson v. Callahan, 555 U.S. 223, 236-37

(2009)).

Here, determining whether court-martial jurisdiction

existed pursuant to Article 2(b)5 would require determination of

important issues of federalism and comity, which are unnecessary
since Article 2(c) offers an alternative means of resolving this
case.6
III.
Article 2(c) provides that:
Notwithstanding any other provision of law, a person
serving with an armed force who -(1) submitted voluntarily to military authority;
(2) met the mental competence and minimum age
qualifications of sections 504 and 505 of this title
at the time of voluntary submission to military
authority;
(3) received military pay or allowances; and
(4) performed military duties;

Article 2(b) provides that [t]he voluntary enlistment of any

person who has the capacity to understand the significance of
enlisting in the armed forces shall be valid for purposes of
jurisdiction under subsection (a) and a change of status from
civilian to member of the armed forces shall be effective upon
the taking of the oath of enlistment.
6
See generally the strictures on constitutional adjudication
enunciated in Justice Brandeis famous concurrence in Ashwander
v. TVA, 297 U.S. 288, 341 (1936).
7

United States v. Fry, No. 11-0396/MC

is subject to this chapter until such persons active
services has been terminated in accordance with law or
regulations promulgated by the Secretary concerned.
Article 2(c), UCMJ (emphasis added).
Courts have generally recognized that the notwithstanding
language is a clear statement of law indicating the obvious
intent of the drafters to supersede all other laws.

See

Cisneros v. Alpine Ridge Group, 508 U.S. 10, 18 (1993) (citing a

number of circuit court opinions).

The practical effect of the

notwithstanding clause is that courts-martial need not concern

themselves with the legal effect of other clause[s] in . . .
statute[s], contract[s], or other legal instrument[s], when
deciding whether they have jurisdiction.

Blacks Law Dictionary

1345 (9th ed. 2009) (defining provision).

Congress has the power to override state law that would
interfere with the servicemember-military relationship, given
its distinctively federal character.

See Standard Oil Co., 332

U.S. at 305; cf. Herrera-Inirio v. I.N.S., 208 F.3d 299, 307-08

(1st Cir. 2000) (holding, in the realm of immigration, that when
Congress possesses plenary authority over the subject matter at
issue, it may freely displace or preempt state laws in respect
to such matters) (citations omitted).

Thus, in assessing

whether the accused in this case met the mental competency

requirements for jurisdiction pursuant to Article 2(c), the
military judge was not bound by the California order, even

United States v. Fry, No. 11-0396/MC

assuming it was directly on point.

The military judge was only

required to review the relevant evidence, including the order,

to determine whether the requirements of Article 2(c) were met.
IV.
A.
Our most recent and expansive discussion of Article 2(c) is
United States v. Phillips, 58 M.J. 217 (C.A.A.F. 2003), in which
we held that Article 2(c) sets out a three-part analytical
framework for finding jurisdiction.

Id. at 220.

The threshold

question is whether the person is serving with an armed

force.

Id.

If that can be established, the analysis proceeds

to the four-part test laid out in Article 2(c), which requires

findings that the accused:

voluntarily submitted to military

authority; met the mental and age requirements of 10 U.S.C.

504 and 505; received military pay or allowances; and
performed military duties.

Phillips, 58 M.J. at 220.

If all

four parts of the test are met, then the person is subject to
court-martial jurisdiction, until the person is released
pursuant to law or regulation.

Id.

The only seriously

contested issue here is whether Appellant was mentally

competent, within the meaning of the statute.7

Everyone, at all relevant times, acted as though Appellant was

a validly enlisted, active duty member of the armed services.
He was performing routine duties, in uniform, on a regular basis
when he committed his offenses; thus, Appellant was serving with
9

United States v. Fry, No. 11-0396/MC

Contrary to the dissents suggestion, we recognize that
voluntariness is a separate and distinct requirement under
Article 2(c) and that it retains its usual meaning.

Blacks Law

Dictionary, supra, at 171011 (voluntary is defined as [d]one

by design or intention or [u]nconstrained by interference; not
impelled by outside influence).

Furthermore, voluntariness

remains a question evaluated under the traditional rubric of

looking at the totality of the relevant circumstances, including
the individuals mental state.

Cf. Brady v. United States, 397

U.S. 742, 749 (1970).

Evidence either that Appellants actions were compelled by
an outside influence, like duress or coercion, or that Appellant
could not understand the nature or significance of his actions
might be reasons to find that Appellant has not acted
voluntarily.
case.

There is no evidence of duress or coercion in this

Thus, we are left only to consider whether Appellant

understood the nature or significance of his actions.

This question necessarily requires courts to consider
Appellants mental capacity, which inevitably overlaps with the
mental capacity determination in Article 2(c)(2).

If Appellant

the armed forces. Appellant has not argued that he was drunk or
under duress when he attempted to enlist or continued to serve;
as such, there is no basis to question the voluntariness of
Appellants actions. It is also beyond dispute that Appellant
was old enough to enlist. He received pay and allowance and, as

10

United States v. Fry, No. 11-0396/MC

had mental capacity under Article 2(c)(2), then it is surely
evidence that he had the requisite mental capacity to understand
the significance of submitting to military authorities, i.e., it
would tend to show that he acted voluntarily in that regard.8
Thus, we turn our attention to the question of mental
competency.
B.
When an accused contests personal jurisdiction on appeal,
we review that question of law de novo, accepting the military
judges findings of historical facts unless they are clearly
erroneous or unsupported in the record.

United States v.

Hart, 66 M.J. 273, 276 (C.A.A.F. 2008) (quoting United States v.

Melanson, 53 M.J. 1, 2 (C.A.A.F. 2000)).

Whether Appellant is

mentally competent is a question of fact, and we will only set

aside findings of fact if they are clearly erroneous.

Cf.

United States v. Barreto, 57 M.J. 127, 130 (C.A.A.F. 2002)

noted above, performed routine duties. Finally, there is no

evidence that Appellant was or has been released from service.
8
While we sympathize with the dissent that mental disability
encompasses a broad spectrum of conditions, and we recognize
that Appellant might not have been an ideal candidate for
military service, we, nevertheless, are tasked with determining
whether Appellant can be held criminally liable after
purportedly becoming a member of the armed forces. Even though
an accuseds location on the spectrum of mental disabilities may
influence the result, whether the accused can be held criminally
liable is a yes or no proposition, in that the accused either
met the requirements for jurisdiction or he did not.
11

United States v. Fry, No. 11-0396/MC

(concerning mental competency to stand trial (quoting United
States v. Proctor, 37 M.J. 330, 336 (C.M.A. 1993))).
Section 504 sets out the standard in relevant part as [n]o
person who is insane . . . may be enlisted in any armed force.
10 U.S.C. 504(a).

The general definition section states that

the word[] insane . . . shall include every idiot, lunatic,

insane person, and person non compos mentis.
(2006) (emphasis added).

1 U.S.C. 1

Non compos mentis requires something

more than merely suffering from a mental disease; the concept

envisions someone that is incapable of handling her own
affairs or unable to function in society.

Perry v. United

States Dept of State, 669 F. Supp. 2d 60, 66 (D.D.C. 2009)

(quoting Smith-Haynie v. Dist. Of Columbia, 155 F.3d 575, 580
(D.C. Cir. 1998)); see also Websters Third New International
Dictionary 1536 (1986) (defining non compos mentis as wholly
lacking mental capacity to understand the nature, consequences,
and effect of a situation or transaction).
The clear purpose of 504 was to codify something
approximating the common law concept of capacity to contract, in
that only those people may enlist who have the ability to
understand what it means to enlist.

See S. Rep. No. 96-197, at

122 (1979), reprinted in 1979 U.S.C.C.A.N. 1818, 1827 (noting

that the new subsection (b) overrules United States v. Russo, 1
M.J. 134 (C.M.A. 1975) by reaffirming the law as set forth by

12

United States v. Fry, No. 11-0396/MC

the Supreme Court in In re Grimley, 137 U.S. 147); In Re
Grimley, 137 U.S. 147, 150 (1890) (noting that enlistment
creates a contractual relation between the parties; and the law
of contracts . . . is worthy of notice); id. at 15253 (Of
course these considerations may not apply where there is
insanity, idiocy, infancy, or any other disability which, in its
nature, disables a party from changing his status or entering
into new relations.).
Given that the concept codified in 504 is akin to
capacity to contract, those events that occurred before and
after enlistment are relevant to determining the persons mental
condition on the date the enlistment was executed.

Cf. Knott v.

Pervere, 285 F. Supp. 274, 278 (D. Mass. 1968) (interpreting

California law).

Furthermore, the weight of authority seems to

hold that mental capacity to contract depends upon whether the

allegedly disabled person possessed sufficient reason to enable
him to understand the nature and effect of the act in issue.
Even average intelligence is not essential to a valid bargain.
Cundick v. Broadbent, 383 F.2d 157, 160 (10th Cir. 1967).
V.
The military judge concluded that jurisdiction existed
pursuant to Article 2(c), and he specifically found Appellant
mentally competent.

In particular, the military judge concluded

that Appellant had the capacity to understand the significance

13

United States v. Fry, No. 11-0396/MC

of his enlistment.

Our review is limited to determining

whether that conclusion was clearly erroneous.

We find that it

was not.
The Government called Dr. Bruce T. Reed to testify about
Appellants mental capacity.

Dr. Reed had participated on

Appellants Rule for Courts-Martial (R.C.M.) 706 board that

occurred prior to trial.

In that role, he had personally

interviewed Appellant and reviewed his medical records.

The

results of the board were that Appellant was able to appreciate

the nature and quality of the wrongfulness of his conduct and
that Appellant had sufficient capacity to stand trial and
cooperate in his defense.

In response to a question about

whether Appellant understood the significance of his enlistment,

Dr. Reed testified a partial yes.

When specifically asked if

he would find that Appellant understood the significance of his

enlistment by a preponderance of the evidence, he testified that
when you ask me 51 percent or more, I would have to say yes.
In contrast, the defense presented an affidavit from a
psychologist, Dr. Julie E. Schuck, which stated in relevant
part, based upon my over ten years of clinical evaluation of
[Appellant], do I believe that [Appellant] had the mental
capacity to understand the significance of his enlistment in the
military.

My answer is no.

That opinion was based on Dr.

Schucks belief that Appellants decision to enlist was driven

14

United States v. Fry, No. 11-0396/MC

by his long-term perseveration with being in the military . . .
and the impulsive decision to do something without remotely
considering the long-term consequences and his
limitations. . . . [Appellant] pursued this plan based solely on
desire and gratification, without critical analysis and
reasoning.
When faced with conflicting evidence on whether a party is
competent, the military judge does not err merely because some
evidence points in the opposite direction of the military
judges ultimate conclusion.

See United States v. Morgan, 40

M.J. 389, 394 (C.M.A. 1994) (Where there are underlying factual
issues requiring resolution of conflicting testimony, the
military judges findings of fact will be upheld if fairly
supported in the record. . . .) (citations omitted); In Re
Rains, 428 F.3d 893, 902 (9th Cir. 2005) (In the face of
conflicting testimony, the bankruptcy court did not clearly err
in discounting the theoretical speculation of Rainss experts,
or in finding that Rains was mentally competent to enter into
the settlement agreement.).

Even though the military judge did

not specifically cite either expert witnesss testimony in his

written findings or analysis, he acknowledged that Appellant had
been diagnosed as suffering from obsessive compulsive symptoms
. . . and [that Appellant] cannot control his impulsivity,

15

United States v. Fry, No. 11-0396/MC

which were conclusions generally presented by Dr. Schucks
affidavit and other evidence presented by defense counsel.
The military judge concluded, however, that the surrounding
circumstances did not sufficiently support the claim of
impulsivity, assuming impulsivity alone would be enough to
invalidate a contract, because the accused largely (and
ultimately) managed to conform his conduct to the requirements
of the law (and orders and directives) throughout recruit
training . . . .

The military judge also relied on the fact

that Appellant passed the ASVAB and that Appellant overcame his
initial struggles and successfully completed training without
further negative reviews, which tended to show that Appellant
could and did understand the need to conform his conduct to the
standard set out for all Marines.
In regard to the California court order, the military judge
found that [i]n toto, the evidence indicates that the probate
courts findings, while not perfunctory, provide little support
for a presumption, much less a finding, that for the purposes of
Article 2, UCMJ, the accused did not have the capacity to
understand the significance of his enlistment.

This conclusion

makes sense in the context of California law, that [t]he

16

United States v. Fry, No. 11-0396/MC

conservatee of the limited conservator shall not be presumed to
be incompetent . . . .

Cal. Prob. Code 1801(d) (West 2011).9

Admittedly, the military judge may have overstated matters

when he claimed that all of the evidence pointed in one
direction.

But when reviewed as a whole, the military judges

ruling indicates that he considered contrary evidence and

ultimately found in the face of conflicting views that the
evidence better supported a finding that Appellant was mentally
competent and acted voluntarily.

The military judges findings

that Appellant met the requirements for jurisdiction under

Article 2(c) are fairly supported by the record and, thus, are
not clearly erroneous.
VI.
The judgment of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.

The military judge also found that the limited conservator did
not object to Appellants enlistment, although she did voice her
reservations and hostility to the idea. Although this
conclusion is supported by the record, it is not an essential
finding, since courts-martial are not bound by orders like the
one in issue when determining whether the requirements of
Article 2(c) are met.
17

United States v. Fry, No. 11-0396/MC

BAKER, Chief Judge, with whom ERDMANN, Judge, joins
(dissenting):
SUMMARY
The military judge concluded that [a]ll of the evidence
indicates that the accused had at and since the time he took the
oath of enlistment the de facto capacity to contract and the
actual capacity to understand the significance of enlisting in
the armed forces.

The military judge further concluded that

[a]ll of the evidence indicates that the accuseds enlistment

was voluntary for the purpose of establishing personal
jurisdiction.

The military judge committed two errors in

reaching these conclusions.

First, all of the evidence does not indicate that
Appellant had the capacity to enlist or do so voluntarily.
Indeed, the evidence provided by Appellants psychologist
indicates the opposite.

Among other things, she stated in a

declaration that:
As a result of his conditions, he is preoccupied with
meeting his immediate needs at the risk of his long-term
benefits. His brain does not utilize critical thought and
reasoning, as demonstrated by his impulsive behavior. Due
to his autism and ADHD, [Appellant] fails to weigh the
consequences of his actions. . . .
. . . .
I have been asked whether in my professional opinion,
and based upon my over ten years of clinical evaluation of
[Appellant], do I believe that [Appellant] had the mental

United States v. Fry, No. 11-0396/MC

capacity to understand the significance of his enlistment
in the military. My answer is no.
Nevertheless, this and other evidence running counter to the
Governments position was not addressed in the military judges
analysis of Appellants motion to dismiss.

Thus, we cannot know

if he reached the right decision regarding jurisdiction, because

he did not reach it the right way -- by analyzing and weighing
all the evidence before the court, including and in particular,
the testimony and declaration of Appellants long-term treating
psychologist.
Neither did the military judge define the critical concept
at issue in this case:

What it means to voluntarily enlist.

Ordinarily, a military judge is presumed to know the law and

apply it correctly.
(C.A.A.F. 2004).

United States v. Rodriguez, 60 M.J. 87, 90

However, in the absence of a statutory

definition, case law, or a definition agreed to by the parties

at trial, we cannot determine if the military judge applied the
correct standard, or even what standard he used in applying
Article 2(c)(1), Uniform Code of Military Justice (UCMJ), 10
U.S.C. 802(c)(1) (2006).
To the extent the military judge equated the capacity to
enlist with the simple presence or absence of insanity, he
erred.

As in the plea context, the capacity to do something

voluntarily requires contextual analysis, not a simple

United States v. Fry, No. 11-0396/MC

determination that someone is legally sane.

As recognized by

the United States Supreme Court and this Court, this is

especially important where the spectrum of developmental
disorders is at issue.
As a result, the military judge abused his discretion in
ruling on the defense motion to dismiss and I respectfully
dissent.
BACKGROUND
Appellant was diagnosed with autism in 1996.

He was

subsequently diagnosed with obsessive compulsive symptoms,

attention deficit hyperactivity disorder (ADHD), and
oppositional defiant disorder (ODD).

In 2006, he was sent to

the Devereux Cleo Wallace Center in Denver, Colorado, after

being expelled from his high school and in exchange for
dismissal of related criminal charges for burglary, receiving
stolen property, and carrying a dirk or dagger.

The facility is

a lockdown facility designed to treat children and adolescents

who have significant mental health and behavioral needs.
In January 2008, Appellant enlisted in the United States
Marine Corps.

At the time of his enlistment the United States

Marine Corps knew or should have known that Appellant was not a
suitable candidate for service.

All parties to this case and

the military judge, and the Court of Criminal Appeals agree on

this fact.

United States v. Fry, No. 11-0396/MC

Dr. Julie Schuck is a psychologist who treated Appellant as
a patient for autism, ADHD, ODD, and a conduct disorder over a
ten-year period between 1997 and 2006.1

Dr. Schuck declared that

Appellants autism manifests itself in a fixation on military

fantasy and impulsive behavior, including an inability to weigh
the consequences of his actions.

Specifically, she stated the

following in a declaration to the court:

[Appellant] maintains significant limitations in his
ability to make non-superficial social connections.
Also, as a result of his conditions, he is extremely
impulsive, lacking judgment and reasoning skills
necessary to make daily life decisions.
Developmentally, he is mentally like a child at the
age of 14. As a result of his conditions, he is
preoccupied with meeting his immediate needs at the
risk of his long-term benefits. His brain does not
utilize critical thought and reasoning, as
demonstrated by his impulsive behavior. Due to his
autism and ADHD, [Appellant] fails to weight the
consequences of his actions. His pursuit of
gratifying his immediate needs fueled by his
impulsivity have resulted in a long history of poor
choices that evidence his lack of judgment and
reasoning skills necessary to make life decisions.
. . . What makes [Appellants] situation even more
complicated is that his perceptual accuracy and
reality testing are impaired, meaning he believes he

There is some inconsistency in the record as to when Appellant

was initially diagnosed and the length of Dr. Schucks
treatment. Ms. Frys declaration indicates that Fry was
diagnosed in 1995 at the age of seven. The record indicates
that Dr. Schuck treated Fry between 2000 and 2006, which would
be a six-year period rather than a ten-year period. However,
Dr. Schucks declaration provides that the treatment period was
January 1997 through November 2007, with a break in treatment
between July 2006 and October 2007, which would mean a total
treatment period of just under ten years.
4

United States v. Fry, No. 11-0396/MC

can take on more challenging tasks than he is capable
of.
. . . Given the limitations that I have described,
[Appellant] is unable to independently handle his
daily personal affairs, make important decisions, or
manage his own money without significant structure and
supervision. His plans and priorities focus on his
immediate and often unrealistic desires, not on what
is in his best interest in the long run.
She also testified before the court reiterating what was in
her declaration, including that Appellant suffered from autism,
ODD, a conduct disorder, and ADHD, which is characterized by
symptoms including impulsivity and hyperactivity making it hard
for him to make . . . thought out decisions.2

She explained

that a key obstacle for an individual with autism is impulse

control, and that a large focus of treatment for autism is
improving impulse control.3
At the time of Appellants enlistment, the Marine Corps
recruiter knew or should have known that Appellants grandmother
2

The Governments psychologist, Captain Bruce T. Reed, also

testified at trial and, after stating Im going to hedge a
bit, indicated his belief that there was at least a fifty-one
percent chance that Appellant understood the significance of
enlisting. However, Dr. Reed had not treated Appellant for any
period of time, was not familiar with Appellants full history
or medical records, and did not know Appellant was subject to a
conservatorship. More importantly for the purpose of this
dissents analysis, the military judge did not address or weigh
Dr. Reeds testimony against the testimony and declaration of
Dr. Schuck.
3

The Government argued on appeal that Dr. Schucks testimony

contradicted her declaration and retreated from its position.
That is not how I read the testimony, which is reproduced as
Appendix A to this opinion. The declaration is reproduced in
Appendix B.
5

United States v. Fry, No. 11-0396/MC

had a limited conservatorship over Appellant and that Appellant
had been treated for fifteen months in a mental health facility
in Colorado for behavioral problems.

All parties to this case

and the military judge agree on this fact.

The exercise of due

diligence would also have revealed that while at the Colorado

facility, Appellant received psychiatric care and counseling to
deal with [his] desire to view child pornography.
In 2009, Appellant was tried by general court-martial for
several offenses including fraudulent enlistment for
deliberately concealing that he had received psychiatric care
and counseling to deal with his desire to view child
pornography.
The question before this Court is whether Appellant was
subject to the personal jurisdiction of a military courtmartial.

As the majority correctly concludes, this is a

question of federal law, not state law.4

Under the Supremacy

Clause, laws enacted by the United States pursuant to the

Constitution are the supreme Law of the Land; and the Judges in
every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary

As a result, I need not and do not reach a conclusion as to

whether or how the Full Faith and Credit Clause applies only
with respect to the state court proceeding. Whatever effect is
given to the state court proceeding, if any, the question before
this Court is whether the military judge erred in applying
Article 2, UCMJ.
6

United States v. Fry, No. 11-0396/MC

notwithstanding.

U.S. Const. art. VI.

Indeed, the Supremacy

Clause was designed:

to avoid the introduction of disparities, confusions
and conflicts which would follow if the Governments
general authority were subject to local controls. The
validity and construction of contracts through which
the United States is exercising its constitutional
functions, their consequences on the rights and
obligations of the parties, the titles or liens which
they create or permit, all present questions of
federal law not controlled by the law of any state.
United States v. Allegheny County, 322 U.S. 174, 183 (1944)
(overruled on other grounds).

Just as it would make little

sense to have the Governments liability to members of the Armed

Services dependent on the fortuity of where the soldier happened
to be stationed at the time of the injury, Stencel Aero Engg
Corp. v. United States, 431 U.S. 666, 671 (1977), so too it
would make little sense for the interpretation of an enlistment
contract to depend on the fortuity of where the soldier happened
to be when the enlistment contract was signed.
When an accused contests personal jurisdiction on appeal,
we review that question of law de novo, accepting the military
judges findings of historical facts unless they are clearly
erroneous or unsupported in the record.

United States v.

Melanson, 53 M.J. 1, 2 (C.A.A.F. 2000).

ANALYSIS
Article 2, UCMJ, governs the validity of enlistment for the
purpose of determining who is subject to the UCMJ.

Subsection

United States v. Fry, No. 11-0396/MC

(b) of the article states that [t]he voluntary enlistment of
any person who has the capacity to understand the significance
of enlisting in the armed forces shall be valid for purposes of
jurisdiction.

Article 2(b), UCMJ, 10 U.S.C. 802(b).

Thus,

by implication the text and case law indicates, if a person does

not have the capacity to understand the significance of
enlisting then a court-martial shall not have jurisdiction.
However, subsection (c) establishes jurisdiction
[n]otwithstanding any other provision of law when four
conditions are met:
a person serving with an armed force who (1) submitted voluntarily to military authority;
(2) met the mental capacity and minimum age
qualifications of sections 504 and 505 of this title
at the time of voluntary submission to military
authority;
(3) received military pay or allowances; and
(4) performed military duties.
Article 2(c), UCMJ, 10 U.S.C. 802(c).

Appellant satisfied the

second, third, and fourth of these conditions.

The question

before the military judge was whether Appellant had the capacity
to voluntarily enlist.

Because Article 2(c), UCMJ, applies

[n]otwithstanding any other provision of law, in theory, one

could lack the capacity to understand the significance of
enlisting for the purposes of subsection (b), but nonetheless

United States v. Fry, No. 11-0396/MC

voluntarily submit to military authority for the purpose of
subsection (c)(1).

But that would depend on the meaning of

voluntarily in subsection (c)(1) and the extent to which it is

coterminous with a capacity to understand the significance of
enlisting in the armed forces.
This critical term is not defined in this section of the
UCMJ.

Nor is the meaning of voluntarily for the purpose of

Article 2(c)(1), UCMJ, addressed or defined in case law.

At

oral argument and in their briefs, the parties defined the term
with reference to dictionary definitions and plain English
descriptions.

They did not agree on its meaning.

The military

judge did not state or provide a definition in his ruling.

The

majority fills this void by equating a lack of voluntariness

with either duress and/or coercion or the concept [of insanity]
codified in 504 [which] is akin to [the] capacity to
contract.5
2012).

United States v. Fry, __ M.J. __ (13) (C.A.A.F.

In other words, unless a person is coerced, drunk, or

Section 504 states:

Insanity, desertion, felons, etc. -- No person who is
insane, intoxicated, or a deserter from an armed
force, or who has been convicted of a felony, may be
enlisted in any armed force. However, the Secretary
concerned may authorize exceptions, in meritorious
cases, for the enlistment of deserters and persons
convicted of felonies.

10 U.S.C. 504(a) (2006).

9

United States v. Fry, No. 11-0396/MC

insane he or she has the capacity to understand the significance
of enlisting and voluntarily submitting to military authority.
As both sides of the debate recognize, mental capacity and
not coercion is the issue at stake in this case.

However, there

is disagreement on whether the concepts embedded in 10 U.S.C.

504 are akin to and determinative of the capacity to
contract.

In my view, the definition fails for four reasons.

First, Congress placed the reference to the 10 U.S.C. 504

insanity standard in a separate subsection of Article 2(c),
UCMJ, thus the act of doing something voluntarily for the
purpose of subsection (1) must mean something more than that one
meets the mental competence requirement for the purpose of
subsection (2).

In other words, interpreting voluntarily in

subsection (1) to mean the same thing as mental competence in

subsection (2), as the majority does, violates a cardinal
principle of statutory construction that a statute ought, upon
the whole, to be so construed that, if it can be prevented, no
clause, sentence, or word shall be superfluous, void, or
significant.

TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001).

Second, hinging the capacity to submit voluntarily to

military authority on the insanity prohibition of section 504
turns the nuance of mental health and the spectrum of
developmental disabilities into a yes or no question, rather
than the spectrum of conditions that actually exists.

10

See Dept

United States v. Fry, No. 11-0396/MC

of Defense Instr. 6130.03 Medical Standards for Appointment,
Enlistment, or Induction in the Military Services encl. 4 para.
29 (Apr. 28, 2010 (incorporating Change 1, Sept. 13, 2011))
[hereinafter DoD I 6130.03].6

Thus, while the 504 standard may

offer clarity and simplicity for lawyers, it does not reflect

the range of mental health conditions and disabilities that may
actually affect the capacity of recruits to voluntarily enlist.
Third, such a standard is inconsistent with the approach of
the Supreme Court and this Court in assessing whether pleas are
voluntary.

Voluntary is a term familiar to the plea process if

not to Article 2, UCMJ, jurisprudence.

Waiver of a guilty plea

must be not only voluntary but also knowing, intelligent acts

done with sufficient awareness of the relevant circumstances and
likely consequences.
(1970).

Brady v. United States, 397 U.S. 742, 748

The voluntariness of a plea can be determined only by

considering all of the relevant circumstances surrounding it.

Id. at 749.

To ensure that a plea is voluntary and to prevent

improper terms being imposed:

the military judge must assure on the record that the
accused understands the meaning and effect of each
6

The regulation refers to autism as autistic spectrum

disorders. For our purposes, it does not matter where
Appellant fell on the autism spectrum since the military judges
error was not based on where Appellant fell on the spectrum, but
in failing to define the term voluntary and in failing to
address and analyze all the evidence before the court regarding
Appellants capacity to voluntarily submit to military
authority.
11

United States v. Fry, No. 11-0396/MC

provision in the pretrial agreement; as well as make
sure that the written agreement encompasses all the
understandings of the parties and that they agree with
his interpretation of the plea bargain.
United States v. Bartley, 47 M.J. 182, 186 (C.A.A.F. 1997)
(quoting United States v. Jones, 23 M.J. 305, 308 (C.M.A. 1987))
(emphasis added).

Certainly, this Court has not upheld or

rejected pleas solely on the basis of whether a person has been

deemed sane.
Though it is true that one who is insane cannot act
voluntarily, that does not prove the corollary that someone who
is sane always acts voluntarily.

Rather, where bipolar

conditions are in play, for example, the Court has looked to how
a particular condition affects the accused to determine whether
pleas are knowing and voluntary.

In United States v. Harris,

for example, we held that an accuseds plea was improvident

where some of the conflicting post-trial evidence demonstrated
that he had been unable to appreciate the wrongfulness of his
conduct.

61 M.J. 391, 393, 398-99 (C.A.A.F. 2005).

In United

States v. Shaw, however, we concluded that the mere

possibility of a conflict with a guilty plea was raised where
an accused had merely claimed he suffered from bipolar disorder
but presented no additional evidence that he in fact suffered
from the condition or that it raised a substantial question

12

United States v. Fry, No. 11-0396/MC

regarding his mental responsibility.

64 M.J. 460, 464 (C.A.A.F.

2007).
Courts are especially careful in evaluating pleas in the
case of developmentally disabled persons to ensure that they are
voluntary.

See, e.g., Gaddy v. Linahan, 780 F.2d 935, 945-47

(11th Cir. 1986) (holding that the trial judge had not
adequately explained the nature of the crime and its elements to
satisfy due process where the defendant was illiterate and
possesses minimal mental capacity and [h]is own attorney
characterized him as mentally retarded to some degree);
United States v. Duhon, 104 F. Supp. 2d 663, 671 (W.D. La. 2000)
(noting the need for sensitivity to the differences between
mentally ill and mentally retarded defendants in assessing
competency).
Finally, equating capacity and voluntary action to insanity
runs counter to our common understanding of not only
developmental disabilities but the plain meaning of what it
means to act in a voluntary manner.7

A voluntary act has been

Department of Defense regulations now prohibit individuals with

autism from joining the armed forces: Unless otherwise
stipulated, the conditions listed in this enclosure are those
that do NOT meet the standard by virtue of current diagnosis, or
for which the candidate has a verified past medical history.
DoD I 6130.03 encl. 4 para. 2. One such condition is
[p]ervasive developmental disorders . . . including Asperger
Syndrome, autistic spectrum disorders, and pervasive
developmental disorder -- not otherwise specified. Id. at
para. 29.C.
13

United States v. Fry, No. 11-0396/MC

defined as an act that is [d]one by design or intention.
Blacks Law Dictionary 1710 (9th ed. 2009).

A person cannot

knowingly and voluntarily do something if that person does not

have the capacity to understand what he or she is doing.
In this case, the military judge did not define the term
voluntarily and therefore we do not know against what measure
of voluntary Appellants condition was adjudicated.

In the

absence of an agreed-upon or understood definition, and in the

context here, this was an abuse of discretion.

In any event,

determination as to whether an action has been taken in a

voluntary manner requires individual adjudication of a
particular persons condition and circumstance, not per se
reference to 504.
Thus, the military judge also abused his discretion in
analyzing the facts.

First, the military judge plainly erred

when he concluded that [a]ll of the evidence indicates that the

accuseds enlistment was voluntary.

He also concluded that

there was no evidence that Appellants enlistment was

involuntary.

The majority concedes that one of these statements

is inaccurate, but dismisses the military judges repeated

conclusions as no more than overstat[ing] matters and negated
because the military judge considered contrary evidence.

But

if the military judge considered contrary evidence it is not

14

United States v. Fry, No. 11-0396/MC

reflected in the record or in the use of the unambiguous term
all.
Most importantly, there is no indication in the military
judges ruling that he considered and analyzed the medical
testimony and declaration from Dr. Schuck.

This was an abuse of

discretion in a case that hinged on whether a developmentally

disabled recruit had the capacity to voluntarily enlist and/or
submit to military authority.

In particular, the military judge

abused his discretion by failing to address statements by

Appellants treating psychologist such as:
Developmentally, [Appellant] is mentally like a child at
the age of 14. . . . Due to his autism and ADHD, Josh fails
to weigh the consequences of his actions. His pursuit of
gratifying his immediate needs fueled by his impulsivity
have resulted in a long history of poor choices that
evidence his lack of judgment and reasoning skills
necessary to make life decisions.
. . . .
. . . I have been asked whether in my professional opinion,
and based upon my over ten years of clinical evaluation of
Josh, do I believe that Josh had the mental capacity to
understand the significance of his enlistment in the
military. My answer is no.8
8

Neither did the military judge reference or address the

investigating officers (IO) conclusion that:
[i]t is highly questionable whether the Accused had
the mental capacity at the time of enlistment to form
the specific intent necessary to deliberately
conceal his mental disorder. Further, there is
compelling evidence in mitigation of undue influence,
overreaching, and recruiter misconduct, all of which
may negate the specific intent required for [a charge
of fraudulent enlistment].
15

United States v. Fry, No. 11-0396/MC

In my view, it was not possible for the military judge to
reach an informed conclusion about Appellants capacity to
enlist as well as to voluntarily submit to military authority
without first acknowledging, analyzing, and addressing these
critical statements.

Thus, we cannot know if the military judge

reached the right decision regarding jurisdiction, because he

did not reach it the right way -- by stating the standard he was
applying and then analyzing and weighing all the evidence before
the court, including and in particular, the testimony and
declaration of Appellants long-term treating psychologist in
light of that standard.

As a result, I would reverse the

decision of the lower court and respectfully dissent.

While not error in its own right to omit such reference, the
IOs report clearly undercuts the conclusion that all the
evidence reflected a capacity to voluntarily enlist.
16

Appendix A