                         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:   Lieutenant Commander Brian L. Mizer, JAGC, USN
(argued).


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 Appellant’s pleas, a general court-

martial 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

Criminal Appeals (CCA) affirmed.       United States v. Fry, NMCCA

1
  Oral argument in this case was heard at the Global Reach
Conference Planning Center, Scott Air Force Base, Illinois, as
part of the Court’s “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



                                   2
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
Appellant’s 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

Appellant’s ability to, and gave Appellant’s 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 Appellant’s

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.   Appellant

initially had issues in basic training:   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 Appellant’s limited conservator was called and

asked about the autism diagnosis, she acknowledged that

Appellant was autistic.   A medical officer informed the limited


                                 4
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 Appellant’s becoming a Marine,

she also attended Appellant’s 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,


4
  The Crucible is a fifty-four-hour test of a Marine recruit’s
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

Tarble’s 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, 665–66, 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


                                 6
United States v. Fry, No. 11-0396/MC


mindful of the Supreme Court’s 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;


5
  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 person’s 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.   Black’s 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


                                8
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


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 dissent’s suggestion, we recognize that

voluntariness is a separate and distinct requirement under

Article 2(c) and that it retains its usual meaning.      Black’s Law

Dictionary, supra, at 1710–11 (“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 individual’s mental state.    Cf. Brady v. United States, 397

U.S. 742, 749 (1970).

        Evidence either that Appellant’s 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.    There is no evidence of duress or coercion in this

case.    Thus, we are left only to consider whether Appellant

understood the nature or significance of his actions.

        This question necessarily requires courts to consider

Appellant’s 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
Appellant’s 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

judge’s 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 accused’s 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.”    1 U.S.C. § 1

(2006) (emphasis added).   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 Dep’t 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 Webster’s 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 152–53 (“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 person’s 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

Appellant’s mental capacity.    Dr. Reed had participated on

Appellant’s 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.

Schuck’s belief that Appellant’s 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

judge’s 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 judge’s 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 Rains’s 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 witness’s 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. Schuck’s

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

court’s 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 judge’s

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 judge’s 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.




9
  The military judge also found that the limited conservator did
not object to Appellant’s 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 accused’s 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 Appellant’s 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

Government’s position was not addressed in the military judge’s

analysis of Appellant’s 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 Appellant’s 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.   United States v. Rodriguez, 60 M.J. 87, 90

(C.A.A.F. 2004).   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



                                 2
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.


                                  3
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

Appellant’s 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 [Appellant’s] situation even more
     complicated is that his perceptual accuracy and
     reality testing are impaired, meaning he believes he


1
  There is some inconsistency in the record as to when Appellant
was initially diagnosed and the length of Dr. Schuck’s
treatment. Ms. Fry’s 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. Schuck’s 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 Appellant’s enlistment, the Marine Corps

recruiter knew or should have known that Appellant’s grandmother

2
  The Government’s psychologist, Captain Bruce T. Reed, also
testified at trial and, after stating “I’m 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 Appellant’s full history
or medical records, and did not know Appellant was subject to a
conservatorship. More importantly for the purpose of this
dissent’s analysis, the military judge did not address or weigh
Dr. Reed’s testimony against the testimony and declaration of
Dr. Schuck.
3
  The Government argued on appeal that Dr. Schuck’s 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 court-

martial.   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


4
  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 Government’s
     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 Government’s 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 Eng’g

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

judge’s 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


                                 7
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



                                 8
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    United States v. Fry, __ M.J. __ (13) (C.A.A.F.

2012).    In other words, unless a person is coerced, drunk, or



5
    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.   See Dep’t


                                10
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.”   Brady v. United States, 397 U.S. 742, 748

(1970).   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 judge’s
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
Appellant’s 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 accused’s 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


7
  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.”

Black’s 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” Appellant’s 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 person’s 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

accused’s enlistment was voluntary.”   He also concluded that

there was “no evidence” that Appellant’s enlistment was

involuntary.   The majority concedes that one of these statements

is inaccurate, but dismisses the military judge’s 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

judge’s 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

Appellant’s 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 officer’s (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 Appellant’s 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 Appellant’s 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
IO’s report clearly undercuts the conclusion that all the
evidence reflected a capacity to voluntarily enlist.

                                16
Appendix A
