By
Rick Rogers, Union-Tribune Staff Writer
2:00 a.m. June 1, 2009
SAN DIEGO — The Marine Corps is investigating how an autistic man now facing court-martial managed to join the service and graduate from boot camp in San Diego.
His case raises broader questions about the enlistment process – regarding such matters as recruiters who distort applicants' personal information – and the fairness of the military's criminal justice system.
Pvt. Joshua D. Fry was diagnosed with autism at age 8. The complex brain-development disorder typically impairs a person's comprehension skills, inhibits communication and results in restricted and repetitive behavior. Genetics often play a major role, although the overall causes are unclear.
Fry graduated from the Marine Corps Recruit Depot in April 2008 even after telling commanders and medical personnel there about his autism, according to court documents.
Weeks later, during infantry training at Camp Pendleton, the Corps charged Fry with possession of child pornography and being absent without leave. Fry, 21, now sits in the base's brig.
He is receiving psychotropic medications while awaiting a court-martial that could keep him in prison for years. The service hasn't disclosed details of his arrest and hasn't announced a date for the trial.
Fry's attorney, Michael Studenka of Newport Beach, had urged Judge Col. John Ewers not to put Fry on trial.
In a 35-page brief, Studenka said that a Marine took advantage of Fry to meet his recruitment quotas and that other Marine officials failed to intervene later on. Studenka also alleged that the recruiter knew about Fry's history of mental disability, which included a 15-month stay at a lockdown treatment center in Denver.
Studenka said Fry lacks the mental capacity to sign an enlistment contract. He introduced a 2006 court order – a limited conservatorship – from an Orange County probate judge that found Fry to be “developmentally disabled” and “unable to provide for his ... personal needs for physical health, food, clothing or shelter.”
The order banned Fry from signing contracts or making most life decisions. Studenka tried to convince Ewers that the restriction applied to military contracts as well.
“Because the accused never had capacity to contract, his enlistment is void,” Studenka wrote in his brief. “The accused enlistment was involuntary and therefore is voidable.”
Ewers did not see it that way.
“The defense motion to dismiss for lack of ... jurisdiction was denied,” Lt. Col. Sean Gibson, a Marine spokesman at Camp Pendleton, wrote in a statement to The San Diego Union-Tribune.
Studenka declined to comment on the case, and Fry couldn't be interviewed because he is in the brig.
Continuing to press charges against Fry doesn't make sense, said Eugene Fidell, president of the National Institute of Military Justice in Washington, D.C.
“This strikes me as a stupid case to prosecute,” said Fidell, a senior partner in the law firm Feldesman Tucker Leifer Fidell. “I think the chief of military justice should intervene to have the case dropped. It does not foster confidence in the recruitment process or military law.”
The Marine Corps is looking into how Fry was able to enlist, said Maj. Christopher Logan, a spokesman for the service's Western Recruiting Region.
Mary Beth Fry, Fry's grandmother and legal guardian, largely blames the Marine Corps for the mess and wonders if her grandson's enlistment is an aberration.
“If the (Marines) have done this to Josh, who else have they done this to?” she said.
During a brief interview, she didn't say when she first learned about her grandson being in the Marine Corps.
Joshua Fry's legal troubles add another chapter to what has been a difficult life.
He was born Jan. 8, 1988, to a heroin-addicted mother whose whereabouts are unknown and a crack-addicted father who has died. He spent his first year on the streets of Los Angeles until his parents were arrested and he was sent to a foster home.
Fry still couldn't speak by age 3, when his grandmother adopted him. He struggled with behavioral problems – including violence, stealing and self-abuse – throughout childhood.
Under his grandmother's care, Fry underwent more than 10 years of therapy.
“He can carry on a conversation with you. He can look you in the eye. But anyone who spends any time with Josh knows he's autistic,” Mary Beth Fry said.
Recruiter misconduct tends to have a pattern across the military branches, according to a 2006 study by the U.S. State Department's Bureau of Democracy, Human Rights and Labor.
The report said 77 percent of the 518 confirmed cases of misconduct during fiscal 2006 arose from recruiters concealing or falsifying information, imposing undue influence on recruits or not paying enough attention to “quality control” aspects of the enlistment process.
It also ranked the Marine Corps as having the highest percentage of recruiter-misconduct claims that were substantiated – slightly more than 50 percent in 2006. The Navy had the next highest level at a little less than 30 percent.
Joshua Fry enlisted through an office for Marine Corps Recruiting Station Orange County, which is part of the Western Recruiting Region.
The U.S. Defense Department doesn't mention autism as disqualifying a potential recruit.
But Logan, the spokesman for the Western Recruiting Region, said, “I think it is safe to say that if an individual is diagnosed with autism, not a lesser form or certain symptom thereof, the person would be disqualified from military service.”
In his court brief, Studenka said Gunnery Sgt. Matthew M. Teson is partly to blame because he enlisted Fry despite having heard about the young man's troubled past.
Studenka accused Teson of being “deliberately ignorant of Fry's disqualifying condition and background.”
The Marine Corps didn't make Teson available for comment.
According to Studenka's brief, Teson met Fry around 2006 while Fry was attending Newport Harbor High School. That was before Fry's alleged theft, possession of stolen property and other behavioral problems led to his 15-month stint at the Devereux Cleo Wallace facility in Denver.
The center, where Fry graduated from high school, treats psychiatric, emotional and behavioral problems in people ages 8 to 21.
At one point, Studenka wrote, Teson called the Fry home in Orange County because he didn't know that Fry had been transferred to Devereux. Studenka said Mary Beth Fry answered the phone and told Teson that her grandson is autistic and not capable of becoming a Marine.
By late 2007, Joshua Fry had left Devereux and was living in a group home in Irvine for mentally disabled adults.
On Jan. 7, 2008, he enlisted in the Marine Corps with Teson. On April 11 that year, Fry graduated from boot camp with Platoon 1021, Company B.
He became perhaps the first autistic Marine in 233 years of Marine Corps history.
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Originally Posted by Soldat_Américain
