Autistic Marine Court Martialed and Given Bad Conduct Discharge

July 20, 2009— -- A Marine whose recruitment is under investigation because he is autistic was sentenced to four years in prison at his court martial Monday, but in a plea deal he will be released for time already served and receive a bad conduct discharge.

Pvt. Joshua Fry, 21, has been confined since July 2008 when he was found to have child pornography on his cell phone and computer despite being previously warned by his Marine commanders that it was forbidden. Fry also pleaded guilty to disciplinary charges, including unauthorized leave.

Under the terms of the plea deal, Fry was sentenced to four years and a bad conduct discharge, according to Marine Lt. Col. Sean Gibson. The sentence was reduced to 12 months and Fry received credit for the 359 days already served since his arrest, Gibson said.

The conclusion of Fry's court martial turns the attention to suggestions by Fry's family and members of Congress that he should never have been recruited into the elite force that bills itself as "The Few. The Proud. The Marines."

According to a pre-trial motion filed by Fry's attorney, Marine recruiter Gunnery Sgt. Matthew Teson drove to a group home for the mentally disabled to pick up Fry and sign him up. The enlistment occurred despite a warning from Fry's legal guardian and grandmother that he was autistic, that he was not Marine material, and he could not sign a contract without her permission.

The lawyer's motion claims that Teson urged Fry to not mention that fact on his application.

Fry's enlistment was cited by experts as an indication that some recruiters are having a harder time filling their ranks in the face of extended wars in Iraq and Afghanistan.

Rep. Loretta Sanchez, D-Calif., a 13-year member of the Military Personnel Subcommitteeand, told ABCNews.com that Fry's recruitment might be worth a committee investigation.

A high-ranking Marine based at the Pentagon indicated to ABCNews.com last week that an internal probe was likely.

"An investigation into the circumstances of Private Fry's accession in the Corps, could lead to subsequent administrative or criminal proceedings against those directly involved, if warranted," the officer said.

The Marine, who is familiar with the Fry case, requested not to be identified, but said the Marines are prepared to hold accountable anyone who may have acted improperly during Fry's time with the military.

"The American people rightfully expect a lot of their Marine Corps," he said. "If there is a perception that something is afoul, we will aggressively root out the truth."

Experts say the case of Fry highlights a disconcerting trend of the military accepting candidates that never would have been considered a few years earlier.

"It's hard work being a recruiter anyway," said Beth Asch, a senior economist at Rand Corporation, the Santa Monica, Calif.-based non-profit think tank. "And when you're not a successful one, it's an issue."

Asch, who is working on a study relating to recruiter impropriety and fraudulent enlistment, said failure to meet recruiting quotas, called "goals" or "missions" by the military, can result in recruiters working weekends and late hours and coming under the glare of a disapproving supervisor which, in the military, can be "demoralizing."

If recruiters miss a quota, she said, "life sucks."

Sanchez said her subcommittee has recommended stricter guidelines for the recruiters and set aside funds for bigger incentive bonuses to attract higher quality recruits.

But the story of Fry's enlistment, Sanchez said, was unlike anything she's heard.

Fry was born in 1988 to a crack addicted father and a mother on heroin according to his lawyer's 35-page court motion to dismiss the charges, which was later rejected. The document details a downtrodden life that included physical and possible sexual abuse all while Fry slipped further behind in his developmental progress.

By the age of 3, according to the motion, he tested as having an IQ of 70 and was found to be anti-social and self-abusive. He was diagnosed with autism when he was 3 and then again as a teenager.

Enlistment of Autistic Marine May Have Violated Several Recruitment Standards

While in high school Fry was arrested for suspected larceny of iPods and found to have a knife. The charges were eventually dismissed and Fry was sent to what the motion describes as a "lockdown facility for youths" in Colorado to finish high school and receive treatment and counseling.

It was during this time that his legal guardian, grandmother Mary Beth Fry applied for and was granted temporary conservatorship over her grandson, the court noting that Fry, then 18, lacked the capacity to fully care for himself or enter into contracts on his own behalf.

After leaving the Colorado facility, Fry took up residence at a group home in Irvine, Calif., where he was living until his enlistment.

An assessment in 2006 by a licensed psychiatrist who treated Fry for two years noted that while the young man was high-functioning for a person with autism "he appears quite limited in his ability to think ahead of possible consequences."

That foreshadowing seemed to come true once Fry got to boot camp on Jan. 14, 2008.

"Immediately it was clear to Fry that he could not keep up with the day-to-day pace of boot camp," the motion argued. "Several times Fry informed his staff that he did not want to be a Marine. Each time he was told that was not an option."

But what was surprising to some after the fact is how he even got there in the first place.

While the words "autism" and "developmental disability" are never mentioned in the medical evaluation checklist, a Pentagon official said the disorder is considered included in section E1.25.26, which states "current or history of other mental disorders … that in the opinion of the civilian or military provider shall interfere with, or prevent satisfactory performance of military duty are disqualifying."

Other prohibited behaviors that could have disqualified Fry from the start include:

Having a perceptual or learning disorder

Inpatient treatment in a hospital or residential facility

Recurrent encounters with law enforcement agencies, anti-social attitudes or behaviors

History of "immaturity, instability, personality inadequacy, impulsiveness or dependency."

According to the document, Fry struck up a friendship with Teson, then a recruiter, while participating in the Young Marines Program in high school. The two had spoken about Fry's possible enlistment, a discussion put on hold when he was sent to the Colorado facility.

Not knowing Fry was in Colorado, Teson called Fry's house and spoke with Mary Beth Fry, who claims according to the court document, that she told the recruiter her grandson was autistic and had "extreme behavioral problems."

"He is not Marine material. Please take him off the list," the grandmother told Teson, according to the document.

But when Fry contacted Teson about enlistment on Jan. 4, 2008, just a few months after returning to California, Teson allegedly drove to pick up Fry from the group home for the mentally disabled where Fry was living.

The motion indicates Fry told Teson that he was autistic and asthmatic and that his grandmother had limited conservatorship over him.

"While assisting Fry in filing out the paperwork Teson instructed Fry that 'if we don't put yes, then they don't know,'" the document states regarding Teson's alleged knowledge of Fry's medical and legal complication.

Ten days later Fry was at boot camp.

On Day 13, he was caught repeatedly stealing peanut butter from the chow hall despite being admonished for doing so earlier and urinated in his canteen. He was also found to be disrespectful to his drill instructors and refused to shave or follow orders.

On Day 14, according to the motion, Fry told his senior drill instructor and staff that he had both autism and asthma and he no longer wished to be a Marine. After the Marines confirmed Fry's claims with Mary Beth Fry, she was told her grandson would be kicked out of boot camp and sent home.

But Fry wasn't sent home. Instead, he was graduated from boot camp on April 11, 2008, and sent for combat training at Camp Pendleton near San Diego.

Marines 'Target a Very Specific Individual'

Last week Maj. Christopher Logan, director of public affairs for the Marine Corps Recruit Depot San Diego and spokesman for the Western recruiting region, said he was not allowed to comment on the specifics of Fry's performance, but he did note that Fry was able to graduate from boot camp and "our training is extremely difficult."

But if Fry's time at boot camp was rough, his stint at Pendleton was even worse.

On May 26, according to the court document, Fry was found to have inappropriate images on his cell phone. The court document said Fry was subjected to five hours of interrogation and verbally ordered not to possess any similar images.

But more inappropriate images -- deemed to be child pornography from the charges leveled by military court -- were found again on July 18, 2008 and July 26, 2008 on his computer and cell phone, court documents state. That along with two instances of Fry allegedly going "UA," Marine shorthand for taking an unauthorized absence from his command, resulted in his arrest.

An additional charge of deliberate concealment was added in February, claiming fraudulent enlistment based on Fry's failure to disclose prior psychiatric treatment for a desire to look at child pornography.

Mary Beth Fry has declined to comment on her grandson's enlistment or imprisonment, saying she had been advised by his lawyer, Michael Studenka, not to talk about the case.

ABCNews.com has been unable to reach Teson, who is now stationed in North Carolina and is no longer working as a recruiter. Logan said Teson's reassignment had nothing to do with the Fry case and was part of an ongoing rotation where recruiters work in three-year stints.

Logan said that everything relating to Fry's activities as a recruit and a Marine was under investigation, including Teson's conduct.

While criminal background checks are done on every recruit, medical records are not pulled unless for a specific reason.

That's why, Logan said, "disclosure is very, very important."

Non-disclosure on the part of the recruit or the recruiter, he said, is grounds for dismissal from the Marines or being court-martialed.

Citing the ongoing investigation, military superiors have declined to allow comment from Maj. Michael Stehle, Teson's commanding officer during his time as a recruiter in Orange County, Calif., and from the Naval battalion corpsman identified in the court document as "HM1 Sutherland" who allegedly knew of Fry's autism at boot camp.

Numbers from the Department of Defense show 2,426 claims of recruiter misconduct across the Armed Forces in 2007, the most recent data available. Of those, 593 were substantiated.

Though those figures were lower in 2007 than the previous year, data from the Army and Marines show a reversed trend, with the number of both claims and substantiated claims rising slightly from 2006 to 2007.

In the Army there were 357 substantiated claims of recruiter misconduct, up from 333 in 2006. Those figures for the Marines were 118 substantiated claims in 2007, compared to 102 the previous year.

But the number of claims compared to the number of recruitments remains very low -- .20 percent for the Army and .27 percent for the Marines in 2007.

Non-Disclosure Risks Dismissal, Court Martial

Asch said that most Marines who enlist with a medical or criminal history that doesn't mesh with the ideals of military policy do so with a waiver. Studies have shown that the dissemination of waivers has increased in all branches of the armed services.

A quality study done each year by the Office of the Under Secretary of Defense showed that the Army had been particularly hard hit in the area of high school graduates, with the number of recruits with a diploma dropping from 92 percent in 2003 to 83 percent in 2008.

The Marines, by comparison, dropped from 98 percent to 96 percent during the same time period.

Fry, Logan said, never got a waiver. And unless Teson would have brought concerns about Fry's history to his commanding officer -- Maj. Stehle in this case -- Teson's supervisors would have had no reason to question this recruit out of thousands that come through each year.

Dr. Wayne Fisher, director of the Center for Autism Spectrum Disorders and professor of behavioral research at the University of Nebraska Medical Center's Monroe-Meyer Institute, has been studying autism since 1976.

He wouldn't go so far as to say a high-functioning autistic person should be precluded from the military on that diagnosis alone -- he know of some high-functioning people who became college professors -- but admitted the number of recruits with autism that would do well in that capacity would be in the minority.

Fisher has not treated Fry and could not comment on his case specifically. Some people with autism function well in a tightly regimented life, he said, "but if they're not able to function alone and they're in a facility where they're not taking care of themselves, that would be a flag."

In general autistic adults lack the ability to handle unique situations and have few friends. They are typically incapable of living a fully independent life. Many, Fisher said, find a niche working in jobs that require little social interaction such as working with machines or stocking shelves.