CAAF heard oral argument in United States v. Fry, No. 11-5003/NA, on 3 November at Scott Air Force Base. The case deals with the validity of an enlistment contract where the enlistee is subject to a state-court ordered limited conservatorship.
During the argument, the appellant’s counsel quickly made the point that California law controls and therefore the state court’s determination of capacity to contract should be given full faith and credit by CAAF. This prompted questioning about the need for capacity to contract where the underlying issue is the capacity to understand the significance of enlisting and change of status. It also prompted discussion of the difference between United States v. Valadez, 5 M.J. 470 (C.M..A., 1978), which addressed lack of capacity to contract, and Article 2, UCMJ, which was amended post-Valadez but does not specifically address capacity to contract.
The court also questioned how state law could limit the ability of persons to enlist into federal military service, creating a hypothetical situation where a state legislatively prohibited all persons from enlisting. However, the appellant’s counsel explained that the issue isn’t the state rule, but rather the state determination of capacity as it relates to the federal rule for enlistment. This as followed by discussion of the specific facts of this case and the appellant’s mental condition, and how to apply the facts to determine if there is a valid, or constructive, enlistment.
The government’s counsel seized on the court’s skepticism of a state’s ability to affect who can enter the armed forces, arguing that this is a question that affects the ability of Congress to regulate the armed forces, that California law may be relevant but is not binding to a determination of whether a person can enlist, and that in any event a constructive enlistment existed in this case. He also attacks the appellant’s brief as “plainly misleading,” citing a passage discussing the appellant’s IQ (audio at 22:00). The court then engaged in a highly fact-specific argument regarding the extent of the conservatorship over the appellant and the effect it had, under the California probate code, on the ability of the appellant to enter into a contract.
The court then asked about the appellant’s argument that the California determination should receive the full faith and credit of CAAF. The government’s counsel explained that full faith and credit applies only where there is not a prevailing federal interest, which in this case is the constitutional power of Congress to regulate the armed forces.
The government’s counsel also stressed the difference between Article 2(b) and Article 2(c), UCMJ, and that while Article 2(b) requires that a person must have the capacity to understand the significance of enlisting, Article 2(c) can still operate to create a constructive enlistment, especially in the circumstances of this case (the appellant mislead the recruiter, did not disclose significant past medical history, including the extent of the conservatorship, and then raised these issues as a defense only after he committed misconduct).