Defense Secretary Pete Hegseth’s extraordinary move to demote a retired military veteran in the Senate comes after weeks of threats for more severe punishment, and experts on military law said it has implications for speech by troops and retired military.
The highly public decision to censure Democratic Sen. Mark Kelley and to possibly dock his military pension is likely to make military retirees think twice before publicly criticizing the Trump administration, two former military lawyers said. About 2 million people receive military retirement benefits in the US. Some retired military leaders have been strident critics of President Donald Trump.
The defense secretary announced the decision to review Kelly, a retired Navy captain and astronaut who represents Arizona, for a reduction in his retired grade and pay on Monday, saying the senator’s public statements, including a video in which he told US troops not to follow illegal orders, amount to sedition. The two experts on military law said they believe Kelly would have strong grounds to challenge it through the Defense Department’s processes or in federal court.
Hegseth said the process would be completed within 45 days, and added that he issued a formal censure letter, “which outlines the totality of Captain (for now) Kelly’s reckless misconduct. This Censure is a necessary process step, and will be placed in Captain Kelly’s official and permanent military personnel file.”
Don C. King, a retired Navy judge advocate general who now owns the King Military Law firm, said the fact that the statement was posted by Hegseth on X is “very unusual” and ensures the actions against Kelly are well publicized. “I’ve never seen that happen before.”
Hegseth’s public comments could give Kelly grounds to argue that the grade determination board, made up of military officers, is predisposed to punish the misconduct that the defense secretary alleged and in the way he suggested it.
Hegseth’s statement “strongly suggests a predetermined outcome,” Daniel Maurer, a law professor at Ohio Northern University and a retired Army judge advocate general, said. “It is the opposite of a measured, unbiased, and due process-focused announcement that protects the integrity of the process and rights of the service member.”
Kelly’s actions, Maurer argued, don’t meet the definition of sedition under federal law. “What he said was a restatement of the law and a professional duty,” he noted; the official manual for courts-martial says service members may disobey a “patently illegal order.”
Hegseth previously threatened to court-martial Kelly, which likely didn’t move forward because of a lack of evidence, experts said. It nonetheless has profound implications for serving officers, whose careers can be marred or effectively ended for having lost their superior’s confidence.
Hegseth called Kelly’s comments seditious in the Monday X post: “This conduct was seditious in nature and violated Articles 133 and 134 of the Uniform Code of Military Justice, to which Captain Kelly remains subject as a retired officer receiving pay.”
Hegseth cited 10 U.S.C. § 1370(f), a subsection of the Title 10 Armed Forces law, in his decision. Per federal code, military officers are retired in the highest rank “served satisfactorily,” and that determines the officer’s pension. By law, officer grade determination is based on the officer’s conduct while on active duty, not post-retirement.
The code establishes the reconsideration of an officer’s retirement rank as possible under only four reasons. The first is if their rank was procured by fraud. The second is based on whether substantial evidence for revisiting retirement rank comes out afterward, but that’s contemplating actions that occurred while the person was on active duty. The third is if a mistake was made in determining the retired grade. None of those applies to Kelly’s case.
The fourth, which experts believe is what Hegseth is referring to, is if the defense secretary determines “that good cause exists to reopen the determination of retired grade.”
It’s a fuzzy argument, though. “I don’t see a strong legal case for what Secretary Hegseth is purporting to do,” King said. “I don’t know that this law supports what he’s trying to do.”
Following the review and board recommendation, it’s likely that Hegseth’s decision could be overturned in court. It would be a “strong sign” for the speech rights of service members, Maurer told BI. Kelly may also have additional protections as an elected federal lawmaker under the Constitution’s speech and debate clause.
Kelly, a member of the Senate Armed Services Committee, made comments in the video released before new allegations emerged in late November about the US military’s move to fire a missile at a boat it had already struck. The Pentagon’s law of war manual calls an attack on shipwreck survivors illegal.
Now, Kelly has 30 days to submit a response to the proceedings. In a public statement online, the senator said he’d fight back and added: “Pete Hegseth wants to send the message to every single retired service member that if they say something he or Donald Trump doesn’t like, they will come after them the same way.”
That appears to be a consequence of this, Maurer said, which he called “a chilling effect on retired officers, especially senior-ranking” ones.
Kelly’s unusual case comes against the backdrop of a broader crackdown on what military personnel say and post, especially regarding the US’ strikes on alleged drug trafficking boats in the Caribbean, progressive politics, and the murder of conservative activist Charlie Kirk. Some troops have sought to self-censor for fear of retaliation.
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