Instead of court-martialing Sen. Mark Kelly, D-Arizona, as he threatened to do in November, Defense Secretary Pete Hegseth, the self-proclaimed “secretary of war,” pivoted and said Tuesday that Kelly will be administratively (meaning, arbitrarily and behind closed Pentagon doors) demoted in rank. Kelly retired in 2011 as a captain (colonel equivalent) with 25 years in the U.S. Navy, including combat missions and missions to outer space. He earned Hegseth’s ire in the fall when he joined five other Democrats in the Senate and recorded a public video reminding service members of their duty to disobey illegal orders.
It seems obvious why Hegseth backed off the court-martial threat — Sen. Kelly committed no crime — but the law doesn’t allow Hegseth to reduce Kelly’s rank and pension for contributing to that video, either.
The law doesn’t allow Hegseth to reduce Kelly’s rank and pension for contributing to that video.
As the Supreme Court has recognized, retirement from the active duty ranks of the U.S. military after decades of service is a hard-earned honor and represents just financial compensation for years of sacrifice to our nation. The specific rank a military retiree holds after retirement signifies not only their honorable service; it also determines how much pension that retiree receives for the rest of their life. Hence, its determination is a serious process outlined by federal law.
Military retirement is not, and cannot be allowed to be turned into, a weapon of intimidation against military retirees who speak out against a presidential administration. But, unfortunately, Hegseth is trying to do just that.
According to federal law, grade (rank) determinations at retirement are final and are based on the last rank “satisfactorily” held while on active duty. Per statute, revisitation of this “final” determination after retirement is only authorized — and this makes good sense — in cases of fraud, or when evidence of misconduct committed while on active duty otherwise unknown at original retirement finally surfaces, or for other good cause related to conduct while on active duty service.
The defense secretary does not have some free-floating power to revisit retirement rank whenever a retiree does something that annoys him. Retirement rank is exclusively about active duty service.
If Secretary Hegseth wants to end Sen. Kelly’s retirement pay for alleged misconduct during his retirement, then he needs to convict him through a court-martial — that’s how the Supreme Court has acknowledged retirement pay can be terminated — and not by pretending the law allows him to do something it clearly does not.
This threatened abuse of power — and straight up illegality — will be less straightforward for Sen. Kelly to challenge, given the lack of due process and the dearth of an internal Pentagon appeals route for such an unlawful demotion, but he should prevail for numerous reasons if this winds up in federal court.
First and foremost, Sen. Kelly and his fellow lawmakers did nothing wrong and certainly nothing criminal. While Congress has, since the Civil War era, maintained military court-martial jurisdiction over retirees, its exercise is rare, and military law certainly does not criminalize First Amendment protected speech, including simply exhorting service members to follow the law. Furthermore, there is a well-developed and widely held argument that the exercise of some military-unique crimes that rightly limit service members’ First Amendment rights more than of their civilian counterparts — such as the offense of contemptuous words against the president and others — cannot be constitutionally extended to retirees.
Contrary to Secretary Hegseth’s pronouncements, Sen. Kelly did not even come close to committing the military crime of sedition — which requires causing a revolt, etc. with intent to overthrow or destroy lawful civil authority. Nor did he commit the infamous military crime of “conduct unbecoming an officer.” Though seemingly broad, the military courts have greatly circumscribed this offense when speech is at issue, making its application to retirees questionable altogether. To constitute conduct unbecoming, official public speech must so dishonor or disgrace “the individual as a commissioned officer” that it “seriously detracts from his character” as an officer so that it has “a direct impact on the officers’ standing,” such as in cases involving active-duty officers sexual propositioning subordinates. A sitting senator criticizing administration officials and urging service members to follow the law falls far, far outside this offense’s parameters, given the crime’s focus on the connection between the speech in question and the speaker’s status as an officer. Given that Sen. Kelly is retired and was speaking as a senator, his speech fails to meet Article 133’s elements and any attempt to paint it as unbecoming is irrational. Apparently because there’s no evidence to court-martial the senator, Secretary Hegseth has turned to the retirement system to intimidate him. This move doesn’t just intimidate Sen. Kelly, but also all of us who honorably retired after decades of military service. Given that Sen. Kelly is retired and was speaking as a senator, his speech fails to meet Article 133’s elements and any attempt to paint it as unbecoming is irrational. Congress established the military retirement system after the Civil War to help maintain a youthful force. There have been numerous modifications in the modern era to ensure its success as a recruitment and retention tool. It is supposed to be administered according to law, consistent with the U.S. Constitution and national values. If it is allowed to be abused in Secretary Hegseth’s threatened fashion — with retired rank arbitrarily and illegally reduced per the secretary’s whims and, even more dangerously, when he doesn’t like constitutionally-protected free speech criticizing him and this administration — it will no longer rightly serve its given purpose. It will simply become another weapon in an increasingly lawless administration.
Rachel E. VanLandingham, Lt Col, USAF (ret.) is the Irwin R. Buchalter Professor of Law, Southwestern Law School, Los Angeles and president emerita of the National Institute of Military Justice. 
