The Department of War announced that it has opened a formal review into allegations of misconduct involving Sen. Mark Kelly (D-Ariz.) following the release of a video in which he and other lawmakers urged U.S. service members to “refuse illegal orders.” The Pentagon said it is considering several possible responses, including the option of recalling Kelly — a retired Navy captain — to active duty to face potential court-martial proceedings or other administrative actions under the Uniform Code of Military Justice, Fox News reported.
“This matter will be handled in compliance with military law, ensuring due process and impartiality,” the department said, adding that there will be limited comments about the matter moving forward to protect the integrity of the case. The department’s statement also emphasized that military retirees remain subject to the Uniform Code of Military Justice and reminded active-duty personnel that “orders are presumed to be lawful” and must be followed.
It additionally cited federal laws, including 18 U.S.C. § 2387, which prohibits efforts to undermine the loyalty, morale, or discipline of U.S. armed forces. “The Department of War reminds all individuals that military retirees remain subject to the UCMJ for applicable offenses,” the statement read. “A servicemember’s personal philosophy does not justify or excuse the disobedience of an otherwise lawful order.”
Although Kelly retired from active service years ago, the Pentagon could still bring him before a military court if it concludes that his actions violated the Uniform Code of Military Justice. Such recalls are uncommon and are generally used in cases involving serious criminal allegations, including espionage, sexual assault, or fraud. However, legal precedent supports the practice, with appellate courts reaffirming UCMJ jurisdiction over retirees in United States v. Dinger (2018) and United States v. Larrabee (2020).
If the review determines that Kelly’s remarks amounted to conduct “to the prejudice of good order and discipline,” or violated federal law prohibiting efforts to encourage disloyalty or insubordination within the armed forces, he could be recalled to active duty for a court-martial. Potential penalties include forfeiture of pay, confinement, or dismissal from service, though such outcomes are considered highly uncommon for political figures. Any proceedings, Fox noted, would likely spark a constitutional battle over whether political speech by a retired officer can fall under military law.
Last week, Kelly and five other Democratic members of Congress posted a video directed at current members of the military and intelligence community stating: “Our laws are clear. You can refuse illegal orders.” Four of the Democrats have prior military experience but are not retired and thus not governed by the UCMJ. Rep. Elissa Slotkin, an ex-CIA officer, admitted she could not name a single illegal order given by President Trump. Republicans accuse the group of attempting to undermine Trump’s authority. Sec. Pete Hegseth said Kelly’s statements, delivered while invoking his rank, brought “discredit upon the armed forces” and will be addressed appropriately.
