YES, THEY CAN RECALL YOU: WHY SENATOR MARK KELLY IS NOW FACING THE UCMJ
Bottom line up front: If you qualify for military retirement pay, you remain subject to the UCMJ indefinitely.
Retirees from the regular military who are entitled to retirement pay stay under UCMJ jurisdiction for life, unless Congress changes the law or they are taken off the retired list. This is the legal basis behind the Pentagon’s review of Senator Mark Kelly, a retired Navy captain currently serving in Congress.
Most Service Members Don’t Realize This Is Possible Until It Actually Happens
Many see retirement as a clean break; uniforms are turned in, duties are finished, and civilian life begins. Yet, as highlighted by cases like this, this belief does not align with federal law for regular military retirees. People rarely talk about this reality until a case like this happens.
When the Pentagon said it was looking into whether Senator Mark Kelly’s recent public comments could count as misconduct under the UCMJ, many people thought he was no longer under military authority. But the law says otherwise.
Article 2 keeps certain retirees under military jurisdiction, and Kelly is still in that group because he is eligible for retirement pay. Whether he receives it or not, he is eligible, and that’s enough to bind you to the Uniform Code of Military Justice.
This highlights an old law, a lasting legal status, and a public figure who spans both the military and government.
What Triggered the Pentagon’s Review?
On November 18, 2025, Kelly appeared in a public video with several current and former lawmakers who have military and national security experience. In the short message, he said,
“Our laws are clear: You can refuse illegal orders.”
He did not mention any specific order or name anyone. A few days later, the Pentagon announced a full review to see if the comments made by a retired Navy captain, who is eligible for retirement pay, could harm good order and discipline. Defense officials stressed that Kelly is still in the group of retirees who may be subject to the UCMJ.
So far, the review has not led to a recall, charges, or a court-martial. It is still just an administrative step that the Pentagon is allowed to take.
Kelly responded publicly, calling the review an act of intimidation and saying his comments were based on established rules against unlawful orders. That rule is correct: service members must refuse unlawful orders. The legal issue is not the rule itself, but whether a retiree’s public comments about it could count as misconduct under military law.
Why Retirees Are Still Bound to the UCMJ
Article 2(a)(4) of the UCMJ says that regular military retirees who are eligible for retirement pay are still subject to military law. Courts interpret 'entitled' to mean eligible, not just those who are currently getting payments.
This is part of a long-standing policy: regular military retirees can be recalled in emergencies, keep their rank, and remain under military discipline.
Court cases like Dinger and Larrabee confirm the UCMJ's jurisdiction over these retirees.
Although there have been some challenges, mainly about the Fleet Reserve, no appeals court has overturned UCMJ jurisdiction over regular military retirees.
For retired Navy captains like Kelly, being eligible for pay means the UCMJ still applies.
A Rare Collision of Military Law and Public Office
Kelly is not the first retiree to face a military law review, but he is among the most well-known. Most retiree cases involve serious misconduct, not political speech or legal opinions.
Still, the legal relationship stays the same: leaving active duty does not end all ties. Retirees on the retired list retain certain obligations and privileges and may still be subject to military discipline, regardless of their civilian job.
Kelly’s case does not set a new legal standard. It just brings an old legal rule to the public’s attention in a way that rarely happens.
What Service Members and Veterans Should Understand
There are three main points that today’s service members and Veterans should remember:
1. Retirement does not mean the UCMJ disappears.
Regular military retirees who are eligible for retirement pay keep a legal military status.
2. Public speech connected to military obligations carries a unique risk.
Comments directed at service members, especially about orders and following them, can be closely examined even after retirement.
3. Eligibility, not active receipt of pay, is the standard.
A retiree might give up or reduce their payments, but being eligible for pay is what puts them under Article 2(a)(4). These rules have shaped the status of military retirees for decades. Most people just aren’t taught about them or reminded until a high-profile case brings them to light.
Who Does the UCMJ Still Cover After Retirement?
Every retired service member should know this exact breakdown.
Several categories of retirees remain under military law. Here are the main references:
- Regular-Component Retirees (eligible for pay): Covered under Article 2(a)(4), subject indefinitely unless removed. Key Case Law: United States v. Dinger (2018); long-standing judicial precedent.
- Fleet Reserve and Fleet Marine Corps Reserve: Covered under Article 2(a)(6), subject to 30 years of service. Key Case Law: Larrabee v. Del Toro (2022); Begani (2019) noted concerns but was superseded.
- Reserve Component Retirees (under age 60): Limited jurisdiction; covered if hospitalized or recalled for trial.
- When retirees are recalled for court-martial, full jurisdiction applies during active duty.
Regular military retirees eligible for pay stay under the UCMJ, even if they give up payments.
A Statute Hiding in Plain Sight
Whether this review ends quietly or becomes a major case, one thing is clear: the UCMJ does not end for every retiree. Senator Mark Kelly’s situation has brought attention to a long-standing law that most people rarely see.
The key takeaway: For regular military retirees eligible for retirement pay, military accountability under the UCMJ never fully ends. This is established by law and now highlighted by Kelly’s example.
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Veteran & Senior Contributor, Military News
BY NATALIE OLIVERIO
Navy Veteran
Natalie Oliverio is a Navy Veteran, journalist, and entrepreneur whose reporting brings clarity, compassion, and credibility to stories that matter most to military families. With more than 100 published articles, she has become a trusted voice on defense policy, family life, and issues shaping the...
Credentials
- Navy Veteran
- 100+ published articles
- Veterati Mentor
- Travis Manion Foundation Mentor
- Journalist and entrepreneur
