01/06/2026
After publicly threatening to court-martial retired Navy captain and current U.S. senator, Mark Kelly, the DoD has now taken initial action to reduce Captain Kelly's retired grade under 10 U.S.C. § 1370, which would, among other things, have a significant impact on his retired pay.
Officers are retired in the highest permanent grade they have "served on active duty satisfactorily." The statute vests considerable discretion in the secretary to make retired-grade determinations. Technically, the secretary can reduce an officer by multiple grades. Navy instruction does provide some specific consideration factors that would seem to limit the secretary’s discretion, though they are still arguably non-exhaustive. See SECNAVINST 1920.6D, Encl. (9), para. 2(b).
Generally, absent any evidence of substandard performance, officers are retired in the grade held upon retirement, as was almost certainly the case when Captain Kelly retired years ago.
Despite having a finality clause, section 1370 does allow for reopening grade determinations in instances of mistake, fraud, or new evidence that relates to the determination at the time. However, the "applicable Secretary" may determine "pursuant to regulations prescribed by the Secretary of Defense" to reopen a grade determination if they determine that "good cause exists." § 1370(f)(2)(D).
All regulatory guidance on these matters is geared toward evaluating an officer’s conduct while he was still serving. What the DoD is doing here is extremely rare, if not entirely unprecedented. The SecNav would be evaluating whether Captain Kelly served satisfactorily on active duty based on alleged conduct that occurred in December 2025—well after his retirement. Presumably, if the SecNav reduces Captain Kelly’s retired grade, it would be relying on the broad language of section 1370’s reopening clause and the overall discretionary nature of grade determinations.
Theoretically, grade determinations are reviewable in federal court. The U.S. Court of Federal Claims has held that it has Tucker Act jurisdiction over grade determination challenges. But, if this does lead to litigation, I would expect that the Government would argue that such claims are nonjusticiable given the discretionary nature of the statute and the potential for judicial intrusion upon professional military judgments. A district court may also have jurisdiction under the APA but that would likely require exhaustion before the Board for Correction of Naval Records (BCNR), a panel of civilians over which the SecNav retains significant discretionary authority. It may take a different administration to undo any demotion the SecNav might direct.
Regardless of where you might align politically, Captain Kelly’s case portends a troubling trend of penalizing retired military members for alleged conduct that bears no relation to their military service.
https://www.linkedin.com/posts/brian-schenk-4590521_hegseth-censures-sen-mark-kelly-over-video-activity-7414026417447026688-oFcd?utm_medium=ios_app&rcm=ACoAAAAvNQUBZW2Ks3Ub3J68_VbWDIyF-bqRCRk&utm_source=social_share_send&utm_campaign=c
After publicly threatening to court-martial retired Navy captain and current U.S. senator, Mark Kelly, the DoD has now taken initial action to reduce Captain Kelly's retired grade under 10 U.S.C. § 1370, which would, among other things, have a significant impact on his retired pay. Officers are ret...
