Last year’s case of the so-called Seditious Six – six Democratic lawmakers who published a video urging military service members to ignore “illegal” orders – created a media firestorm. This February, a federal grand jury declined to indict the lawmakers on charges of Seditious Conspiracy, yet the fallout for one of the lawmakers continues.
Seditious Six
Arizona Senator Mark Kelly, the only one of the six to have retired from military service, was formally censured by the War Department as a first step toward potential demotion from his retired rank of Captain and a corresponding reduction in pension. The Pentagon began investigating Kelly soon after the video became public, citing a federal law that allows retired service members to be recalled to active duty on orders of the defense secretary for possible court-martial or other punishment. As of February 2026, a federal court had temporarily blocked the move, ruling that the Pentagon violated Kelly’s First Amendment free speech rights.
To be sure, this is an extraordinarily unique situation and one that most military retirees will never encounter. Yet it remains notable for its broader context – specifically, the underappreciated warning for security clearance applicants who have previously retired from military service.
Cleared Under Federal Law
Federal law does, in fact, extend the Uniform Code of Military Justice (UCMJ) to certain retired service members, usually active-duty veterans entitled to immediate retirement pay and Navy-Marine Corps fleet reservists who retired with 20-30 years of service. The practical impact of this has been seen in an increasing number of recent criminal cases, predominantly those of a sexual nature. Consider, for example, United States v. Bengani (retired Navy Chief Petty Officer arrested by NCIS and court-martialed for communicating with an undercover agent he thought was a 15-year-old girl); United States v. Dinger (Marine Gunnery Sergeant retired for a decade arrested by NCIS and court-martialed on child pornography charges); and Larrabee v. Braithwaite (Marine Staff Sergeant arrested and court-martialed for sexual assault three months after retirement).
This trend appears to reflect a prioritization by the Pentagon of sexual misconduct cases in recent years; however, there are also plenty of non-sexual examples, including cases resulting in administrative discipline and those resulting in significant criminal charges and convictions. “Since 2023, the Pentagon’s new Office of Special Trial Counsel has significantly increased UCMJ prosecutions of military retirees by independently recalling over 100 former service members to active duty for serious crimes, marking a major shift from traditional commander-led decisions …”
Clearing a Clearance
Against that backdrop, imagine applying for a security clearance post-retirement and admitting to (or having discovered during the background investigation) activity that constitutes a serious UCMJ violation. Beyond the initial admission or discovery, investigators’ further digging can open a legal Pandora’s Box for the applicant, including the risk of federal false-statements charges. It’s easy to see the risk here when a background investigation invites scrutiny of issues that may have otherwise faded into obscurity.
I raise this not to dissuade anyone from applying for a security clearance, which can be both a lucrative and fulfilling way to serve one’s country once no longer in uniform. Rather, I think the Kelly case, and the broader trend it exemplifies for military retirees, highlights the importance of competent legal counsel at the outset – before submitting the security clearance application, and certainly before speaking with any investigator. I saw plenty of people needlessly worry about legal exposure during the decade I spent in law practice. Yet I also saw people who showed a startling lack of self-awareness about their legal exposure, and I had to gently counsel them to explore careers that didn’t invite government scrutiny of their activities. Most military retirees will fall into the former category; but when in doubt, talk to an attorney before rolling the dice.
This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied. Laws and government policies are subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation.
