Saint, I thought the code read differently. And I thought there was a more specific code. So I did an AI search.
It’s not 100% applicable to this situation but close. We do know from our own experiences that if Kelly made that video while on active duty there would be consequences. So the legal argument is while drawing pay (to be in reserve). Does the 1st amendment for retirees outweigh military order. I think it does. And would win in court.
“ Article 88 for "contemptuous words" against senior government officials, or other general articles like Article 134 (general article) if their actions are deemed to undermine good order and discipline in the armed forces.
UCMJ Jurisdiction Over Retired Personnel
Continuing Status: Retired officers, particularly those who retired from a regular component and are receiving retired pay, are considered to be in a "standby" status and are technically still "in" the military, making them subject to military law. Their retired pay is viewed as a form of retainer for potential recall to active duty.
Recall to Active Duty: For a retired officer to face a court-martial, they generally have to be recalled to active duty. This is a rare occurrence, typically reserved for serious offenses, and military policy often requires "extraordinary circumstances" for post-retirement conduct cases.
High Bar for Political Speech: While Article 88 exists, prosecution of a retiree for political speech is extremely rare. The only known historical case resulted in an acquittal nearly 100 years ago. Courts and military policy generally grant retirees significant leeway in political expression, emphasizing the need to preserve their right to free speech as much as possible.
Federal Law: Beyond the UCMJ, federal law, specifically 18 U.S.C. § 2387, prohibits actions intended to interfere with the loyalty, morale, or discipline of the armed forces. This is a civilian statute, and violations would be addressed through the civilian justice system.
Regarding the Senators' Video
The situation involving the six senators (one of whom is a retired Navy Captain, Mark Kelly) and their video has prompted a "thorough review" by the Department of Defense to determine if any violations of the UCMJ or federal law occurred.
Congressional Status: As current U.S. Senators, these individuals hold elected office and are performing a legislative function. The UCMJ does not apply to members of Congress in their official capacity as elected civilians.
Dual Status (for Kelly): Senator Kelly's status as both an elected official and a retired military officer creates a complex legal area. The core issue being examined is whether his actions, even if viewed as political speech, could be considered "stirring up the military against the president" (Commander-in-Chief) in a manner that undermines good order and discipline, potentially falling under the purview of UCMJ or related federal laws.
In summary, while a retired military officer technically remains subject to the UCMJ, especially if receiving retired pay, actually prosecuting one for political statements or "stirring up the military" is an extremely rare and legally complex scenario, particularly when the individual is a sitting U.S. Senator. ”
Even if Capt. Kelly could be prosecuted under the UCMJ it’s not worth the squeeze in the long run. The smart play would to be magnanimous and show you could have prosecuted him but let him off. “For the good of the nation”
Prosecuting Kelly elevates him on the left and gives him more Gravitas. Better to treat your detractors as a small nuisance or irritant than grant them power over you.
But we know Trump sometimes steps on his own Dick.
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