The New York Times and Wall Street Journal reported this week that Secretary of Defense Pete Hegseth personally removed up to nine officers—including three women and two Black men—from the Navy’s list of officers selected for promotion to rear admiral (lower half). And as this article was in production, the Wall Street Journal reported that Hegseth blocked the promotion of nine senior Air Force officers, and delayed the promotion of dozens more. I will focus the weight of my analysis on the law and procedures involving the Navy, which I handled as part of my portfolio on Personnel Law in the U.S. Navy Judge Advocate General’s Corps when I worked at the Pentagon.
These Naval officers had already been selected by a lawfully constituted selection board of senior admirals through one of the most competitive processes in the U.S. military. The removals raise serious legal questions: Did Secretary Hegseth comply with the law and his own delegated authority from the President when he removed these individuals?
While there are more questions than answers swirling around the legal basis underpinning the removal, Hegseth’s actions undermine the Selection Board process and send an unmistakable signal that support for diversity initiatives, if not the diversity of the candidates themselves, will carry professional consequences. There are three initial points worth making.
First, removal of an officer selected for promotion is fundamentally different from the firing or reassigning of officers that have already been promoted. The Secretary of Defense’s removal authority is constrained by both statute and the Pentagon’s own governing instructions.
Second, Congress has entrusted the promotion selection board process largely to the respective Secretaries of the Military Departments, not the Secretary of Defense. And the Acting Secretary of the Navy had already certified that these officers are qualified.
Third, the decision to remove the nine officers likely constitutes an agency action within the meaning of the Administrative Procedure Act (APA). This opens the door for potential judicial review of Hegseth’s decision or other administrative remedies. To be sure, courts often defer to the military when making personnel decisions. Nevertheless, the removal of names from a promotion list likely constitutes agency action reviewable under the APA when plaintiffs allege that statutory procedures were ignored or officials acted beyond their delegated authority.
How Are Navy Promotion Boards Organized?
Navy promotion boards and appointments are governed by the Constitution, federal statutes, and Navy and DOD instructions. The appointment of officers to the next rank is a time-honored process spelled out in the Constitution’s Appointment Clause. The President possesses the constitutional power to appoint officers to the next rank, subject to the Senate’s advice and consent. In an effort to create stable and predictable military career paths, Congress passed the Defense Officer Personnel Management Act (DOPMA) in 1980, setting up formal promotion gates for when officers are in-zone for promotion. Congress followed up in 1986 with the passage of the Goldwater-Nichols Act, which provided more detail on officer qualifications as part of the promotion criteria.
For flag officer promotions in the Navy, Congress directs the Secretary of the Navy to appoint the members of the promotion board and to convene selection boards. Each promotion board is governed by two key documents—a Convening Order and a Precept – which establish the key criteria for promotion and the standard that the Selection Board must apply. The Convening Order establishes a “best and fully qualified” standard for promotion to the next rank, and includes equal opportunity guidance to the Selection Board.
While the Precept (which includes Board membership) and Convening Orders for the O-7 promotion board have not yet been released, Selection Boards include equal opportunity language to ensure that the Board is applying the same Selection Board standard for all officers before the Board. This language is specifically included to “ensure that officers of every race, religion, color, sex (including pregnancy), sexual orientation, and national origin are given fair and equitable consideration.” While the membership of the one-star admiral board in question has also not been released, by statute Selection Board members “shall represent the diverse population of the armed force concerned to the extent practicable.”
The currently available facts do not conclusively or otherwise establish discriminatory intent, but the demographic makeup of those removed and Hegseth’s prior public statements would become relevant evidence in any litigation challenging the removals. For example, Hegseth has publicly made several statements disparaging diversity in the military. Five days before then-President-Elect Trump announced he would nominate Hegseth for the post, Hegseth stated, “We should not have women in combat roles. It hasn’t made us more effective.” In April 2025, Hegseth ordered a review of all military equal opportunity programs, stating that the systems have been “weaponized” and used “in bad faith to retaliate against superiors or peers.” What’s more, Senator Jack Reed of Rhode Island recently pointed out that nearly 60 percent of the senior officers that Hegseth has fired are female or Black even though women and minorities currently account for just 20 percent of all generals and admirals.
The Selection Board equal opportunity language is directly relevant here: if Hegseth’s removals were motivated by the race or gender of the officers involved, those actions would violate the very standard the board was instructed to apply. And the Supreme Court has shown a willingness to apply the Constitution’s Equal Protection Clause to the military. For example, Frontiero v. Richardson established that military personnel discrimination on the basis of sex is subject to searching judicial review.
What Happens During the Selection Board?
It is hard to overstate the seriousness with which each military service treats each Selection Board. Each Member reads the Precept and Convening Order, and each member of a selection board swears that he or she will perform his or her duties as a member of the board without prejudice or partiality. To ensure frank and open discussion of the merits of each officer, Congress mandates that the proceedings of the board are not disclosed. For the Navy admiral board, membership is governed by 10 U.S.C. § 612, which requires that all board members be officers of the same armed force serving in a grade higher than the officers under consideration. Navy flag officer selection boards are among the most tightly controlled and competitive proceedings in the federal government. Congress has taken care to design a system to insulate promotion decisions from political influence.
The stakes could not be higher. Only one in twenty officers is selected for promotion to admiral – the culmination of decades of military service marked by enormous personal sacrifice and hardship, including extended deployments away from family, combat tours, and the physical and mental demands of a career in uniform. Each officer who reaches this milestone has already survived one of the most competitive professional gauntlets in the federal government. Each deserves a fair and honest assessment of their fitness for the next rank. This assessment must be grounded in merit, governed by law, and insulated from the kind of political interference that the Selection Board system was specifically designed to prevent.
What Happens After the Selection Board Selects Officers for Promotion?
We wait. Once the board completes its work, the promotion list does not become public immediately. The promotion list works its way through a series of legal reviews to ensure that the selection board was properly constituted, that each member was qualified to serve, and that no disqualifying adverse information has emerged since the board convened. Under the governing Pentagon instruction, the Secretary of the Navy must certify that each officer on the list is mentally, physically, morally, and professionally qualified for promotion before the list is forwarded to the Secretary of Defense and ultimately transmitted to the President for nomination and to the Senate for advice and consent under the Appointments Clause. The list for this cycle was released publicly on May 22, 2026—but only after Hegseth had already intervened to remove nine names. The result is a slate of 22 nominees, none of whom are women.
Can Secretary Hegseth Lawfully Remove These Officers?
Not necessarily. Right now there are more questions than answers governing whether Hegseth lawfully used a delegated authority and whether the removals themselves complied with applicable administrative law and equal protection law.
First, under 10 U.S.C. § 629, Congress empowers the President, not the Secretary of Defense, with removal authority. The statute does not itself spell out specific criteria, though the Pentagon’s own implementing instructions contemplate somewhat narrow grounds. By a 1982 executive order, the President has delegated removal authority to the Secretary of Defense, but only for grades below flag or general officer (colonel or captain or below). For the one-star admiral promotions at issue here, the President has apparently not delegated removal authority to Hegseth.
So a fundamental question is not just whether Secretary Hegseth had a sound legal basis to remove the officers, but whether he possessed the authority to do so at all. Absent a presidential directive, approval, or subsequent ratification, an action taken beyond the scope of delegated authority may be legally invalid regardless of its substantive justification.
This raises the question—did Hegseth recommend to the president that the selected officers be removed, or did he remove them unilaterally, contrary to the executive order and statute? If Hegseth removed these names without presidential direction or further delegation, that removal may be void on its face. Pursuant to 10 U.S.C. § 629, the President is required to “notify the congressional defense committees not later than 30 days after removing the name of an officer from such list for any reason other than misconduct.” The U.S. Senate Committee on Armed Services should closely scrutinize the removal justification to ensure that it complies with governing statutes and regulations.
Second, while the Secretary of Defense has enormous leeway in firing officers from existing positions—an authority Hegseth has exercised with extraordinary frequency—that authority does not necessarily extend without limit to removing officers from a promotion list. Indeed, removal from a promotion list is a different matter governed by different rules entirely. Under the Pentagon’s own regulations, the contemplated grounds for withholding or removing an officer appear narrow: a procedural deficiency in the board itself, the emergence of new adverse information not previously before the board, or a determination that the officer is no longer mentally, physically, morally, or professionally qualified for promotion.
The governing Pentagon instruction focuses primarily on how to handle “adverse and reportable information” or the opening of a new investigation against an officer. The classic example is when a new DoD IG investigation has been opened — a detail that may not have been known to the Selection Board when it convened. Pentagon instructions provide great detail on how that information should be handled, balancing the needs of the military service with the due process rights of the affected officer. Of note, adverse information does not include minor infractions such as speeding tickets. It does encompass information “derogatory, unfavorable, or of a nature that reflects clearly unacceptable conduct, integrity, or judgment on the part of the individual.” Furthermore, adverse information does not include information that is over 10 years old.
According to the New York Times, one particularly accomplished female naval officer (a surface warfare officer who had completed the prestigious nuclear power school) was removed from the admiral list. Her wrongdoing? She served as a “diversity liaison officer” 20 years ago to help the Navy recruit women and minorities. Such efforts helped lead to the remarkable success of the Army’s all-female Cultural Support Team in Afghanistan, which provided valuable intelligence to American special operations forces who were prohibited from speaking to Afghan females. The success of this initiative was trumpeted by Hegseth’s former employer (Fox News) and helped open the door for women to serve in combat roles. Under any coherent reading of DoDI 1320.04, diversity recruitment two decades ago is not adverse information. Hegseth appears to be treating it as disqualifying anyway — while the instruction’s actual adverse information standard seems to go unapplied.
If sued, the DOD will counter that the regulations provide a non-exhaustive list, and 10 U.S.C. § 629 does not specify the legal grounds for the removal. Regardless, Hegseth is required to notify both Congress and the affected officers of their removal from the promotion list—requirements codified in statute and Navy instruction. In doing so, he should clarify the specific legal basis for the removal action and the specific legal authority to take such action.
Are Legal Remedies Available for the Affected Officers?
Yes. The Department of Defense is an agency within the meaning of the Administrative Procedure Act, and the removal of the officer’s name likely constitutes an agency action within the meaning of administrative law. The government may argue that promotion-list removals are inseparable from the President’s constitutional appointments authority and therefore not subject to ordinary APA review. But where plaintiffs allege that executive officials acted beyond statutory or delegated authority, courts have been willing to examine the legality of the process employed.
The removed officers appear to have a strong case that the decision to remove their names was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” under the APA. Beyond the statutory requirements, the governing instructions and longstanding agency practice constitute the administrative record, which cannot be ignored. In addition, the officers may have equal protection and substantive due process claims discussed earlier. Troublingly, neither the Pentagon nor the White House has offered any explanation grounded in the regulatory criteria, and no misconduct allegations have been made against the removed officers.
What’s more, the Secretary of the Navy has already certified that officers identified in personnel actions are mentally, physically, morally, and professionally qualified for promotion or appointment. What about the administrative record has changed since that certification? The notion that something significant has changed to countermand the Secretary of the Navy for so many officers strains credulity. The Navy’s experience is consistent with a troubling pattern of undermining the judgment of each Service Secretary. Hegseth and Army Secretary Dan Driscoll were in loggerheads over an analogous promotion issue last month.
Finally, Congress has already established a parallel administrative remedy that is independent of the Secretary of Defense. The Board for Correction of Naval Records (BCNR) has statutory authority under 10 U.S.C. § 1552 to change any military record when necessary to correct an error or injustice. A removed officer could petition the BCNR to restore their name to the promotion list, and the BCNR could recommend corrective action to the Secretary of the Navy. Federal case law has upheld the broad authority of these administrative correction boards to effectuate lawful promotions to “correct an error or remove an injustice.” Given that the Secretary of the Navy had already certified these officers as qualified for promotion, any such petition would rest on a strong foundation.
Where Do We Go From Here?
Congress and the military departments have constructed the selection board system with meticulous care precisely to insulate promotion decisions from political influence. The system requires sworn board members, written precepts, independent legal review, service secretary certification, and Senate confirmation. Hegseth’s attempt to remove nine officers raises serious questions about whether he is lawfully and legitimately exercising his delegated authority and whether the removals themselves complied with the Equal Protection Clause. The pattern here—Army officers in March, then Air Force officers, and now Navy officers—suggests a systematic effort that raises concerns that promotion decisions are becoming increasingly influenced by political considerations.
Congress should demand a full accounting. The Senate Armed Services Committee has the authority to require the administration to identify, on the record, the specific regulatory basis for each removal. Congress should seek clarity not only about the reasons for the removals, but also about who actually made the decision. Alternatively, Congress could amend 10 U.S.C. § 629 to specify the legal standard for removal of selected officers while making clear that this authority may not be further delegated by the President. Congress is in the middle of marking up the Fiscal Year 2027 defense spending bill, thus providing a legislative vehicle to amend the removal authority. If the removals originated with the Secretary of Defense, the administration should identify the source of legal authority permitting him to act; if the decision was made by the President, the administration should say so explicitly.
The removed officers have viable legal paths forward through the courts or the BCNR. A reviewing court may ultimately decide the question of whether Hegseth’s removals were arbitrary and capricious under the APA, or motivated by impermissible considerations of race or sex. Regardless of how and whether litigation unfolds, the promotion board system has for decades been one of the military’s most reliable mechanisms for keeping politics out of the officer corps. If that system can be overridden by a Secretary of Defense invoking no stated legal authority, the entire system is materially undermined.
Conclusion
The legal questions raised by these removals ultimately extend far beyond the careers of the officers involved. At stake is whether Congress’s carefully constructed promotion system can continue to serve its core purpose: ensuring that advancement to the military’s highest ranks is based on professional merit and lawful process rather than shifting political preferences. If the governing rules can be disregarded without explanation, confidence in the integrity and independence of the officer promotion system will inevitably and substantially erode.
