Legislation
SECTION 130.4
Discharge of commissioned officers
Military (MIL) CHAPTER 36, ARTICLE 7, PART 1
§ 130.4. Discharge of commissioned officers. (a) When any officer,
discharged by order of the governor for absence without leave for a
period of three months or more pursuant to section seventy-eight of this
chapter, makes a written application for trial by court-martial, setting
forth under oath that he has been wrongfully discharged, the adjutant
general, as soon as practicable, shall convene a general court-martial
to try such officer on the charges on which he was discharged. A
court-martial so convened shall have jurisdiction to try the discharged
officer on such charges, and he shall be held to have waived the right
to plead any statute of limitations applicable to the offense with which
he is charged. The court-martial may, as part of its sentence, adjudge
the affirmance of the discharge, but if the court-martial acquits the
accused or if the sentence adjudged, as finally approved or affirmed,
does not include discharge, the adjutant general shall substitute for
the discharge ordered by the governor a form of discharge authorized for
administrative issuance.
(b) If the adjutant general fails to convene a general court-martial
within six months from the presentation of an application for trial
under this article, the adjutant general shall substitute for the
discharge ordered by the governor a form of discharge authorized for
administrative issuance.
(c) Where an administrative discharge is substituted for a dismissal
or discharge under the authority of this article, the governor alone may
reappoint the officer to such commissioned rank and precedence as in the
opinion of the governor such former officer would have attained had he
not been dismissed or discharged. The reappointment of such a former
officer may be made provided a position vacancy is available under
applicable tables of organization. All time between the dismissal or
discharge and such reappointment shall be considered as service for all
purposes.
(d) When an officer is discharged from the organized militia by
administrative action or by board proceedings pursuant to sections
seventy-five and seventy-six of this chapter or is dropped from the
rolls by the senate on the recommendation of the governor pursuant to
section eighty of this chapter, there shall not be a right to trial
under this section.
discharged by order of the governor for absence without leave for a
period of three months or more pursuant to section seventy-eight of this
chapter, makes a written application for trial by court-martial, setting
forth under oath that he has been wrongfully discharged, the adjutant
general, as soon as practicable, shall convene a general court-martial
to try such officer on the charges on which he was discharged. A
court-martial so convened shall have jurisdiction to try the discharged
officer on such charges, and he shall be held to have waived the right
to plead any statute of limitations applicable to the offense with which
he is charged. The court-martial may, as part of its sentence, adjudge
the affirmance of the discharge, but if the court-martial acquits the
accused or if the sentence adjudged, as finally approved or affirmed,
does not include discharge, the adjutant general shall substitute for
the discharge ordered by the governor a form of discharge authorized for
administrative issuance.
(b) If the adjutant general fails to convene a general court-martial
within six months from the presentation of an application for trial
under this article, the adjutant general shall substitute for the
discharge ordered by the governor a form of discharge authorized for
administrative issuance.
(c) Where an administrative discharge is substituted for a dismissal
or discharge under the authority of this article, the governor alone may
reappoint the officer to such commissioned rank and precedence as in the
opinion of the governor such former officer would have attained had he
not been dismissed or discharged. The reappointment of such a former
officer may be made provided a position vacancy is available under
applicable tables of organization. All time between the dismissal or
discharge and such reappointment shall be considered as service for all
purposes.
(d) When an officer is discharged from the organized militia by
administrative action or by board proceedings pursuant to sections
seventy-five and seventy-six of this chapter or is dropped from the
rolls by the senate on the recommendation of the governor pursuant to
section eighty of this chapter, there shall not be a right to trial
under this section.