§ 26-1004 — Dismissed officer's right to trial by court-martial

A. If any commissioned officer, dismissed by order of the governor, makes a written application for trial by court-martial setting forth, under oath, that he has been wrongfully dismissed, the governor, as soon as practicable, shall convene a general court-martial to try that officer on the charges on which he was dismissed. A court-martial so convened has jurisdiction to try the dismissed officer on those charges, and he shall be considered to have waived the right to plead any statute of limitations applicable to any offense with which he is charged. As part of its sentence, the court-martial may adjudge the affirmance of the dismissal, but if the court-martial acquits the accused or if the sentence adjudged, as finally approved or affirmed, does not include dismissal, the adjutant general shall substitute for the dismissal ordered by the governor a form of discharge authorized for administrative issue.

B. If the governor 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 dismissal order by the governor a form of discharge authorized for administrative issue.

C. If a discharge is substituted for a dismissal, only the governor may reappoint the officer to the commissioned grade and with a rank that, in the opinion of the governor, the former officer would have attained had he not been dismissed. The reappointment of such a former officer shall be without regard to the existence of a vacancy and affects the promotion status of other officers only as the governor directs. All time between the dismissal and the reappointment is considered as actual service for all purposes.

D. If an officer is discharged from the national guard by administrative action or is dropped from the rolls by order of the governor, he has no right to trial under this section.