§ 130.4 — Discharge of commissioned officers

New York § 130.4

• Jurisdiction: New York
• Law MIL: Military
• Part 1: General Provisions
• Art. 7: Code of Military Justice

Text

§ 130.4. Discharge of commissioned officers. (a) When any officer,\ndischarged by order of the governor for absence without leave for a\nperiod of three months or more pursuant to section seventy-eight of this\nchapter, makes a written application for trial by court-martial, setting\nforth under oath that he has been wrongfully discharged, the adjutant\ngeneral, as soon as practicable, shall convene a general court-martial\nto try such officer on the charges on which he was discharged. A\ncourt-martial so convened shall have jurisdiction to try the discharged\nofficer on such charges, and he shall be held to have waived the right\nto plead any statute of limitations applicable to the offense with which\nhe is charged. The court-martial may, as part of its sentence, adjudge\nthe affirmance of the discharge, but if the court-martial acquits the\naccused or if the sentence adjudged, as finally approved or affirmed,\ndoes not include discharge, the adjutant general shall substitute for\nthe discharge ordered by the governor a form of discharge authorized for\nadministrative issuance.\n (b) If the adjutant general fails to convene a general court-martial\nwithin six months from the presentation of an application for trial\nunder this article, the adjutant general shall substitute for the\ndischarge ordered by the governor a form of discharge authorized for\nadministrative issuance.\n (c) Where an administrative discharge is substituted for a dismissal\nor discharge under the authority of this article, the governor alone may\nreappoint the officer to such commissioned rank and precedence as in the\nopinion of the governor such former officer would have attained had he\nnot been dismissed or discharged. The reappointment of such a former\nofficer may be made provided a position vacancy is available under\napplicable tables of organization. All time between the dismissal or\ndischarge and such reappointment shall be considered as service for all\npurposes.\n (d) When an officer is discharged from the organized militia by\nadministrative action or by board proceedings pursuant to sections\nseventy-five and seventy-six of this chapter or is dropped from the\nrolls by the senate on the recommendation of the governor pursuant to\nsection eighty of this chapter, there shall not be a right to trial\nunder this section.\n