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.
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