N.Y.
Military Law Section 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 § 78 (Absence without leave)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 § 80 (Tenure of commissioned officers)section eighty of this chapter, there shall not be a right to trial under this section.
Source:
Section 130.4 — Discharge of commissioned officers, https://www.nysenate.gov/legislation/laws/MIL/130.4 (updated Sep. 22, 2014; accessed Oct. 26, 2024).
