N.Y. Military Law § 130.4: Discharge of commissioned officers

§ 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.