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  40.010.  Dismissal of commissioned officer, by governor — right to trial, procedure — discharge substituted for dismissal, when — reappointment — no right to trial, when. — 1.  Any commissioned officer subject to sections 40.005 to 40.490, dismissed by order of the governor, may make a written application for trial by court-martial setting forth, under oath, that he has been wrongfully dismissed.  In such event, the governor, as soon as practicable, shall convene a general court-martial to try such officer on the charges on which he was dismissed.  A court-martial so convened shall have jurisdiction to try the dismissed officer on such charge, 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.  The court-martial may, as part of its sentence, 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.

  2.  If the governor fails to convene a general court-martial within six months from the presentation of an application for trial under this section, the adjutant general shall substitute for the dismissal ordered by the governor a form of discharge authorized for administrative issue.

  3.  If a discharge is substituted for a dismissal under sections 40.005 to 40.490, the governor alone may reappoint the officer to the grade and rank as that former officer would have attained had the officer not been dismissed.  The reappointment of such a former officer may be made only if a vacancy is available under applicable tables of organization.  All the time between the dismissal and the reappointment shall be considered as actual service for all state purposes.

  4.  If an officer is discharged from the state military forces by administrative action or by board proceedings under law or is dropped from the rolls by order of the governor, the officer has no right to trial under this section.


(L. 1984 H.B. 1035 § 4)

< end of effective 28 Aug 1984 >

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