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.
Terms Used In N.Y. Military Law 130.4
- Affirmed: In the practice of the appellate courts, the decree or order is declared valid and will stand as rendered in the lower court.
- Dismissal: The dropping of a case by the judge without further consideration or hearing. Source:
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Oath: A promise to tell the truth.
- Organized militia: means the organized militia, the composition of which is stated in section two of this chapter;
(2) "Officer" means a commissioned officer including a commissioned warrant officer;
(3) "Superior officer" means an officer superior in rank or command;
(4) "Enlisted person" means any person who is serving in an enlisted grade in any force of the organized militia;
(5) "Active state duty" means full time military duty in the active service of the state under an order of the governor issued pursuant to sections six or seven of this chapter and while going to and returning from such duty;
(6) "Duty status other than active state duty" means any one of the types of duty described in section forty-six of this chapter and while going to and returning from such duty;
(7) "Military court" means a court-martial, a court of inquiry, a provost court;
(8) "Military judge" means an official of a general court-martial detailed in accordance with section 130. See N.Y. Military Law 130.1 - Statute of limitations: A law that sets the time within which parties must take action to enforce their rights.
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
(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.