55-405.

Officer dismissed by order of Governor; trial by court-martial; convening a court-martial; powers; exceptions.

(1) When any 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 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 charges, and he shall be held 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 the dismissal, the Adjutant General shall substitute for the dismissal ordered by the Governor a form of discharge authorized for administrative issuance.

(2) If the Governor fails to convene a 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 issuance.

(3) Where a discharge is substituted for a dismissal under the authority of this section, 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. The reappointment of such a former officer shall be without regard to position vacancy and shall affect the promotion status of other officers only insofar as the Governor may direct. All time between the dismissal and such reappointment shall be considered as actual service for all purposes, including the right to receive pay and allowance.

(4) When an officer is discharged from any armed force by administrative action or is dropped from the rolls by order of the Governor, there shall not be a right to trial under this section.