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U.S. Code as of:
01/19/04
Section 804. Art. 4. Dismissed officer's right to trial by court-martial
(a) If any commissioned officer, dismissed by order of the
President, makes a written application for trial by court-martial,
setting forth, under oath, that he has been wrongfully dismissed,
the President, as soon as practicable, shall convene a general
court-martial to try that officer on the charges on which he was
dismissed. A court-martial so convened has jurisdiction to try the
dismissed officer on those charges, 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 or death, the Secretary concerned shall
substitute for the dismissal ordered by the President a form of
discharge authorized for administrative issue.
(b) If the President fails to convene a general court-martial
within six months from the presentation of an application for trial
under this article, the Secretary concerned shall substitute for
the dismissal ordered by the President a form of discharge
authorized for administrative issue.
(c) If a discharge is substituted for a dismissal under this
article, the President alone may reappoint the officer to such
commissioned grade and with such rank as, in the opinion of the
President, that former officer would have attained had he not been
dismissed. The reappointment of such a former officer shall be
without regard to the existence of a vacancy and shall affect the
promotion status of other officers only insofar as the President
may direct. All time between the dismissal and the reappointment
shall be considered as actual service for all purposes, including
the right to pay and allowances.
(d) If an officer is discharged from any armed force by
administrative action or is dropped from the rolls by order of the
President, he has no right to trial under this article.
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