§804 — Title 10 Armed Forces | U.S. Code

Summary

An officer the President has dismissed can ask for a court-martial by filing a written, sworn request saying the dismissal was wrongful. If that happens, the President must order a general court-martial as soon as possible to try the officer on the same charges. The officer gives up any time-limit defense to those charges. The court can either confirm the dismissal as part of its sentence or, if the officer is found not guilty or the final sentence does not include dismissal or death, the service Secretary must replace the presidential dismissal with an administrative discharge. If the President does not order a court-martial within six months of the request, the service Secretary must substitute an administrative discharge. If an administrative discharge is substituted, the President alone may reappoint the officer to whatever rank he likely would have reached, count the time between dismissal and reappointment as actual service (including pay), and ignore vacancy rules if needed. An officer who was given an administrative discharge or dropped from the rolls by the President has no right to request this kind of court-martial.

Title 10, §804

Armed Forces — Source: USLM XML via OLRC

(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.

Notes & Related Subsidiaries

Historical and Revision Notes

Revised sectionSource (U.S. Code)Source (Statutes at Large) 804(a)804(b)50:554(a).50:554(b).May 5, 1950, ch. 169, § 1 (Art. 4), 64 Stat. 110. 804(c)50:554(c). 804(d)50:554(d). In subsection (a), the word “If” is substituted for the word “When”. The word “commissioned” is inserted before the word “officer”. The word “considered” is substituted for the word “held”. In subsections (a) and (b), the words “Secretary concerned” are substituted for the words “Secretary of the Department”. In subsection (c), the word “If” is substituted for the word “Where”. The words “the authority of” are omitted as surplusage. The words “grade and with such rank” are substituted for the words “rank and precedence”, since a person is appointed to a grade, not to a position of precedence, and the word “rank” is the accepted military word denoting the general idea of precedence. The words “the existence of a” are substituted for the word “position” for clarity. The word “receive” is omitted as surplusage. In subsection (d), the word “If” is substituted for the word “When”. The words “he has no” are substituted for the words “there shall not be a”.

Executive Documents

Delegation of Functions For delegation to Secretary of Homeland Security of certain authority vested in President by this section, see section 2 of Ex. Ord. No. 10637, Sept. 16, 1955, 20 F.R. 7025, as amended, set out as a note under section 301 of Title 3, The President.

§804 Art. 4. Dismissed officer’s right to trial by court-martial

Summary

Title 10, §804

Notes & Related Subsidiaries

Historical and Revision Notes

Executive Documents

Citations & Metadata