Any officer of the national guard who has federal recognition removed due to age, as proscribed by federal law, must be placed on the retired list by the governor. Any officer who has served as such under a commission in the military service of this state for a continuous period of eight years may be placed, at the officer's own request, upon the retired list with an advance in grade and withdrawn from active service and command by the governor. A commissioned officer must be withdrawn from active service and placed upon the retired list whenever the officer becomes disabled and incapable of performing the duties of the officer's office. A commissioned officer, upon the recommendation of the officer's commanding officer or of an inspecting officer, must be placed by the governor upon the retired list whenever the officer becomes unfit or incompetent for service and thereby incapable of performing the duties of the officer's office. The governor, however, may not order the retirement of an officer until the provisions of section 37-04-17 have been complied with. Vacancies in the commissioned personnel of the national guard caused by the operation of this section must be filled in the same manner as other vacancies in the commissioned personnel are filled.
37-04-17. Board appointed to determine disability, unfitness, or incompetency of officers - Powers of board - Findings. Before the governor shall make an order placing an officer on the retired list on the ground that such officer is disabled, unfit, or incompetent, the governor shall appoint a board of not less than five commissioned officers, one of whom must be a surgeon, to investigate and report on the matter. Such board shall determine the facts as to the nature and cause of the incapacity of the officer who appears to be disabled, unfit, or incompetent from any cause to perform military
service, and whose case shall be referred to it. Before entering upon the discharge of a member's duties, each member of the board must be sworn to an honest and impartial performance of the person's duties as a member of the board. No officer whose grade or promotion would be affected by the decision of such board in any case that may come before it may participate in the examination or decision in such case. The board has the powers of courts of inquiry and courts-martial, and whenever it finds an officer incapacitated for active service, it shall report such fact to the governor, stating the cause of incapacity, whether from disability, unfitness, or incompetency. If the governor approves the finding of the board, the officer must be placed upon the retired list as provided in this chapter. No officer may be placed upon the retired list by the action of such board without having had a full and fair hearing before the board if, upon due notice, that officer demands it. It is not necessary to refer any case for the action of the board unless the officer designated to be placed upon the retired list, within twenty days after being notified that the officer will be so retired, serves on the adjutant general a notice in writing that the officer demands a hearing and examination before such board.