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Title 10, Armed ForcesRelease 119-102

§804 Art. 4. Dismissed Officer’s Right to Trial by Court-martial

Title 10 › Subtitle A — General Military Law › PART II — PERSONNEL › CHAPTER 47 — UNIFORM CODE OF MILITARY JUSTICE › SUBCHAPTER I — GENERAL PROVISIONS › § 804

Last updated Aug 21, 2026|Official source

Summary

A commissioned officer the President dismisses can file a written, sworn request to be tried by a general court-martial, saying the dismissal was wrongful. The President must promptly hold that court to try the same charges. By asking for the trial, the officer gives up any statute-of-limitations defense. The court may leave the dismissal in its sentence, but if the officer is acquitted or the final sentence does not include dismissal or death, the Secretary will replace the dismissal with an administrative discharge. If the President does not hold the court within six months, the Secretary will replace the dismissal with an administrative discharge. After that replacement, the President alone may reappoint the officer to whatever grade and rank he believes the officer would have reached, even without a vacancy, and may decide how this affects others’ promotions. Time between dismissal and reappointment counts as service for pay and allowances. Officers discharged administratively or dropped from the rolls by the President have no right to this trial.

Full Legal Text

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.

Legislative History

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.

Reference

Citations & Metadata

Citation

10 U.S.C. § 804

Title 10, Armed Forces

Last Updated

Aug 21, 2026

Release point: 119-102