U.S. Code
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Title 10
» Subtitle Subtitle A— General Military Law › Part PART II— PERSONNEL › Chapter CHAPTER 47— UNIFORM CODE OF MILITARY JUSTICE › Subchapter SUBCHAPTER I— GENERAL PROVISIONS
10 U.S.C. § 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.(Aug. 10, 1956, ch. 1041, 70A Stat. 38.)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 DocumentsDelegation of FunctionsFor 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.
Notes of Decisions
United States v. Scott, 21 M.J. 345 (1986).
· cites it 2× “§ 933 , but Article 4, 10 U.S.C. § 804 , as well. 2 Article 4 of the Uniform Code recognizes an officer’s right to be tried by court-martial before he can be dismissed from the service by the President.”
United States v. Ohrt, 28 M.J. 301 (1989).
“4, UCMJ, 10 USC § 804 , which gives a dismissed officer the right to demand trial by court-martial; otherwise, only an administrative discharge may issue.”
United States v. Clardy, 13 M.J. 308 (1982).
“Article 4(a) of the Code, 10 U.S.C. § 804 (a) — a provision with origins decades before 10 — also has some relevance in determining Congressional intent when the Code was enacted.”
Goldsmith v. Clinton, 48 M.J. 84 (C.A.A.F. 1998).
“Moreover, in terms of the context in which the recent provision for dropping from the rolls appears and the reference to dropping from the rolls in Article 4(d), UCMJ, 10 USC § 804 (d), there is an associated stigma very akin to that involved in “punishment.”
United States v. Meadows, 13 M.J. 165 (1982).
“Although an accused cannot create court-martial jurisdiction by consent, under some circumstances his actions may have the effect of establishing or confirming court-martial jurisdiction.”
United States v. Briscoe, 13 C.M.A. 510 (1963).
“See Articles 4,19, 20, 50, 58, 65, 66, 71-75 of the Uniform Code, 10 USC §§ 804 , 819, 820, 850, 858, 865, 866, 871-875, respectively.”
Rooney v. Sec'y of the Army, 293 F. Supp. 2d 111 (D.D.C. 2003).
“See 10 U.S.C. § 804 . Its failure to do so in the case of fraudulently obtained discharges bolsters the Army’s reading of the statutes.”
Chambers v. Russell, 192 F. Supp. 425 (N.D. Cal. 1961).
“10 U.S.C. § 804 . We believe that court martial hearing for the purpose of discharging a retired member is also reasonably related to the Navy’s legitimate interest, based upon its concern for discipline, in the fitness and qualifications of its retired officers.”
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