Military operations have been going on in Ukraine for almost eight hundred days. The military defends us for the third year in a row. While the Armed Forces of Ukraine protect us, it happens that very often servicemen themselves need protection and help. How to protect the rights of military personnel upon discharge from military service? For comments and recommendations, we turned to the “Repeshko and Partners” Bar Association.
The specificity of military service is that every action of a soldier must comply with the statute and the commander’s order. Currently, the issue of dismissal from military service is determined by Art. 26 of the Law of Ukraine “On Military Duty and Military Service”. In particular, according to this article, an exclusive list of family and respectable circumstances is defined, under which dismissal from military service during martial law is possible. In this case, one should be guided by the new version of this law, which will enter into force on May 18, 2024.
Military servicemen are released from military service due to family circumstances or for other valid reasons on the following grounds:
- female servicemen – in connection with pregnancy;
- female servicemen who are on leave to take care of a child until the child reaches the age of three, as well as if the child needs home care for the duration specified in the medical opinion, but no longer than until the child reaches the age of six;
- wife, if both spouses are in military service and have a child (children) under the age of 18;
- the military serviceman has three or more children under the age of 18, except for those who have alimony arrears, the total amount of which exceeds the amount of payments for three months;
- military personnel who have a child (children) under the age of 18, if the second parent of such child (children) is dead, deprived of parental rights, recognized as missing or unaccountably absent, declared dead, serving a sentence in places of deprivation of liberty, as well as when a person independently brings up and maintains a child according to a court decision or an entry about the father of such a child in the Birth Registration Book, made on the basis of Article 135 of the Family Code of Ukraine;
- servicemen who are adoptive parents who have a child(ren) in their care who was/were an orphan child(ren) or a child(ren) deprived of parental care until the moment of adoption. under the age of 18, guardians, custodians, adoptive parents, foster parents, foster carers, who are dependent on an orphan child (orphan children) or a child (children) deprived of parental care, under the age of 18;
- raising a child with a disability under the age of 18 by a serviceman, in the absence of other persons who are obliged to raise him;
- maintenance by a serviceman of an adult child who is a person with a disability of group I or II;
- education by a military serviceman of a child suffering from severe perinatal damage to the nervous system, severe congenital malformations, rare orphan diseases, oncological, oncohematological diseases, cerebral palsy, severe mental disorders, diabetes mellitus type I (insulin-dependent), acute or chronic kidney diseases of the IV degree, of a child who received a serious injury, needs an organ transplant, needs palliative care, which is confirmed by a document issued by the medical and advisory commission of a health care institution in the order and in the form established by the central executive body, which ensures the formation and implementation of state policy in the field health care, but which is not disabled, provided that such persons do not have other able-bodied persons obliged by law to support them;
- the need to provide constant care for a spouse (husband) from among persons with disabilities of group I or II;
- the need to care for a wife (husband) from among persons with a disability of the III group, established as a result of an oncological disease, the absence of limbs (limbs), hands (hands), feet (feet), one of the paired organs, or in the presence of wife (husband) from among persons with disabilities of the III group of oncological disease, mental disorder, cerebral palsy or other paralytic syndromes;
- the need to provide constant care for one of his parents or the parents of his wife (husband), who is a person with a disability of group I or II, provided that there are no other family members of the first or second degree of kinship of such a person or if other family members of the first or the second degree of kinship themselves need constant care according to the opinion of the medical and social expert commission or the medical and advisory commission of the health care institution;
- the need to provide constant care for a family member of the second degree of kinship who is a person with a disability of group I or II, provided that there are no other family members of the first and second degree of kinship of such a person or if other family members of the first and second degree of kinship they themselves need constant care according to the opinion of the medical and social expert commission or the medical and advisory commission of the health care institution;
- in connection with the need to exercise guardianship over a person recognized by the court as incompetent, provided that such person is not being cared for (guardianship) by other persons;
- if their close relatives (husband, wife, son, daughter, father, mother or native (full-blood) brother or sister) died or went missing during direct participation in an anti-terrorist operation, implementation of measures to ensure national security and defense, repulse and deter armed aggression of the Russian Federation in the Donetsk and Luhansk regions, as well as during the provision of national security and defense, repelling and deterring armed aggression against Ukraine during martial law;
- if their close relatives (husband, wife, son, daughter, father, mother, native (full-blood) brother or sister) were posthumously awarded the title Hero of Ukraine for civic courage, patriotism, heroic defense of the constitutional principles of democracy, human rights and freedoms, selfless service to the Ukrainian of the people, discovered during the Revolution of Dignity (November 2013 – February 2014)”.
In the presence of the specified reasons, dismissal from military service is possible at any stage of its passage.
Dismissal from military service due to family circumstances or other good reasons is carried out by submitting a report to the name of his immediate superior, this is where it all starts. According to Clause 2.1.6 of the Instructions for Business Administration in the Armed Forces of Ukraine “Report (application) – a written appeal of a serviceman (employee) to a higher official with a request (grant of leave, material assistance, improvement of living conditions, transfer, dismissal, etc.) or explanation of a personal nature”.
Note that there is no unified report form, although there are certain requirements for individual reports. Thus, according to Clause 233 of the Regulation on Military Service of Ukrainian Citizens in the Armed Forces of Ukraine, servicemen who wish to be discharged from military service must submit reports and documents confirming the grounds for discharge “on command”. This means that a serviceman submits a report to his direct commander, who, after considering and satisfying him, passes this report to his immediate commander with an appropriate mark. And so along the chain to the commander of a military unit or another official authorized to resolve the issue of the release of a serviceman. We recommend immediately mentioning all commanders in the report – from the immediate commander to the commander of the military unit.
The report should include:
- grounds for dismissal from military service;
- the military serviceman’s opinion regarding his desire to serve in the military reserve of the Armed Forces of Ukraine in the relevant military accounting specialty;
- the district (city) territorial center of recruitment and social support, to which the personnel file of the serviceman must be sent.
The current legislation does not contain a specific list of documents that must be submitted together with the report. In this case, these will be documents that directly and reliably confirm the grounds for dismissal from military service. Therefore, the military himself decides what documents to add to the report. But it is necessary to remember that in case of refusal to release from military service, it will be necessary to go to court. The same documents are submitted to him, which he will consider very carefully, evaluating them from the point of view of evidence. So collect as much as possible a package of documents that confirms one or another reason for dismissal. For example, for “staying with a military serviceman for three or more children under the age of 18” it can be: a court decision to determine the place of residence of which of the children exactly together with the father (in the case of children from different marriages), the statement of the child’s mother is notarized that the military serviceman supports the child as a father (if there are children from different marriages), a decision to collect alimony, a certificate from the executive service on the absence of arrears of alimony, a death certificate of the mother or a court decision to recognize her as deceased, deprived of parental rights (in if there are children from different marriages), act of the deputy of the local council on the residence of the child and his being dependent on a serviceman and others.
One more nuance – servicemen are released from military service due to family circumstances or for other valid reasons only if they have original documents that are grounds for release (clause 14.10 of the Instructions on the organization of the implementation of the Regulation on military service by citizens of Ukraine in the Armed Forces). A practical recommendation in this regard is that it is not necessary to submit the originals of such documents together with the report, we recommend submitting notarized copies of such documents, which should be noted in the report. This is due to the fact that, given the hostilities, original documents may be lost, and their recovery will either be impossible or take a very long time.
According to the norms of the law, a period of 30 days is allotted for the consideration of the submitted report. If the report is satisfactory – congratulations! However, if the report is refused, then the next institution to which the serviceman must turn is either a higher body (commander of a military unit, commander of a higher military unit, the Ministry of Defense) or a court. We note that the submitted documents (the report and those attached to it) must be exactly the same in all cases, no matter to which body they are submitted. The same should be done when appealing actions regarding a complaint report sent to a higher authority or an administrative claim filed in court.
In such a case, the district administrative court at the place of residence of the serviceman or the location of the military unit will consider the case. Thus, an administrative lawsuit will be filed against the military unit that committed illegal actions (inaction), and as third parties it is necessary to involve the military unit that agreed to the report and submitted it to the superior unit, and the superior military unit in the event that the report I wouldn’t have reached her. At the same time, the court fee is not paid by military personnel on the basis of Clause 12, Part 1, Article 5 of the Law of Ukraine “On Court Fee”.
In court, a military serviceman will need to prove two facts: the fact that he filed a report and the existence of grounds for his satisfaction and dismissal from military service. Therefore, taking into account the first fact, submit the report in such a way that there is evidence on this matter that can be presented to the court. Such evidence can be a mark on a copy of the receipt report, postal receipts for sending the report by valuable letter with a description.
In general, the algorithm of a military serviceman’s appeal for the protection of his rights, regardless of the reasons, will be the same as in this case, taking into account the specific circumstances.
