Failure to Return from Leave Does Not Necessarily Mean AWOL: Court Explained What the Military Unit Must Prove

In Ukraine, the right of servicemen to leave is guaranteed by the Law of Ukraine "On Social and Legal Protection of Servicemen and Their Families" No. 2011-XII. This law defines the types of leave, their duration, and the procedure for granting them.

As previously reported by the "Judicial and Legal Newspaper," the law also provides that during the leave period, servicemen retain their monetary and material support, as well as receive a health improvement allowance equal to one month's monetary allowance.

The specifics of granting leave during martial law are defined by part 18 of article 10-1 of the Law of Ukraine "On Social and Legal Protection of Servicemen and Their Families." According to this provision, regardless of years of service, servicemen may receive an annual main leave of up to 30 calendar days. It is granted in parts, with one part not exceeding 15 calendar days. Additionally, during martial law, the provisions of the Labor Code of Ukraine regarding holidays and non-working days do not apply.

What to do if a serviceman falls ill during leave

However, in practice, situations occur when a serviceman cannot return to the place of service on time due to illness. In such cases, it is important to follow the established procedure, as this may affect the assessment of the reasons for absence and help avoid disciplinary consequences.

The Ministry of Defense clarified the procedure for servicemen who fall ill during leave. As noted by the ministry, illness itself does not exempt from the obligation to maintain communication with the command.

According to article 254 of the Internal Service Regulations of the Armed Forces of Ukraine, a serviceman must immediately inform their direct superior about the illness, and the commander, in turn, must take necessary measures. Notification can be made by phone or messenger, and the Ministry of Defense recommends keeping confirmation of such notification — a screenshot of correspondence or call information.

If the health condition does not allow immediate contact with the command, the serviceman has the right to first seek any medical institution or call an ambulance. After hospitalization or stabilization, they must inform the medical institution about their military service and the name of their military unit, as well as independently inform the command about the hospitalization.

Performing these actions confirms the validity of the serviceman's absence and is the basis for proper documentation.

At the same time, not all disputes about servicemen's failure to return to the place of service are related to illness. In practice, one of the most common grounds for court disputes is the early recall of a serviceman from leave and the assessment of the legality of such a decision.

After receiving the recall order, some servicemen do not return immediately but continue to stay on leave until the end of the period specified in the leave order. In such cases, military unit commanders often consider the serviceman's absence as unauthorized absence from the military unit or place of service (AWOL), initiate an official investigation, apply disciplinary sanctions, and stop additional monetary payments.

It is worth noting that unauthorized absence from the military unit or place of service (AWOL) is a criminal offense under article 407 of the Criminal Code of Ukraine. The sanctions depend on the duration of absence and whether the offense was committed during a special period or martial law. In particular, part five of article 407 of the Criminal Code establishes that unauthorized absence or failure to appear on time without valid reasons during martial law is punishable by imprisonment for five to ten years.

Therefore, the question of whether failure to return from leave constitutes AWOL is of fundamental importance and often becomes the subject of judicial review.

Failure to return from leave does not always mean AWOL

A telling example is the decision in case No. 560/1274/25 by the Khmelnytskyi District Administrative Court. According to the case, a serviceman serving as an infantry company commander received an annual main leave of 10 days plus four days for travel — from August 24 to September 6, 2024. The day after his leave began, the military unit commander issued an order recalling him. A scanned copy of the order was sent to the serviceman via messenger, but he did not return early and arrived at the military unit on September 5 — within the leave period specified in the documents.

Afterwards, the command declared the serviceman AWOL, initiated an official investigation, concluded that his actions contained signs of a criminal offense under part five of article 407 of the Criminal Code, suspended his monetary allowance, and deprived him of additional rewards and bonuses for August and September 2024.

Disagreeing with these decisions, the serviceman appealed to the administrative court. He argued that the recall order was issued in violation of legal requirements and therefore could not serve as grounds for declaring him AWOL.

Examining the case materials, the court referred to paragraph 192-1 of the Regulation on Military Service by Citizens of Ukraine in the Armed Forces, approved by Presidential Decree No. 1153/2008. The court noted that although during martial law the official who granted leave has the right to recall the serviceman, in other cases such recall is possible only by decision of the Minister of Defense, the Commander-in-Chief of the Armed Forces, or other officials specified by the Regulation and only if there is an urgent task that was unknown and could not have been known at the time leave was granted.

The court found that the military unit did not prove the existence of such an urgent task or the presence of legal grounds for early recall. Therefore, the court recognized the recall order as unlawful. Since this order was the basis for subsequent decisions, the court also canceled the order declaring the serviceman AWOL, the order initiating the official investigation, and the order on its results.

Additionally, the court obliged the military unit to calculate and pay the serviceman the unpaid monetary allowance, namely the additional reward provided by the Cabinet of Ministers Resolution No. 168, amounting to UAH 75,161.29 for August 2024 and UAH 11,000 for September 2024, as well as bonuses of UAH 17,698.50 for August and UAH 4,719.60 for September 2024.

Another court dispute shows that even in the absence of evidence of unauthorized absence, a serviceman must separately prove the validity of their absence if claiming monetary allowance.

In case No. 480/4217/24, the Sumy District Administrative Court partially satisfied a serviceman's claim challenging the order on the results of an official investigation and the termination of monetary allowance due to alleged unauthorized absence.

The plaintiff claimed he did not return due to prolonged treatment, about which he informed the command and sent medical documents. However, the official investigation recognized him as AWOL, imposed disciplinary sanctions, and stopped monetary payments.

During the case, the court repeatedly requested the investigation materials, but the military unit provided only the orders on its appointment and results, stating that the investigation materials were missing from the archive.

The court noted that the official investigation report is the main document confirming established circumstances and grounds for disciplinary decisions. Since the report and materials were not provided, the defendant did not prove the legality of the order on the investigation results, and the court recognized it as unlawful and canceled it.

At the same time, the court concluded that the right to monetary allowance was confirmed only for the periods of inpatient treatment — from February 27 to 28 and from March 6 to 8, 2024 — and therefore obliged the military unit to pay only for these days.

Thus, the military unit bears the burden of proving the legality of disciplinary decisions and confirming them with investigation materials.

Previously, it was reported that Ukraine launched an experimental project for servicemen who left their units without authorization. Its goal is to create a mechanism for voluntary return to service with the right to choose a new unit, restore social guarantees, and the possibility to close criminal proceedings if legal grounds exist.

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