Court denied a serviceman's request for discharge: father's disability does not confirm absence of other persons to provide care

The Lviv District Administrative Court considered administrative case No. 380/23660/25 filed by a serviceman, conscripted during mobilization, against a military unit of the State Border Guard Service of Ukraine regarding the recognition of the unlawful refusal to discharge him from military service and the obligation to carry out such discharge.

The dispute concerned the legality of the military unit command's refusal to satisfy the serviceman's requests for discharge based on paragraph thirteen of clause 3 of part twelve of Article 26 of the Law of Ukraine "On Military Duty and Military Service" due to the necessity of providing constant care for his father, who is a person with a Group I disability.

Essence of the case

The plaintiff served in the State Border Guard Service of Ukraine unit by conscription during mobilization. In September and October 2025, he submitted requests for discharge from military service due to family circumstances, citing the need to provide constant care for his father, who was permanently assigned a Group I disability and requires external care.

To support the stated grounds, documents confirming the father's Group I disability, a conclusion regarding the need for social care services on a non-professional basis, documents on family status, and other materials which, according to the plaintiff, confirmed the absence of other persons capable of providing the necessary care were attached to the requests.

The military unit refused to satisfy the requests, stating that the provided documents did not confirm the absence of other family members of the first or second degree of kinship who, according to the law, can provide care for a person with a disability, or that such persons themselves require constant care based on relevant medical conclusions.

Disagreeing with this refusal, the serviceman appealed to the court demanding to recognize the actions of the military unit as unlawful and to oblige the defendant to discharge him from military service.

Court's position

The court analyzed the provisions of Article 26 of the Law of Ukraine "On Military Duty and Military Service," which provides for the possibility of discharging a serviceman during martial law if there is a need to provide constant care for one of the parents or the spouse's parents who are persons with Group I or II disabilities, provided there are no other family members of the first or second degree of kinship or if such persons themselves require constant care.

The court noted that the concept of "absence of other family members of the first or second degree of kinship" means not only formal but also actual absence of persons who can provide such care. At the same time, in cases where such relatives exist but objectively cannot provide care due to insurmountable circumstances, they may be considered absent within the meaning of this provision.

During the case review, the court established that besides the plaintiff, the father who requires care has other relatives of the first and second degree of kinship, namely an adult daughter and a grandson.

Evaluating the plaintiff's arguments regarding the daughter's inability to provide care due to having three children, one of whom has a disability, the court concluded that these circumstances alone do not indicate her inability to fulfill the duty of supporting and caring for her incapacitated father. The court specifically emphasized that the duty of adult children to support parents who need assistance does not depend on cohabitation with them.

The court also found no evidence that the daughter of the person with a disability herself requires constant care based on conclusions from the medical-social expert commission, the medical-consultative commission, or the expert team assessing the person's daily functioning.

Regarding the grandson, the court noted that his residence abroad by itself is not an objective and insurmountable circumstance that prevents providing care. Moreover, the plaintiff did not prove that such circumstances actually hinder the fulfillment of the corresponding duty.

The court also referred to the legal conclusions of the Supreme Court set out in rulings dated February 27, 2025, in case No. 380/16966/24 and June 26, 2024, in case No. 420/23353/23, regarding the interpretation of grounds for discharge from military service due to the need to care for a person with a disability and the meaning of the absence of other family members.

Court conclusions

The Lviv District Administrative Court concluded that the military unit acted on the basis, within the powers, and in the manner defined by the Constitution of Ukraine and the laws of Ukraine.

The court established that the plaintiff did not prove the absence of other relatives of the first or second degree of kinship who could provide care for the father, nor did he confirm the presence of objective and insurmountable circumstances that would make it impossible for other family members to provide such care. No evidence was provided that such relatives themselves require constant care within the meaning of the legislation.

Under these circumstances, the court denied the claim in full.

At the same time, the court noted that the serviceman is not deprived of the right to reapply with a discharge request if there is proper and sufficient evidence confirming the existence of grounds for such discharge provided by law.

Subscribe to our Telegram channel t.me/sudua and to Google News SUD.UA, as well as to our VIBER and WhatsApp, Facebook page and Instagram to stay informed about the most important events.