A mobilized colonel can be transferred to a lower position without his consent — the court sided with the command

The Eighth Administrative Court of Appeal upheld the decision of the court of first instance, which denied the claim of a colonel transferred from the position of deputy head of the personnel psychological support center to the reserve company of one of the mechanized brigades. The court concluded that during martial law, a mobilized serviceman may be reassigned to another, including a lower, position without his consent to complete the staffing of the Armed Forces of Ukraine, if such a decision is made within the powers defined by law.

Circumstances of the case

The colonel, who served in a military unit as deputy head of the personnel psychological support center — head of the personnel psychological support group, challenged the order of the Commander-in-Chief of the Armed Forces of Ukraine dismissing him from his position and appointing him to a regular reserve officer position in the 67th reserve company of another military unit. He also requested the cancellation of related orders from his unit commander regarding the handover of the position and removal from the personnel list.

The plaintiff argued that the decision to transfer him was made without considering his health condition, the need for further treatment, and medical recommendations. He emphasized that after passing the military medical commission, he was deemed fit for service only in support units, territorial recruitment and social support centers, educational institutions, medical units, logistics, communications, and operational security units. Additionally, the officer considered the appointment to a position whose staffing category implied the rank of lieutenant colonel unlawful, as he held the rank of colonel.

The serviceman also stated there was no official necessity for his transfer and claimed the decision was a result of biased attitude from the unit command.

Position of the defendants

The General Staff of the Armed Forces of Ukraine, the Commander-in-Chief, and the military unit opposed the claim. They noted that the transfer was part of measures to complete staffing of the Armed Forces during martial law.

According to them, the plaintiff's candidacy was included in the approved Plan for the transfer of servicemen, and the transfer order was issued in accordance with the Regulations on Military Service and other personnel documents. At the time of the decision, there were no conclusions from the Military Medical Commission or other documented circumstances preventing his transfer.

What the court found

The court established that the plaintiff was called up for military service during mobilization in March 2022. This status, not his previous contract service, determined the legal regime of his service and the possibility of transfer.

The panel of judges noted that the transfer order was issued on October 26, 2024, based on the Plan for the transfer approved by the Commander-in-Chief for completing military units under martial law conditions. The plan explicitly stated that the basis for transfer was the need to complete the staffing of the military unit.

The appellate court pointed out that according to paragraphs 112 and 257 of the Regulations on Military Service by citizens of Ukraine in the Armed Forces, servicemen serving under conscription during mobilization in a special period may be transferred to a new place of service and appointed to equivalent or lower positions without their consent to complete the Armed Forces.

The court emphasized that as of the date of the order — October 26, 2024 — the Military Medical Commission's conclusion regarding the plaintiff did not yet exist. The medical examination was conducted only on November 8, 2024. Therefore, arguments about ignoring the commission's conclusion cannot indicate the illegality of the order at the time it was issued.

Moreover, case materials did not confirm that the plaintiff was undergoing inpatient treatment on October 26, 2024 — the day the order was issued. Documents only showed his hospitalization from October 30 to November 8, 2024.

Limits of judicial review

The appellate court separately stressed that it is not authorized to assess the advisability of personnel decisions made by military command. The court's competence is to verify the legality of such decisions, compliance with the procedure for their adoption, and the existence of powers provided by law.

According to the panel, questions about the necessity of transferring a particular serviceman during martial law fall within the competence of the military leadership, specifically the Commander-in-Chief of the Armed Forces.

Why the court rejected other arguments of the plaintiff

The court disagreed with arguments that the lack of referral to the Medical-Social Expert Commission or for operational treatment indicated the illegality of the contested orders. The panel noted that even if violations occurred in these matters, they could be subject to a separate legal dispute but do not affect the legality of decisions on the transfer of the serviceman.

The court also rejected references to non-compliance with another court decision on the plaintiff's reinstatement, stating these circumstances are unrelated to the subject of the dispute regarding the legality of the transfer orders.

The panel also noted that in May 2025, the Commander-in-Chief of the Armed Forces canceled the order item appointing the plaintiff to the reserve company. However, the court emphasized that this decision was made due to non-implementation of the order, not because of its illegality. Therefore, the subsequent cancellation does not indicate its unlawfulness at the time of issuance.

Court conclusion

The Eighth Administrative Court of Appeal agreed with the conclusions of the Volyn District Administrative Court and concluded in case 140/14601/24 that the Commander-in-Chief's order to transfer the colonel was issued within the powers granted by law and complied with the legislation regulating military service during a special period. The court also recognized as lawful the orders of the military unit commander issued in execution of the higher command's decision.

As a result, the appeal was dismissed, and the decision of the Volyn District Administrative Court remained unchanged.

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