Military unit ignored resignation report submitted after processing of AWOL – court decision

The Sumy District Administrative Court partially satisfied the lawsuit of a serviceman regarding the order on unauthorized absence from the unit and the failure to consider the resignation report.

Case circumstances

The serviceman applied to the Sumy District Administrative Court with a lawsuit against the military unit, in which, taking into account the clarification of the claims, he requested:

• to recognize as unlawful and cancel the order of the military unit commander on his unauthorized absence from the military unit;
• to oblige the military unit to resume payment of monetary allowance and additional payments from the moment of their suspension;
• to recognize as unlawful the inaction of the military unit commander and oblige to consider the resignation report based on subparagraph "g" of paragraph 2 of part four of article 26 of the Law of Ukraine "On Military Duty and Military Service" (in the version at the time of submitting the report).

The plaintiff justified his claims by stating that on May 31, 2024, by order of the military unit commander, he was recognized as having unauthorizedly left the military unit and was excluded from monetary allowance. According to the plaintiff, on May 4, 2024, he was wounded, on May 9, 2024, he was discharged from the medical company and sent for further service with poor health. When contacting the military unit's medical service, he was verbally refused acceptance of the health status report. Due to critical health condition on May 13, 2024, after informing the mechanized company commander via messenger, the plaintiff left for his place of residence to receive urgent medical care. From May 16 to May 23, 2024, he was hospitalized and subsequently undergoing outpatient treatment.

The plaintiff argued that the contested order was issued on May 31, 2024, without evidence of entering information into the Unified Register of Pre-Trial Investigations. He referred to Article 24 of the Law of Ukraine "On Military Duty and Military Service," according to which the day of suspension of military service for a person who unauthorizedly left the unit is the day of entering the relevant information into the register. The plaintiff also pointed to the absence of intent to unauthorizedly leave the unit, regular notification of the commander about his whereabouts, submission of lawyer inquiries, and reports. Additionally, on May 14, 2024, through a lawyer, a resignation report was submitted due to having three or more children under 18 years old, which the command did not consider.

The defendant, in response to the lawsuit, denied the claims, stating that the plaintiff did not properly contact the head of the medical service, did not undergo a military-medical commission, and that the order only stated the fact of unauthorized absence from the place of service. Information about the plaintiff's hospitalization was not received by the military unit. By court ruling, the defendant was replaced by the legal successor.

The court established that by order dated May 13, 2024, No. 158, the plaintiff was removed from all types of support (except for boiler support) and payment of monetary allowance was suspended from May 13, 2024, due to unauthorized absence from the place of service. By order dated May 17, 2024, an official investigation was appointed. By order dated May 31, 2024, No. 111, based on the results of the official investigation, the plaintiff was given a severe reprimand, was not paid a bonus and additional reward, payment of monetary allowance was suspended from May 13, 2024, and a notification of a criminal offense was sent.

Court decision

The Sumy District Administrative Court considered case No. 480/9105/24 in simplified proceedings without summoning the parties and decided to partially satisfy the administrative claim.

The court recognized the inaction of the military unit regarding the failure to consider the plaintiff's resignation report dated May 14, 2024, as unlawful and obliged the military unit to consider this report.

In the other part of the claims — regarding recognition as unlawful and cancellation of order No. 111 dated May 31, 2024, resumption of payment of monetary allowance, bonuses, and additional rewards — the court refused.

The court concluded that the case materials do not contain sufficient evidence of valid reasons for the plaintiff's absence from service (except for confirmed inpatient treatment from May 16 to May 23, 2024), nor evidence of proper notification of the military unit about the treatment. References to outpatient treatment without a sick leave certificate were deemed insufficient. The court noted that according to the Procedure for payment of monetary allowance to servicemen (Order of the Ministry of Defense of Ukraine No. 260), monetary allowance is not paid for absence without valid reasons for one day or more, and additional rewards are not paid for the period of unauthorized absence from the unit.

Regarding the resignation report, taking into account the Supreme Court's position on the obligation of reasoned decisions by authorities, the court stated that the defendant did not provide proper and sufficient evidence of consideration of the report by an authorized person and did not issue an order on dismissal or a reasoned refusal. The court emphasized that non-compliance with the procedure of submitting the report (not directly to the immediate superior) is not a reason for its non-consideration within a reasonable time.

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