Wounded serviceman was not credited with 100 thousand hryvnias of 'combat pay': how the appeal resolved the dispute
The Fifth Administrative Court of Appeal considered the appeal of the military unit against the decision of the Odesa District Administrative Court in the case regarding the payment to the serviceman of an additional reward provided by the Cabinet of Ministers Resolution No. 168, increased up to 100 thousand hryvnias for direct participation in combat operations. The appellate court reviewed the legality of the first instance court's decision, which partially satisfied the claim and recognized the inaction of the military unit regarding the non-accrual and non-payment of the corresponding reward as unlawful.
Case circumstances
The serviceman filed a lawsuit requesting to recognize the inaction of the military unit regarding the non-accrual and non-payment of an additional reward up to 100 thousand hryvnias proportionally to the time of direct participation in combat operations and measures to ensure national security and defense, as well as during inpatient treatment after receiving a combat injury, as unlawful.
The plaintiff stated that he served in the military unit during martial law and carried out combat missions in the Kherson region. According to him, during August and September 2022, he was in the combat zone, and on August 29, 2022, while performing a combat mission, he received a mine-explosive injury, after which he underwent inpatient treatment.
The military unit did not credit him the increased additional reward for the disputed periods, referring, in particular, to the results of an official investigation regarding the serviceman's refusal to execute a combat order in September 2022. Based on the order on the results of the official investigation, he was deprived of the additional reward for September 2022.
During the renewed consideration of the case after the Supreme Court canceled previous court decisions, the first instance court requested from the military unit documents confirming the nature of the tasks performed by the plaintiff, as well as documents regarding his participation in combat operations and the grounds for applying relevant restrictions on his monetary allowance payments.
The court established that the plaintiff served in the second mechanized battalion. At the same time, the case materials contained contradictory information regarding the nature of the tasks performed by the unit in August 2022. In particular, the 2023 official investigation stated that from August 1 to 27, 2022, the battalion was in the second echelon of defense and was withdrawn to the concentration area, and only from August 28, 2022, did it move to the first line of defense. However, the case materials included command reports about the payment of an additional reward of 100 thousand hryvnias to the serviceman for August 2022, as well as documents regarding his injury during the combat mission.
The Odesa District Administrative Court concluded that there were grounds for paying the increased additional reward for the period from August 1 to 27, 2022, and partially satisfied the claim.
Position and conclusions of the court
The appellate court agreed with the conclusions of the first instance court.
The panel of judges emphasized that Article 17 of the Constitution of Ukraine imposes on the state the obligation to ensure social protection of citizens serving in the military, and Article 43 of the Constitution guarantees the right to timely receipt of remuneration for work.
The court noted that the additional reward provided by Cabinet of Ministers Resolution No. 168 is part of the monetary allowance of servicemen. Its amount is increased up to 100 thousand hryvnias proportionally to the time of the serviceman's direct participation in combat operations or measures to ensure national security and defense, repelling and deterring armed aggression.
The panel of judges thoroughly analyzed the provisions of Cabinet of Ministers Resolution No. 168, the telegram of the Minister of Defense of Ukraine dated March 25, 2022, No. 248/1298, and the Separate Instruction of the Minister of Defense of Ukraine dated June 23, 2022, No. 912/z/29, which define the conditions for payment of the additional reward and the list of documents confirming direct participation of servicemen in combat operations.
The appellate court noted that the right to receive the increased reward must be confirmed by proper documents, including combat orders, combat directives, combat journals, combat reports, and commanders' reports.
At the same time, the court took into account the documents available in the case regarding the plaintiff's service, his receipt of a combat injury during the combat mission, the battalion commander's report on the payment of the reward calculated at 100 thousand hryvnias, as well as circumstances established during official investigations.
The panel of judges in case No. 420/2757/23 concluded that the first instance court's decision recognizing the inaction of the military unit regarding the non-accrual and non-payment of the additional reward to the plaintiff in the increased amount for the period from August 1 to 27, 2022, as unlawful and justified is lawful and reasonable.
The appellate court agreed that in the disputed legal relations there are grounds for accrual and payment to the serviceman of the additional reward provided by Cabinet of Ministers Resolution No. 168, increased up to 100 thousand hryvnias, proportionally to the days of his participation in combat operations or measures to ensure national security and defense for the period determined by the court.
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