Can a regional military medical commission change the conclusion of unfitness for military service without a repeated medical examination
The issue of undergoing a military medical commission and determining the degree of fitness for military service remains one of the most common subjects of legal disputes during martial law. In particular, conscripts often appeal the decisions of the military medical commission if they believe that during the medical examination or review of the commission's conclusions, their health condition was not taken into account or the established procedure was violated. One of such contentious issues is the possibility for a regional military medical commission to review a conclusion of unfitness without conducting a repeated medical examination.
Such a dispute was considered by the Sumy District Administrative Court in case No. 480/893/26. The plaintiff requested to cancel the decision of the regional military medical commission and the military medical commission certificate, citing a violation of the procedure for reviewing the health status conclusion.
Case essence
Based on the medical examination conducted by a non-staff military medical commission, the man was recognized as unfit for military service with exclusion from military registration under Articles 13-a and 38-v of the Disease Schedule. Subsequently, the regional medical commission also concluded his unfitness under Article 13-a of the Disease Schedule.
The disease certificate was sent to the 12th Regional Military Medical Commission of the Ministry of Defense of Ukraine for approval of the non-staff military medical commission's decision. However, the regional military medical commission did not approve this conclusion, stating that the application of Article 13-a of the Disease Schedule was unfounded. After that, a military medical commission certificate was issued, recognizing the man as fit for military service in support military units, territorial recruitment and social support centers, higher military educational institutions, training centers, medical units, logistics units, communications, operational support, and security units.
The plaintiff argued that the regional military medical commission changed the previous conclusion without his direct medical examination, without proper consideration of medical documentation, and without sufficient justification for changing the degree of fitness, and therefore requested to cancel the relevant decisions.
Position and conclusions of the court
The court noted that the procedure for conducting military medical expertise is regulated by the Regulation on Military Medical Expertise in the Armed Forces of Ukraine, approved by the Ministry of Defense Order No. 402.
The court pointed out that according to paragraph 20.2 of section II of this Regulation, decisions of military medical commissions are reviewed, approved, not approved, controlled, reconsidered, and if necessary, canceled or annulled by the relevant staff military medical commission. Such decisions can be made both based on a medical examination conducted directly by the staff military medical commission and on the basis of a medical examination conducted by a non-staff military medical commission and provided medical documents.
In the court's opinion, during the special period, decisions of non-staff military medical commissions regarding the unfitness of conscripts for military service are subject to mandatory approval by the staff military medical commission. Legislation also provides that the consideration and review of such decisions may be carried out either after a new medical examination or solely based on the already conducted medical examination and provided medical documentation.
The court established that the regional military medical commission reviewed the materials obtained after the plaintiff underwent a medical examination and the provided medical documents. Therefore, the mere fact of not conducting a repeated direct medical examination does not indicate a violation of the procedure for reviewing the non-staff military medical commission's decision.
Moreover, the court took into account the legal conclusion of the Supreme Court set out in the ruling dated June 12, 2020, in case No. 810/5009/18, according to which the assessment of the correctness of the established diagnosis, the correspondence of the disease to the articles of the Disease Schedule, and the determination of the degree of fitness for military service belong to the discretionary powers of military medical commissions and are not subject to judicial review. The court can only verify compliance with the procedure for making the relevant decisions.
The court also noted that in case of a change in health status, a conscript is not deprived of the right to undergo a repeated medical examination to determine the degree of fitness for military service.
Given the absence of violations in the procedure for reviewing the non-staff military medical commission's decision, the Sumy District Administrative Court denied the claim.
