Military serviceman demanded referral to the Military Medical Commission after AWOL: why the court recognized the military unit's refusal as lawful

Case essence

The plaintiff served in the military by conscription during mobilization in a military unit. In November 2022, he left the combat zone for inpatient treatment due to an injury. After completing treatment, he did not return to his place of military service.

By order of the military unit commander, the serviceman was recognized as having left the unit without permission, excluded from all types of support, and later placed at the disposal of the commander due to unauthorized absence. After relevant information was entered into the Unified Register of Pre-Trial Investigations regarding unauthorized absence, his military service was suspended, and the contract was suspended by the corresponding order.

Subsequently, the serviceman applied to the military unit commander with a report requesting a certificate regarding the injury sustained while defending the homeland. After refusal, he challenged the military unit’s inaction in court. The Dnipropetrovsk District Administrative Court ordered the military unit to conduct an official investigation into the circumstances of the injury. Following this decision, the investigation was conducted and a certificate about the injury circumstances was issued.

After that, the serviceman submitted a new report requesting referral for a medical examination by the Military Medical Commission to determine his fitness for military service. The military unit informed him that the issue of referral to the Military Medical Commission could only be resolved after a court or pre-trial investigation authority decision and reinstatement of the serviceman in the military unit’s personnel lists, since his military service was suspended. This refusal became the subject of a new administrative lawsuit.

Court’s position and conclusions

The court noted that the legal regulation of military service is determined by the Law of Ukraine "On Military Duty and Military Service," the Regulation on Military Service of Citizens of Ukraine in the Armed Forces of Ukraine approved by the President’s Decree No. 1153/2008, the Regulation on Military Medical Expertise in the Armed Forces of Ukraine approved by the Ministry of Defense Order No. 402, and other normative legal acts.

Analyzing the provisions of Regulation No. 402, the court concluded that referral for medical examination by the Military Medical Commission is carried out for servicemen undergoing military service, including by decision of direct commanders from the commander of a separate military unit and higher, in case of doctor’s recommendations or other grounds defined by law. At the same time, such referral applies specifically to servicemen serving in the respective military unit.

The court noted that the case materials confirmed the entry of information about unauthorized absence from the military unit into the Unified Register of Pre-Trial Investigations. According to part two of Article 24 of the Law of Ukraine "On Military Duty and Military Service," for servicemen who have left military units or places of service without permission, military service is suspended. The start of such suspension is the day the relevant information is entered into the Unified Register of Pre-Trial Investigations, and the basis is the military unit receiving a written notification from the law enforcement agency about such entry.

Moreover, the law directly defines the legal consequences of suspending military service. Servicemen whose service is suspended are relieved of their positions, considered as not performing military service duties, their contracts are suspended, payment of monetary allowance and other types of support are stopped. The suspension period is not counted towards military service length or years of service, social guarantees established by law do not apply to them, and they are not included in the Armed Forces of Ukraine’s personnel count.

Under these circumstances, the court concluded that due to the suspension of military service, the military unit had no legal grounds to refer the plaintiff for a medical examination by the Military Medical Commission. The court also noted that the military unit is not authorized to refer individuals to a family doctor under the civil healthcare system, since medical support for servicemen is provided through the military unit’s medical service and healthcare institutions under the Ministry of Defense of Ukraine.

Evaluating the evidence provided by the parties and applying substantive law, the court concluded that there were no grounds to satisfy the administrative claim and dismissed all claims.