The presence of another child of the father does not deprive the serviceman of the right to leave for care — court decision

Can a military unit refuse to release a serviceman for family reasons solely because his father has another child? The Eighth Administrative Court of Appeal concluded that the mere presence of another adult relative is not an unconditional ground for refusal. The decisive factor is the specific circumstances and evidence of whether such a relative has the real ability to provide constant care for a person with a disability.

Case circumstances

A serviceman serving under contract applied to the command with a report requesting release from military service for family reasons. He cited the need for constant care for his father, who is a person with a Group I disability and, according to the Medical-Social Expert Commission (MSEC), requires constant external care.

The serviceman attached documents confirming his father’s health condition, as well as a family status inspection report. This report stated that there were no other family members who could provide constant care for the father.

However, the military unit refused the release. The command indicated that the serviceman’s father has a daughter — the plaintiff’s sister — who is a first-degree family member and does not herself require constant care. According to the military unit, this was sufficient grounds to deny release for family reasons.

The Volyn District Administrative Court satisfied the claim, but the military unit appealed this decision.

What the court established

The appellate court found that the serviceman’s sister constantly cares for her own child with a subgroup A disability and receives appropriate state social assistance as a person providing such care. These circumstances were reflected in the serviceman’s family status inspection report.

The panel of judges specifically noted that current legislation does not contain a direct prohibition on one person simultaneously caring for two people with disabilities if physically possible. At the same time, in this case, the court took into account the conclusions of the family status inspection report, according to which there are no other family members able to provide constant care for the father. The court also noted that the sister’s constant care for her own child with a disability may indicate her lack of real ability to provide care for the father as well.

Under these circumstances, the appellate court concluded that the case materials confirm the serviceman’s grounds for release provided by the thirteenth paragraph of point 3 of part twelve of article 26 of the Law of Ukraine "On Military Duty and Military Service."

What the appellate court decided

The Eighth Administrative Court of Appeal dismissed the military unit’s appeal and left the decision of the Volyn District Administrative Court unchanged.

Thus, the court agreed with the first-instance court’s conclusion about the illegality of the military unit’s refusal to release the serviceman and the command’s obligation to make a decision on his release from military service for family reasons based on the thirteenth paragraph of point 3 of part twelve of article 26 of the Law of Ukraine "On Military Duty and Military Service."

What the court emphasized

In case 140/12539/25, the appellate court proceeded from the fact that to resolve the issue of release for family reasons, it is insufficient to formally establish the presence of other relatives of the first or second degree of kinship. Important are the specific circumstances confirming whether such relatives have the real ability to provide constant care for a person with a disability. One of the key pieces of evidence in the case was the serviceman’s family status inspection report, which contained the conclusion about the absence of other persons capable of providing such care.

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