Dismissal of a serviceman for non-compliance with contract terms in 2021

A contract with a military personnel is the basis for military service. After fulfilling his military duty under urgent conscription, a citizen, if desired, can enter into a contract and remain in the ranks of the army. You can become a contract soldier without completing military service.

The provisions of the contract are binding on both parties. If there are violations of military discipline or the law on the part of a military man, then the command has the right to dismiss him before the expiration of the contract. But the procedure must be carried out in compliance with all legal requirements. Otherwise, the dismissal may be considered illegal.

The serviceman has the right to demand termination of the contract if the command does not fulfill its obligations to him. Let's look at these reasons in more detail in the article.

Reasons for dismissal due to violation of contract terms

The possibility of terminating a contract early is provided for by Military Law. Dismissal occurs, among other things, if the clauses of the document are violated. But this possibility comes into force only with serious deviations from legal norms. These include:

1. Committing a disciplinary offense.
2. Actions that are subject to either criminal or administrative punishment.

Important! In order to dismiss a serviceman for violating the terms of the contract (BUC) and at the same time not breaking the law, it is necessary to document all the offenses he has committed.

general information

In order to obtain the status of a military personnel, a citizen of the Russian Federation must sign a contract.
This document is concluded not only with officers, but also with privates. Thus, it replaces the standard employment contract. But such an agreement contains many more different conditions and restrictions. Military personnel, like any other citizens, can be fired. But in this case, military personnel are subject to the norms of military legislation, not labor law. The main reason for termination of a contract is non-compliance with its terms. In other words, this is a gross violation by the officer of military law.

From the moment the document is signed, the serviceman undertakes to comply with all the conditions specified in the document. In addition, his duties include carrying out orders from the command, and refusal can be considered a violation of discipline.

Dismissal of a military personnel for non-compliance with the terms of the contract applies if the person has committed a disciplinary offense, an administrative or criminal offense, etc. Then the contract with the officer is terminated according to the established procedure.

Features of dismissal for disciplinary offense

Early termination of a contract becomes real when a serviceman commits a disciplinary violation. In St. 28.5 of Law 76-FZ contains circumstances that are the basis for applying a penalty.

For the commander to make a decision to dismiss for NUC, it is enough:

• one gross violation of the Disciplinary Charter;
• commit an offense not for the first time - have several outstanding (current) penalties for previous offenses.

A military man cannot be held accountable for the same disciplinary offense a second time. This means that if he committed a violation and received a penalty for it, then in the future such an act cannot serve as a basis for dismissal.

Important! Circumstances mitigating or aggravating disciplinary liability are established by law.

What actions are considered a breach of contract?

Possible actions of a serviceman for which his contract will be terminated are as follows:

○ Existing disciplinary actions

The list of applied disciplinary sanctions is provided for in Article 24.8 of the Federal Law “On the Status of Military Personnel”:

• rebuke;
• severe reprimand;
• deprivation of regular dismissal from a military unit or from a ship to shore;
• deprivation of an excellent student badge;
• warning about incomplete professional compliance;
• reduction in military rank;
• reduction in military rank by one step;
• reduction in military rank by one step with a reduction in military position;
• early dismissal from military service due to failure to fulfill the terms of the contract;
• expulsion from a military professional educational organization or a military educational organization of higher education;
• deduction from military training;
• disciplinary arrest."

✔ Reprimand and severe reprimand

If a serviceman commits a violation:

• Military discipline.
• Public order.
• Rules of international humanitarian law.

the immediate commander, in order to strengthen the proper level of military discipline and proper education of military personnel, taking into account the severity of the offense committed and the degree of guilt, subjects the serviceman to such types of disciplinary action as reprimand and severe reprimand.

It should be noted that comments, censure, and indications of omissions in service that were expressed by the commander orally or in writing do not apply to disciplinary sanctions.

✔ Dismissal

The most severe disciplinary sanction applied to a soldier who performs military service under a contract is early dismissal. It applies for:

The leadership of military units - what should be remembered

The commander (or chief) of the military personnel should not rashly use his right to dismiss subordinates for NUC. Not every violation committed is a reason for the complete removal of a military man from service.

All negative incidents must be considered on an individual basis. It is wise to study:

1. Similar precedents, including those considered in the courts.
2. Established practice in similar situations.
3. Documents characterizing the personal qualities of a serviceman and his professional abilities.

Only after weighing everything should the head of the military personnel make the final decision and dismiss the serviceman for NUC.

Important! Following a precise dismissal procedure is essential. Otherwise, the order may be canceled in court if even the most minor violations are revealed during the consideration of the claim.

Judicial practice to reduce penalties for delays under a government contract

However, there are other, very interesting examples: Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 17, 2013 No. 12945/13. In this case, the amount of the penalty greatly (442 times) exceeded the refinancing rate, while at the same time the amount of the penalty accrued to the customer for late payment to the supplier coincided with the refinancing rate. The court paid attention to this fact and to the defendant’s arguments that numerous similar government contracts have a much smaller penalty, and the customer did not suffer losses and did not prove his significant difficulties from the delay in completing the order. Clause 1 of Article 124 of the Civil Code of the Russian Federation states that public entities act in civil law relations on an equal basis with other individuals and legal entities, which presupposes a certain balance of measures of responsibility, and the idea of ​​a contract system in the field of public procurement does not pursue the goal of replenishing the state budget through punitive penalties. The ruling of the Federal Arbitration Court of the Moscow District dated February 18, 2014 in case No. A40-168183/12-151-1326 is based on the same arguments.

A similar example is the resolution of the Federal Arbitration Court of the Moscow District dated July 16, 2014 in case No. A41-49061/13, in which the court went towards the supplier, relying on the fact that the penalty was overstated relative to the annual refinancing rate by 360 times, the total amount of the penalty was 60 % of the contract value, while the customer does not provide evidence of losses from delay in fulfillment of the contract. The decision was based on Art. 10 of the Civil Code of the Russian Federation on the inadmissibility of exercising civil rights solely with the intention of causing harm to another person and abuse of rights. A penalty of such a large amount is recognized as unjust enrichment.

Thus, if the penalty significantly exceeds the refinancing rate, it is still possible to prove its groundlessness in court, based on the principle of legal equality enshrined in clause 1 of Article 1 of the Civil Code of the Russian Federation.

Procedure for terminating a contract with a military personnel

Termination of the contract for the reasons stated above is carried out in a certain sequence. This process is not limited to writing an order:

Dismissal may be based on the results of certification. During this process, it is determined whether the serviceman is suitable for the position he occupies. Certification is carried out in the following sequence:

Certification is carried out as planned or unscheduled. The latter is appointed after the commander receives a petition from the superior of the offending serviceman. He writes a report and indicates the reason for his appeal.

Example. Lieutenant R.L. Krivostup repeatedly left the HF territory while on duty. The first violation was marked with a penalty. But a week later, Krivostup again violated the Charter. In addition, the next day he came to work in a drunken state. He refused the examination. The lieutenant's immediate superior, Major V.N. Lineev, wrote a report to the head of the HF on Krivostup's dismissal for NUK and asked for an unscheduled certification.

Important! Both types of certification are the same.

What to do in case of illegal termination of a contract?

If a serviceman believes that his dismissal is illegal, he has the opportunity to express his disagreement with the results of the investigation or to protest it . This can be done through the court. It is also necessary to provide documentary evidence that the dismissal was illegal or the procedure was not carried out in strict accordance with the law.

You can file a complaint with the commander (chief) within 10 days from the date on which the disciplinary sanction was applied (clause 83 of the Disciplinary Charter).

What are the consequences of dismissal for NUC

Dismissal for NUS is fraught not only with moral losses, but also with material ones. A serviceman no longer has the right to hope to receive:

1. Benefits. The lost amount is considerable - 2-7 monthly salaries.
2. Awards for proper performance of military duties.
3. Financial assistance, which is paid once a year.

But if the serviceman has already received the specified payments, they will not be recovered back.

The situation is much worse with a mortgage loan. When a service member participates in the housing security system, he will have to repay the amount of the loan received. In addition, the person dismissed for NUS must pay the accrued interest.

Judicial practice on delays in government contracts

There are a huge number of court decisions according to which government contracts were terminated due to delays in completion of work. It is also worth noting that although the opinions of the courts differ, more often a penalty is collected even if the contract is terminated, since termination of the contract leads to the termination of obligations for the future, but does not deprive the creditor of the right to recover the amount of the principal debt from the debtor and impose property sanctions on him . However, in our opinion, it is very important to pay attention to the resolution of the Presidium of the Supreme Arbitration Court of April 12, 2011 No. 12363/10, which states that the plaintiff’s arguments about the defendant’s violation of delivery deadlines are not enough to terminate the contract in court, it is necessary to provide evidence of damage in accordance from Article 450 of the Civil Code of the Russian Federation. In addition, it is important for the customer to comply with the procedure defined in Article 95 of 44-FZ.

As you can see, on the one hand, the consequences of violating the deadlines for fulfilling a government contract for a supplier are quite sad, but there are a lot of nuances that allow you to avoid these consequences. The positions of the courts on each of these nuances are twofold; a positive decision requires serious study of each specific case; in your arguments, every word will be decisive, so we strongly recommend that you turn to professionals in this field. Our company’s specialists will help you defend your interests in disputes with the customer, antimonopoly authorities and in court.

Some questions and answers

Question 1. How does dismissal under the National Criminal Code affect military service? Is it saved?

Answer. For whatever reason the serviceman quits, his existing military experience remains with him.

Question 2. Is it necessary to require the command to make a note about the termination of the contract on the second copy of the document that is in the serviceman’s possession?

Answer. Such a record, containing the grounds for dismissal and the date, must be made on the first copy of the contract located in the personal file. It is sealed with the commander’s signature and the HF official seal. On the second copy, this is done only at the request of a serviceman.

Question to the expert

A criminal case was opened against Major Ryzhov K.S. Then it was closed. The reason is active repentance. Based on the results of the certification, the major was dismissed for NUC. Moreover, the officer has 20 years of service without penalties or reprimands, and a desire to continue serving. Is there a compelling argument to challenge the dismissal order in court?

Answer. The Criminal Code of the Russian Federation (Article 75, Part 1) provides for exemption from criminal liability for those who committed a crime for the first time, and it is minor or moderate in severity. A mandatory condition is a confession, compensation for damage, assistance to the investigation.

Active repentance means recognition of the crime committed. The fact of its presence indicates that the officer violated the law. For this he has the right to be fired according to the NUC. Going to court to appeal the dismissal order will most likely not bring a positive result.

Legal adviser P. A. Valeev

Dismissal procedure

Dismissal for non-compliance with contract terms can be used as a discipline or as a commander's response. In any case, termination of the contract cannot be arbitrary and based solely on the person’s misconduct. An appropriate assessment of the performance of all his duties must be carried out.

Mistakes when dismissing for NUC

The following mistakes are often made:

1. Lack of documents indicating the fact of the violation that served as the reason for dismissal.
2. The certification results are not recorded in the military personnel file. The certification sheets were lost.
3. The dismissal happened too quickly. There was no investigation into the details of the violation in the first 10 days. after the incident.

Important! Any oversight on the part of the command regarding dismissal under the NUC will become a clue when considering a lawsuit and will serve as the basis for canceling the order.

When a serviceman allows himself to forget about honor and dignity, dismissing him due to NUC is a fair decision.

How to write a report?

Dismissal under the NCC can be made in two cases:

1. when the serviceman himself does not comply with the terms of the contract;
2. when the command commits significant violations against a subordinate on a systematic basis.

• In the first case, drawing up a report is not necessary. A serviceman can write it only if he himself wants to retire early, but he has no valid reasons for this.
• In the second case, the preparation of this document is mandatory.

There is no approved report form. Therefore, the document is written in any form. It must contain the following information:

1. Full name and title of the person receiving the report;
2. name – “Report”;
3. a request addressed to the immediate commander to petition senior management to terminate the contract;
4. a detailed description of the reason why the serviceman asks to be dismissed (with links to regulations);
5. consent to conduct a military medical commission or refusal;
6. consent/refusal to calculate length of service;
7. whether the serviceman has his own home (or lack thereof);
8. indication of the address of the commissariat to which the personal file will be sent in the future.

At the bottom of the document is the date of its preparation, as well as the rank and full name of the serviceman who submitted it. If there are applications, they are listed at the end of the list. An example of such a report is presented below.

If the basis for dismissal is failure to comply with the terms of the contract by the serviceman himself, the decision does not depend on whether he filed a report or not. The command may not accept this document for consideration.

The fact of termination of the contract is formalized by order.