Grounds and procedure for dismissal of a military personnel at his own request

Military service is a special type of public service aimed at ensuring the defense and security of the country. In the Russian Federation, such service is carried out in the Armed Forces, other military and special formations and state bodies, and is associated with the assumption by military personnel of certain obligations and restrictions. In particular, a citizen who is in military service does not have the right to refuse to perform it unilaterally under the same conditions as established by general civil labor legislation. This provision also applies to military service under a contract, therefore, dismissal from the army at one’s own request is allowed only in the presence of circumstances strictly stipulated by law.

Grounds for dismissal of a contract employee at his own request

It should be assumed that a contract for military service in the Armed Forces of the Russian Federation (RF Armed Forces) is concluded by a citizen subject to his voluntary consent to the presented conditions. This also applies to the period of service, which is indicated in the concluded contract and is its validity period. This agreement can be extended for a new term or terminated (including early) on the grounds established by Federal Law No. 53-FZ of March 28, 1998 “On Military Duty and Military Service.”

Article 51 of this law provides an exhaustive list of grounds for dismissal of military personnel from military service. Such grounds can be divided into three main groups:

1. Are common. They imply the standard procedure for completing military service for objective reasons beyond the control of the parties (expiration of the contract, reaching the age limit, state of health).
2. Special. It is allowed for a contract soldier to terminate his service in the RF Armed Forces early due to non-fulfillment of the terms of the contract in relation to him or a changed life situation (transfer to another duty station, family circumstances).
3. Discrediting, that is, entailing negative consequences for the contractor. They are applied by appropriate decision of the command for guilty actions on the part of a serviceman, violation of his obligations.

Thus, the “own desire” of a contract serviceman to resign from service cannot be called a standard situation to the same extent as is customary for workers in the “civilian” sphere, that is, with preliminary notification to the employer a relatively short period of time before dismissal. However, this option is possible, but only if the contract worker has valid reasons - in accordance with paragraph 6 of Article 51 of Law No. 53-FZ. More details about this and the conditions for dismissal without negative consequences will be discussed below.

It must be taken into account that the state policy of modern Russia is based on the fact that professional military personnel strive to renew their contracts and serve for as long as possible. After all, it is they, as specialists, who represent the most important tool for ensuring the country’s defense capability. In this regard, a developed system of incentive bonuses and benefits tied to the total length of service is legally established for contract soldiers.

For example, if a contract soldier has continuously served for 10 years, he can no longer be dismissed from the army without the provision of housing or a housing subsidy. And the very dismissal from the ranks of the RF Armed Forces is accompanied by the payment of severance pay, the amount of which (from two to seven salaries) also varies depending on the length of service.

At the same time, the Russian government is following the path of constantly tightening legislation regarding the minimum established periods of service and the obligation to perform it for this period. Thus, since 2020, a requirement has been established that officers, warrant officers and midshipmen who entered (or were sent) to educational institutions were required to enter into a contract for at least 5 years of further military service after completing their studies. This applies to military personnel studying at military universities and other scientific organizations at the level of higher education, in graduate schools and adjunct courses for the preparation of dissertations for an academic degree.

For military personnel studying in military professional educational organizations, as well as in military and civilian universities (in the latter case - with military educational centers) under the training program for mid-level specialists, the period for concluding a contract upon completion of training depends on the level of the position that is expected to be filled at continuation of military service. For positions where the state provides for the military rank of officer and warrant officer (midshipman), this period is also at least 5 years. For positions of soldiers and sergeants (sergeants major), the minimum contract period is 2 and 3 years, respectively.

In addition, when concluding a further contract, the right to a 12-month period is reserved only for those with a military rank up to and including chief petty officer or chief petty officer.

How can a conscript resign early?

You can retire early from military service only if you have compelling reasons:

• deterioration of the serviceman's health (confirmed by the conclusion of the military medical commission);
• close relatives need care (there is a medical examination report on this);
• there are persons under guardianship under 18 years of age;
• is a single father or a father of 2 or more children, or the father of a disabled child under 3 years of age;
• transfers to the position of a military judge or becomes a deputy.

The procedure will be the same as described above. To confirm the circumstances that caused the need for early termination of service, medical reports, certificates from guardianship authorities and similar documents can be used.

The procedure for dismissing a contract employee at his own request

The procedure for dismissal of military personnel is generally regulated by Federal Law No. 53-FZ “On Military Duty and Military Service,” as well as Article 34 of the Regulations on the Procedure for Military Service, approved by Decree of the President of the Russian Federation of September 16, 1999 No. 1237, and a number of departmental orders.

According to these regulatory documents, early dismissal of a serviceman at his own request is not provided if the period of their contract service was insufficient to count it as compulsory military service. Such citizens are sent to serve as conscripts for a period in accordance with the legally established rule - two days of contract military service (training at a military educational institution) for one day of conscript military service.

Dismissal from military service at the initiative of a serviceman is carried out on the basis of his report, in the presence of valid reasons and the corresponding conclusion of the certification commission. The procedure for conducting the commission is determined by Article 26 of the Regulations on the Procedure for Military Service, as well as by Order of the Minister of Defense of the Russian Federation dated February 29, 2012 No. 444. The decision of the commission is documented in a protocol, on the basis of which the unit commander subsequently issues an order for dismissal.

If a serviceman receives a refusal and considers it incompetent, he has the right to appeal the commission’s decision on appeal by appealing to a higher commander or superior within a month from the date the certification results were announced to him, as well as to court.

It should also be taken into account that the final decision on dismissal from military service is made depending on military rank:

• for senior officers - by decrees of the President of the Russian Federation;
• for colonels, captains of the 1st rank, as well as military personnel discharged from the army by transfer to other departments where military service is provided - by the heads of departments;
• for other military personnel - by officials in accordance with the rights granted to them upon the appointment of military personnel to military positions.

From January 1, 2021, it has been additionally established that early dismissal of junior officers is carried out by the commander-in-chief of the branch of the Armed Forces of the Russian Federation, the commander of the military district troops (commander of the Northern Fleet), and officials equal to or higher than them.

According to the requirements of current Russian legislation, every serviceman discharged from military service, on the day of exclusion from the lists of personnel of a military unit, must be fully provided with the established monetary allowance, food and clothing supplies.

Payments and compensations

The question of what payments are due to a person leaving the Armed Forces is regulated by the following regulations:

• Federal Law No. 306 dated 07.11.2011;
• Order of the Ministry of Defense No. 2007 of December 30, 2011.

The total amount includes three items - a one-time benefit, financial assistance and a bonus.

Table 2. Amount of payments to a military personnel who retires early.

Note! If a contract employee is injured while performing his duties, he is additionally paid compensation in the amount of 2 million rubles. For conscripts and those called up for military training, this amount under similar circumstances is 1 million rubles.

In order to receive the required payments and compensation, you need to prepare another report. Attached to it are papers confirming the right to cash security. In any case, the amount is calculated in each specific situation, taking into account the military rank, position, and length of service of the dismissed person.

Report on the dismissal of a serviceman: sample

A written report on the dismissal of a serviceman under a contract, including early and at his own request, is drawn up by the serviceman himself in free form addressed to the commander of the military unit. The report should indicate:

• personal data of the official to whom the report is addressed (military rank, position held, surname, initials);
• your personal data (last name, first name, patronymic, rank and position);
• date and place of document preparation;
• existing grounds for dismissal.

Also, the dismissal report may contain a request to be sent for a medical examination or, conversely, a refusal to be examined by a military medical commission (as appropriate) and other additional points. In addition, it should be mentioned how the applicant intends to resolve the issue of housing.

Documents and certificates confirming the grounds for dismissal must be attached to the report in copies or originals and must be listed in the appendices.

The report is drawn up in two copies (both are registered in the combat department of the military unit to which the applicant is assigned). Then one copy with a registration mark is returned to the serviceman, and the second remains in the military unit. You cannot refuse to accept and register a report, nor can you delay responding to it. Within 30 days from the date of registration, the applicant must receive a written reasoned response.

Judicial practice in cases of early dismissal of military personnel at their own request

In the overwhelming majority of cases, the Russian judicial system in cases challenging the early dismissal of professional military personnel at their own request takes the side of the Ministry of Defense. In turn, the military department usually justifies its position by the fact that significant funds are spent on training a contract soldier, and is interested in the serviceman “working out” these funds.

Resolution of the Plenum of the Supreme Court of the Russian Federation No. 8 dated May 29, 2014 directly states in paragraph 47: “The report submitted by the military personnel and the corresponding conclusion of the certification commission are not unconditional grounds for dismissal at will, since the decision on this issue falls within the powers of the relevant military official.”

Judging by publications in the media, in recent years they have most often written about the impossibility of leaving for young officers who are required to serve 5 years after graduating from a military educational institution. In this case, we are talking about facts when contract servicemen themselves, who have decided to leave the army at any cost, provoke the command: they begin to violate the regulations, allow unjustified actions in the performance of official duties, including unauthorized leaving of the unit and alcohol abuse. This forces the command to use the NUC as a basis for their dismissal. In this regard, independent lawyers advise military personnel not to lead to conflicts and try to resolve this issue through a mutually acceptable agreement of the parties.

On May 27, 2021, the Constitutional Court of the Russian Federation issued Resolution No. 26-P regarding the possibility of early dismissal from military service for military personnel raising minor children without a mother (father). The contested norm of Federal Law No. 53-FZ “On Military Duty and Military Service” does not establish the criteria on the basis of which this category of military personnel is distinguished. In judicial practice, it is prescribed to consider those who are raising a child on their own if the other parent: has died, is missing, has been declared incompetent (partially capable), has been deprived of parental rights or is limited in them, has been undergoing treatment in a medical organization for a long time, is serving a sentence of imprisonment, evades raising children or protecting their rights and interests, or refused to take his child from a social services, medical, educational or similar organization.

Other reasons preventing the second parent from participating in the upbringing and care of the child (in particular, divorce and living in another city), the Constitutional Court actually did not consider sufficient to indicate the need to dismiss the mother from military service, and only obliged the courts when considering such cases take into account the entire range of specific circumstances (including an assessment of the child’s health, the possibility of him attending a preschool educational organization, the availability of guarantees and compensation under current legislation). The disputed norm was recognized as consistent with the Russian Constitution.

Example 2.

There is a need for constant care for a close relative, but there are other persons obliged by law to support these citizens. If they exist, then even their residence far away is not grounds for dismissal for family reasons, but may become grounds for dismissal at will

Continue reading: How to resign from military service of your own free will? Part 2: Conclusion of the certification commission and practical advice.

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