Grounds and procedure for dismissal of a serviceman for non-compliance with the terms of the contract

○ The concept of “non-compliance with the terms of the contract”

In order to determine what constitutes “non-compliance with the terms of the contract,” it is necessary to understand what is meant by a serviceman’s contract. There is no specific legal definition of this concept.

However, the most complete definition of a contract seems to be the following, which is given in the Resolution of the Constitutional Court of the Russian Federation No. 6-P on March 31, 2013 - this is the special legal status of a military personnel who:

“voluntarily assumes obligations to meet the requirements for the military position held and maintain the required level of qualifications during the term of the contract, conscientiously perform all general, official and special duties, and comply with generally accepted rules of conduct and ethics.”

Thus, non-compliance with the terms of the contract should be understood as a violation on the part of the serviceman of a special legal status, which he assumed voluntarily by concluding a corresponding written agreement with the military department. Article 51 of Federal Law No. 53 provides for more than thirty, very different grounds on which a serviceman can be dismissed from military service. These include:

• Administrative offences.
• Criminal offenses.
• Other actions on the part of the military personnel and the military department.

✔ Committing an administrative offense

As a general rule, if a serviceman serving under a contract commits an administrative offense, the contract cannot be terminated early for such a violation. However, there is an exception specified in paragraph 2 of Art. 51 Federal Law No. 53, which entails early dismissal from military service:

“k) in connection with the commission of an administrative offense related to the consumption of narcotic drugs or psychotropic substances without a doctor’s prescription or new potentially dangerous psychoactive substances.”

✔ Committing a criminal offense

This issue should be considered from two perspectives:

1. The very fact of a crime committed by a contract soldier cannot act as a disciplinary basis on which one can be early dismissed from military service due to failure to comply with the terms of the contract. The application of such a measure is possible if there are signs of a disciplinary offense in the actions of a serviceman, consisting of an unlawful, guilty action or inaction. However, no more than one year may pass from the moment of committing a disciplinary offense to the imposition of a disciplinary sanction.
2. If there is a court conviction against a serviceman that has entered into legal force, then this circumstance represents an independent basis for his early dismissal from military service.

✔ Other actions that constitute non-compliance with the contract

Other actions that may lead to dismissal for non-compliance with a contract include disciplinary offenses by a serviceman that call into question his ability to continue military service further.

Consequences

It is worth recalling that failure by a serviceman to comply with the terms of the contract consists of committing any disciplinary act, administrative violation or criminal offense. Current legislation does not allow a serviceman to be brought to disciplinary liability for committing the same type of offense. In other words, a contract serviceman does not have the right to be dismissed for the same disciplinary offense.

Thus, early dismissal from the army for non-compliance with the terms of the contract is applied to a soldier or officer as a measure of punishment and response - in cases where, according to a court verdict, a person loses the right to hold certain positions for a certain amount of time.

For committing any type of offense, the military man is forced to resign without further possibility of returning to military service, and the contract with the Russian Ministry of Defense will be permanently terminated. And depending on the severity of the offenses committed, he may be sentenced to criminal or administrative punishment.

A serviceman who terminates a contract with the Russian Ministry of Defense will subsequently lose the following privileges:

1. Receiving annual financial assistance.
2. Payment of various types of bonuses and benefits.

○ Breach of contract by the Department of Defense

The military department may also violate the terms and conditions included in the contract. These are depriving violations:

• A serviceman's ability to exercise his constitutional rights.
• A serviceman or his family members have the opportunity to enjoy their rights provided by social guarantees and compensation provided for by the current legislation on military service and the status of a military personnel.

✔ Violation of military rights

The main reasons for dismissal from military service on this basis are:

• Late or incomplete payment of the stipulated monetary allowance.
• Inadequate food and clothing supplies.
• Lack of housing allowance.

✔ No salary payments

The law provides that a contract soldier receives a salary consisting of a monthly salary for his military rank and a monthly salary for his position.

For 2021, the average salary for contract servicemen and sergeants ranges from 25,000 to 45,000 rubles per month. In addition, depending on the characteristics of the service, other monthly and additional payments are made:

If there is a fact of non-payment or incomplete payment of the required monetary allowance, the serviceman has the right to raise the issue of termination of the contract due to the fault of the military department.

✔ Denial of leave

The provision of leave is regulated by the Federal Law “On the Status of Military Personnel”. So:

In addition to the main one, additional vacations may be provided. So:

• Veterans - 15 days.
• For admission to educational institutions and participation in training sessions.
• For academic degrees.
• For personal reasons – 10 days.
• Those who have served the maximum period - 30 days at a time.

All types of leave are granted by order of the unit commander on the basis of a report submitted by the serviceman. He must be endorsed by the unit commander. Without his resolution, leave will not be granted.

Failure to fulfill the contract by management

If the command significantly violates the provisions of the contract, then the soldier has the right to early dismissal. The country's Ministry of Defense undertakes to provide all privileges for military personnel and family members.

The contract requires compliance and if there are significant violations, the contract can be terminated.

Such violations may be:

1. Inability to exercise privileges under the Constitution;
2. Violations that deprive military rights;
3. The inability to use guarantees and powers for the army man and his family.

If the contract is broken more than three times, the soldier has the right to terminate the contract. You must go to court within three months after the violation of rights . After this time, the limitation period ends. The decision for each military man is made individually.

A man himself can resign if significant violations occur under the contract or:

• The soldier cannot exercise rights;
• Family members and employees cannot take advantage of payments and guarantees.

In order to stop conducting activities, you need to contact the command or file a lawsuit. Individual circumstances, financial situation, etc. are taken into account. A decision is made only on the basis of all the facts.

Systematic violations of provisions are offenses that are repeated more than three times in a short period of time.

○ 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:

Is early termination possible?

Both military personnel and civilians often ask the question: “Can an employee be fired for non-compliance with a contract, what are the consequences of this non-compliance?” Naturally, early dismissal is guaranteed for persons who have committed gross violations of the conditions of military service. This may happen for any criminal or administrative violation.

A contract with a serviceman can also be terminated for any disciplinary offense committed repeatedly. If a person who has previously committed some acts repeats them again, and both offenses have been documented, then he will be dismissed.

Early dismissal for non-compliance with contract rules is applicable to a person as a response or punishment measure. In other words, a military man will face dismissal if he has been brought to administrative or criminal liability. In this case, the right to hold certain positions may be taken away from him for a certain period of time.

A serviceman can be dismissed in two ways: dismissal in the form of a disciplinary sanction or dismissal based on the results of certification. Let's look at these procedures in more detail.

In the form of disciplinary action

If the commander is convinced of the guilt of the subordinate, then the next step is to create an order for the early dismissal of the serviceman. It must indicate:

1. FULL NAME. and military rank;
2. the grounds for which the dismissal occurs;
3. the date from which the serviceman must be expelled from the ranks of the military unit.

The serviceman must be familiarized with such an order in person and signed. If he refuses to sign such an act, then an act of refusal to sign must be drawn up. It is drawn up in the presence of two witnesses. It must indicate which document the serviceman refused to sign and the date the act was drawn up. Drawing up a notice of dismissal in the form of a disciplinary sanction is not required; it is enough to familiarize it with the order.

Convening an attestation commission to assess the suitability of the military position held

In most cases, dismissal occurs based on the results of certification, which is a specialized legal instrument, following which allows one to assess the readiness of a military person to perform his official duties.

Certification is carried out to comprehensively assess the performance of a military contractor and officer. In addition, this certification checks the serviceman’s suitability for the military position held and the prospects for further service. It is important to emphasize that the certification commission for the purpose of assessing the suitability of a serviceman for the position held is created by an administrative act.

The commission includes the following officials:

1. chairman - chief of military staff or deputy commander;
2. secretary - one of the officers of the military unit;
3. members of the commission - deputy commander of a military unit, heads of military units, legal entities, representatives of recruitment and educational work bodies of a given military unit;
4. other people who, according to the decrees of the President of the Russian Federation, will help deal with other issues related to the process of military service and other issues.

He has every right to appeal the results and procedure for the certification procedure by sending his application to the battalion chief, or to the court. It is possible to appeal the results of the commission within one month from the date of their official announcement.

If the serviceman's complaint is justified, then:

• appropriate changes are made to the certification sheet;
• a new document is created.

The commander of a military unit can submit a petition to convene an attestation commission. To compile this document, you must use a special template.

It is worth noting that when drawing up a petition, the battalion chief is obliged to:

1. fully study the qualities of the certified serviceman;
2. based on the studied qualities of a military man, provide a detailed description of the personality based on the results of his certification;
3. provide documentation to the authority of certification documents to obtain a final conclusion, as well as approval.

Before the commander of a military unit makes a final decision on the case under consideration, the certification commission issues a written opinion on all issues raised during the process. After the commander makes a final conclusion on the commission, all documents will be sent to the Ministry of Defense of the Russian Federation. Here the main certification commission is formed, which will put forward a final verdict.

The commander prepares a letter to a higher-ranking official, through which he notifies him of the need to dismiss the military contractor from service. A certification commission is preliminarily convened, which makes a decision on the dismissal of the serviceman. The certification sheet is sent to the military unit within two weeks before the inspection. This is necessary so that the military man can familiarize himself with the claims put forward to him and, if necessary, make amendments to the conclusion.

Assessing a serviceman is required in order to confirm or refute complaints directed towards him. As a result, all the pros and cons will be revealed, which will help the commander determine whether it is really worth stopping cooperation with this contractor, that is, issuing a dismissal order.

The dismissal order is usually drawn up in form T-8. It indicates the date of hiring and the date of dismissal, the grounds for dismissal, which is the decision of the commission, the signature of the commander and the signature of the person being dismissed.

○The procedure for dismissing a serviceman for violating the terms of contract service

Dismissal can be accomplished by:

1. Application of disciplinary action.
2. Carrying out regular or extraordinary certification.

✔ Conducting an investigation

In paragraph 94 of the Manual on legal work in the Armed Forces of the Russian Federation , put into effect by order of the military department on January 31, 2001 No. 10, it is stipulated that in order to establish the actual circumstances of the commission of misconduct and other offenses by a military personnel that do not have signs of a specific crime, it is carried out administrative investigation.

To do this, based on the report of the immediate commander of the serviceman who committed violations of military service, an order from the unit commander is issued.

The investigation into a disciplinary offense must be completed within 10 days. In its process:

• Explanations are selected from the violator of discipline and eyewitnesses of the violation.
• Other written documents are collected.

Based on the results, a conclusion is made on the results of the administrative investigation, which, together with the collected documents, is reported to the commander who appointed it.

✔ Report on early dismissal

During the administrative investigation, the immediate commander submits a report addressed to the unit commander, in which he substantiates the request for early dismissal as a disciplinary measure.

✔ Drawing up a dismissal order

Based on the conclusion on the results of the administrative investigation, the unit commander issues an order, which must be prepared and comply with the requirements of the Instruction approved by Order of the Military Department on December 10, 2014 No. 888 “On the procedure for the preparation, execution and state registration of official documents of the Ministry of Defense of the Russian Federation.”

✔ When is it necessary to involve the certification commission?

In the event that the direct immediate commander does not see the advisability of further service by a military personnel, due to his inappropriate behavior, he may apply for an unscheduled certification for compliance with the requirements that are presented to citizens who decide to become military.

Recommendations to commanders of military units

Commanders (or chiefs) of military units should remember that not every violation of the terms of a contract by a serviceman, resulting in the commission of a crime, disciplinary or administrative offense, is a reason for the dismissal of an officer (or warrant officer) from service. Each case must be considered individually, having studied pre-existing practice (including judicial practice) on similar issues, as well as documents characterizing the serviceman from both a personal and professional perspective.

Having decided to terminate the contract with an officer (or warrant officer) early, the dismissal procedure must be followed by the unit commander in full, since the slightest violation of this process can lead to the cancellation of the order in court.

source: law03.ru

In this article, we will answer frequently asked questions on the topic of early dismissal of military personnel due to non-compliance with the contract, both on the part of the military itself and on the part of the ministry. We will give clear step-by-step instructions for all actions upon dismissal, and will also tell you what and how to do if you yourself are faced with a similar situation.

Military legislation implies the possibility of dismissal from service of any full-time employee if he committed any offenses that contradict the contract with the Ministry of Defense of the Russian Federation.

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○ Consequences of dismissal for breach of contract

If a serviceman is dismissed from military service for violating the terms of the contract, this entails:

• Deprivation of severance pay, the amount of which ranges from 2 to 7 monthly salaries.
• Non-payment of bonuses due for the performance of military duties.
• Deprivation of annual financial assistance.

However, if the serviceman managed to receive these payments before the day of dismissal, then they are not subject to recovery.

If a mortgage loan was issued and the interest on it was paid at the expense of the state, then they will have to be returned in full.

Legal regulation of fines and penalties

The accrual of penalties and fines for violations under 44-FZ is based on the provisions of Art. 34 44-FZ and Government Decree No. 1042 of 2021. The latest regulatory legal act replaced the previously valid document, which indicated the rules for calculating penalties - Government Resolution No. 1063 of 2013. The updated Government Resolution began to regulate the scope of accrual of penalties in more detail, but the basic condition remained the same: the higher the contract price, the lower the fine.

The specifics of calculating penalties are specified in the government contract. It is necessary to distinguish between fines in the form of a fixed amount and penalties, which are accrued for each day of delay in obligations.

Also, liability for the parties can be established in accordance with the norms of the Code of Administrative Offences.

How to pay penalties and fines

If the supplier agrees that he has violated his obligations under the contract, the procedure will be as follows:

1. The customer submits a written claim in a free format describing the fact of delay , where he indicates the contract details, invoice number and amount to be paid.
2. The supplier agrees to pay the penalty and transfers funds to the account specified by the customer.
3. The parties sign the acceptance certificate.
4. The customer pays for the contract.
5. The funds deposited as security are returned to the contractor.

Alternative methods of paying penalties are also allowed, when the customer collects the money independently from the funds due to be paid to the supplier. In this case, there are three options for retention:

1. From the amount that the supplier must pay for the execution of the contract.
2. From securing a government contract.
3. From the bank in which the supplier issued a guarantee for the fulfillment of obligations . If the guarantee specifies a clause on the collection of late fees, the customer may demand compensation for the penalty.