Dismissal of a serviceman (contractor) at his own request: grounds, terms, payments

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Published: 05/06/2016

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All military personnel who entered service in the Armed Forces of the Russian Federation carry it out for a certain time, called the period of military service.

The procedure for leaving service is different for conscripts and contract soldiers. Conscripts are dismissed twice a year by order of the Minister of Defense. For contract soldiers, this issue is resolved individually each time .

Legislative framework
Reasons for dismissal
When is early dismissal possible?
The procedure for dismissing military personnel
Payments upon dismissal

Dismissal from the army under the NUC - what does it mean?

Explanation of the abbreviation NUK - non-compliance with the terms of the contract. A contract for a military personnel is the same as an employment contract for a civilian employee. But the difference is that when terminating, one should use the norms of military rather than labor legislation.

A contract can be terminated if its terms are not met by one of the parties. The grounds are specified in Art. 51 of Law No. 53-FZ of March 28, 1998.

Violations by a contractor

The reasons for the breakdown of relations on the initiative of superiors are the following violations committed by military personnel:

Disciplinary offense. This is the commission of illegal actions by the military. In such a situation, termination of the contract will be the most serious punishment. It is permissible to issue a reprimand (severe reprimand), which is entered into a personal file. You may also be prohibited from wearing the Distinguished Service Badge, or you may be subject to a reduction in rank.
Administrative violation or crime. Since the law does not establish a list of violations for which a serviceman can be dismissed early, each of them is considered individually. The main criterion in this case is that the consequences or nature of the offense are incompatible with holding the rank of a Russian military serviceman.

Significant disciplinary offenses are listed in Appendix No. 7 to the Disciplinary Charter of the Armed Forces of the Russian Federation (approved by Order of the President of the Russian Federation No. 1495 of November 10, 2007). You can also be fired for systematic violations. This is considered to be repeated violation of discipline by the military at least three times in a short period of time.

According to Art. 28.5 (clause 2) of Law No. 76-FZ of May 27, 1998, gross disciplinary violations include:

unauthorized leaving the place of duty;
violation of statutory relations;
failure to appear on time from dismissal without good reason;
violation of the rules of service;
evasion of official duties;
illegal use or damage to military property carried out intentionally;
damage to property or its destruction due to negligence;
refusal to travel;
violations by the commander of safety requirements, resulting in the death or disability of military personnel;
violations of confidential records management requirements;
violation of the procedure for traveling outside the Russian Federation.

Resolution of the Plenum of the Armed Forces of the Russian Federation No. 8 dated May 29, 2014 (clause 41) indicates that such disciplinary violations are grounds for early termination of a contract with a military personnel.

It is not allowed to apply punishment twice for the same offense.

This means that if a serviceman has already been punished for a disciplinary violation, for example, with a reprimand, then it cannot become a reason for terminating the contract.

From the command side

The reasons why a serviceman himself can submit a report for early termination of a contract are as follows (clause 44 of Resolution No. 8):

violation , as a result of which the employee cannot exercise the rights guaranteed by the Constitution;
actions of commanders , as a result of which the military man himself or members of his family lose the opportunity to take advantage of the most significant rights for them, compensation, social guarantees provided for military personnel.

Is it possible for a contract serviceman to resign at his own request?

Article 51 of the law on conscription and military service stipulates many reasons for dismissal. The first paragraph indicates reasons that apply to all military personnel. In addition, specifically for contract workers, there are clauses 2, 3 and 6. Dismissal at one’s own request is regulated only by the sixth clause.

It states that an employee can resign of his own free will with the approval of the certification commission and if there is a good reason. The problem is that “good reasons” are not defined in any way. This gives the commander freedom to decide, so everything depends on his attitude.

For your information

To resign at will, you must first draw up a report indicating good reasons for such a decision. After this, the commander sends the military man to the certification commission, which analyzes the materials transferred to it. The commission's conclusion is not binding; the final decision is made by the commander.

Many people mistakenly believe that the category of valid reasons includes only family circumstances, which are described in paragraph 3. Here is a short list of them:

Inability for a family member to live with the employee. This usually happens when serving in an area with a harsh climate or when changing location when a spouse cannot move with the military.
Due to the need to care for an incapacitated relative. Health problems must be confirmed by a medical examination. In this case, there must be no other relatives capable of caring for the family member.
If necessary, care for a child under 18 years of age when there is no other parent (mother/father).
Because of the need to care (be a guardian) for a minor sibling when there are no other relatives who could do so.

However, it is not. It is not for nothing that these reasons are presented separately. Yes, because of them it is easiest to achieve dismissal, but the sixth implies precisely other circumstances that are not included in any of the paragraphs of Article 51. It is to assess the “degree of respect” that an attestation commission is created.

Among the arguments of military personnel, the following arguments are often given:

the inability to support a family on the allowance that a military man receives;
evasion of the spouse from raising children, when the contract worker does not get a divorce, but the wife is not deprived of parental rights, that is, the reason for dismissal for family reasons is not sufficient;
wife's pregnancy.

In practice, there is a case when the commission approved the dismissal for the reason that service in the position did not allow the effective use of the level of education (transfer to another position was impossible).

Important

A reason that does not allow a serviceman to comply with the terms of the contract may be considered valid.

At the same time, the “respectfulness” of the reasons is assessed based on the personality of the contractor, as well as his family and financial situation. Therefore, the same reasons may be considered valid for some military personnel, but not for others. Of course, the commission must evaluate the reasons by correlating them with the personality of the serviceman, and not with himself or society.

Procedure

In general, the procedure for dismissal if a serviceman has not fulfilled the terms of the contract is as follows (clause 81 of the Disciplinary Charter of the RF Armed Forces):

after a violation is detected, an investigation is carried out within 10 days;
the commander submits a report on early termination of the contract;
as a result of consideration of the report, a decision is made to dismiss early;
an order to terminate the contract is issued.

The immediate superior must initiate an unscheduled certification (clause 2.2 of Article 51 of Law No. 53-FZ). In its process, they check how well the serviceman meets the requirements for him, taking into account his rank.

During certification, the following steps are added to the general procedure:

formation of a commission;
notifying the serviceman about the inspection 2 weeks before it begins;
the commission establishes facts of improper fulfillment of the terms of the contract;
a protocol about this is drawn up;
a proposal is sent for early termination of the contract;
The high command gets acquainted with the submitted documents and makes its decision on this issue.

Based on the resolution of the Constitutional Court of the Russian Federation No. 6-P dated March 21, 2013, an extraordinary certification when deciding on the issue of early termination of a contract is a mandatory element.

The procedure is carried out in the same way for both officers and other military personnel.

general information

In the Russian professional army, all issues regarding the appointment and resignation of senior ranks are carried out according to the instructions of the President of the Russian Federation in the manner prescribed by law. Dismissal from military service under a contract, with the exception of those employees who were expelled from military higher and vocational schools, occurs as follows:

Transfer to the reserve, except for those who have reached the maximum age for service, or who are unable for health reasons to remain in the army.
An exception to military registration is mandatory for everyone except:

women who do not have military registration qualifications (expelled from military educational organizations);
those who went for permanent residence abroad;
persons dismissed;
citizens of other countries;
persons who were sentenced to a real prison term.

Registration with the army obliges a citizen to perform a number of actions prescribed by law, including appearing when first called to the military registration and enlistment office, notifying of a change in place of residence, work or marital status, and also trying to maintain his military ID.

The grounds for dismissal from military service under a contract are specified in Article 51 of Federal Law No. 53 of March 28, 1998; all the reasons for which a citizen will be denied service are specified here. All social guarantees and payments required by law are also stipulated. Dismissal is considered final when a serviceman is removed from the list of personnel.

How to write a report?

Dismissal under the NCC can be made in two cases:

when the serviceman himself does not comply with the terms of the contract;
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:

Full name and title of the person receiving the report;
name – “Report”;
a request addressed to the immediate commander to petition senior management to terminate the contract;
a detailed description of the reason why the serviceman asks to be dismissed (with links to regulations);
consent to conduct a military medical commission or refusal;
consent/refusal to calculate length of service;
whether the serviceman has his own home (or lack thereof);
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.

Dismissal for non-compliance with contract

The documents that a person signs when joining the army are a guarantee of respect for the rights of both parties. So the military man, as well as the state, has every right to terminate the contract if the employer does not fully fulfill its obligations towards the employee. But usually the opposite happens: it is a person’s actions that become the reason for dismissal from military service due to non-compliance with the contract.

A person who comes to work in a professional army must comply with three main points of the rules of service:

Carefully fulfill all duties specified in the contract.
Serve for the time specified in the contract.
Reimburse funds spent on military training and education of an employee.

The employee is obliged to fulfill his legal obligations in two main forms: to refrain from unlawful acts, and also to perform all the basic actions prescribed in the contract.

Failure to comply with the rules of service is a reason for applying one of the forms of disciplinary action to a military man - dismissal from military service under a contract due to non-compliance. Lawyers determine that only serious illegal acts can be the basis for such a measure, while minor violations can be challenged. For example, systematic neglect of the internal regulations of the unit, receiving disciplinary sanctions if there is an outstanding one, and more.

What payments are due if you are fired under the NUC?

Due to the fact that dismissal from the army occurs on the basis of a violation, the serviceman loses the right to receive a number of payments. According to parts 3 and 4 of Art. 3 of Law No. 306-FZ of November 7, 2011 , upon dismissal under the National Tax Code, employees do not receive a one-time payment in the amount of several salaries.

If the contract is terminated due to failure to fulfill its terms, the serviceman is deprived of the right to the following monetary payments:

Benefit – 2 or 7 monthly salaries.
Awards.
Annual financial assistance. But if it has already been accrued and paid, the serviceman does not have to return it.

Dismissal by decision of management

Clause "d" part 1 53 Federal Law Art. 51 provides for the resignation of military personnel due to a complete loss of confidence among their superiors. This concept covers the following cases:

If the serviceman did not take any measures to prevent or resolve a conflict in which he himself did not take part.
Failure to provide or provide incorrect information about income, expenses and other property owned.
3. Dismissal from military service under a contract is also possible provided that the serviceman conducts commercial and other entrepreneurial activities not provided for by law.
Provided that the serviceman is a member of management bodies, supervisory and trustee boards and other organizations with foreign funding.
If employees or their relatives have unregistered or unidentified accounts in foreign banks.
When conflicts of interest arise between a subordinate and a manager.
Subject to deprivation of military rank.
Due to exclusion from educational military institutions.
It is also possible to terminate a contract if you renounce citizenship of the Russian Federation or upon obtaining citizenship of a foreign state.

Early dismissal from military service under a contract is permissible if a serviceman is charged with a crime, including those that require a suspended sentence. According to the law, those persons who are in the service, in the reserve or retired can lose their military rank, but only after a court decision and for very serious crimes.

Consequences: what are the consequences of such termination of the contract?

If the contract is terminated due to failure to fulfill its terms, the serviceman is deprived of the right to:

one-time benefit;
bonus;
material assistance.

In addition, he will have to hand over clothing (overcoat, etc.), the service life of which has not yet expired.

If the dismissed person is a participant in a military mortgage, and the dismissal was due to his fault, he must return to the state the funds received in the form of a housing loan.

Interest is transferred monthly until it is fully repaid (Part 2, Article 15 of Law No. 117-FZ of August 20, 2004). The grounds for dismissal are not taken into account only if the length of service is more than 20 years.

On our website you can familiarize yourself not only with the dismissal of a serviceman for non-compliance with the terms of the contract, but also with other reasons. Read about dismissal due to general military training, for family reasons of a serviceman, at his own request, at the end of a contract, due to loss of trust.

Main reasons for dismissal

Today, contract service is a fairly prestigious job. Stable earnings, social guarantees, housing benefits and social status - all this attracts many young people to the ranks of the professional army. But the conditions of service have also become more stringent; military rank requires strict compliance with all prescribed standards. It is worth noting that dismissal from military service under a contract is not such a common occurrence. Usually a career in the army ends for legitimate reasons: retirement, injury, poor health, etc. But there are examples of malicious violations when the employee himself is to blame for leaving.

Federal Law No. 53 stipulates all possible reasons for dismissal from military service under a contract:

Upon reaching the maximum age for service, in this case the person is sent to the reserve.
For health reasons: in this case, the conclusion that a person cannot continue to serve is given only by a special commission of military doctors.
The end of the contract is also a condition for dismissal if a new agreement has not been formalized for some reason.
In a situation where a serviceman is elected as a deputy of the State Duma, the legislative body of one of the constituent entities of the Russian Federation, he must refuse to serve and resign from the structure.

Other legal conditions for termination of the contract will be discussed in more detail below.

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).

How does dismissal happen?

The timing of dismissal from military service under a contract depends on the time of submission of the report and the speed of decision-making by the unit’s management. The legislation does not specify exactly how long the report of a leaving serviceman should be considered. However, the default is a reasonable time frame. According to the special charter of the Russian Federation, any appeal should be considered no more than 30 days from the date of filing and registration. Delays may be due to additional official checks and clarification of information about the serviceman.

All materials are reviewed by the certification commission, usually the decision period is from 7 to 15 days. In order to speed up the passage of materials through all authorities, it is necessary to actively participate in the entire process. In addition to the report written in your own hand, you will need:

excerpt from the final conclusion of the certification commission;
availability of papers that confirm a valid reason for dismissal;
consent of the commander of the paramilitary unit.

After all the documents have been collected and you have a positive conclusion from the commission, you need to get a final decision from the unit commander. If the waiting period exceeds thirty days, the serviceman has the right to go to 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