The decision can be appealed

In the Armed Forces since 1982, an officer since 1987, I want to resign from the Armed Forces under clause 3 " a " of Article 51 of the Federal Law of March 28, 1998, or at my own request. I turned to the commander and received an answer that the reduction in the army was over and currently they do not dismiss me under this article, and if I want to sue, I will have to sue the Ministry of Defense.

1) Is this refusal legitimate?

2) Which court should I apply to? What is the procedure for applying to the court?

Captain S. NOSKOV. Danilovsky district, Yaroslavl region.

First, no one can give an absolute guarantee that the reduction of the Armed Forces of the Russian Federation is over. Secondly, the commander's opinion is clearly not based on the Law, and a refusal on this basis would be illegal. In connection with organizational and staffing measures, a serviceman undergoing military service under a contract may be dismissed in accordance with subclause "a" of clause 4 of Article 34 of the Regulations on the Procedure for Military Service (approved by Decree of the President of the Russian Federation No. 1237 of September 16, 1999).:

- reduction of the military position (position) held by him, including in the event of liquidation (disbanding, reorganization) of military units, bodies or organizations and the absence of his consent to be appointed to another military position (position);

- if the commander (chief) is at his disposal for more than the terms established by clause 4 of Article 42 of the Federal Law "On Military Duty and Military Service" and Article 13 of the commented Provision, and if he does not agree to be appointed to another military position (position);

- when lowering the military rank corresponding to the military position (position) held by him, or when changing the military accounting specialty corresponding to the military position (position) held by him, renaming the military position (position) and unwillingness to continue military service in the military position (position) held by him or in another military position;

- if the military medical commission recognizes him / her as unfit for military service in the existing military accounting specialty (not meeting special requirements), but suitable for military service or suitable for military service with minor restrictions in the absence of his / her consent to be appointed to another military position (position);

- in case of reduction of military posts (positions) within the limits of their total number that are subject to replacement by one composition of military personnel, including if the military position (position) held by them is not subject to reduction, with their consent (for military personnel with seniority that entitles them to a pension).

Another thing is that the procedure for dismissal for organizational and staff activities does not provide for the consent of the serviceman, and his desire for dismissal is not taken into account (except for the last paragraph of subclause "a" of clause 4 of Article 34 of the above Provision).

On the issue of appeal to the court, it should be noted that, based on the content of Article 46 of the Constitution of the Russian Federation and in accordance with Articles 1 and 4 of the Law of the Russian Federation "On Appeal to the Court of Actions and Decisions Violating the Rights and Freedoms of Citizens" No. 4866-1 of April 27, 1993 (as amended). December 14, 1995), explanations of the Plenum of the Supreme Court of the Russian Federation set out in Resolution No. 14 of 18.11.1992 "On judicial Protection of the Rights of military Personnel against Illegal Actions of Military Administration Bodies and Military Officials" (as amended by the Supreme Court of the Russian Federation). 22, 24-1 of the Civil Procedure Code of the RSFSR, as well as Article 21 of the Federal Law" On the Status of Military Personnel " No. 76-FZ of 27.05.98. Military personnel have the right to appeal to a military court against actions and decisions of military administration bodies and military officials that violate their rights and freedoms. You can file a complaint either to a higher command, or directly to the court (to the military court of the garrison, or in the absence of such a court - to the district (city) court). If necessary, it is explained to applicants which military court has jurisdiction to consider their complaints. A complaint filed by a serviceman with a military court must contain the following information::

- name of the military court to which the complaint is filed;

- surname, first name, patronymic of the serviceman filing the complaint, place of service, position, rank, place of residence;

- the name of the body (military) management, its location, as well as the surname, first name, patronymic, position, title of the person whose actions are being appealed;

- the circumstances on which the serviceman bases his complaint, what rights and freedoms of the serviceman are violated by the actions of a military administration body or official (in your case, actions on refusal to dismiss from military service if there are grounds provided for by law and other regulatory acts);

- the applicant's claims (on the merits);

- a list of documents attached to the complaint (written responses of the military administration body (s) or official).

The application (complaint) is signed by the serviceman or his representative. If you want your interests to be represented by a representative authorized by you, the complaint (application) must be accompanied by:

page 43

a power of attorney or other document certifying the representative's authority must be attached.

The complaint (application) must be drawn up in accordance with Articles 126, 127 of the Civil Procedure Code of the RSFSR and paid with state duty in the amount established by the Law of the Russian Federation "On State Duty" (in your case, 15 percent of the minimum wage).

Terms of applying to the court with a complaint:

- 3 months from the date when the serviceman became aware of the violation of his right;

- 1 month from the date of receipt by the serviceman of a written notice of refusal of a higher military administration body or military official to satisfy the complaint, or from the date of expiration of a one-month period after filing the complaint, if the citizen did not receive a written response to it. If the court, having thoroughly examined the case file, comes to the conclusion that the deadline for applying to the court has been missed for a disrespectful reason, it refuses to satisfy the complaint (paragraph 11 of the resolution of the Plenum of the Supreme Court of the Russian Federation "On consideration by Courts of complaints about illegal actions violating the rights and freedoms of citizens" No. 10 of December 21, 1993).

If the grandmother is disabled

Before my military service, I lived with my grandmother and mother. Both are disabled people of the first group. Due to my mother's disability, I was granted a deferral from military service. After my mother's death, I was called up for military service in Vologda. A disabled grandmother stayed at home. She has no other relatives but me.

Can you tell me if I can be released from military service on conscription (grant a deferral) to take care of my grandmother? What documents are required for this?

V. KHVOSTOV. Vologda region.

You have the right to a deferral from conscription in accordance with clause 1 (b) of Article 24 of the Federal Law "On Military Duty and Military Service". If you need constant care for your father, mother, wife, brother, sister, grandfather, grandmother or adoptive parent (these citizens should not be on full state support and, according to the conclusion of the state medical and social expertise body at the place of residence, should be recognized as needing outside care or be disabled people of group I or II, have reached in the absence of other persons required by law to support these citizens, a serviceman who does not have the military rank of an officer and is undergoing military service on conscription has the right to leave military service prematurely for family reasons and not to complete the remaining period of military service, i.e. not to be conscripted again (51 of the Federal Law "On Military Duty and Military Service" and clause 6 of Article 34 "Regulations on the procedure for military service", approved by Decree of the President of the Russian Federation No. 1237 of September 16, 1999, as amended on October 15, 1999). On the issue of early dismissal from military service for family reasons (item 4 of Article 51 of the Federal Law), you should submit a report to the commander of your unit.

Documents confirming your right to early dismissal on the specified grounds are::

- conscript's birth certificate;

- a certificate of family composition and other documents confirming the absence of other persons required by law to support these citizens, regardless of their place of residence;

- birth certificates of parents;

- conclusion of the institution of the state service of medical and social expertise at the place of residence of the citizen being called up for military service on the need of these relatives for constant outside care (assistance, supervision);

- certificate of disability (group I, II) of the specified relatives;

- pension certificate of the specified relatives.

The originals of the listed documents are attached to the report and then attached to the conscript's personal file.

Benefits for "conscripts"

Since 1998, I have been conscripted in the territory of North Ossetia. Please tell me if I have the right to benefits for admission to a higher educational institution on the basis of Federal Law No. 146-FZ " On Amendments to Article 5 of the Law of the Russian Federation "On additional Guarantees and Compensations for military personnel serving in the territory of the Transcaucasian states, the Baltic States and the Republic of Tajikistan, as well as performing tasks under a state of emergency and in armed conflicts", which entered into force on November 22, 1997.

Do I have the right to an additional 25 days of vacation on the basis of Appendix No. 2, clause 6 para.2 to the order of the Minister of Defense of the Russian Federation No. 9 of 1996?

Lance Corporal E. PATRIKIN, Mozdok City

The said Federal Law No. 146-FZ of November 19, 1997 does indeed grant military personnel who have served conscripted military service the right to enroll in their chosen military schools. :

- military educational institutions of professional education, including educational institutions of the Ministry of Internal Affairs of the Russian Federation, without entrance examinations, provided that they meet all other requirements for professional selection and admission to these educational institutions;

- to civil educational institutions of professional education-out of competition.

page 44

Order of the Minister of Defense of the Russian Federation No. 9 of January 4, 1996 "On providing additional guarantees and compensations to military personnel of the Armed Forces of the Russian Federation Serving in the Territories of the Transcaucasus, Baltic States and the Republic of Tajikistan, as well as performing tasks in a State of emergency or in armed conflicts", issued in accordance with the Law of the Russian Federation " On additional guarantees and compensations for military personnel serving in the territories of the Transcaucasus, Baltic states, the Republic of Tajikistan, as well as performing tasks to protect the constitutional rights of citizens in a state of emergency and in armed conflicts", confirms the previously established guarantees and compensations of the said Law of the Russian Federation, in particular for military personnel undergoing military service on conscription, after the expiration of six months of performing tasks in a state of emergency and armed conflicts, additional short-term leave is granted: sergeants and petty officers - 30 calendar days, soldiers and sailors-25 calendar days, not counting the time required to travel to the place of vacation and back (item 6 Appendices No. 2 to the Order of the Minister of Defense No. 9 of January 4, 1996).

It should be noted that these rights and benefits apply to military personnel performing tasks in the conditions of non-international armed conflict in the Chechen Republic and in the territories of the North Caucasus immediately adjacent to it, classified as an armed conflict zone, along with guarantees and compensations provided for by the Federal Law " On Amendments to Article 5 of the Law of the Russian Federation "On additional guarantees and compensations for military personnel serving in the territories of the Transcaucasus, Baltic states, the Republic of Tajikistan, as well as performing tasks under a state of emergency and in armed conflicts."

The refusal is unfair, but legitimate

Served in the Strategic Missile Forces for 21 calendar years and 7 months. He resigned from the Armed Forces at his own request-forced by family circumstances. Previously, he could have left due to organizational and staff events (at the time of possible dismissal - 20 years ago) - the unit was disbanded , but he did not do this. Prior to his discharge, he served in a closed town in the Siberian Military District, after completing his service, he rented out an apartment and left for a permanent place of residence. According to Article 15 of the Law "On the Status of Military Personnel", he had the right to keep an apartment for himself or receive monetary compensation for living space in a closed military camp (Resolution of the Council of Ministers of the Russian Federation No. 1158), but there was no money in the budget. In the military unit, I was waiting in line for housing, but at the military registration and enlistment office at the new place of residence, his employees told me that I did not have the right to receive housing, as I left on my own. I was denied a state housing certificate. The refusal is motivated by the Decree of the Government of the Russian Federation No. 1054 of September 6, 1998. I was asked to join the general queue for all citizens of the city.

Can you tell me if I have the right to housing after 21 calendar years of service, even though I was dismissed at my own request from the Armed Forces of the Russian Federation? Can I get a GZHS?

Reserve Lieutenant Colonel A. DAVYDOV, Kotovo, Volgograd region.

At the time of your dismissal from the Armed Forces, the Law of the Russian Federation "On the Status of Military Personnel" No. 4338-1 of January 22, 1993 was in force. Paragraph 6 of Article 15 of this Law provided for the provision of residential premises to citizens and their families by local self-government bodies according to established standards no later than 3 months from the date of submitting an application for inclusion in the lists of those in need of housing. improvement of housing conditions in the chosen permanent place of residence of citizens dismissed from military service and having a total duration of military service of 10 or more years and subject to dismissal on the following grounds (hereinafter referred to as preferential grounds):

- upon reaching the maximum age of service;

- for health reasons;

- in connection with organizational and staff events.

At the same time, these military personnel must not have residential premises for permanent residence or need to improve their housing conditions in accordance with the housing legislation of the Russian Federation.

Based on your total duration of military service (20 calendar years), in accordance with Article 15 sp. 10 of the above-mentioned Law of the Russian Federation, you were entitled to appeal against the refusal to provide you with compensation for housing in a closed military camp, but you did not apply to the court or to a higher official (provided that such a refusal took place). Since you left at your own request, and not on preferential grounds, then according to the same norms of the above article, you could not receive compensation for residential premises in a closed military camp. As for dismissal due to organizational and staff measures, only in the absence of a possible transfer to another equivalent vacant position in another military unit of the Ministry of Defense of the Russian Federation (in accordance with paragraph 1 of Article 33 of the Law of the Russian Federation "On Military Duty and Military Service" N 4455-1 of February 1, 1993) could you be dismissed from military service in connection with organizational and staff events.

In accordance with the Rules of Registration of Military Personnel No. 1054 of September 6, 1998, military personnel subject to dismissal from military service and citizens dismissed from military service are also recognized as needing to provide residential premises (improve housing conditions) if they have living space in closed and closed buildings.

page 45

separate military camps (subclause 2, clause 7 of the Rules). On departure to a permanent place of residence, a service apartment (in a closed military camp) you passed. Therefore, the above-mentioned Rules do not apply to you, as does paragraph 5 of the Procedure for Issuing and Redeeming State Housing Certificates issued to military Personnel Dismissed from military service (on preferential grounds), as well as to citizens subject to relocation from closed and isolated military camps, approved by Government Decree No. 351 of March 29. 1999. But obtaining a state housing certificate is possible not only from the military department. For example, a citizen can improve their living conditions by purchasing securities in the form of housing certificates (Regulations on the issue and circulation of housing certificates, approved by the Decree of the President of the Russian Federation of June 10, 1994). Citizens who are dismissed from military service on non-preferential grounds do not have the right to benefits for providing housing or improving housing conditions provided for by the Federal Law " On the Status of Military Personnel "(in your case, the Law of the Russian Federation of January 22, 1993) and other legal acts in the housing sector. in accordance with the procedure provided for by the housing legislation of Russia, as for any citizen of the Russian Federation: joining the HBC (LC) - Article 111 of the Housing Code of the RSFSR; receiving gratuitous financial assistance for the construction or purchase of housing (unfortunately, this form of solving housing problems has not become widespread due to insufficient budget funding).

Based on the above, the refusal on these grounds to provide you with housing can be considered legitimate.

And again about the certificate

She was dismissed from the Armed Forces in March 1991 due to a reduction in staff. Length of service - 14 years and 2 months. Can you tell me if I have a state housing certificate?

Reserve Sergeant N. GUREEVA, Penza

From the letter, it is not possible to find out whether you need to provide housing or improve housing conditions and whether your housing situation meets the requirements set out in Article 29 of the Housing Code of the RSFSR. The very fact of dismissal due to organizational and staff measures does not give grounds for obtaining housing, GZHS or improving housing conditions. If you are found to be in need of housing (improvement of housing conditions), you will be able to purchase the right you are interested in.

page 46

Permanent link to this publication: