According to the provisions of the Law "On Military Duty and Military Service", the issue of discharge of military personnel, especially those serving during mobilization, remains quite complex and ambiguous, in particular when it comes to reaching retirement age. According to recent court decisions, military personnel serving under conscription during martial law cannot count on discharge due to reaching retirement age, even if they are entitled to an old-age pension.
The issue was considered in the context of case No. 420/30545/23, where the plaintiff, a participant in hostilities, reported to the military unit with a request for release due to reaching retirement age. He relied on Article 115 of the Law "On Mandatory State Pension Insurance", believing that he was entitled to an early pension and could be released from military service.
However, the courts of first and appellate instance refused to grant the claim. The Administrative Court of Cassation confirmed that, according to the legislation of Ukraine, there are no grounds for dismissing military personnel based on age during mobilization and martial law.
Key points that determine the legal position
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The process of completing military service during mobilization: According to Part 10 of Article 26 of the Law "On Military Duty and Military Service", if a military serviceman is entitled to a pension for years of service or is a war veteran, he may be discharged from military service upon reaching a certain age. However, this only happens in peacetime, when there is no martial law regime. For a plaintiff who was called up for service during mobilization, these provisions do not apply.
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Rules for contract servicemen: According to clause 5 of article 26 of the law, servicemen serving under a contract may be discharged by age only in peacetime, upon reaching the age limit for military service. However, these rules do not apply during martial law.
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Transition to retirement is not a ground for dismissal: The Court of Cassation emphasized that the assignment of an old-age pension, even on the basis of Article 115 of the Law on Pension Insurance, is not a sufficient ground for dismissal from military service during mobilization. Mobilization and martial law do not allow the application of such grounds for dismissal.
Thus, the courts confirmed that military personnel who are serving on conscription during mobilization under martial law cannot be dismissed due to reaching retirement age. This is due to the need to perform duties during a special period when dismissal from military service is limited by current legislation. Dismissal on the basis of age is possible only in peacetime, when it comes to contract servicemen or career military personnel, for whom specific rules are established in peacetime.
