Ill during leave or did not return after recall: when a serviceman cannot be recognized as having left the unit without permission

In conditions of martial law, the issue of granting leave to servicemen and their timely return to the place of duty becomes of particular importance. At the same time, not every failure to return from leave automatically means an unauthorized departure from a military unit (SZCH). Judicial practice shows that the command must prove the legality of its decisions, and the serviceman must confirm the validity of the reasons for his absence.

What leave can servicemen receive during martial law

The right of servicemen to leave is guaranteed by the Law of Ukraine “On Social and Legal Protection of Servicemen and Members of Their Families” No. 2011-XII.

During leave, a serviceman retains:

cash benefits;
material benefits;
the right to health care assistance in the amount of one monthly cash benefit.

Under martial law, in accordance with Part 18 of Article 10-1 of this Law, regardless of years of service, a serviceman may receive annual basic leave of up to 30 calendar days.

Leave is granted in parts, with one part of it not exceeding 15 calendar days. Also, during martial law, the norms of the Labor Code regarding holidays and non-working days do not apply.

What to do if a serviceman falls ill during leave

In practice, situations often arise when a serviceman cannot return to his place of duty in a timely manner due to illness.

The Ministry of Defense has explained the algorithm of actions in such cases.

First of all, a serviceman must immediately notify his immediate commander of the illness. Such an obligation is provided for by Article 254 of the Statute of the Internal Service of the Armed Forces of Ukraine.

You can notify the command:

by telephone;

via messenger;
in another accessible way.

The Ministry of Defense recommends keeping confirmation of such a message – screenshots of correspondence or information about the call made.

If the state of health does not allow you to immediately contact the command, the serviceman should first contact a medical institution or call an ambulance.

After hospitalization, it is necessary to:

notify the medical institution about military service;
name your military unit;
inform the command about hospitalization on your own.

It is the performance of these actions that confirms the validity of the reasons for the absence and makes it possible to properly draw up the necessary documents.

Not every failure to return from leave is a SZCH

One of the most common causes of litigation is the early withdrawal of servicemen from leave.

After receiving an order to withdraw, individual servicemen continue to be on leave until the end of the period specified in the order to grant it. The command often considers such actions as desertion from a military unit, conducts official investigations, applies disciplinary sanctions and suspends the payment of additional financial support.

At the same time, it is worth remembering that desertion from a military unit or place of service is a criminal offense, provided for by Article 407 of the Criminal Code of Ukraine.

In particular, part five of this article establishes that desertion from a military unit or failure to appear for service without good reason under martial law is punishable by imprisonment for a term of five to ten years.

That is why the issue of the legality of recognizing a serviceman as having deserted the unit is of fundamental importance.

Court: Illegal recall from leave is not a basis for recognizing desertion

A case No. 560/1274/25, which was considered by the Khmelnytskyi District Administrative Court, is illustrative.

The serviceman received annual leave of 10 days with an additional four days for travel. The very next day after his departure, the commander of the military unit issued an order for his early recall.

A copy of the order was sent to the serviceman via messenger, but he returned to the military unit not immediately, but within the period specified in the leave documents.

After that, the command:

recognized him as having left the military unit voluntarily;
appointed an official investigation;
stopped the payment of financial support;
deprived him of the bonus and additional remuneration.

The court established that the military unit did not prove the presence of urgent grounds that, in accordance with the law, would allow the serviceman to be recalled early.

As a result, the court:

declared the recall order illegal;
annulled the decision to recognize the serviceman as having left the unit voluntarily;
canceled the orders on the internal investigation and its results;
obliged the military unit to pay the serviceman more than 108 thousand UAH of unpaid cash benefits, additional remuneration and bonuses.
Absence of internal investigation materials – in favor of the serviceman

Another indicative is the decision of the Sumy District Administrative Court in case No. 480/4217/24.

The serviceman explained his non-return by prolonged treatment and claimed that he had reported this to the command and