Orientira Legal Service
Dear readers, This issue of Your Lawyer is based on your letters.

...up to the CONSTITUTIONAL COURT

I am 42 years old, 12 years 8 months of service, 24 years 8 months of total work experience (together with 5 years of university studies). I am dismissed to the reserve for organizational and staff activities (OSM) without the right to a pension.

Will I be eligible for a pension from the Ministry of Defense when I turn 45 (total work experience will be 27 years and 8 months, including 12 years and 8 months of military service)? Will I get this right if I am dismissed at the age of 43 not because of OSM, but at the end of my contract?

The existing wording of paragraph "b" of Article 13 of Section 11 of the Law "On pension provision for persons who have served in the military, internal affairs bodies, and their families", the presence of the phrase " on the day of dismissal..."they put in unequal conditions the military personnel dismissed in the reserve at 45 and dismissed before 45 years, having at the same time equal length of service and equal total work experience, and situations are possible when a former serviceman dismissed before 45 years, and the length of service and work experience in 45 years will be greater than that of the dismissed at 45 However, he will never have the right to a military pension from the Ministry of Defense (he will receive the right to a pension only at the age of 60), while a discharged person at the age of 45 gets this right immediately, even if he is only a few days older! Everyone is equal before the law, but what about when the law is unfair and violates the interests of a significant category of citizens?

Why does the mentioned paragraph "b" of Article 13 of section II of the Law (as well as paragraph "a" of the same article) not provide for either a reduction in the age, or a reduction in the total length of service and seniority that give women military personnel the right to a pension in comparison with men; after all, civil pension legislation contains such a benefit for women Q: is the age and length of service reduced by 5 years compared to men?

Where (to which bodies - the Supreme Court, the Constitutional Court, etc.) can I apply with a request or proposal to review the current Law "On Pension Provision for Persons who have served in the military..." in order to clarify the procedure for calculating the total length of service, age and length of service that give women military personnel the right to a pension, as well as changes in the the wording of paragraph "b" of Article 13 of Section II of the Law, which infringes on the interests of citizens dismissed from the Armed Forces before they reach the age of 45 at the end of a contract, OSM or illness and who have more than 12.5 years of service, but less than 20 years?

Major Vera YEGINA.

Akhtubinsk, Astrakhan region

Your message to the editor contains, along with your questions, an almost complete answer to them. According to the current legislation, the problem of pension provision for military personnel, persons dismissed from military service, and their family members actually has a different solution from the general civil one. At the same time, pension provision for military personnel has its own "pluses". For example, the benefits, guarantees and compensations provided for by the Federal Law "On the Status of Military Personnel" No. 76-FZ of May 27, 1998 for military personnel dismissed from military service with more than 10 years of service, as in your case, have no analogues in labor legislation.

Indeed, in accordance with paragraph 2 of Article 49 of the Federal Law" On Military Duty and Military Service " No. 53-FZ of March 28, 1998, the age limit for female military personnel is set at 45 years. In accordance with this norm, the attestation commission of the military unit where you are serving may legitimately refuse to extend your service under the contract.

However, you can appeal this decision to a higher authority or directly to the court. After all, despite paragraph 2 of this article, there is paragraph 3, which grants the right to conclude with military personnel who have reached the maximum age of stay in military service, another contract for a period of up to 10 years, but not more than reaching the age of 65 years by military personnel.

If the results of the appeal do not satisfy you, then in accordance with Articles 33, 46, 125 of the Constitution of the Russian Federation, in accordance with the procedure determined by civil procedure legislation, and in accordance with the provisions of Article 96 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation" of 21.07.1994, you can personally or through representatives seek to withdraw from the legislative acts and other rules that infringe on your legitimate rights and interests.

TRAINING AT THE MILITARY DEPARTMENT IS NOT REQUIRED

Lyudmila Nikolaevna Mirnenko is writing to you. I have served in the Armed Forces since 1992, as an officer - since 1994, I have a higher education (philology of the university), and soon I will also have a law degree. By the decision of the command of the unit, they wanted to assign me an officer rank, but the higher personnel bodies refused to do so, since I did not study at the military department in a higher educational institution.

This is nonsense. I pass drill reviews, pass tests for knowledge of the statutes, go to the shooting range, I have a weapon assigned to me, I fulfill all the requirements of military service, and I can't be awarded an officer's rank because I didn't study at the military department! But how can studying at the military department compare with active military service?

I ask you to tell me whether the refusal to grant me an officer rank by higher personnel bodies was legitimate and whether there is a way out of this situation?

Sincerely, midshipman Lyudmila Mirnenko.

Pervomaisky settlement, Krasnodar Krai

According to subparagraph " k " of paragraph 10 of the Regulations on military service by officers of the Armed Forces of the USSR, approved by Resolution of the Council of Ministers of the USSR No. 240 of March 18, 1985 (Order of the Minister of Defense of the USSR No. 100 of 1985), the military rank of lieutenant is awarded to women who have a higher civil education in the and wartime when determining for military service for appointment to officer positions or appointed from the positions of soldiers, sailors, sergeants, petty officers, ensigns, midshipmen to the positions of officers and successfully performing their official duties.

The requirements for studying at the military department are illegal. The refusal to submit for an officer's rank could have been for other reasons.

HOW IS THE PENSION CALCULATED?

My husband and I are military personnel. Her husband is an officer (Major). He was drafted into the army when he was 27 years old, before that he graduated from the institute, where he was trained at the military department, and worked a little as a design engineer.

It was necessary to "make up" for years of service, so we went to Kamchatka. There I was called up to the Armed Forces (I have a higher education, but without training at the military department). We stayed in Kamchatka from 1986 to 1993, then transferred to Kapustin Yar, where we still serve today.

Thus, the husband currently (including service in Kamchatka, where 1 year was equal to two, and studying at the Institute) has a total length of service of more than 20 years; he receives a percentage pension supplement.

I have a question of this nature: does the preferential calculation of length of service remain at the rate of 1 year of service for two, as before? Are the years of study at the Institute included in the total length of service? What will be the pension for 20 years of service (in my case) - 50 percent, as before, or not?

Now a question that concerns me personally. I am a contract servicewoman with the rank of lance-corporal. In Kamchatka, she served from July 1986 to December 1993, then transferred to her husband's new place of service. During this period, she gave birth to a child, did not work for 3 years, taking care of him, using the right given by the Constitution.

How will my superannuation be calculated if I want to retire on a military superannuation pension (20 years) before reaching the age of 45?

Sincerely, Lance Corporal Elena Golovanova.

Znamensk, Astrakhan region

To date, the following provisions of Russian legislation regulating pension provision for persons who have served in the military are in force. The procedure for calculating the length of service for assigning pensions to persons who have served in the military is determined by Resolution of the RF Council of Ministers No. 941 of September 22, 1993 "On the procedure for calculating the length of service, assigning and Paying Pensions and Allowances to Persons who have served in the military as officers, Ensigns, midshipmen and military personnel on long-term service or under contract as soldiers, sailors, sergeants and petty officers or serving in the internal affairs bodies, and their families in the Russian Federation" (as amended on March 31, 1994, February 20, March 14, June 26, November 20, 1995, April 3, 15, May 1, October 31, 1996). 1 of this Resolution "The list of remote localities of the Russian Federation in which the service of military personnel, ordinary and commanding personnel of internal affairs bodies is counted on preferential terms in the length of service for the purpose of assigning a pension" determines that in the Kamchatka Region one month of service is counted for two months of service. The length of service for assigning pensions to officers assigned to military service from the reserve, taking into account the specialty obtained in a civilian educational institution, includes the time of their training before being assigned to military service in civilian higher educational institutions or in secondary special educational institutions that had cycles or departments of military training, up to five years at the rate of one year of study in six months.

According to the Law of the Russian Federation No. 340-1 of November 20, 1990 "On State Pensions in the Russian Federation" (as amended on April 19, 1991, December 27, 1991, February 6, April 3, December 25, 1992, January 15, March 6, March 30, June 8, December 24, 1993, May 5, June 10, August 4, 1994, January 27, May 7, August 22, December 9, 17, 20, 27, 1995, August 7, 1996, January 14, 29, March 17, May 5, July 21, 1997, March 28, April 11, 1998) the time spent by a woman on parental leave for up to three years is included in the total continuous work experience and, accordingly, in the length of service.

According to Article 13 of the Law of the Russian Federation No. 4468-1 of February 12, 1993 "On pension provision for persons who have served in the Military, Internal Affairs Bodies, and their families "(as amended on November 28, December 27, 1995, and December 19, 1997), military personnel are entitled to a long-service pension. who, on the day of their discharge from service, have 20 years or more of military service on a preferential basis. Article 14 of this Law establishes the amount of pension for the specified persons: for 20 years of service, the pension is 50 percent of the corresponding amounts of monetary allowance. For each year of service over 20 years - 3 percent of the specified amounts of monetary allowances, but not more than 85 percent of these amounts.

IS THE LENGTH OF SERVICE ENOUGH?

I retire from the Navy upon reaching the age of 45. The total length of service is 16 calendar years "as a citizen" in the Far North and 10 calendar years of military service " also in the Far North (15 years in preferential terms).

Do I qualify for a military pension? If not, what can I count on ?

Do I have the right to an additional leave of absence before being released to the reserve?

Sincerely, foreman of the 2nd article of the contract service Raisa SOMPOLTSEVA, Severodvinsk, Arkhangelsk region

According to Article 13 of the Law of the Russian Federation No. 4468-1 of February 12, 1993 "On pension provision for persons who Served in Military Service, Internal Affairs Bodies, and their Families "(as amended on November 28, December 27, 1995, and December 19, 1997), the right to a long-service pension assigned to military personnel dismissed from service after reaching the maximum age of stay in service (reaching 45 years of age) are persons whose total work experience is 25 calendar years or more, of which at least 12 years and 6 months must be military service.

As can be seen from this article, the length of service of military service is taken into account in calendar, and not in preferential calculation. Therefore, to acquire the right to a military pension, you must serve for another 2 years and 6 months.

Additional leave for personal reasons lasting 30 days is granted in accordance with clause 10 of Article 11 of the Federal Law of the Russian Federation "On the Status of Military Personnel" of May 27, 1998 N 76-FZ to military personnel whose total duration of military service is 20 years or more, in one year out of three years until they reach the maximum age of stay in military service. Your military service is 15 years, so you are not eligible for this additional leave.

WHAT IS A FINE IMPOSED FOR?

Please explain what fines are imposed on citizens who are in reserve, and managers of enterprises and organizations for violating the Laws of the Russian Federation "On military duty and military service", "On Defense", "On mobilization and mobilization training ".

Reserve Sergeant N. VASILYEVA,

Shatrovo village, Kurgan region

None of the current Federal Laws of the Russian Federation - "On conscription and military service" of March 28, 1998 N 53-FZ, "On defense" of May 31, 1996 N 61-FZ, "On mobilization training and mobilization in the Russian Federation" of February 26, 1997 N 31-FZ - It does not establish liability in the form of a fine for those categories of citizens and officials that you mention.

However, the norms of Articles 190-192 of the current RSFSR Code of Administrative Offences of June 20, 1984 (as amended on July 19, 1997) establish liability, including in the form of a fine, for example, for such offenses as::

- failure of the heads of organizations and enterprises to submit to the military commissariats lists of young men who are subject to addition to conscription sites;

- hiring managers or other officials of enterprises and institutions who are liable for military service and conscripts who are not registered at the place of residence;

- failure by the heads of enterprises and organizations to notify those liable for military service and conscripts of their summons to military commissariats at the request of military commissariats, or hindering the timely appearance of citizens at assembly points or conscription sites;

- late submission of documents required for maintaining primary records of those liable for military service and conscripts;

- failure to report information about those liable for military service and conscripts;

- violation of military registration rules by those liable for military service and conscripts;

- deliberate damage to the military ID card or loss of it due to negligence.

The sanction (penalty) in the form of a fine for the above-mentioned offenses is established by the Code in the amount of up to 1/2 of the minimum monthly wage (Federal Law No. 6-FZ of January 9, 1997 established the minimum wage from January 1, 1997 in the amount of 83 rubles 49 kopecks).

IF THE SAILOR... ON MATERNITY LEAVE

A female soldier, a senior sailor serving in the coastal part of the Leningrad Naval Base, writes to you. I think that the answers to the questions I have asked will be of interest to many female servicemen.

In October 1996, as a servicewoman, she went on maternity leave. After the birth of the child and the end of the vacation, on February 23, 1997, I wrote a report on granting me parental leave until the child reached the age of one and a half years. In July 1997, my contract ended; the report I submitted for a new contract was rejected by the unit commander. Is it legal?

I consulted the district military commissariat on this issue, and they said that the contract should be renegotiated before the child is three years old, because the contract is the basis for military service.

In December 1997, a directive was issued to disband the organizational and staffing unit. I decided to write a report to the commander of the unit about my dismissal in accordance with the Federal Law of the Russian Federation "On Military Duty and Military Service" on organizational and staff measures. The commander of the unit told me that he could dismiss me, but I would not receive the 5 salaries of monetary support due to my dismissal, because the contract was not signed. Is it legal?

Without my consent, I cannot be dismissed from military service until the child reaches the age of three, so they are going to transfer me to a successor unit, although the previous contract was concluded under item "B". Is this transfer possible without a contract? Legal advice did not give a clear answer to any of these questions, referring to the fact that there are no specific answers in the regulations. The RVC explained that all the above actions on the part of the unit's command are illegal. But the commander of the unit insists on his own.

Sincerely, senior sailor Ekaterina DOROSH.

Sputnik settlement of the Leningrad region

If you are on parental leave before the age of one and a half years, you will retain your current position for this period.

In accordance with clause 13 of Article 11 of the Federal Law of the Russian Federation" On the Status of Military Personnel " No. 76-FZ of May 27, 1998, women military personnel are subject to additional benefits, guarantees and compensations established by federal laws and other regulatory legal acts. Moreover, female military personnel are subject to legislation on the protection of the family, motherhood and childhood (clause 8 of Article 10 of the Federal Law "On the Status of Military Personnel"). In particular, the provisions of Chapter 7 (Women's work) are an integral part of this legislation The Labor Code of the Russian Federation. 170 of the Labor Code of the Russian Federation, the commander of a military unit does not have the right to refuse you to conclude a contract. Thus, the commander of the military unit illegally refused you to enter into a contract.

The answer to your second question is regulated by the Federal Laws "On Military Duty and Military Service" of March 28, 1998 and "On the Status of Military Personnel" of May 27, 1998. In accordance with the listed laws, you must be paid all amounts of money required by applicable law upon termination of employment.

Transfer to a successor unit is possible if there are no corresponding vacant posts at the place of service; such transfer is provided for in clause " b "of Article 32 of the current" Regulations on military service by women...", introduced by Order of the Minister of Defense of 1976 No. 286.

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