Can a erstwhile professional soldier who has left the service return to her? In what situations will military compensation for lost income be lost? And can you find yourself in the ranks of the Polish Army with a study abroad? Experts from the Ministry of Defence explain doubts about the provisions of the Home defence Act.
Can the commander of a military unit decide on an additional remuneration to the disciplinary officer for the disciplinary proceedings carried out in the years 2022 and 2023, if he has been dismissed in the meantime and is no longer a soldier of that unit? How can we deal with the case in the event that the soldier is serving in another unit, but remains in the provision of the same military economical branch? What about erstwhile a soldier left the army and is in reserve?
In relation to this question, mention should be made to the disposition of the standard Article 123 Laws on Defence of the Motherlandthat the competent authority in administrative proceedings and the organization in civilian proceedings, in matters relating to the performance of tasks under this Act, is the commander of the military unit to which the subject-matter of the proceedings is linked. In view of the above, despite the failure of the position of disciplinary officer or the appointment of a soldier to a post of service in another unit, the commander of the unit in which the soldier served as disciplinary officer is obliged to make the applicable decision on the matter.
However, in the event of failure of the position of a professional soldier, specified a decision is not legally acceptable. The individual afraid is then left with a possible judicial redress.
Can a professional soldier be registered abroad? For example, erstwhile a spouse lives permanently outside Poland?
The law does not prohibit a professional soldier from holding a residence address outside the borders of the Republic. However, this does not exempt a soldier from the work to inform in writing the commander of the military unit in which he holds his post of work of his intention to travel and stay abroad for purposes not related to professional military service.
Should the amount of the disciplinary punishment – the monetary punishment imposed on the soldier in January and February 2024 be updated at the basic wage rates of the soldiers in force since March (after the wage increase)? If yes, should a fresh order be issued by the commander with an updated amount of fine? A akin question arises with a deduction of 1/30 salaries in accordance with Articles 487 (non-professional soldiers) and 457 (professional soldiers).
The amount of the regular rate should be determined in accordance with the condition on the date of the disciplinary offence or any another criminal offence for which the soldier has been found guilty and fined.
In accordance with Article 364(1) Laws on Defence of the Motherland the fine shall be paid at regular rates by specifying their number. In accordance with paragraph 2 of that provision, 1 regular rate shall be 1/22 part of the monthly wage received by the soldier in the period in which he committed the disciplinary offence.
With respect to the issue of raising the basic wage of professional soldiers, introduced by the National Defence Minister's Regulation of 16 February 2024 on basic wage rates of professional soldiers, it should be noted that the abovementioned act entered into force on 21 February 2024, and thus after paying the soldiers due salaries for January and February. Having respect to Article 364(2) of the Act, if the responsibility of a soldier committing a disciplinary offence has been definitively established in January or February for which he has been fined, the amount of the regular rate should be fixed on the basis of the amount of the wage already paid, thus not including the increase in wage introduced by the abovementioned Regulation.
With respect to the issue of a fresh order by the commander with an updated amount of the fine, it should be noted that correct fixing of the regular rate is an essential component in determining the monetary equivalent of the penalty. The amount calculated constitutes an integral and substantive part of the judgement declaring, in this case, the soldier mentioned therein guilty of disciplinary misconduct. It is only by a final decision that the order under which the competent financial authority makes an appropriate deduction from the punishment is issued. Therefore, in the event of a misalignment of the monetary equivalent of the penalty, it is inappropriate to change the content of the order. Article 406(4) of the Act applies to the change in the content of the judgement in respect of the accounting error, which provides that apparent clerical and accounting errors in the judgement or order can be corrected at any time by way of a provision.
I was a professional soldier, and in September, for household reasons, I left the service after 4 years. Are the MON guidelines inactive in force for a 12-month remainder period?
As regards the anticipation of re-establishing the professional military service, the current government resulting from the provisions of the Home defence Act does not contain rules preventing the return to professional military service to erstwhile professional soldiers. Nor do the provisions set any time limits in this respect. The procedure for appointment to professional military service is governed by the National Defence Minister's Regulation of 27 June 2022 on appointment to professional military service (Journal of Laws, item 1384). However, it should be borne in head that the current needs of the armed forces are decisive in the decision-making of staff, and that the question of vocation to professional military service remains in the sphere of administrative and legal relations and is dealt with individually each time.
On what basis should compensation be paid for lost earnings in connection with the participation of a soldier in reserve exercises be paid, given that the regulation in this case has ceased to apply? Can you refuse to pay due to the deficiency of specified regulation?
The current Ordinance of the Minister of National Defence of 20 May 2022 on a cash benefit for soldiers serving territorial military service, soldiers of active reserve and soldiers of passive reserve (Journal of Laws, item 1112 as amended) expired on 30 March 2024. The command of the Territorial Defence Army was liable for the improvement of the fresh implementing act.
The draft order of the Minister of National Defence on a cash benefit for soldiers serving territorial military service, soldiers of the active reserve and soldiers of the passive reserve, was released on 16 April 2024 from the Government's Legislative Centre's legal commission and was submitted for signature by the Minister of National Defence.
In answering the question, it is entitled to conclude that the absence of an implementing act is not the basis for refusing to pay the soldier compensation for lost earnings. All due to the fact that this right is straight attributable to Article 312 (1) to (10) of the Law on Defence of the Land. This is besides not the basis for the suspension of administrative proceedings (see NSA judgement of 8 June 2005, GSK No. II 80/05)
In view of the above, if the competent authority considers that it cannot issue a substantive decision due to the absence of an implementing act, it should extend the ongoing administrative procedure and inform the organization of the date of its completion pursuant to Article 36 of the Code of Administrative Procedure.
