Can one be discharged from military service while being Absent Without Leave (AWOL), and what are the nuances: a lawyer explains
Kyiv • UNN
A service member does not lose the right to discharge on a lawful basis after being AWOL. The command is obliged to consider the report, and the refusal can be appealed.
Dismissal from military service after unauthorized absence from a military unit (UA) remains a topical issue in law enforcement practice, especially in cases where a service member has grounds for dismissal provided by law but has not returned to the place of service. As attorney Valeriia Odintsova, founder of the "LOGIC" Law Firm, told UNN in an interview, under such circumstances difficulties arise with compliance with the procedure for submitting and considering a report, as well as with resolving the issue of whether dismissal is possible without returning to the military unit, which often becomes the subject of court disputes.
According to Odintsova, a service member who is absent without authorization retains the right to dismissal provided by law and may submit a relevant report even after leaving the military unit; however, absence from the place of service can substantially complicate compliance with the procedure for submitting documents, their consideration, and the subsequent formalization of termination of military service. At the same time, court practice primarily confirms the need for the command to duly consider the report, so the legal assessment of each situation must take into account the grounds for dismissal, the circumstances of leaving the military unit, the service member's current status, and possible criminal-law consequences.
Does a service member have the right to dismissal after unauthorized absence?
Yes, a service member who has unauthorizedly left a military unit does not lose the right to dismissal from military service provided by law. However, exercising this right requires establishing the existence of a specific ground provided for in Article 26 of the Law of Ukraine "On Military Duty and Military Service," documenting the relevant circumstances, and complying with the dismissal procedure established by law.
Under martial law, legislation allows military service to be terminated, in particular, due to reaching the maximum age for military service, health conditions, the establishment of a disability, the existence of family circumstances specified by law, or release from captivity; however, the application of each of these grounds depends on the category of service member, the nature of the service, and compliance with the requirements established by law.
At the same time, unauthorized absence from a military unit is not provided for in Article 26 of the Law as a ground for dismissal. Therefore, being absent without authorization does not create the possibility of terminating military service solely for this reason, even if the service member is not actually performing their duties.
What is the legal status of a service member during unauthorized absence?
Since May 10, 2025, pursuant to amendments introduced by Law of Ukraine No. 4392-IX (On Amendments to Certain Laws of Ukraine Concerning the Procedure for Military Service by Certain Categories of Service Members During Martial Law – ed.), during martial law, the military service of persons who have unauthorizedly left military units or places of service or committed desertion is not suspended, as provided by Part Two of Article 24 of the Law of Ukraine "On Military Duty and Military Service."
At the same time, the period from the day of unauthorized absence from the military unit until the day the service member returns to performing military duty is not counted toward the period of military service, seniority in military rank, or years of service for the payment of the relevant allowance and the award of a pension. During that period, monetary support, food, clothing, and other types of provision, as well as the benefits and social guarantees provided by law, are not provided.
A separate legal regime applies to service members whose military service was suspended before May 10, 2025, since the entry into force of Law No. 4392-IX did not provide for its automatic continuation.
Pursuant to part two of Article 24 of the Law "On Military Duty and Military Service," service members whose service has been suspended are relieved of their positions, are deemed not to be performing military service duties, and the effect of their contracts remains suspended until their service is resumed in accordance with the procedure established by law.
At the same time, the procedure for resuming previously suspended military service is determined by the provisions of Article 24 and paragraphs 7-2 and 7-3 of Chapter XII "Final Provisions" of Law No. 2232-XII "On Military Duty and Military Service." Therefore, to establish the legal status of a particular service member, it is necessary to determine whether the suspension of their service was formalized and whether a decision was subsequently made to resume it.
Can a service member submit a report requesting discharge while absent without leave?
Yes. Current legislation does not prohibit a service member who is absent without leave from submitting a report requesting discharge, provided that the grounds stipulated by Article 26 of the Law of Ukraine "On Military Duty and Military Service" exist and are properly documented.
At the same time, in practice, exercising this right is often accompanied by difficulties, as the command may refuse to consider the report or leave it without a proper response, referring to the service member's absence from the place of service and the need for their return to the military unit. In such circumstances, the service member should be prepared for the need to challenge the relevant refusal or inaction in court.
Positive judicial practice confirms that a service member's right to discharge can be protected even while they are absent without leave. In particular, in case No. 520/2578/26, by its decision of July 17, 2026, the Kharkiv District Administrative Court found unlawful the military unit's inaction in failing to consider a report requesting discharge on family grounds, submitted by a service member while absent without leave, and ordered the command to consider the report on its merits and make a decision on discharge from military service. The court rejected the military unit's arguments that discharge was impossible because of the absence without leave, stating that the legislation does not establish such a prohibition where the grounds stipulated by Article 26 of the Law of Ukraine "On Military Duty and Military Service" exist.
A similar position regarding the obligation to consider a report is reflected in the decision of the Dnipropetrovsk District Administrative Court of September 18, 2026, in case No. 160/22877/26. In that case, the court found unlawful the inaction of a military unit that had failed to consider a service member's report sent by mail while the service member was absent without leave, and ordered the command to consider the relevant request.
Why is preparing a report requesting discharge while absent without leave problematic?
The difficulties primarily arise from the need to comply with the established procedure for submitting an appeal, since paragraph 233 of the Regulation on Military Service by Citizens of Ukraine in the Armed Forces of Ukraine, approved by Presidential Decree No. 1153/2008, provides for submitting a report requesting discharge "through the chain of command" while simultaneously providing documents confirming the existence of the relevant legal ground.
Additional requirements concerning the preparation, submission, registration, and consideration of reports are established by Order No. 531 of the Ministry of Defense of Ukraine dated August 6, 2024. Under this order, a service member submits an appeal to their immediate commander or another commander in cases provided for by the established procedure, and the documents may be prepared in paper or electronic form, provided that the requirements established for the relevant method of submission are met.
While absent without leave (AWOL), a service member is not at their place of military service and does not perform their official duties, which may create obstacles to the submission of a report through the chain of command, proper interaction with the immediate commander, registration of documents, and completion of the necessary procedures. The situation is further complicated in cases where, before the legislative changes, the person's military service had been officially suspended, and they had been dismissed from their position and removed from the personnel rolls.
The practical problem also lies in the need to properly confirm that the report was sent to and received by the military unit, ensure the possibility of verifying the documents on which the request for discharge is based, and comply with the established decision-making procedure, since the command sometimes links the possibility of completing the relevant procedure to the service member's personal return to the place of service.
However, a person's absence from the military unit does not mean that the command may, under all circumstances, leave their appeal without consideration, since the possibility of sending documents without personal appearance is confirmed by legislation governing the handling of reports, while the lawfulness of a refusal or failure to act must be assessed with regard to the method of filing the appeal and the actual circumstances of the case.
Explain what is the procedure for returning from AWOL and being exempted from criminal liability?
Part five of Article 401 of the Criminal Code of Ukraine provides for the possibility of exempting from criminal liability a person who, under martial law, has committed for the first time a criminal offense предусмотрене by Article 407 or Article 408 of the Criminal Code of Ukraine, provided that the requirements concerning voluntary reporting and continued military service are fulfilled.
To apply this mechanism, the person must voluntarily apply to an investigator, prosecutor, or court with a motion expressing their intention to return to their previous or another military unit or place of service in order to continue serving, and must also obtain the written consent of the commander of the relevant military unit. After that, the issue of exemption from criminal liability is decided by the court in accordance with the procedure established by criminal procedural legislation.
Application of part five of Article 401 of the Criminal Code of Ukraine does not mean that the person is acquitted and does not result in their discharge from military service, since an essential component of this mechanism is the service member's return for the further performance of official duties.
An important clarification regarding the conditions for applying this provision is contained in the Supreme Court's ruling of July 22, 2026, in case No. 731/585/25. According to the ruling, the possibility of exemption from criminal liability is linked to the commission of the relevant offense for the first time, whereas the repeated commission of a separate criminal offense предусмотрене by Articles 407 or 408 of the Criminal Code of Ukraine, under the relevant circumstances, excludes the application of part five of Article 401 of the Criminal Code of Ukraine.
In addition, it should be taken into account that the special program for simplified return from AWOL ended on September 20, 2026. Therefore, as of October 2026, voluntary return is carried out under the general rules, including with the involvement of the Military Law Enforcement Service and reserve battalions, without the possibility of independently choosing a military unit under the rules of the previous program.