The discipline of military leave for reasons of infirmity is a "slippery" matter, to be tackled with due awareness, in consideration of the very significant consequences it entails on the legal status of the military concerned.
Among the most relevant aspects, the rules dictated by the legal system regarding the maximum duration of leave and salary pay are undoubtedly at stake.
Let us then proceed in order to examine them.
Maximum length of sick leave
As for the maximum duration of sick leave, this is established by art. 912 of Legislative Decree n. 66/2010 (so-called Military Code), which, entitled "Duration of leave", provides that "periods of leave due to infirmity and for private reasons cannot cumulatively exceed the duration of two years in a five-year period , even in the event of a transfer from one expectation to another”. Obviously, the 45 days of extraordinary leave granted annually are not counted as a period of leave.
Once the aforementioned 45 days of extraordinary leave have been exceeded, the military temporarily unfit for service is placed on leave due to infirmity, for a total duration of two years to be accrued over a five-year period. Compliance with this time limit is verified by calculating the days of leave backwards, starting from the last day of leave used. As a result, the reference five-year period may well vary (in this regard we speak of a "movable five-year period"). In case of exceeding the aforementioned maximum period of leave, the military immediately ceases from permanent service.
Clear in this regard is the provision of art. 929 of the Code, according to which we read that "He ceases from permanent service and is placed, according to suitability, on leave, in the reserve or on complete leave, when: a) he has become permanently ineligible for unconditional service; b) has not regained eligibility upon expiry of the maximum period of leave for temporary infirmity; c) he is judged unsuitable for unconditional service after, in the five-year period, he has benefited from the maximum period of leave and has been granted the licenses due to him ".
Economic treatment during sick leave
Having said this in terms of the maximum duration of sickness leave, it remains to be said with regard to the economic treatment of the military during this period. In this regard, first of all, it should be specified that the above is valid regardless of any request for recognition of the cause of service. On the other hand, in terms of salary, it is necessary to clearly distinguish the case in which the pathology suffered depends on a cause of service - and then the remuneration will be due to the person concerned in full and for the entire duration of the leave -, from the case in which this acknowledgment defects.
In the latter hypothesis, in particular, the economic treatment of military personnel on sick leave will undergo a gradual reduction, until it is zeroed in the last six months available.
In detail, the art. 26 of the law n. 187 of 1976 provides on the point that "during the leave for infirmity not dependent on cause of service, to officers and non-commissioned officers in permanent service of the Army, Navy, Air Force and Police Corps, to deputy brigadiers and enlisted soldiers in continuous service of the Arms of the Carabinieri and the aforementioned Police Corps as well as the military chaplains on permanent duty are entitled [...] to the salary and other fixed and continuous checks in full for the first twelve months and reduced by half for the following six months, without prejudice entitlement to full household allowances and the length of subsequent periods, during which no allowance is due".
Therefore, the economic treatment of the military on leave, if there is no cause of service, will remain unchanged in the first twelve months; will be halved from the thirteenth to the eighteenth month inclusive and will be substantially reduced to zero from the nineteenth to the twenty-fourth and last month available before termination of permanent service.
In the event of a continuing pending application for recognition of the cause of service at the end of the first twelve months, in the absence of a specific provision of the law regulating the aforementioned hypothesis, the practice as a rule followed by the Administrations concerned is to continue disbursing the salary in full until the decision on the dependency, only to then repeat the sums that are paid unduly, in the event of a subsequent denial of the cause of service.
Conclusions
Considering all this, it must be concluded that the matter of the legal regime of leave for reasons of sickness - although apparently linear - actually presents significant pitfalls, also due to the absolute drama of the consequences of the application of the relative provisions on the concrete life of the soldier concerned : think of the termination of permanent service due to reaching the legal limit, or even to the binding ones salary reductions which has been mentioned. Not to mention that the question often involves further profiles, such as the eventual acknowledgment of dependence on cause of service of the disease itself and/or even the transfer of the interested party to civil roles.
For all the aforementioned reasons, it is clear that the military would do well to rely on the advice of an expert (legal doctor, lawyer) and at least to maintain a constant dialogue with the reference hierarchical line and with the offices in charge.
Photo: US Marine Corps
