Supreme Court Rules That Military Legal Officers Receiving Unfair Discharge Orders Should Have Their 'Age Retirement' Extended

Court: "Significant Period of Job Performance Opportunities Necessary for Promotion Infringed"

A military legal officer who was forcibly discharged after filing a constitutional complaint for not following the Ministry of National Defense minister's directive to block subversive books during the Lee Myung-bak administration was recognized as an active-duty officer.

The Supreme Court's 2nd Division (Presiding Justice Cheon Dae-yeop) announced on the 6th that it overturned the lower court ruling that dismissed former Army legal officer A's lawsuit against the state requesting confirmation of his active-duty status, and sent the case back to the Seoul High Court.

In October 2008, A, then an Army major, and others filed a constitutional complaint arguing that the Ministry of National Defense's designation of subversive books infringed on soldiers' right to pursue happiness. Subsequently, the military dismissed A on grounds such as disrupting the chain of command and undermining military discipline and unity.

A filed an appeal, and the court recognized the unfairness of the disciplinary action, reinstating him in September 2011. However, the military reduced the disciplinary level to a one-month suspension, and the Ministry of National Defense forcibly discharged A in January 2012.

A filed another lawsuit claiming both the disciplinary action and forced discharge were unjust, and in July 2018, he obtained a final ruling declaring the disciplinary and discharge orders invalid.

The issue arose when the military issued another discharge and retirement order to A, citing that he had exceeded the mandatory retirement age of 45 for the rank of major. A filed yet another lawsuit; the first trial ruled in his favor, but the appellate court reversed the decision, stating the discharge order was not unjust.

However, the Supreme Court recognized special circumstances, noting that the adverse actions substantially infringed and restricted A's opportunity to perform duties necessary for promotion from major to lieutenant colonel over a significant period, and sent the case back to the appellate court.

The court pointed out, "The adverse personnel actions such as dismissal imposed on the plaintiff before the mandatory retirement and discharge orders were solely due to the unilateral and serious fault of the appointing authority."

It further stated, "This fundamentally undermines not only the legislative intent of the mandatory retirement age by rank under the Military Personnel Act but also the purpose of protecting public officials' status. Since the illegality cannot be remedied by damages under general tort law, the mandatory retirement age by rank should be extended by the period during which the plaintiff lost the substantial opportunity to perform duties necessary for promotion review."

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