Rights of profesional army serviceman

REALIZATION AND USAGE OF PENSION AND DISABILITY INSURANCE RIGHTS BY PROFESSIONAL ARMY SERVICEMEN

pursuant to Serbian Armed Forces regulations (implementation of Articles 21, 30a, 42, 43, 71, and 79 of the Law on Pension and Disability Insurance and Articles 82 and 83 of the Law on Amendment of the Law on Pension and Disability Insurance)

Law on Amendment of the Law on Pension and Disability Insurance (Official Gazette of Republic of Serbia No. 101/10 hereinafter “Law on Amendment”) introduced amendments to provisions of the Law on Pension and Disability Insurance (Official Gazette of Republic of Serbia Nos. 34/03, 64/04 - US, 84/04 – second law, 85/05, 101/05 – second law, 63/06 – US, 5/09 and 107/09 hereinafter “the Law”) specifying the range of employed insured persons and regulating application of central registry insurance data and pension acquisition and realization of rights for certain insurance categories under special conditions. Law on Amendment came into force on January 1 2011, with the exception of provisions pertaining to professional army servicemen in accordance with Serbian Armed Forces regulations, which came into force on January 1 2012. 

For the purpose of implementation of said provisions of the Law, a document named “Instructions for pension acquisition and realization of rights for certain insurance categories” has been created (implementation of Articles 42, 43, and 79 of the Law on Pension and Disability Insurance), 02 number 181-1573/11 dated March 1 2011, which was approved by the Ministry of Labour and Social Policy through a notice number 011-00-00112/2011-07 dated February 16 2011. In addition, a notice number 011-00-00987/2011-07 dated 28 December 2011 was received from the Ministry of Labour and Social Policy containing the Ministry’s opinion on application of certain provisions of the Law and social insurance international agreements to professional army servicemen from January 1 2012. 

Pursuant to abovementioned Law amendments and provisions of social insurance international agreements, which also stipulate their application to all amendments of legal regulations of contracting countries, social insurance international agreements are also applied to requests for pension and disability insurance realization submitted on or after January 1 2012 by professional army servicemen or family members in case of army serviceman death. 

Taking into account the peculiarities of army servicemen pension and disability insurance, there are no grounds for application of agreement provisions stipulating pension recalculation, i.e. there shall be no recalculation of pension realized from the date specified by each individual social insurance agreement concluded with former Yugoslav republics to the date of its enforcement, with inclusion of pensionable service acquired on the territory of the other contracting country. 

Professional army servicemen pensionable service acquired from January 1 1973 on the territory of contracting countries is recognized in accordance with provisions of social insurance agreements concluded with former Yugoslav republics. Considering that the agreements regulate the matter of recognition of professional army servicemen pensionable service acquired by the date specified by each individual agreement, if a professional army serviceman has had service on the territory of the Republic of Serbia after that date and has not realized pension rights based on that service, a request for pension rights realization should be handled in accordance with general regulations and application of the social insurance agreement. 

1. Professional army servicemen per Serbian Armed Forces regulations 

Law on Amendment, Article 1, Item 2a contains an addition to the Law by which professional army servicemen are included in the category of employed insured persons in accordance with the Serbian Armed Forces regulations. 

Pursuant to Article 9 of the Law on Serbian Armed Forces (Official Gazette of Republic of Serbia Nos 116/07 and 88/09, hereinafter “Law on SAF”) include:

1. officer (a person who completed higher education and military training, employed for indefinite or temporary terms);
2. non-commissioned officer (a person who completed at least high school and military training, employed for indefinite or temporary terms);
3. professional soldier (a person who completed at least elementary school and armed military service or military training of another kind, employed for a temporary term to perform military duties).

Pursuant to Article 22, Paragraph 1 of the Law on SAF, military ranks include:

1. for professional soldiers – lance corporal, corporal, junior sergeant;
2. for non-commissioned officers – sergeant, senior sergeant, senior sergeant first class, ensign and ensign first class;
3. for officers – in all branches and services: second lieutenant, lieutenant, captain, major, lieutenant colonel, colonel, brigadier general, major general, lieutenant general, and general.

2. Special categories of insured persons

Article 20 of the Law on Amendment amends Article 42 of the Law, expanding the range of employed ensured persons who may realize their pension rights under special conditions. 

With the inclusion of professional army servicemen, from January 1 2012 all categories of insured persons who may realize their pension rights under special conditions are specified by the Law.

Insured persons who may realize their pension rights under special conditions include:

1. police officers – official authorized uniformed persons and police officers with highly complex, specific and/or operational jobs;
2. employees of the Department of Foreign Affairs;
3. members of Security Information Agency, Military Security Agency and Military Information Agency;
4. persons employed in the Criminal Sanctions Agency;
5. authorized official persons of the Tax Police in terms of tax administration regulations;
6. professional army servicemen per Serbian Armed Forces regulations, and
7. other police officers.

The abovementioned categories of employed insured persons may realize pension rights under special conditions only if insurance service is calculated with increased duration for their jobs. 

Pursuant to Article 55 of the Law (amended by Article 23 of the Law on Amendment), for employees of the Ministry of Interior, members of Security Information Agency, Military Security Agency and Military Information Agency, employees of the Department of Foreign Affairs employed at certain positions under special conditions, professional army servicemen in accordance with Serbian Armed Forces regulations, employees of the Criminal Sanctions Agency, and authorized official persons of the Tax Police in terms of tax administration regulations, each 12 months effectively spent working at these positions are calculated as a maximum of 16 months of insurance service, depending on job difficulty and, in accordance with Article 54 of the Law, provided the persons have effectively spent a total of at least 10 years at those positions or a total of at least 5 years in case of disability. 

In addition to the pre-existing service increase per a maximum coefficient of 12/16, amendments to Article 55 of the Law incorporate a new provision which stipulates that the minister in charge, upon agreement with the minister in charge of pension and disability insurance, specifies positions and jobs of employees of the Ministry of Interior, civilians employed by the Serbian Armed Forces and professional army servicemen per Serbian Armed Forces regulations for which each 12 months effectively spent working at the positions are calculated as 18 months of insurance service. Article 75 of the Law on Amendment stipulates that the acts specifying these positions and jobs shall be passed within 30 days from the date the Law on Amendment becomes effective. 

Pursuant to Article 55, Paragraph 3 and Article 56, Paragraph 1 of the Law, in mutual agreement, Minister of Defence and Minister of Labour and Social Policy have passed Regulations on positions and jobs of professional army servicemen, civilians employed by the Serbian Armed Forces and members of Military Security Agency and Military Information Agency for which insurance service is calculated with increased duration (Official Gazette of Republic of Serbia No. 86/11), which became effective on January 1 2012. 

3. Pension acquisition under special conditions: 

1) Old Age pension

a) The Law on Amendment intensifies the conditions for pension acquisition under special conditions specified by Article 43 of the Law by incorporating gradual rises in age limit (from 53 to 55 years of age), insurance service (from 20 to 25 years) and the required time of effective work at positions for which insurance period is calculated with increased duration (from 10 to 15 years).  

Insured person from Article 42 item 1 through 6 of the Law may acquire pension based on old age under the following cumulative conditions:

• employment with the right to acquire pension has been terminated before meeting general conditions for pension acquisition specified in Article 19 of the Law;
• at least 55 years of age;
• at least 25 years of insurance service, which must include at least 15 years of effective work at positions for which insurance service is calculated with increased duration in institutions specified in Article 42 of the Law. Conditions for acquired insurance service are assessed by taking into account/including all insurance service acquired in any of the institutions specified in Article 42 of the Law, which is especially significant for persons who switched employers – institutions, and
• at the moment of retirement, the person is an authorized person or employee specified in Article 42 of the Law.

The abovementioned conditions for old-age pension shall be applied no sooner than year 2022, being that Article 73 Paragraph 1 of the Law on Amendment stipulates gradual intensification of conditions form 2011 in the following manner: 
 

 
b) At the same time, new special conditions for old-age pension acquisition have been stipulated for professional army servicemen, police officers – members of special police units, Security Information Agency, Military Security Agency and Military Information Agency, and other police officers.

Article 43 Paragraphs 4 and 5 of the Law specifies that, exceptionally, some insured persons from Article 42 of the Law may also acquire old-age pension under the following conditions:
 

1. non-commissioned officer or officer ranked below colonel – with 40 years of pensionable service and aged at least 53;
2. officer ranked colonel – with 40 years of pensionable service and aged at least 54;
3. police officers – members of special police units, Security Information Agency, Military Security Agency and Military Information Agency with highly complex, specific and/or operational jobs – at least 53 years of age with 20 years of effective work at said positions.

When assessing pension rights, insurance qualification from Article 42 is determined based on employment termination decision and other evidence on the person’s employment at certain positions and employment period.

v) Exceptionally, if necessary due to service requirements caused by changes in organization and mobilization in the Serbian Armed Forces, a professional army serviceman may acquire old-age under the following cumulative conditions:

• employment with the right to acquire pension has been terminated before meeting general conditions for pension acquisition specified in Article 19 of the Law;
• at least 20 years of pensionable service, which must include at least 10 years of professional army service;
• at the moment of pension acquisition, the person is an officer or non-commissioned officer.

 Article 82 Paragraph 1 of the Law on Amendment stipulates that the part of the Law on Yugoslav Army (Official Gazette of Federal Republic of Yugoslavia Nos. 43/94, 28/96, 44/99,3/02 i 37/02, Official Gazette of Serbia and Montenegro Nos 7/05 and 44/05) pertaining to pension and disability insurance of army insured persons and provisions of Article 192, Paragraphs 2, 3 and 4 of the Law on SAF, which stipulate the so-called “administrative pension”, cease to be effective as of 31 December 2011.

Article 192, Paragraph 1 of the Law on SAF stipulates that, if necessary due to service requirements caused by changes in organization and mobilization in the Serbian Armed Forces in accordance with this law, service of an officer or non-commissioned officer may be terminated with the person being entitled to pension even before meeting the general old-age pension conditions if he/she has acquired at least 20 years of pensionable service, which must include at least 10 years of professional army service.

Article 82 of the Law on Amendment stipulates that the provision of Article 192 Paragraph 1 of the Law on SAF specifying the conditions for entitlement to the so-called “administrative pension” continues to apply and shall cease to be effective on 31 December 2014.

Army old-age pension users may re-enter insurance without limitations. Old-age pension users who have had a period of employment longer than 12 months after retirement may submit a pension re-calculation application. 

2) Disability pension

Article 21 of the Law defines disability as a complete lack of working capability for insured persons and a complete lack of capability to perform professional army service for professional army servicemen due to changes in health caused by work injury, professional disease, non-work-related injury or disease not curable by treatment or medical rehabilitation. 

Pursuant to said provision of the Law, Regulations on Formation and Functioning of Expert Body of Pension and Disability Insurance Fund of Republic of Serbia have been amended (Official Gazette of Republic of Serbia Nos. 59/08, 75/08 – revision and 24/11 – hereinafter “the Regulations”), and Form 1 – Disability Proposal is replaced by a new one. 

Applicable articles of the Regulations and item 4 of Form 1 have been amended to include professional army service capability in addition to working capability. 

Expert assessment of professional army service capability is performed by an expert body of Pension and Disability Insurance Fund of Republic of Serbia, observing the following terms included in the Law on Amendment to account for the peculiarities of professional army service:

• according to Article 14 Paragraph 3 of the Regulations, for professional army servicemen the Form 1 disability proposal is issued by the Chairman of the Senior Military Medical Committee. As an alternative to personal physician, the revised Form 1 includes Chairman of the Senior Military Medical Committee, who is considered a personal physician of professional army servicemen in terms of Article 94, Paragraph 2 of the Law;
• Pursuant to Article 5 Paragraph 2 of the Regulations, when performing expert assessment of disability in professional army servicemen, expert body or control body shall act in accordance with the act specifying disability causes passed by the Minister in charge of defense affairs;
• Pursuant to Article 20 of the Regulations, in addition to medical documentation, when assessing medical facts caused by a professional disease in professional army servicemen, it is also required to submit an expert opinion issued by the Military Medical Academy Institute of Occupational Medicine in accordance with the act on professional diseases;
• in cases where complete lack of professional army service capability is confirmed, follow-up examination shall not be scheduled, which is in accordance with Article 96 Paragraph 2 of the Law, amendment to Article 35 Paragraph 2 of the Regulations by sub item 20, which stipulate that the mandatory follow-up is not scheduled if the disease is confirmed based on the act specifying disability causes passed by the Minister in charge of defense affairs;
• pursuant to Article 39 Paragraph 1 of the Regulations, expert body in the second instance of disability assessment performs the assessment based on medical documentation used in the first instance and medical documentation submitted for the second instance, and the professional army serviceman must have obtained opinion form the Main Military Medical Committee.

Final decision on complete lack of professional army service in terms of Article 93 Paragraph 1 of the Law is delivered to the employer – Department of Defense.

The right to pension is established starting from the day after termination of insurance if insurance was terminated after the date of disability decision. Payment of disability benefits is established from the same date regardless of the date the final decision is delivered to the employer, taking into account that Article 110 Paragraph 1 Item 2) of the Law on SAF stipulates that the Serbian Armed Forces service of an officer or non-commissioned officer is terminated if permanent disability for service in the Serbian Armed Forces is confirmed based on final assessment and opinion of the authorized medical body.

Army disability pension users may re-enter insurance without limitations. 

Pursuant to Article 96 Paragraph 1 of the Law, a user of disability pension granted based on complete lack of professional army service capability may not be invited to follow-up disability assessment and disability pension may not be discontinued due to employment, self-employment or farming. 

3) Survivor pension

Article 30a has been added to Article 15 of the Law on Amendment stipulating that a spouse of a professional army serviceman in terms of the Serbian Armed Forces regulations who was killed in action is entitled to survivor pension regardless of age, on condition that he/she has not re-married,  or, if he/she has children, the children have not finished school.

Pursuant to Article 71 Paragraph 3 of the Law, survivor pension benefit equals 100% of the benefit the insured person would have been entitled to at the time of death. When children are users of survivor pension in addition to spouse, survivor pension benefit also equals 100% of the benefit the insured person would have been entitled to at the time of death. In this case, one survivor pension equalling 100% of the deceased insured person’s benefit is granted. The percent of the pension granted to spouse is not subject to change for as long as the spouse is the user of survivor pension, i.e. even when children cease to be survivor pension users, the spouse retains the right to survivor pension at the same percent. 

Since one of the conditions for survivor pension realization following an insured army serviceman’s death in action is that spouse has not re-married, a prerequisite for usage of pension acquired in accordance with Article 30a of the Law is also to not re-marry. In case of remarriage, spouse’s right to survivor pension acquired in accordance with Article 30a of the Law is discontinued, but the spouse is still entitled to survivor pension equalling 70% (if he/she is the only user of survivor pension) if he/she meets the general acquirement conditions, and the conditions are evaluated including the date of discontinuation of survivor pension acquired in accordance with Article 30a of the Law. If at the time of survivor pension discontinuation the spouse does not fulfil the age condition but is aged at least 45, he/she may submit the survivor pension application at the time of age condition fulfillment. The decision document granting survivor pension in accordance with Article 30a of the Law should indicate that the right shall be discontinued in case of re-marriage and that survivor pension may be acquired per general regulations in case of remarriage.

Survivor pension user may re-enter insurance only if the declared monthly salary is lower than one half of the lowest employee insurance base in effect at the time of contributions payment.

4. Pension benefit calculation 

1) Article 79 of the Law specifying the manner of old-age/survivor pension calculation for insured persons acquiring pension under special conditions has been amended by Article 31 of the Law on Amendment. 

Old-age/survivor pension is calculated in accordance with the provisions of Article 61 of the Law and personal points are determined as specified in Articles 62 through 70 of the Law, where the annual personal coefficient is not calculated based on January 1 1970 onwards but based on 1 January 1996 onwards. 

Article 64 of the Law on Amendment contains an amendment to Article 238 of the Law specifying that for these insured persons data on pensionable service acquired by 31 December 1995 and information on data changes are entered in the central insurance registry based on pensionable service registration. 

This actually means that the annual personal coefficient calculation shall be performed based exclusively on salary, insurance bases and contract compensation acquired from January 1 1996, i.e. the calculation shall not be based on salary, compensation and insurance bases acquired from January 1 1970, which is a significant innovation compared to provisions contained in previous laws on pension and disability insurance acquisition for certain insurance categories under special conditions. Pension benefits were always calculated by both “general” and “special” regulations, since the law stipulated that pension benefits should be calculated based on special regulations if this would be more favourable for the insured person, where the decision on the more favourable option was made ex officio. 

Pension benefit amount determined in this way is increased by 20%, which is the total pension amount for this insurance category. 

Pension benefit amount calculated in the manner stipulated in Article 79 of the Law may not exceed the amount indicated in Article 78 of this Law amended by Article 30 of the Law on Amendments stipulating that the highest pension benefit amount is calculated in such a way that the personal coefficient may not exceed 3.8 (which had been 4 before the changes). 

It is specified that an insured person who at the time of old-age/disability pension acquisition does not have an insurance qualification in terms of Article 42 of the Law but has had the qualification during his/her working years acquires and realizes pension rights per general regulations.  

2) Article 83 of the Law on Amendment stipulates that Article 257 of the Law shall also be applied to users who acquired pension per regulations that had been applied to professional army servicemen until and including December 31 2011. 

A user of old-age pension acquired per army regulations until December 31 2011 who has been insured for at least one year on the basis of employment on the territory of the Republic of Serbia or self-employment during which he/she has been insured on the territory of the Republic of Serbia is entitled to pension re-calculation as specified by Article 257 of the Law after employment termination. It should be noted that existence of insurance interruptions is irrelevant for users of pension acquired per army regulations, i.e. a user possessing insurance based on employment or self-employment on the day after termination of insurance based on professional army service is also entitled to pension-recalculation.