Treatment of the possibility of re-entry of military personnel to the Civil Administration

The consultation refers to the following background: military, belonging to the Military Legal Corps, which provided services in the Autonomous Administration, in which it obtained a position awarded by the system of free appointment from which it ceases to move to the situation of special services to perform exclusively the position of Councillor Delegate of the Area of Finance and Public Function of a City Council.

In light of this background, and in application of the provisions of the eleventh additional provision of the consolidated text of the Law on the Basic Status of the Public Employee approved by Royal Legislative Decree 5/2015, of 30 October (hereinafter, TRLEBEP), it is consulted whether the official should re-enter the Military Administration, or where appropriate, should re-enter the Civil Administration in which he had his last destination, with the criteria of re-entry of the latter.

The eleventh additional provision of TRLEBEP states the following:

"1. The military career personnel may provide services in the civil administration under the terms established by each Public Administration in those jobs in which this possibility is specified, and of those that are awarded, in accordance with the principles of merit and capacity, prior participation in the corresponding public call for the provision of such positions, and prior compliance with the requirements that may be established for this purpose by the Ministry of Defense.

2. Military personnel serving in the Civil Service shall be subject to its own rules on working hours and hours; holidays, permits and licences; and disciplinary regulations, although the penalty of separation from service may be imposed only by the Minister of Defence.

The provisions for internal promotion, administrative career, administrative situations and mobility shall not apply to them, without prejudice to their participation in the procedures for the provision of other posts open to these personnel in the Civil Administration.

The remuneration to be received will be the basic remuneration that corresponds to them in their capacity as career soldiers, and the complementary remuneration corresponding to the job performed. The possible promotions that may occur in his military career will not entail any variation in the remunerative conditions of the position held.

Their Social Security regime will be the one that corresponds to them as career soldiers.

In the event of the termination, removal or suppression of the civil service post they have been performing, they must rejoin the military administration in their appropriate situation, without applying the criteria existing in these cases for civil service personnel.”

From the mere reading of the precept, it follows, on the one hand, that military personnel do not apply the system of administrative situations provided for officials in the service of the Civil Administration and, on the other hand, that in the event that they cease in the position they perform, they must rejoin the military administration in the appropriate situation.

For its part, article 113 bis of Law 39/2007, of November 19, on Military Career, provides the following:

“1. The career soldiers who, by virtue of a procedure for the provision of jobs, obtain destination in the civil administration, will be declared in this administrative situation.

The legal regime of application to these personnel will be that provided for in Law 7/2007, of April 12, of the Basic Statute of the Public Employee.

2. The mobility of career soldiers to cover jobs in the Civil Administration shall be subject to the prior authorization of the Under-Secretary of Defense. In order to be able to participate in the procedures for the provision of these jobs, they must have at least 20 years of service, the provisions of the third subparagraph of Article 110(2) being applicable to them.

3. A career soldier who ceases to serve in the Civil Administration for any reason must apply for re-entry into active service in the Ministry of Defence, unless, in accordance with the provisions of this Law, it is incumbent on him/her to move to reserve status.”

This article, in turn, ratifies the provision that when the military ceases to provide services in the Civil Administration “for any reason”, the precept affects, it will have to apply for re-entry into the military Administration.

As indicated in the previous information, the soldier who had been serving in the regional administration had ceased in the same as a result of being appointed Councillor Delegate of the Area of Finance and Public Function of the City Council, on a full-time basis; since then, as the consultant also points out, to the situation of special services.

The aforementioned precepts make it clear that the administrative situation of the soldier who provides services in the Civil Administration will always be that corresponding to his military career. Likewise, these precepts state that when the Civil Administration ceases, for any reason, as in the present case, the military “they must be reintegrated into the military administration in their appropriate situation, without applying the existing criteria in these cases for civilian personnel”.

Therefore, and given that in this case, the soldier ceased in the Autonomous Administration, moving on to the situation of special services, in his military capacity, under the precepts indicated, he would have lost his link with the aforementioned Civil Administration, so that, once he ceases in his position of Councillor, by virtue of which he was declared in special services, he must request his re-entry to the situation of active service in the Ministry of Defense, unless it is up to them to move on to the situation of reservation or another situation.

All of the foregoing is without prejudice to recalling that, according to the regime of competences of this management center, the answers to queries issued by this general directorate are merely informative and, consequently, are not of a binding criterion, nor do they give rise to rights or expectations of law, nor imply any link with the type of procedures to which they refer. Furthermore, in the absence of a mandatory or binding nature, the bodies receiving such replies may, where appropriate, finally take a decision that does not correspond to the opinion contained therein.

The responses to queries contained in this bulletin address the issues raised in the light of the regulations in force at the time of their issuance, so that such responses may be affected by subsequent legislative changes or judicial decisions.