Dismissal from Profession and Paths to Reinstatement for Gendarmerie, Expert Sergeants, and Other Military Personnel

Personnel serving within the Turkish Armed Forces (TSK), the General Command of Gendarmerie, and the Coast Guard Command are subject to different disciplinary rules compared to other public servants due to the nature of public service and the special operational responsibilities they bear.

applied regarding officers, non-commissioned officers, expert specialist sergeants, expert sergeants, contracted specialist sergeants and privates, and gendarmerie personnel dismissal from the profession, termination of contract, or removal from duty procedures, are critically important administrative actions that directly affect not only the personnel's working life, but also their economic situation, social status, and professional future.

Although the dismissal of military personnel from the profession is evaluated within the scope of the administration's disciplinary authority possessed as a requirement of public service, this authority is not unlimited. Just like every action established by the administration, dismissal actions also is subject to judicial review of legality.

In particular;

• which is not based on concrete and sufficient evidence,
• which is carried out in violation of the right to defense,
• which violates the principle of proportionality,
• where the administration's discretionary power is exercised arbitrarily,
• which is based on personal opinions or abstract evaluations

acts of dismissal from the profession can be annulled by the administrative judiciary.

Therefore, it is possible for military personnel who have been subjected to dismissal from the profession or termination of contract to be reinstated by filing a lawsuit in the administrative court within the statutory period.

In this article;

• reasons for the dismissal of expert sergeants from the profession,
• procedures regarding the severance of relations of gendarmerie personnel,
• annulment lawsuit regarding the dismissal of military personnel,
• conditions for reinstatement,
• request for stay of execution,
• decisions of the Council of State (Danıştay),
• legal remedies

will be discussed in detail.

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What is the Dismissal of Military Personnel from the Profession?

Dismissal from the profession is the removal of a public official from their active status and the termination of their employment with the public service.

Regarding military personnel, the action of dismissal from the profession;

• disciplinary law,
• personnel law,
• criminal law,
• health legislation,
• provisions regarding security investigation and archive research

can be applied within the framework of.

The dismissal of military personnel from the profession does not merely mean the termination of their current duty. At the same time;

• the termination of the right to a salary,
• the loss of social rights,
• the impairment of personnel rights,
• alterations in retirement processes

and similar severe consequences.

Therefore, dismissal procedures are considered in administrative law as individual administrative acts with grave consequences. is accepted among.

Among the fundamental bases for the procedures of severing relations and dismissal that may be applied to military personnel are;

• Turkish Armed Forces Disiplin Law No. 6413,
• Law No. 7068 on General Law Enforcement Disciplinary Provisions,
• Law No. 3269 on Specialist Expert Cadres,
• Law No. 926 on Turkish Armed Forces Personnel,
• Law No. 2803 on the Organization, Duties, and Powers of the Gendarmerie,
• Military Penal Code No. 1632

are set forth.

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For What Reasons Are Specialist Sergeants and Gendarmerie Personnel Dismissed from the Profession?

There may be many different legal grounds for the termination of military personnel's service. However, the most commonly encountered reasons in practice can be listed as follows.

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1. Dismissal from the Profession Due to Disciplinary Penalties

Discipline within the military organization is one of the fundamental elements of service. Therefore, behavior of military personnel contrary to disciplinary rules is subject to various sanctions.

Some of the disciplinary offenses that serve as the basis for dismissal from the profession in practice are as follows:

• Disrespectful behavior toward a superior or commander,
• Acting contrary to service orders,
• Leaving the unit or duty station without permission,
• Absenteeism,
• Disrupting duty discipline due to alcohol consumption,
• Allegation of substance use,
• Behaviors undermining military reputation and trust,
• Social media posts,
• Acts contrary to military courtesy and traditions.

However, the mere existence of an allegation is not sufficient in disciplinary proceedings.

The administration must:

• the reality of the incident,
• the fault status of the personnel,
• the gravity of the act,
• past services,
• the proportionality of the penalty imposed

must evaluate.

In particular, dismissal actions based solely on minutes or abstract statements may be found unlawful.

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2. Dismissal Due to Security Investigation and Archive Research

In the post-2016 period, one of the most debated issues regarding military personnel has been the procedures for severing ties due to security investigations and archive research.

Within the scope of the security investigation;

• the individual's social circle,
• past activities,
• intelligence information regarding the person,
• family and close social circle connections,
• social media usage

can be examined.

However, for the information obtained as a result of the security clearance to constitute a legally valid ground for dismissal, it must meet certain conditions.

The administration must:

• of unknown origin,
• unverified,
• not disclosed to the individual,
• unsupported by concrete facts

taking administrative action based on such information may be unlawful.

In the rulings of the Council of State (Danıştay), it is particularly emphasized that abstract intelligence information is not sufficient for the dismissal of a public servant from their profession.

3. Dismissal of Military Personnel Due to Health Reasons

Military personnel are required to meet certain health conditions in order to perform their duties. Therefore, changes in their health status may, in some cases, result in the dismissal of personnel or the termination of their contracts.

Particularly for expert sergeants (uzman erbaş) and commando personnel, health reports entail significant legal consequences.

In practice, administrative procedures for dismissal from the profession due to health reasons are generally based on medical board reports stating:

• “Unable to continue duty”,
• “Unable to perform military service”,
• “Unfit to be a commando”,
• “Unable to serve as an expert sergeant”,
• “Not suitable to serve in the TSK”

as formulated in such health board reports.

However, the mere issuance of a health report does not automatically mean that the administrative action is lawful.

In order for the administration to sever the affiliation of personnel due to health reasons:

• the health report must be obtained from an authorized healthcare institution,
• conducting the necessary examinations,
• applying the criteria stipulated in the legislation,
• accurate evaluation of the personnel's status

is required.

In practice, in certain cases;

• incomplete medical examination,
• misdiagnosis,
• outdated health data,
• failure to assess whether the illness prevents the performance of duties

unlawful actions may be taken.

In such cases, the relevant personnel may file an administrative lawsuit against the medical report and the consequent discharge procedure based thereon.

If deemed necessary by the court, it is also possible to obtain a new medical board report or conduct an expert review.

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4. Non-Renewal of Contracts for Expert Sergeants

For expert sergeants, one of the most frequently encountered situations in practice is the non-renewal of the contract.

The service relationship of expert sergeants is generally based on a fixed-term contract. However, this does not mean that the administration can terminate the contract without showing any justification.

The administration's authority not to renew the contract must be exercised within the framework of;

• public interest,
• service requirements,
• objective evaluation,
• the principle of proportionality

.

In the administrative act of non-renewal of the contract, the administration's evaluation of;

• the personnel's record status,
• duty performance,
• disciplinary history,
• the duration of service,
• specific incidents

must take into account.

Merely;

• superior's opinion,
• personal evaluation,
• abstract expressions,
• unfounded negative opinions

and executing the non-renewal of a contract may be unlawful.

In numerous decisions rendered by the Council of State (Danıştay), it is stated that the administration's discretionary power is not unlimited and must be exercised proportionally with respect to public officials.

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Termination of Specialist Sergeants' Contracts Due to the Inability to Benefit from Them

one of the significant regulations causing the termination of specialist sergeants' contracts within the scope of the Specialist Sergeants Law No. 3269 “the state of being unable to benefit from them” concept.

This concept can be interpreted quite broadly in practice and serves as the basis for the termination procedures of many specialist sergeants.

However, when making the assessment of "inability to benefit from them," the administration must set forth concrete events and legally justify its action.

The main situations regulated by law are as follows:

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1. Excessive Indebtedness

In the event that a specialist non-commissioned officer;

• incurs debts far exceeding their income,
• makes a habit of failing to pay their debts,
• and this situation harms their duty and professional reputation,

termination of the contract may come into question.

However, not every indebtedness constitutes grounds for dismissal from the profession.

Nowadays, the use of credit, housing loans, vehicle loans, or debts arising from economic reasons should not be considered sufficient by themselves for the dismissal of personnel from duty.

The administration must:

• the nature of the debt,
• the intent to pay,
• the person's economic status,
• its effect on their duties

must evaluate.

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2. Gambling, Alcohol, Profiteering, and Immoral Conduct

In the event that a specialist non-commissioned officer;

• consuming alcohol in a manner that would impair their duties,
• a gambling habit,
• entering into conflict-of-interest relationships,
• engaging in behaviors that damage the reputation of the military institution

may constitute grounds for contract termination.

However, in this regard, the act must also:

• be continuous in nature,
• be of a serious nature,
• be established with concrete evidence

is required.

Imposing a profession disbarment based on a single incident or an unproven allegation may be unlawful.

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3. Conduct Detrimental to the Moral Personality of the State and Military Institutions

Military personnel are expected to uphold a higher level of discipline and representation responsibility compared to other public servants.

Therefore;

• severely damaging the reputation of the institution,
• incompatible with the understanding of military discipline,
• destroying the relationship of trust

such behaviors can constitute grounds for contract termination.

However, while establishing the administrative act;

• the severity of the act,
• the personnel's past service history,
• the circumstances of the incident

must be taken into consideration.

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4. Use of Drugs and Stimulants

The use of drugs or narcotic substances is one of the matters subject to the strictest evaluation regarding military personnel.

In allegations of drug use;

• toxicology report,
• judicial investigation,
• definitive and concrete evidence

is of great importance.

Taking action solely upon an abstract denunciation or unverified allegation may constitute unlawfulness.

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5. Failure to Report for Duty Without Excuse

One of the grounds that may lead to the termination of expert specialist non-commissioned officers' contracts is failure to report for duty without a valid excuse.

Within the scope of Law No. 3269, unauthorized or unexcused absenteeism exceeding certain periods may constitute grounds for contract termination.

However, in this regard as well;

• whether the absenteeism actually occurred,
• whether there is a valid excuse,
• whether the personnel's defense has been taken

is of importance.

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Other Grounds for Contract Termination

There are also certain specific grounds for termination within the scope of the Expert Specialist Non-Commissioned Officers Law No. 3269.

Among these;

Inability to Advance in Grade

If the personnel fail to meet the required conditions as a result of performance evaluations, the contract may be terminated.

However, performance evaluation procedures must also be objective and compliant with the law.

Performance evaluations based on arbitrary or personal assessments are subject to judicial review.

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Conviction of Infamous Crimes or Crimes Defaming Honor and Dignity

In the event of conviction for certain crimes, the employment relationship of specialist non-commissioned officers may be terminated.

Among these;

• embezzlement,
• bribery,
• theft,
• fraud,
• forgery,
• extortion,
• disclosure of state secrets,
• desertion,
• insulting a superior or commander,
• persistent disobedience of orders

include crimes such as.

However, a direct connection must be established between the criminal court decision and the administrative action.

Although the outcome of the criminal case is significant regarding the lawfulness of the administrative action, each case must be evaluated within its own circumstances.

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What Can Military Personnel Do If Dismissed from the Profession?

The most crucial legal remedy for military personnel facing dismissal from the profession or termination of their contract is to file an administrative lawsuit.

The action taken by the administration is not final.

The relevant personnel;

• annulment of the action,
• stay of execution,
• restitution of financial rights

may file a lawsuit with these requests.

In the review conducted by the administrative judiciary;

• with respect to authority,
• with respect to form,
• with respect to grounds,
• with respect to subject matter,
• with respect to objective

acts are subject to judicial review for compliance with the law.

How to File an Annulment Action Regarding the Dismissal from Profession of Military Personnel?

Actions for dismissal from the profession, termination of contract, or discharge enacted against gendarmerie personnel, expert corporals, officers, non-commissioned officers, or other military personnel constitute administrative acts nature. Therefore, it is possible to file an annulment action against such acts before the competent and authorized administrative judicial authorities.

In order for an administrative act to be the subject of an annulment action, it must first be duly served upon the relevant personnel. If an action is not filed within the period prescribed by law starting from the date of service, the act becomes final and the right to file an action may be forfeited.

For this reason, it is of utmost importance for personnel who receive a dismissal decision or contract termination notice to conduct a prompt legal evaluation.

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Statute of Limitations for Filing a Lawsuit Against Dismissal from the Profession

Actions regarding the dismissal or severance of military personnel from the profession, as a rule, may be subject to an administrative lawsuit.

Within the scope of the Administrative Procedure Law, the general period for filing a lawsuit 60 days.

This period;

• commences from the date on which the decision of dismissal from the profession,
• the contract termination procedure,
• or the severance notice

is served upon the relevant personnel.

For example;

If a contract termination decision issued concerning a specialist sergeant is served upon him on 01.09.2026, the period for filing a lawsuit shall be calculated from this date.

Filing a lawsuit within the prescribed statutory period is of utmost importance to prevent the personnel from suffering a loss of rights.

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Which Matters Are Examined in a Dismissal Lawsuit?

While examining procedures regarding the dismissal of military personnel from the profession, administrative courts do not completely eliminate the administration's discretionary power; however, they review whether this power has been exercised in compliance with the law.

The court specifically evaluates the following matters:

1. Element of Cause of the Administrative Act

It is examined whether the incident relied upon by the administration for the disbarment/dismissal from profession is true.

For example;

• an unmaterialized incident,
• an erroneous report,
• an unverified denunciation,
• an incomplete investigation

if used as the basis for the administrative act, may render the act unlawful.

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2. Sufficiency of Evidence

In acts resulting in severe consequences such as dismissal from the profession, the administration must rely on robust and concrete evidence.

Merely;

• hearsay,
• opinion,
• personal evaluation,
• abstract intelligence information

may not be sufficient on their own.

Particularly in proceedings that cause a person to lose their profession, determinations must be based not on “suspicion,” but on legally acceptable assessments.

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3. Whether the Right to Defense Was Exercised

In terms of disciplinary law, the right to a defense is one of the fundamental guarantees.

Personnel:

• learning of the allegation,
• being able to access the evidence,
• being able to defend themselves

.

Certain proceedings carried out without exercising the right to a defense may be deemed unlawful.

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4. Principle of Proportionality

Disbarment or dismissal from the profession is one of the severest sanctions regarding public officials.

Therefore, the administration's:

• the gravity of the act,
• evaluating the personnel's past services,
• considering whether a milder sanction can be applied

must evaluate.

For instance, applying direct dismissal from the profession due to a single disciplinary incident may violate the principle of proportionality, depending on the specifics of the case.

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Is Reinstatement Possible with a Request for Stay of Execution?

One of the most crucial legal remedies for military personnel dismissed from the profession is the request for a stay of execution.

Filing an annulment lawsuit alone does not ensure the individual's reinstatement to office.

The administrative act continues to be implemented while the lawsuit is pending.

However, if the court decides to grant a stay of execution;

• the implementation of the dismissal act is temporarily suspended,
• the personnel may return to duty,
• and administrative actions regarding salary and vested rights may be carried out.

Two fundamental conditions are required for a stay of execution to be granted:

1. The Act Must Be Clearly Unlawful

If the court evaluates in its initial review that the act is unlawful, it may rule for a stay of execution.

For example;

• absence of concrete evidence,
• failure to obtain a defense statement,
• application of incorrect legislation,
• exceeding authority

such circumstances may be evaluated within this scope.

2. Occurrence of Damages that are Difficult or Impossible to Compensate Upon Execution of the Transaction

Dismissal from the profession actions;

• loss of income,
• loss of career,
• termination of social rights,
• impact on professional reputation

since they lead to serious consequences such as these, the condition of irreparable damage frequently arises in most cases.

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Can a Dismissed Expert Sergeant Return to Duty?

Yes.

It is possible for an expert sergeant, gendarmerie personnel, or other military personnel who has been subjected to dismissal from the profession or contract termination procedures to return to duty.

To this end, it must first be established by a court that the administrative action is unlawful.

As a result of the annulment decision;

• the dismissal action is eliminated,
• reinstatement of the personnel to duty is required,
• retroactive financial rights may come into question.

In particular;

• dismissals made without concrete evidence,
• actions based on erroneous evaluations,
• unlawful disciplinary proceedings,
• disproportionate contract terminations

can be annulled by the courts.

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Salary and Personal Rights of Dismissed Military Personnel

When a dismissal action is annulled, certain financial rights of the personnel regarding the past period may come into question.

Within the scope of the consequences of the annulment decision;

• salary for the period spent on suspension,
• financial rights,
• social rights,
• reinstatement of personal rights

may be requested.

However, which rights and how they should be claimed must be evaluated according to the specific circumstances of the case.

Therefore, following the annulment decision, additional legal proceedings regarding financial rights may need to be conducted.

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The Importance of Council of State (Danıştay) Decisions in Military Personnel Dismissal Cases

Council of State (Danıştay) decisions serve as an important guide in lawsuits concerning the dismissal of military personnel from the profession.

In many of its decisions, the Council of State (Danıştay) has stated that the administration's discretionary power is not unlimited and that every action must be evaluated within the framework of legal rules.

In particular, the following principles are emphasized in numerous judgments:

• Administrative acts must be based on concrete grounds.
• There must be sufficient legal grounds for the dismissal of a public official from the profession.
• Disciplinary sanctions must be proportionate.
• Circumstances in favor of the individual must be taken into consideration.
• Acts resulting in severe consequences should not be established based on abstract opinions.

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Evaluation of the Decision of the 12th Chamber of the Council of State, Case No. 2020/1223, Decision No. 2023/6705

In this decision rendered by the 12th Chamber of the Council of State, the act concerning the termination of the contract of an expert private specialist sergeant was evaluated.

In the case at hand;

• it is observed that the contract of the personnel was terminated on the grounds that
• they left the garrison without permission,

and were involved in a fight.

However, upon review,

• the legal nature of the incident was not fully established,
• sufficient investigation regarding the personnel was not conducted,
• and the outcome of the criminal investigation was not taken into account,

it has been assessed.

The Council of State found it unlawful for the administration to execute a contract termination procedure based solely on allegations without conducting the necessary investigation.

This decision is significant in terms of demonstrating the necessity of concrete facts and a thorough investigation regarding the dismissal of military personnel from the profession.

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Evaluation of the Decision of the 12th Chamber of the Council of State, E. 2020/3213, K. 2023/5583

In this decision, the contract termination procedure executed against a specialist gendarmerie sergeant was examined.

In the case, the personnel's conduct following a traffic accident was evaluated, and the administration concluded that further service could not be utilized from the personnel.

However, the Council of State (Danıştay);

• concluded that the personnel engaged in relief efforts following the incident,
• did not leave the scene,
• and acted in accordance with the responsibilities of a public official,

taking these factors into evaluation.

Consequently, it was accepted that the administration did not exercise its discretionary power in a proportionate manner and that the administrative act lacked lawfulness.

This decision demonstrates that all circumstances of the incident must be taken into account in evaluations concerning military personnel.

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The Importance of Legal Support in Military Personnel Dismissal Lawsuits

The dismissal of military personnel from the profession is a significant legal process that affects an individual's entire career.

In such lawsuits, merely filing a case is not sufficient;

• determining the legal nature of the administrative act,
• and correctly applying legislative provisions are crucial.
• the evaluation of evidence,
• preparation of the request for a stay of execution,
• utilization of precedent Danıştay decisions

is of importance.

Particularly for specialist sergeants, gendarmerie, and other military personnel, obtaining expert legal support in the field of administrative law in annulment lawsuits to be filed is crucial to prevent loss of rights.

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Frequently Asked Questions (FAQ)

Can an expert sergeant dismissed from the profession return to duty?

Yes. If the administrative court annuls the dismissal action, the reinstatement of the specialist sergeant to duty is possible.

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Within how many days must a lawsuit be filed against the dismissal decision of military personnel?

Generally, an administrative lawsuit must be filed within 60 days from the notification of the administrative act.

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Can a dismissed expert sergeant recover their back pay?

In the event of an annulment decision, it is possible to claim financial rights for the retroactive period.

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Can personnel dismissed due to security clearance investigations be reinstated?

Yes. If the action based on the security clearance investigation is found to be unlawful, an annulment decision may be rendered by the court.

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Is everyone who receives a disciplinary penalty dismissed from the profession?

No. The nature and severity of the disciplinary penalty, along with the individual's past service record, must be evaluated together.

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Conclusion

Dismissal actions applied against gendarmerie personnel, specialist sergeants, and other military personnel are severe administrative acts with direct consequences affecting the individual's professional future.

However, not every dismissal decision issued by the administration is lawful. Actions that lack concrete evidence, violate the principle of proportionality, infringe upon the right to defense, or exceed the limits of the administration's discretionary power can be annulled by the administrative judiciary.

The most fundamental right of military personnel dismissed from the profession is recourse to judicial remedies against unlawful acts.

Proper management of the process, strict adherence to the statute of limitations, and the preparation of necessary legal arguments can directly affect the probability of reinstatement to duty.

Atty. Batın YILMAZ