Is the time spent in battlefields B, C, K counted towards receiving regional allowances upon retirement?

- Mr. Hoang Phu Dien and some retired veterans in Hung Nguyen district sent a letter to Nghe An Newspaper: You are veterans who participated in combat and worked in battlefields B, C, K during the resistance war against the US, now have changed careers and retired, are you entitled to the regime, if so, which agency will resolve it according to Decree 122/2008/ND-CP dated December 4, 2008 of the Government and Circular No. 03/2009 dated January 22, 2009 of the Ministry of Labor, War Invalids and Social Affairs guiding the Decree (Point b, Section II, a, b) states: "Non-commissioned officers, soldiers of the People's Army, People's Police, are subjects entitled to benefits under this Decree...".

Reply:

Decree No. 122/2008/ND-CP dated December 4, 2008, Article 1, stipulating the scope of regulation, stipulates: "This Decree stipulates regional allowances for pensioners, one-time social insurance, monthly allowances for loss of working capacity and monthly allowances for work-related accidents".

In Clause 1, Article 2 of the Decree states: “Employees who quit their jobs and are eligible for pension or one-time social insurance payment from January 1, 2007 onwards, and who have previously paid social insurance including regional allowances, in addition to receiving pension or one-time social insurance according to regulations, are also entitled to one-time allowance corresponding to the time and amount of regional allowance for which social insurance has been paid”. At the same time, in Clause 2 it is stipulated: “People who are receiving monthly pension, allowance for loss of working capacity, allowance for work accidents, occupational diseases before January 1, 2007, residing in a place with regional allowances, are entitled to receive regional allowances at the current level (not adjusted according to the general minimum wage) until there are new regulations of the Government”.

Thus, it can be understood that those who, according to regulations, have worked in areas with regional allowances (mountainous areas, other particularly difficult areas, etc.), and now retire, in order to ensure the rights of workers (when working, they had to pay social insurance, including regional allowances, and now they retire, they must receive benefits), the Government stipulates support in the direction that in addition to the pension, disability allowance, occupational accident and occupational disease allowance that retirees receive monthly, when they retire, they will also receive a one-time allowance corresponding to the time and amount of regional allowance for which social insurance has been paid.

Circular No. 03/2009 of the Ministry of Labor, War Invalids and Social Affairs guiding the implementation of Decree 122/2008/ND-CP states: Non-commissioned officers, soldiers of the People's Army, and People's Police who are eligible for this Decree are regulated for those who, after changing their profession or non-commissioned officers, soldiers of the Army, and Police who later work in difficult areas and are entitled to regional allowances, will receive a one-time allowance along with their monthly pensions upon retirement. In our opinion, this guidance does not cover the time veterans fought in battlefields B, C, and K during the resistance war against the US, because during this time there was no social insurance payment regime (only the working time from 1995 onwards is converted according to Decree 12/CP regulating the social insurance regime) and there is no regional allowance for which social insurance must be paid. In addition, according to Government regulations, when transferring to another sector or demobilizing, although few, soldiers have been resolved some policies and regimes, so now they are not counted for one-time allowances and regional allowances. For more specific and detailed answers, please contact the District Social Insurance or the Provincial Social Insurance Policy and Regime Department for a response.

- A business officer is a former soldier who changed his career and is currently working at a state-owned enterprise in Vinh City. Currently, the enterprise is facing difficulties and changing its mechanism, so he wants to resign. However, when declaring the documents, the individual's military service time is not counted by the current enterprise to pay severance pay? Is the above action right or wrong?

Reply:

According to Clause 1, Article 42 of the Labor Code, when terminating the labor contract of an employee who has worked regularly in the enterprise for 12 months or more, the employer is responsible for paying severance pay to the employee, for each year of work, half a month's salary plus salary allowance (if any). Thus, from the time of transferring to work at the enterprise until the termination of the contract, the enterprise is responsible for settling the severance pay regime for the actual time he worked at the enterprise.

According to the provisions of Point c, Clause 3, Article 14, Decree 44/2003/ND-CP dated May 9, 2003 of the Government detailing the guidance of a number of articles of the Labor Code on labor contracts, in case an employee, before working for a state-owned enterprise, had worked for a period of time in other units in the state sector but had not received severance pay, the enterprise where the employee terminated the contract is responsible for paying that employee according to the provisions of law.

According to Decision No. 178/CP dated July 20, 1974 of the Government on amending policies for soldiers changing careers and serving time in the army, units resolving a number of regimes for soldiers and demobilization, the time serving in the army is not counted as the time to pay severance allowance according to Clause 1, Article 42 of the Labor Code.

Nguyen Hai