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Decree No. 7188, 27 May 2010

Original Language Title: Decreto nº 7.188, de 27 de Maio de 2010

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DECREE NO 7,188, DE May 27, 2010.

Regulates the Act no 12,158, of 28 million December 2009, which has on access to senior military graduations from the Aeronautical Taipei Board of Taipei

THE PRESIDENT OF THE REPUBLIC, in the use of the attribution conferring you the art. 84, inciso IV, of the Constitution, and in view of the provisions of the Act No 12,158 of December 28, 2009,

DECRETA:

Art. 1º The military hails from the Taipei Board of Aeronautics-QTA, in reserve remunerated, retired or active duty, whose admission to the Framework has taken place until December 31, 1992, is ensured, in the inactivity, access to senior graduations in the form of the Act No. 12,158 of December 28, 2009, and of this Decree.

Single Paragraph. Access to graduations superior to that in which occurred or come to occur inactivity will give as per the requirements in Law No. 12,158, 2009, and this Decree, and will always be limited to the last QTA graduation, that of Suboficial.

Art. 2º The promotion to senior graduations, limited to the Suboficial graduation and the corresponding hundred correspondents, will observe at least one of the following requirements:

I-that the transfer to the paid reservation has been given or come to request, after served minimum time of service determined in specific legislation ;

II-that the inactivity has over-over or comes to survive by the reach of the age limit for the permanence in the active service ;

III-that inactivity has over-over or come to survive in the face of quota application compulsory ; or

IV-which, in spite of not complying with the minimum service time determined in specific legislation to apply for the transfer to the remunerated reservation, the inactivity has overlapped in the face of definitive incapacity for active duty.

Art. 3º The right to promotion to the higher graduations provided for in Law No. 12,158 of 2009, and in this Decree does not cover the military from the QTA who have entered the inactivity on a date prior to the publication of the Act No 3,953 of September 2, 1961.

Single Paragraph. The right provided in the caput also does not cover military pensions instituted earlier than the date of publication of Law No. 3,953 of 1961.

Art. 4º The deceased servicemen, pension institutors, will also do jus to access to upper graduations up to the graduation of Suboficial, provided they have met the provisions of the art. 1st of this Decree and to one of the following requirements:

I-who have complied with the minimum service time determined in specific legislation for the transfer to the remunerated reserve ;

II-that the inactivity has overlaped by the reach of the age limit for staying in the service active ;

III-that the inactivity has overlaped in the face of the application of the compulsory quota ; or

IV-that in spite of not having met the minimum service time determined in legislation specific to apply for the transfer to the remunerated reservation, the inactivity has overlapped in the face of definitive incapacity for active service or has the deceased military still during active duty.

Art. 5º The access to the upper graduations, provided for in art. 1st of this Decree, it will be given in accordance with the time of stay of the military as an integral part of the QTA, obeying the following temporal parameters:

I-up to three years as an integral part of the QTA, the military will be entitled to access to the graduation of Taifeiro-Mor (TM) ;

II-from four to eight years as an integral part of the QTA, the military will be entitled to access to the graduation of Third-Sergeant (3S) ;

III-from nine until thirteen years as an integral part of the QTA, the military will be entitled to access to the graduation of Second-Sergeant (2S) ;

IV-from fourteen to twenty years as an integral part of the QTA, the military will be entitled to access to graduation of First-Sergeant (1S) ; and

V-with twenty-one years as an integral part of the QTA, the military will be entitled to access to the graduation of Suboficial (SO).

§ 1st In the case of military hair from the QTA that has joined another Aeronautical Framework, achieving a hierarchical grade higher than predicted in one of the incisos I to V, will prevail the highest degree.

§ 2nd In the statement of the years as an integral part of the QTA will be considered the period between the promotion date to Taifeiro-of-Second-Class T2 or the date of inclusion in the QTA, respecting what occurred first, and the date of departure from active service by transfer to inactivity (paid reservation or retirement), or from the demise, case occurring in the active service, or, yet, the date of exclusion of the QTA for admission to another Aeronautical Framework.

Art. 6º The military servicing the art. 1st of this Decree and to one of the conditions set forth in the incisos of I to IV of the art. 2nd, as well as recipients of military pension whose institutors fulfil the conditions laid out in art. 4th, will only do jus to the benefit provided for in Law No. 12,158 of 2009, and in this Decree after the signing of the Term of Agreement that it deals with Annex I or II to this Decree, which will import:

I-the express agreement of the military or the pensioner with the form, the deadlines, the amounts and the limits of values set out in Law No. 12,158, 2009, and in this Decree ;

II-the renunciation of the ongoing judicial process, in any instance, and its consequential extinction, as well as of its eventual resources ;

III-the renunciation of the right to plead, on the administrative or judicial route, any values or advantages arising from the same revision as provided for in Law No. 12,158 of 2009, and in this Decree, save in the event of proven material error ; and

IV-the waiver of the fees advocatings and the restitution of costs.

§ 1º Havendo ongoing legal action, the lawyer for the military or pensioner is expected to express the waiver on receipt of fees or, alternatively, the military or pensioner should express concordance with the direct discount on the remuneration or order values of eventual amounts spent by the Union.

§ 2º Compete to the person concerned to apply to the judge of the cause the resignation to the action, pursuant to the inciso V of the art. 269 of the Act No 5,869 of January 11, 1973-Code of Civil Procedure, and to join the Term of Agreement for judicial approval of the waiver.

§ 3º Ocurring concomitant payment or in duplicity of values regarding the agreement provided for in Law No. 12,158, 2009, and in this Decree, the Aeronautical Personnel General Command will reap the respective importance administratively through direct discount on remuneration or in the order of the order.

§ 4º In the hypothesis of the military or the pension beneficiary concealing the existence of judicial action, the refunds on which they treat § § 1st and 3rd will be carried out increased by a fine of twenty per cent.

Art. 7º Access to senior graduations, in the form laid down in Law No. 12,158 of 2009, and in this Decree, shall be effective upon submission of administrative application, in the form of Annex III or IV to this Decree, to the Director of Administration of the Aero personnel, attaching the documentation that will prove the date of promotion to Taifeiro-of-Second-Class T2 or the date of inclusion in the QTA, respecting what occurred first, and the date of disbanding active service by transfer for the inactivity (paid reservation or retirement), or the demise, if occurred in the active service, or, yet, the date of exclusion of the QTA for admission to another Aeronautical Framework, admitting, to so much:

I-Militar History ; or

II-copies of Internal Boletins of Military Organizations of Aeronautics and administrative acts.

§ 1º The inactives and pensioners covered under Law No. 12,158 of 2009 will have the deadline of two years, counted from the date of publication of this Decree, for presentation of the administrative applications cited in the caput of this article.

§ 2º The military in activity on the date of publication of this Decree, covered under Law No. 12,158, of 2009, shall have the deadline of ninety days, counted from the publication of the active duty shutdown act, for presentation of the administrative requirements referred to in the caput of this article.

§ 3 The military whose promotion to the current graduation has overcame in compliance with decisions judicial will remain in the same degree, save if achieved by one of the incisos of art. 5th of this Decree.

§ 4º To the administrative requirements referred to in the caput of this article should be attached, also the Term of Agreement provided for in article 6th of this Decree.

§ 5º When there is more than one beneficiary entitled in an instituted military pension, the right arising from access to the upper graduation shall be ensured only to those who submit the administrative application, with the Annexes provided for in this article

Art. 8º This Decree will produce financial effects as of 1º July 2010.

Single Paragraph. In any case, the financial effects referred to in the caput of this article will only occur from access to the upper graduation on the occasion of the passage of the military from the active to the inactivity, vedin, to inactive military and pensioners, the payment of any values, whether retroactive or not, referring to period prior to 1º July 2010.

Art. 9º This Decree shall enter into force on the date of its publication.

Brasilia, May 27, 2010 ; 189º of the Independence and 122º of the Republic.

LUIZ INACIO LULA DA SILVA

Nelson Jobim

ANNEX I

TERM OF AGREEMENT

(Art. 5º of Law No. 12,158, 2009-WITHOUT JUDICIAL PROCESS)

I, _______________________________, _______________________, _________________________

(name of the military / graduation/frame or pensioner) (nationality) (civil status)

identity document in the ____________, ____________, entered in the CPF under the in the _______________,

(Saram)

I hereby enter into the present Term of Agreement, in accordance with the following clauses and conditions:

CLAUSE FIRST: By the present instrument, I declare to meet the conditions set in the arts. 1º and 2º of Law No. 12,158 of December 28, 2009, which provides for access to senior military graduations from the Taipei Board of Aeronautics.

CLAUSE SECOND: I expressly agree with the form, the time limits, amounts and limits of values provided for in Law No. 12,158 of 2009.

SUBCLAUSE FIRST: Tal concordance matters in the acceptance that the current military remunerative structure is maintained when the effective access, ressaved other benefits that may arise from the application of Law No. 12,158, 2009.

CLAUSE THIRD: I declare not to be in legal litigation, pleading with the same advantages as provided for in Law No. 12,158 of 2009, waiving, from already, the right to plead or challenge, on the administrative or judicial basis, any values or advantages arising from the same revision as provided for in Law No. 12,158, of 2009, save in case of proven material error.

SUBCLAUSE FIRST: I declare you to be aware that, in the occurrence of concomitant payment or in duplicate of values, it shall be for the return of all the values received by virtue of the signature of this Term, upon direct discount on the probates or pensions, as set out in § 3º of the art. 5º of Law No. 12,158, 2009.

SUBCLAUSE SECOND: In the case of concealment of the existence of any legal action, I authorise the direct discount on my probates or pensions of possible amounts spent by the Union, with addition of a fine of 20% (twenty per cent), as set out in § 4º of the art. 5º of Law No. 12,158, 2009.

CLAUSE FOURTH: I declare you to be aware and agree that the effects financial arising from the application of the Act No. 12,158, 2009 will only occur from access to the upper graduation on the occasion of the passage of the military from active to inactivity, vedin, to inactive military and pensioners, the payment of any values, whether retroactive or not, referring to the period prior to the 1st July 2010.

By being in agreement, I subscribe to the present Term so that it produces the effects due.

___________-

____,

____/

_________/

_________

(Local)

(UF)

(Day)

(Month)

(Year)

___________________________________

Signature

ANNEX II

TERM OF AGREEMENT

(Art. 5º of Law No. 12,158, 2009-WITH JUDICIAL PROCEEDINGS)

I, _____________________________________, ____________________, __________________________

(name of the military / graduation/frame or pensioner) (nationality) (civil status)

identity document in the ____________, ____________, entered in the CPF under the in the _______________,

(Saram)

I hereby enter into the present Term of Agreement, in accordance with the following clauses and conditions:

CLAUSE FIRST: By the present instrument I declare to meet the conditions set in the arts. 1º and 2º of Law No. 12,158 of December 28, 2009, which provides for access to senior military graduations from the Taipei Board of Aeronautics.

CLAUSE SECOND: I expressly agree with the form, the time limits, amounts and limits of values provided for in Law No. 12,158 of 2009.

SUBCLAUSE FIRST: Tal concordance matters in the acceptance that the current military remunerative structure is maintained when the effective access, ressaved other benefits that may arise from the application of Law No. 12,158, 2009.

CLAUSE THIRD: I declare to be in judicial litigation, pleading with the same advantages as provided for in Law No. 12,158 of 2009, undertake, upon this Term of Agreement, to waive ongoing action (______________________________________________), as well as of its eventual ones

(Prefill with the data of the action or feature, reporting number of the process and Judgment)

resources, in any instance, upon express renounces to the right on which the demand, the legal fees and the restitution of costs, by attaching copy of the judicial approval of waiver, with the respective transit on trial.

SUBCLAUSE FIRST: Renuncio expressly for the right to plead or challenge, on the administrative or judicial route, any values or advantages arising from the same revision as provided for in the Act no 12,158, 2009, except in the event of a proven material error.

SUBCLAUSE SECOND: In case there is no waiver on receipt of fees by the contracted lawyer, I authorise the direct discount on my probates or pensions of eventual amounts spent by the Union, as per § 1º of the art. 5º of Law No. 12,158, 2009.

SUBCLAUSE THIRD: I declare you to be aware that in the occurrence of concomitant payment or in duplicate of values shall be for the return of all values received by virtue of the signature of this Term, upon direct discount on the probates or pensions, as set out in § 3º of the art. 5º of Law No. 12,158, 2009.

CLAUSE FOURTH: I declare you to be aware and agree that the effects financial arising from the application of Law No. 12,158, 2009 will only occur from access to the upper graduation on the occasion of the passage of the military from active to inactivity, vedin, to inactive military and pensioners, the payment of any values, whether retroactive or not, referring to the period prior to the 1st July 2010.

By being in agreement, I subscribe to the present Term so that it produces the effects due.

_________________-

____,

____/

_________/

_________

(Local)

(UF)

(Day)

(Month)

(Year)

___________________________________

Signature

ANNEX III

____________________-

____,

____ of

_________ from

_________

(Local)

(UF)

(Day)

(Month)

(Year)

From _________________________________________________________________________________

(Name of the military / graduation / frame or pensioner)

To Exmo Sr. Director of Personnel Administration

Subject: Access to higher graduation in accordance with Law No. 12,158 of 2009.

1. I, __________________________________________________________________,

(Name of the military / graduation / frame or pensioner)

rear Your Excellence the benefits to which I am entitled, in accordance with Law No. 12.158/09 of December 28 of 2009, attaching, to so much, the following documents:

__________________________________________________

__________________________________________________

__________________________________________________

__________________________________________________

(Citar the documents)

2.É the first time I remain.

_______________________________________

Signature

ANNEX IV

_________________________-

____,

____ of

_________ from

_________

(Local)

(UF)

(Day)

(Month)

(Year)

From _________________________________________________________________________________

(Name of the pensioner)

To Exmo Sr. Director of Personnel Administration

Subject: Access to higher graduation in accordance with Law No. 12,158 of 2009.

1. I, __________________________________________________________________,

(Name of the pensioner)

recipient of the Military Pension left by the ____________________________________________,

(Name of the military / graduation / frame)

rear your Excellence the benefits to which I am entitled, in accordance with Law No. 12,158 of 2009, 28 of December 2009, attaching, to so much, the following documents:

__________________________________________________

__________________________________________________

__________________________________________________

__________________________________________________

(Citar the documents)

2.É the first time I remain.

_______________________________________

Signature