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CHAPTER 3
OPERATIONS

Section 3 – 1 General

1. The Armed Forces of the Philippines (AFP) as the protector of the people
and the State is primarily mandated under the Philippine Constitution, subject
to the supremacy of civilian authorities at all times, to secure the sovereignty of
the State and to preserve the integrity of the national territory.

2. It is imperative that the AFP conduct its development support operations

within legal and policy frameworks and perform cooperation with law
enforcement agencies (LEAs) to effectively deter the various threats to the
country’s national security and territorial integrity, following the observance of
the Rule of Law. It cannot be overstated that the legitimacy of every military
operation is derived from the legal anchor surrounding a particular course of
action.

3. From these body of domestic and international laws and policies that impact
on the activities of our armed forces is the development of Operations Law
(OpLaw). “By its nature, Operations Law transcends normally defined military
disciplines and incorporates, for the first time in one legal regime, relevant
substantive aspects of International Law, Criminal Law, Administrative Law,
Procurement-Fiscal Law. It is a broad collection of diverse legal and military
skills which focuses on military operations. It includes military justice,
administrative and civil law, legal assistance, claims, procurement law, national
security law, fiscal law and international law” including Sea, Air, and Space Law.
(US JAGS Operational Law Handbook 2015)

3–2 Legal Assistance to Military Personnel

1. Legal Assistance has played a vital role in the operation of the AFP
specifically in matters which requires the application of law. Military personnel
have been provided with necessary legal services and advices by JAs in
connection with legal matters/concerns arising from the performance of the
official or duly designated office functions and/or activities which are regarded
as service-connected. As such, Legal Assistance includes, among others,
rendition and extension of legal services to military personnel which requires the
application of law, legal procedure, training and knowledge. It also covers
appearance before judicial, quasi-judicial and administrative bodies, tribunals
and agencies purposely to legally assist concerned military personnel.

2. As the legal arm of the AFP, the JAGS extends legal assistance to AFP
personnel on active duty in any matter arising from the performance of official
duties and/or service-connected activities.

a. Coverage. Legal assistance is provided and rendered by all

commissioned officers of the JAGS. These include JAs assigned at the OTJAG,
GHQ, the different Offices of the Major Service Judge Advocates down to the

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different Offices of the Division/Wing/Fleet of the PA, PAF, and PN,

respectively, and CJAs/SJAs of the UCs and AFPWSSUs.

b. Forms of Legal Assistance. JAs provide legal assistance in cases arising

from the performance of official duties and/or service-connected activities of
military personnel, either in the form of:

1) Legal consultation, counseling and rendition of professional legal

advice;

2) Liaising with the Office of the Solicitor General (OSG) as official

counsel of the AFP and military personnel represented in their respective official
capacities, court appearances and other forms of legal representation at any
stage of proceedings or even on appeal;

3) Drawing, preparation and drafting of judicial pleadings and other legal

documents required in court or any other judicial, administrative or quasi-judicial
bodies such as, but not limited to, Complaints/Responsive Pleadings,
Compromise Agreement, Amicable Settlement, Affidavit of Desistance, Trial
and Appellant Briefs, Memorandum and Position Paper;

4) Administration of Oath, notarial and copy certification services with

respect to documents in the custody of the office, subject to existing rules and
regulations; and

5) Other forms of legal services for the protection of the rights and
interests of the beneficiary requiring intervention of a military lawyer or the office
rendering legal assistance.

c. Legal Assistance, How Availed Of. AFP Personnel with cases falling
within the category mentioned in subparagraph 2b, above, may secure legal
assistance in accordance with the following procedures:

1) Legal assistance process in the Office of the Judge Advocate

General, AFP.

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Referral of the
Initial study and
case/complaint
analysis of the
by AFP Office/ case/complaint
Personnel

Negative:
Result of
Initial Legal
Determination
Advice shall be
given to the AFP
office/personnel

Affirmative:

Case Conference –
Referral to OSG, OCP
JA’s continue to or OPP and DOJ or
monitor the other Concerned GA.
case until Otherwise, JAGO
termination handles the case.

Figure 3.1 Legal Assistance Process

a) Formal communication and referral of the case/complaint for legal

assistance to the OTJAG from cognizant AFP Offices or AFP Personnel.

b) OTJAG, through the Chief, PPLSD, will conduct initial study and
analysis of the case/complaint to determine whether or not the case is service-
connected/related.

(1) If affirmative, conduct of case conference with JAs, in

coordination with the referring office, purposely to discuss the case/complaint
and possible legal remedy/action to be undertaken. If the case/complaint falls
under the authority of OSG, Public Attorneys’ Office (PAO), Office of the City or
Provincial Prosecutor (OCP/OPP), Department of Justice (DOJ) or cognizant
government agencies including quasi-judicial agencies, such as but not limited
to, the Office of the President (OP), Office of the Ombudsman, the Civil Service
Commission (CSC), the Commission on Audit (COA), the Commission on
Elections (COMELEC), the National Labor Relations Commission (NLRC),
Integrated Bar of the Philippines (IBP), the Professional Regulations
Commission (PRC), the Philippine Health Insurance Corporation (PhilHealth),
as the case may be, proper coordination and formal referral of the case to them
shall be made. Otherwise, the case/complaint shall be handled by legal officers
from the OTJAG.

(2) If negative, initial legal advice shall be given to the AFP

Personnel which includes apprising the concerned AFP Personnel of his/her
rights and available legal remedies, among others.

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c) The OTJAG, through its JAs, will continue to attend, monitor,

follow-up and update the case until its termination. Constant communication
and coordination with OSG, PAO, OCP/OPP, as the case may be, shall be
undertaken.

2) Legal Assistance Process in Various Units in the AFP.

Figure 3.2 Legal Assistance Process in various units in the AFP

a) Request to Commanding Officer (CO). Any military personnel

seeking legal assistance forwards to his Commanding Officer a written
communication briefly explaining the particulars of the case he is involved in,
including but not limited to: Brief statement of the case; Investigation conducted,
if any; Evidentiary facts; Notices received, if any; Date of hearing; Court; and
Nature of legal assistance sought.

b) Determination whether or not the case is service-connected/related;

Conduct of a Summary Inquiry. The immediate CO concerned shall then
conduct a summary inquiry into the allegations set forth in the request for legal
assistance to determine whether or not the case may be extended legal
assistance to.

c) If affirmative, referral to the JA concerned. In the affirmative, the CO

refers the communication to the unit JA with his comments and additional
information, if any, on the case. In appropriate cases, the CO should state
whether he is availing of the services of lawyer-members of his command not
regularly assigned to the unit JA, or SJA.

d) If in the negative, initial legal advice is provided including processes

for referral to proper courts to the concerned AFP personnel.

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e) Except in cases where the services of lawyer-members not regularly

assigned to the CO’s staff are availed of, the SJA concerned shall furnish local
assistance within his office capabilities or forward the cases to the
corresponding MSSJA for action. In either case, the military personnel seeking
legal assistance be immediately be informed of the action taken.

f) Except in extraordinary cases and unless justified by lack of time,

requests for legal assistance not coursed through channels are not to be
entertained.

g) Cases of military personnel assigned to GHQ AFP, Camp General

Emilio Aguinaldo, and supporting units, cases appealed to the Court of Appeals
and Supreme Court; and those which necessitate the intervention of TJAG
and/or the SolGen shall be forwarded to the PPLSD, OTJAG, GHQ, following
as much as possible the procedure indicated above.

h) The findings of TJAG, or SJA is final; Provided, That the findings of

SJA of subordinate units of a Major Service may be referred to the proper
MSSJA for final determination.

3) Facilities and security of officers and Legal Assistants rendering legal

assistance. The CO of the military personnel for whom legal assistance is given,
is directed to extend the facilities of billeting, transportation and security to the
JA going to their station for purposes of rendering legal assistance.

4) Legal Assistance to Personnel of other Major Services. By prior

arrangement between the Major Services-concerned, the military personnel
belonging to one Major Service may be provided in meritorious cases legal
assistance by the legal staff of another Major Service or any of its subordinate
commands where such arrangement is more expedient and economical.
Proximity and accessibility of the available legal assistance to the place of trial
is the primary consideration in providing Inter-Major Service legal assistance.

d. Restrictions. Extension of legal assistance are restricted on the following

instances:

1) Legal assistance cannot be made available when the AFP or the

Department of National Defense (DND) is a nominal party or in cases where
the AFP or the DND is the adverse party or has an interest adverse to the party
represented;

2) Legal assistance is, at all times, prohibited where there is a clear

conflict of interest between the party represented and the Government;

3) The grant of authority to officially represent the beneficiary in service or

work-connected/related cases on the part of the handling counsel shall be
made on case to case basis upon grant of the request and upon final
determination by OTJAG or any of the Legal Officers mentioned under

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Paragraph 5ll(c) above with respect to the service-connection or work-relation

of the act complained of against the military personnel;

4) Except in instances covered by proper Orders or policies, the legal

assistance does not cover representations in cases pending before any of the
AFP investigative bodies, a Summary, Special or General Court-Martial, any
special military investigative or fact-finding board or body or the different ESB;

5) No legal action (intervention, confession of judgment, amicable

settlement, etc.) which would render the Government pecuniary liable to
damages or money claims, among others, or which would remit, condone or
compromise any claim or settled liability to the AFP shall be made without the
prior written approval of the SND; and

6) In no case shall legal assistance be extended to serve the purely

personal business interest or pecuniary undertaking of the military personnel
requesting the same. However, the JA may provide legal advice on personal
cases to active and retired military personnel including referral of the matter to
an appropriate agency or forum.

Section 3-3 Military Justice

1. The duty of public officers and employees including those in the military
service is to be at all times accountable to the people, serve with utmost
responsibility, integrity, loyalty, & efficiency, act with patriotism and justice, and
lead modest lives (Section 1, Article XI, The 1987 Constitution). It is a broad
and encompassing duty that exacts high standard of conduct or discipline a
public servant should possess.

2. In the military, the power of military law and its administration has, since
time immemorial, been looked upon by all countries as the most effective
means of enforcing discipline. For this reason, the court-martial has become
invariably an indispensable part of any organized armed forces, it being the
most potent agency in enforcing discipline both in peace and in war. (Philippine
Military Law Annotated [1956] by Gloria, p. 4-5.) It is a tool used by the
Commander-in-Chief, through his subordinate commanders, to instill discipline
and ensure that a command flowing down the line will be executed for the
accomplishment of a mission. The Supreme Court made this clear in Gonzales
vs Abaya, G.R. No.164007 August 10, 2006, to wit:

History, experience, and the nature of a military organization

dictate that military personnel must be subjected to a separate
disciplinary system not applicable to unarmed civilians or
unarmed government personnel.
...
This Court has recognized that courts-martial are
instrumentalities of the Executive to enable the President, as
Commander-in-Chief, to effectively command, control, and
discipline the armed forces (see Ruffy v. Chief of Staff, 75 Phil.

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875 [1946], citing Winthrop’s Military Law and Precedents, 2nd

edition, p. 49).

3. In the AFP, enforcing discipline is not limited to administration of established

criminal court-martial system and the application of the disciplinary power of
authorized commanders under the AW. The ESBs in GHQ and in the Major
Service threshing out administrative cases of personnel in summary procedure;
effecting summary discharge from the service of erring personnel as allowed
by regulation; and enforcing penalties upon them imposed by other government
agencies pursuant to its jurisdiction, greatly contributes in exacting high
standard of conduct required of AFP personnel. The task of administration of
the whole system is given to JAGS. The functions of the JAGS in administering
the AFP justice system are discussed in this chapter.

a. Persons Subject to Military Law

1) The following persons are subject to military law or the provision of

the CA Nr 408 as amended otherwise known as “An Act For Making Further
and More Effectual Provision For The National Defense by Establishing a
System of Military Justice for Persons Subject to Military Law”:

a) All officers and soldiers in the active service of the AFP (or of
the Philippine Constabulary or PC); all members of the reserved force, from the
dates of their call to active duty and while on such active duty; all trainees
undergoing military instruction; and all other persons lawfully called, drafted,
called into, or to duty or for training in, the said service, from the dates they are
required by the terms of the call, draft, or order to obey the same;

b) Cadets, flying cadets, and probationary second lieutenants;

c) All retainers to the camp and all persons accompanying or

serving with the AFP in the field in time of war or when martial law is declared
though not otherwise subject to these articles;

d) All persons under sentence adjudged by courts-martial.

2) CAFGU Active Auxiliaries (Section 5, Executive Order 264, Series of

1987) and reservist serving military auxiliary services (Section 64, Republic Act
7077)

3) Jurisprudence on Jurisdiction. The Supreme Court pronounced the

following doctrines:

a) An officer whose name was dropped from the roll of officers (DFR)
cannot be considered to be outside the jurisdiction of the military authorities
when military justice proceedings were initiated against him before the
termination of his service. (Abadilla vs Ramos, G.R. Nr. L-79173, 01
December 1987)

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b) An officer dropped from the roll of officers (DFR) is amenable to

military justice proceedings initiated against him before the termination of his
service. Once jurisdiction has been acquired over the officer, it continues until
his case is terminated. (Gudani vs. Senga, G.R. Nr. 170165, 15 August 2006)

c) There is no court-martial jurisdiction in the absence of a special

order“ designating respondents to compose a general court-martial to convene
and try the case of petitioner, x x x” It was expressly stipulated that the
respondents were convened to try the case of x x x Capt. Egmidio Jose and
not that filed against petitioner. (Santiago vs Alikpala, G.R. Nr. L-25133, 28
September 1968)

d) The court-martial jurisdiction on offenses is limited to purely

military offenses (Art. 54 to 97 except Art. 93 and 94). If members of the AFP
violates the Revised Penal Code (RPC), the civil courts has jurisdiction
(Republic Act Nr. 7077; Rapsing et al vs Ables G.R. Nr. 171855 15 Oct 2012;
Uy vs Sandiganbayan, G.R. 105965-70, 9 Aug 1999.)

b. Military Justice Administration

1) TJAG, MSSJA, or the JA’s plays a vital role in military justice. It is

the series of advice after evaluation process that greatly contributes to the
outcome of a complaint and a charge. The IPO model shows how the military
justice system revolves around the JAGS.

Figure 3.3 JAGS Military Justice Process

2) TJAG, MSSJA, and the JA’s perform the same function with respect
to evaluation of case records. However, reviewing jurisdiction and authority
are specifically given to specified position and officers for Board of Review,
Major Service ESB Resolution, Appeal of cases under AW 105 and Cir. No.
17 GHQ AFP dated 1987. Records being evaluated are being transmitted

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from and to the Office of the Assistant Chief of Staff for Personnel which has
functional supervision over the JA/SJA, MSSJA, or TJAG.

3) The JAGS military justice operation process consists of the

following:

a) Filing of Complaint

(1) A Complaint is a sworn written statement charging a person

with an offense, subscribed by the offended party, any peace officer, or other
public officer charged with the enforcement of the law violated. It initiates the
military justice process, and triggers the application of military laws.

(2) The liability of a member of the AFP arises upon the

commission of an act prohibited and punished by law or an AFP regulation.
These offenses are normally reported to the unit of the offender through a
complaint made under oath by a complainant who has personal knowledge of
the offense. However, a guard or an officer on duty, or other AFP personnel
can report the offense to the unit of the offender. The commander who has
personal knowledge of the offense can immediately take appropriate actions.
Complaint under oath is not a prerequisite to an administrative investigation.
(Bautista vs. Negado, G.R. No. L-14319, May 26, 1960).

(3) An anonymous complaint is like a mere scrap of paper, which

has no value and will not be acted upon. It is always received with great
caution, originating as it does from an unknown author. However, a complaint
of such sort does not always justify its outright dismissal for being baseless or
unfounded for such complaint may be easy of verification and may, without
difficulty, be substantiated and established by other competent evidence
(Anonymous vs. Adela A. Geverola, A.M. No. P-97-1254. September 18,
1997)

b) Investigation

(1) The general definition for preliminary investigation is

analogously applied in this case. It is an inquiry or proceeding to determine
whether there is sufficient ground to engender a well-founded belief that a
respondent is probably guilty thereof, and should be held for trial. This
determines only whether a crime or violation has been committed, if the violator
is “probably guilty” thereof. It is merely inquisitorial as the investigating officer
acts upon reasonable belief.

(2) The commander whether she/he has personal knowledge of

the offense can immediately direct the investigation of the offense and makes
evaluation. The commander can exercise power under AW 105 and impose
punishment without the need of court-martial intervention for minor offenses.

(3) A report or complaint on an offense committed by an AFP

personnel can also be investigated either by the Provost Marshal, Inspector
General, OESPA of the unit where the personnel belongs, or by an officer or a

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team duly designated by the commander. This happens when a private

complainant lodges a complaint to the said offices. Report may also come from
other sources other than the private complainant.

(4) Offenses, which are not minor, are beyond the coverage of
AW 105 and should be referred to superior commanders having administrative
control over the unit of the offender and whose staff includes the SJA. Superior
commanders who exercises their disciplinary power under AW 105, seeks the
legal opinion of the SJA.

(5) Any case that cannot be resolved under AW 105 or Cir. 17

GHQ AFP s-1987 for enlisted personnel will be addressed by the JA’s as
follows:

(a) If cognizable by court-martial, a charge will be drafted

and recommended to be investigated by an officer before its referral to general
court-martial.

(b) For an administrative case, an adverse report is drafted

and recommended to be referred to the ESB in the major service or GHQ having
administrative control of the unit of the offender.

c) Pre-Trial Investigation

(1) AW 71 provides that a charge, before its referral to general

court-martial, must be thoroughly and impartially investigated through a Pre-
Trial Investigating Officer (PTIO). The investigation conducted is by nature
different from the initial investigation of a complaint or report of an offense.

(2) The investigation of a charge before it’s referral to court-

martial trial, is conducted by an officer appointed by a commander with a court-
martial jurisdiction. His appointment is recommended by the TJAG, MSSJA, or
the CJA/SJA/JA and is terminated after the pre-trial investigation. A pre-trial
investigation panel can be appointed to do the task. If it can be avoided, the
rank of the investigating officer or the chairman of the investigating panel should
senior to the rank of the respondent being investigated.

(3) A member of the JAGS if duly appointed by the commander

can assist the respondent in pre-trial investigation. The appointment is
recommended by the TJAG, MSSJA, or the SJA and is terminated after the pre-
trial investigation.

(4) In major units of the major service where the presence of a

member of the JAGS is scarce, the unit commander with court-martial
jurisdiction can appoint officers who are not members of the JAGS to conduct
a pre-trial investigation. This finds basis in the case entitled Bautista v. Court
of Appeals, G.R. 209330, where the Supreme Court held that a preliminary
investigation is not a quasi-judicial proceeding, thus the prosecutor in a
preliminary investigation does not determine the guilt or innocence of the
accused. He does not exercise adjudication nor rule-making

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functions. Preliminary investigation is merely inquisitorial, and is often the only

means of discovering the persons who may be reasonably charged with a crime
and to enable the fiscal to prepare his complaint or information. It is not a trial
of the case on the merits and has no purpose except that of determining
whether a crime has been committed and whether there is probable cause to
believe that the accused is guilty thereof. While the fiscal makes that
determination, he cannot be said to be acting as a quasi-court, for it is the
courts, ultimately, that pass judgment on the accused, not the fiscal.

(5) Pre-trial investigation under AW 71 does not require that a

member of the JAGS should be appointed to conduct the pre-trial investigation,
in the absence of such requirement in AW 71. Whether a member of the JAGS
is appointed to conduct pre-trial investigation, AW 71 states that a thorough and
impartial investigation of a charge should have been made before its referral to
a general court-martial for trial. The absence of a pre-trial investigation,
however, is not jurisdictional that can deny a general court-martial of its
jurisdiction. As cited in Arula vs Espino, G.R. No. L-28949, June 23, 1969:

A failure to conduct a pre-trial investigation does not

deprive a general court-martial of jurisdiction.

The better accepted concept of pre-trial investigation is

that it is directory, not mandatory, and in no way affects the
jurisdiction of a court-martial. In Humphrey vs. Smith, 336 U.S.
695, 93 L ed 986 (1949), the Court said:

We do not think that the pre-trial investigation

procedure ... can property be construed as an
indispensible pre-requisite to exercise of Army general
court-martial jurisdiction. ... Its language is clearly such
that a defendant could object to trial in the absence of
the required investigation. In that event the court-
martial could itself postpone trial pending the
investigation.

(6) In the absence of a pre-trial investigation, the court-martial

can hold in abeyance the trial and direct the trial judge advocate to request the
appointing authority for the conduct of a pre-trial investigation. TJAG, MSSJA
or JA/SJA/CJA will advise the appointing authority and recommend for the
appointment of a pre-trial investigator.

(7) The duly appointed investigators must read and follow the
procedures in the conduct of pre-trial investigation or preliminary investigation
defined in PD no. 77 as amended by PD 911 as well as the Rules and
Regulations Implementing PD No. 1850 dated 1 December 1982.

(8) The pre-trial investigation covers the following:

(a) Inquiries as to the truth of the matter set forth in said

charges;

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(b) Form of charges, and what disposition of the case should

be made in the interest of justice and discipline;

(c) Examination of available witnesses requested by the

accused;

(d) The accused to present anything he may desire in his own

behalf;

(9) The charge is drafted by the JA’s, based on the complaint and
the initial investigation conducted by the commander or his staff or by the
different investigating units. Its purpose is to identify who should be charged or
referred for court-martial and not as to who is guilty.

(10) The pre-trial investigation report with the charges shall

include the following:

(a) A statement of the substance of the testimony taken on

both sides, including any stipulated testimony;

(b) Any statements, documents, or other matters considered

by him in reaching his conclusions or making his recommendations, or copies
or the substance of such statements, etc.;

(c) The recommendation as to what disposition should be

made of the case, and a statement of any reasonable ground for the belief that
the accused is, or was at the time of an offense, mentally defective, deranged,
or abnormal.

(11) The PTIO can recommend after evaluation that the erring
officer will be simultaneously charged in court-martial with the referral of his
case to the ESB. If after evaluation of an offense not minor in nature and the
PTIO finds that there exists a prima facie case against the offender and trial by
court-martial is necessary to establish his guilt, the PTIO recommends that the
offender will be charged in court-martial.

(12) In cases involving officers whose absence from duty without

leave lasted more than three months or who has been absent in confinement
in a prison or penitentiary for three months after final conviction by a court of
competent jurisdiction, the PTIO will recommend Dropping from the Rolls of
Officers (DFR) pursuant to AW 117.

d) Preferment of Charges

(1) Charges and specifications must be signed by a person

subject to military law, and under oath either that he has personal knowledge
of, or has investigated, the matters set forth therein and that the same are true
in fact, to the best of his knowledge and belief.

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(2) Charges and specifications will be signed and sworn to

substantially as indicated on the form.

(3) Charges need not be sworn to if the person signing them

believes the accused to be innocent, but deems trial advisable in the interest of
the service as well as for the protection of the accused (e.g., in a case of
homicide of an escaping prisoner which was apparently justified). In no case,
however, should an accused be tried on unsworn charges over his objection.
(MCM, 1938, p. 3) The JA is responsible in the preparation of the charges after
evaluating the complete records of investigation transmitted from the
commanding officer exercising immediate jurisdiction under AW 105. The JA
will transmit his evaluation to the commanding officer that has court-martial
jurisdiction under AW 10 of the unit of the offender. The evaluation may include
recommendation for the dismissal of the offense or a pre-trial investigation.

e) Pre-Trial Advice. The appointed investigator (PTIO) submits his

report for evaluation by the JA in order to come up with a pre-trial advice (PTA).
The PTA may recommend for referral of the charge to the GCM, amendment
of the charge before its referral, or a dismissal of the charge. In cases involving
officers whose absence from duty without leave lasted more than three months
or who has been absent in confinement in a prison or penitentiary for three
months after final conviction by a court of competent jurisdiction, the SJA will
recommend a pre-trial investigation of the case in view of the separation from
service of the officer pursuant to AW 117.

f) Trial by Court Martial. If a case has been referred for court martial,
TJAG recommends JAs to be appointed as Trial Judge Advocate (TJA) and
Military Defense Counsel (MDC). This is without prejudice to the right of the
accused to be represented by his counsel of choice, which may also be a JA.
The conduct of trial will be pursuant to the procedures laid down by the MCM.
Decision of the GCM is forwarded to TJAG or MSSJA for SJA Review (SJAR).

g) Staff Judge Advocate Review (SJAR). The SJAR is the process

of evaluating the decision of the GCM under AW 45. The review will include an
opinion, both as to the weight of evidence and any error or irregularity, and a
specific recommendation of the action to be taken.

h) AFP Board of Review

(1) TJAG constitutes in his office an AFP Board of Review

consisting of one or more officers of the JAGS pursuant to AW 50. The Board
of Review examines the records of the case before the approval or confirmation
of the President required in AW 45, 47, and 51.

(2) The Board submit its opinion in writing and thereafter TJAG
renders his/her comment prior to transmittal of the record to the Chief of Staff
for the action of the President pursuant to AW 50.

i) Review of ESB Resolution. Resolutions of the ESBs of the different

major services are reviewed by the MSSJA, when directed by the Major Service

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Commanders. Thereafter, TJAG evaluates the recommendation of the Major

Service Commanders and the Board prior to submission to the OP. Its purpose
is to ensure impartiality of the board and that the rights of the respondent were
protected during trial.

i) Appeals

(1) Appeal for Cases Under Art. 105.d

(a) Appeal under the said law is taken by the person punished
who considers the punishment unjust or disproportionate to the offense. It is
made through channel or to the next superior authority. This is one of the
instances where the penalty can be served pending appeal. The superior
authority exercises the same power as the commanding officer that imposed
the penalty appealed. In taking appropriate action, the superior authority may
refer the case for evaluation by the TJAG, MSSJA, or JA/SJA/CJA who will
render advice or opinion. The reviewing officer will consider the guidelines and
factors required by law and the MCM in evaluating the legality and propriety of
the penalty imposed before rendering an advice.

(b) The JA/SJA/CJA recommends to the unit commander

favorable action on the appeal or its denial and a new penalty to be imposed
pursuant to AW 105. Recommendation may include discharge from the active
military service or that a criminal case be filed in civilian courts or court-martial.

(2) Appeal for Cases Under Circular No. 17 GHQ AFP 1987.
Offenders discharged from the military service by commanders who has
discharge authority may take the penalty to the next superior authority on
appeal within the time prescribed by the regulation. The case on appeal will be
transmitted to the TJAG or MSSJA as the case maybe, who shall evaluate the
appeal and render legal opinion. The cases of offenders discharged from the
military service will not be transmitted for evaluation by the TJAG or major
service JAG in the absence of an appeal. Instead, the character of the
discharge from the service will be determined by the Office of the Assistant
Chief of Staff for personnel or the General Headquerters.

Section 3-4 Adjudication of Claims

1. TJAG exercises statutory functions pertaining to the settlement of the estate

of deceased military personnel and the distribution of certain benefits incident
to death while in the military service pursuant to RA Nr 136 as amended by RA
Nr 209, and PD Nr 1638 as amended by PD Nr 1650 and RA Nr 10882. TJAG
or his representative ascertains those who are lawfully entitled to benefits taking
into consideration evidence submitted by the legal heirs. TJAG is empowered
to determine a guardian for minor or incompetent beneficiaries. For minor
beneficiaries of those killed in action, the power to determine the guardian is
delegated to the MSSJA.

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2. The OTJAG, GHQ determines the legal beneficiaries for deceased retired
military personnel and those in the TAS. On the other hand, the MSSJA
determine beneficiaries of those who died in line of duty (LOD) in the different
services (PA, PAF, and PN).

3. The beneficiaries entitled to derivative pension are determined by law. The

declaration of beneficiaries is issued pursuant to PD Nr 1638, as amended by
PD Nr 1850 and RA Nr 10882 (Establishing a New System of Retirement and
Separation for Military Personnel of the Armed Forces of the Philippines and for
Other Purposes) defining beneficiaries to wit:

a. Surviving spouse if married to the deceased prior to the latter's

retirement/separation and not legally separated by judicial decree from
the deceased issued on grounds not attributable to said spouse:
provided, that entitlement to benefits shall terminate upon the re-
marriage of said spouse.

b. Surviving children of an officer or enlisted man born of his

marriage contracted prior to his retirement/separation from the service,
and children, adopted or acknowledged, while the deceased parent was
still on active military service: Provided, That except for children who, by
reason of their mental incapacity, are certified by the AFP Medical Board
to be incapable of employment, entitlement to benefits shall terminate
when such children attain twenty-one (21) years of age or get married
(Sec 2, RA Nr 10882)

c. In default of those mentioned in paragraph b(1) and (2), above,

surviving, legitimate, adopted or acknowledged natural children, who
have reached twenty — one years of age, or in their absence, his
surviving parent or parents, or in default thereof, his surviving unmarried
brothers and sisters.

4. The right to derivative pension ripens only upon the death of the principal
pensioner or the military personnel. In order to be declared as beneficiary, heirs
have the obligation to submit proofs of filiation to be evaluated by TJAG. As
depicted in the Figure 3.2 for the Flowchart on the Procedure for the Issuance
of Declaration of Beneficiary, Guardianship and Distribution of Monies to the
Legal Beneficiaries of Retired Military Personnel, the following are the
procedures in determining the rightful beneficiaries:

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Figure 3.4 Flowchart of Procedure for Issuance of Declaration of

Beneficiary, Guardianship and Distribution of Monies to the Legal
Beneficiaries of Deceased Retired Military Personnel

a. Claimant/heirs submit their application for Declaration/Guardianship or

entitlement to Monies to the Pension Gratuity and Management Center
(PGMC). After determining completeness of documentary requirements, it will
be processed. All contested claims will be forwarded to the OTJAG, GHQ.

b. Upon receipt of the request from PGMC for Declaration of Beneficiary or

Distribution of Monies, the Chief Admin Division, OTJAG, GHQ will forward the
same to the Claims Division. A legal Officer will be assigned to review the
application.

c. The Action Officer (AO) evaluates the sufficiency of documents attached

in the application. If the AO finds the documents insufficient, the AO transmits
the application back to PGMC for submission of additional documents.

d. If the documents submitted are sufficient for review, AO determines the

legal beneficiaries pursuant to Section 25 of PD Nr 1638 as amended by PD Nr
1650 and RA Nr 10882.

e. For military personnel who have been missing for twelve (12) months, a
finding of death by the CSAFP will be required including the date upon which
death shall be presumed to have occurred (Sec 7, RA Nr 138).

f. In the case of legal heirs who are minors or incompetents, TJAG

appoints the best qualified person as guardian for the said heirs, who shall
discharge his duties as such in accordance with the instructions and orders of
TJAG. The widow, and in case of her inability, the eldest child, if of age, shall

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be given the preference in the appointment of such guardian. Provided, further,

that before a guardian appointed hereunder enters upon the execution of said
trust, he or she will be required to give a bond, in such sum and under such
conditions as TJAG may prescribe (Sec. 7, RA Nr 136)

g. If the application for declaration of beneficiaries include distribution of

monies. The AO determines the shares of the respective beneficiaries in
accordance with the Rules on Succession under the Civil Code.

h. AO drafts the Declaration/Distribution of Monies or Letter of

Guardianship and submit the same to the Chief, Claims Division for review.
Thereafter, The DTJAG reviews and recommends to TJAG the approval of the
Declaration, Monies or Letter of Guardianship. TJAG then approves/issues the
Declaration, Monies or Letter of Guardianship which will be transmitted back to
PGMC.

5. Moreover, legal beneficiaries of military personnel who were killed-in-action

or died in LOD are determined by the major service to which the personnel
belong. Prior to such determination, the death of military personnel is first
declared as one in line of duty. Following are the procedures in declaring the
beneficiaries of military personnel who died in line of duty as presented in Figure
3.3 for the procedure for Issuance of Declaration of Beneficiary, Guardianship
and Distribution of Monies to the Legal Beneficiaries of Military Personnel who
died in Line of Duty:

Figure 3.5 Flowchart of Procedure for Issuance of Declaration of

Beneficiary, Guardianship and Distribution of Monies to the Legal
Beneficiaries of Military Personnel who Died in LOD

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a. Claimant/heirs submit their application for Declaration/ entitlement to

Monies to the Pension Gratuity and Adjudication Board (PGAB). After
determining completeness of documentary requirements, all contested claims
shall be forwarded to the Major Service Judge Advocates.

b. Upon receipt of the request from PGAB, the Admin Division will forward
the same to the Chief, Claims Branch. A legal Officer will be assigned to review
the application.

c. The Action Officer (AO) first evaluates the sufficiency of documents

attached in the application. If the AO finds the documents insufficient, the AO
returns the application back to PGAB for submission of additional documents.

d. If the documents submitted are sufficient, AO reviews and determines

the legal beneficiaries pursuant to PD Nr 1638 as amended.

e. If the application for declaration of beneficiaries includes distribution of

monies. The AO determines the shares of the respective beneficiaries in
accordance with the Rules on Succession under the Civil Code.

f. AO drafts the Declaration of Beneficiaries or Distribution of Monies and

forwards the same to the Chief, Claims Branch for review.

g. The Major Service Deputy Judge Advocate recommends to MSSJA the

approval of the Declaration of Beneficiaries or Monies or returns the draft to the
Chief, Claims Branch for further evaluation.

h. MSSJA approves/issues the Declaration of Beneficiaries or Monies

which will be transmitted back to PGMC.

6. For the Conflicting Claims, conflict arises when there are several applicants
requesting to be declared as surviving spouse or children entitled to derivative
pension. Irregularities or issues on validity of marriage are settled pursuant to
existing laws on marriage and jurisprudence. The declaration of beneficiaries
for purposes of derivative pension takes into consideration different provisions
of law in addressing conflicting claims among applicants.

a. In cases where there are two (2) or more husbands/wives, the legal
spouse as defined by the Family Code or Muslim Code are declared the
surviving spouse entitled to pension.

b. For marriages under the Civil Code, a marriage contracted by any

person during the subsistence of a previous marriage shall be null and void (Art
41).

c. For subsequent marriages, the claimant should provide a final judgment

annulling the previous marriage.

d. The provisions of the Muslim Code applies to marriage and divorce

wherein both parties are Muslims, or wherein only the male party is a Muslim

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and the marriage is solemnized in accordance with Muslim law in any part of
the Philippines. (Art. 13, PD Nr 1083)

e. In case of marriage between a Muslim and a non-Muslim, solemnized

not in accordance with Muslim law or this Code, the Civil Code of the Philippines
shall apply.

f. Conflicting claims for declaration of surviving children are evaluated

based on the law of succession and filiation. Rules on evidence in establishing
paternity or filiation are utilized in resolving issue of legitimacy of a child.

g. Further, whenever a dispute arises as to whom among two or more

claimants are the legal heirs of the deceased and rightful beneficiaries cannot
be determined based on evidence submitted, TJAG suspends the summary
distribution of the monies until the courts have finally decided the controversy
in an action for Interpleader under Rule fourteen of the Rules of Court
[presently, Rule 62, Rules of Court].

Section 3-5 Military Affairs

1. Military Affairs deals with the other core functions and essential services of
the OTJAG, GHQ. Its nature and scope will be explained, discussed and
amplified with a view to provide the readers and the JAs better understanding
on this matter. The functional relation, delineation, and interrelation of one to
the other will also be highlighted and emphasized.

2. The term “military affairs” as used within the JAGS refers to a broad and
comprehensive term which embraces all the principles of substantive and
procedural laws affecting the individual status of military personnel as well as
the administration of the AFP as a whole.

3. The nature of Military Affairs covers the field of military law that are not
covered by the more clearly defined fields such as military justice, professional
service, special studies, claims and administrative matters. Legal issues in the
field of Military Affairs involve the interpretation of statutes, decrees, LOIs,
MOAs, MOUs, contracts, or AFP and DND regulations. Further, due to the
various DND and AFP regulations, publications, and directives already in effect,
thorough knowledge to these policies is essential for proper recognition and
understanding of legal problems in the Military Affairs field. Basic in the field of
law that no matter how carefully a statute or regulation is drawn, it may be
ambiguous or subject to diverse interpretations when put into unique and
unforeseen situations. The same method of approach is used in interpreting
non-military statutes and regulations.

4. The role of the JAGS in Military Affairs as the legal adviser of the AFP, the
JA provides the best possible legal advice upon questions presented. The latter
should ensure that all operational activities of the organization proceed and are
undertaken in accordance with law and authority. The advice or opinion of the
JA on matters regarding Military Affairs is essential before any actions can be
undertaken. Such advice and opinion must be couched in clear and

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understandable language so that the recipient understands the same and that
the basis has been determined to be within the bounds of the law and
regulations.

5. As Special Staff to the CSAFP in matters pertaining to military affairs, the

OTJAG and the JAs in different Major Services make constant coordination with
the Command Staff and subordinate unit commanders in the efficient and
effective performance of its mandated function. As the legal adviser of the AFP,
the OTJAG and JA’s in different Major Services, play an important role in all
phases of the business, property and financial operations of the AFP and the
legal phases of its military disciplinary actions. OTJAG also plays a vital role in
all phases of foreign dealings with the Armed Forces or Departments of
Defense of other nations. The advice or opinion of the OTJAG and JA’s on
matters regarding International Law and Special Studies is essential in order to
ensure that all actions taken by the Command are within the law, both local and
abroad.

Figure 3.6 Flow Chart of Military Affairs

Section 3-6 International Law and Special Studies

1. International law is a set of rules generally regarded and accepted as binding

in the relations among states and nations. It serves as a framework for the
practice of stable and organized international relations. International law as
used within the JAGS is the interpretation of international agreements and the
application of international customary practices, and the general principles of
law recognized by civilized nations to military operations and activities.

2. Major International law issues are likely to arise in the context of military
operations in which JAs play a vital role in the resolution of these legal issues

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by providing comprehensive legal support to operations across the spectrum

and throughout all phases of military operations. Legal issues in the field of
International Law and Special Studies involve the review of foreign services
training, international agreements of foreign armies or militaries and joint or
bilateral exercises with armed forces of other countries. This also includes the
conduct of scholarly research, analysis and in-depth study on any plans,
programs, piece of legislation and activities that have profound and far reaching
implication and effect to the interest of the AFP.

3. JAs in the area of International law have many responsibilities, including

educating soldiers on the requirements of international treaties and agreements
that comprise the Law of Armed Conflict. During Peacekeeping Missions, JAs
are deployed with operational units and provide essential legal services to
commanders, deployed soldiers and other service members.

4. As the legal adviser of the AFP, the JA provides the best possible legal
advice upon all issues involving the AFP and its foreign counterparts. The latter
should insure that all operational activities of the organization proceed in
accordance with the local law and law of the other country.

5. Besides prosecuting, defending, and supervising courts-martial, military

attorneys advise commanders on issues involving a number of areas of
international law. Depending on the service, these areas may include the law
of war, the rules of engagement and their interpretation, government contract,
administrative law, environmental law and claims against the government. The
JAs support the military decision making process by assisting in the
development and training of rules of engagement and reviewing plans and
orders. This includes the development, drafting, negotiating, and interpreting of
international agreements pertaining to all aspects of international law. The JAs
provide prompt and helpful legal advice to a wide range of official problems of
foreign law and international law.

6. On staff relationship, as the Chief legal adviser of the AFP, the OTJAG, GHQ
and the respective JAs in different Major Services, play an important role in all
phases of foreign dealings with the armed forces or departments of defense of
other nations. As such, it makes constant coordination with the Command Staff
and subordinate unit commanders in the efficient and effective performance of
its mandated function. The advice or opinion of the JA on matters regarding
ILSP is essential in order to ensure that all actions taken by the command are
within the law, both local and abroad.

Section 3-7 JAGS in Support to AFP Mission Areas

The role of the JAGS as legal arm of the AFP extends in support of and to shed
light on any legal issues arising from the AFP Mission Areas: Territorial
Defense, Security and Stability; Humanitarian Assistance and Disaster Risk
Reduction; International Engagement and Peace Support Operations; and
Force-level Command and Control. These mission areas are defined and
explained in AFPM 3-00 Joint Operations Manual to wit:

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a. Territorial Defense, Security and Stability

1) Addressing territorial defense means the AFP is carrying strategic

actions for the purpose of defending territorial integrity and securing maritime
interests of the country. The Philippines is an island-based country, politically
sub-divided, and its territorial domain includes the lands, the air, water
embracing the islands and the sea beds. The Philippine Constitution
contextualizes the territorial consideration for military defense. Section 1, Article
1 of the Constitution states that the national territory comprises the Philippine
archipelago, with all the islands and waters embraced therein, and all other
territories over which the Philippines has sovereignty or jurisdiction, consisting
of its terrestrial, fluvial and aerial domains, including its territorial sea, the
seabed, the subsoil, the insular shelves, and other submarine areas. The
waters around, between, and connecting the islands of the archipelago,
regardless of their breadth and dimensions, form part of the internal waters of
the Philippines.

2) On the other hand, the United Nations Convention on the Law of the
Sea (UNCLOS), an international baselines agreement, provides territorial
boundaries or baselines across the sea as agreed among nations. The
Baselines Law of 2009 (RA 9522) affirms that the Republic of the Philippines
has dominion, sovereignty and jurisdiction over all portions of the national
territory as defined in the Constitution and by provisions of applicable laws
without limitation. Consequently, Administrative Order Nr 29, series of 2012
was issued naming the maritime areas on the western side of the Philippine
archipelago as West Philippine Sea of the Republic of the Philippines.

3) The Cabinet Committee on Marine Affairs defines maritime security

as a state in which the country’s marine assets, maritime practices, territorial
integrity, and coastal peace and order are protected, conserved, preserved and
enhanced. Other definition of maritime security is the protection of the marine
environment and sovereignty.

b. Humanitarian Assistance and Disaster Risk Reduction. Climate

change provides worsening effects on natural phenomena such as typhoons,
earthquakes and tsunamis, among others and consequently brings life-
threatening disasters to the people and the community. The AFP, in countless
occasions has been instrumental to different disaster response operations
utilizing its capabilities and resources in support to government agencies. To
continuously respond to this kind of situation, the AFP continues to upgrade
capabilities and skills that focus on responding to extreme weather conditions
and other calamities.

c. International Engagement and Peace Support Operations. As part

of the intent of the AFP to optimize alliances with foreign nations, the AFP
continues to pursue International Defense and Security Engagements. Through
such engagements, the country’s diplomatic relationship with other countries
are established and strengthened. This is achieved by continuous conduct of
exercises, entering into Memorandum of Understanding, Memorandum of
Agreement, and Status of Visiting Forces Agreements (SOVFAs), and bilateral

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and multilateral talks between heads of militaries. Example of this engagement

is the Philippine’s defense alliance with the United States through the Mutual
Defense Treaty (MDT). To date, this alliance is warmed up by the ratification of
the Visiting Forces Agreement (VFA). The country also has bilateral defense-
related arrangement with other eight other countries with the range from
defense cooperation to border patrol. In addition, the country’s relations with
Asian neighbors remain to be warm and cordial.

d. Force-level Command and Control, Support and Training. The basic

principle of force-level command and control ensures unhampered flow of
communication from top to bottom and vice versa in the conduct of all AFP
operations. On the other hand, support and training as part of personnel skills
development are directed to priority mission areas to ensure mission
accomplishment at a highest degree.

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