No Master but Law

No Guide but Conscience

No Aim but Justice

Prepared By:
CPT REM A CABANGON (JAGS)PN
OFFICE OF THE STAFF JUDGE ADVOCATE, PMC
 Victory in the battle is the ultimate
aim of every military commander.
Victory cannot be attained, no matter
how superior your forces in men and
materials if discipline among the rank
and file is wanting. For, “ if an Army
is to be anything but an uncontrolled
mob there will be chaos, therefore,
discipline is required and must be
enforced”
• GENERAL CONCEPT
• SOURCES OF MILITARY JUSTICE SYSTEM
• COMPONENTS
• JURISDICTION AS TO PERSON
• INVESTIGATIVE AGENCIES
• DISTINCT DIVISIONS
• PUNITIVE MEASURES
• DISCPLINARY POWER OF THE CO
• THE COURTS-MARTIAL
• COURTS-MARTIAL PROCEDURES
 The military justice system in the Philippines is
designed to enforce discipline and administer justice
in the military system of the Armed Forces of the
Philippines.
 These consist of rules governing the conduct of
military personnel and providing a method by which
persons who break those rules may be punished.
 Philippine Constitution
 Commonwealth Act No. 408, as amended, (Articles of
War)
 Commonwealth Act No. 1, (National Defense Act)
 Revised Administrative Code
 Executive Orders, Proclamations, Administrative
Orders and Military Orders issued by the President as
Commander-in-Chief of the AFP
 Laws enacted by Congress
 Judicial, administrative and quasi-judicial bodies and
their interpretations
 AFP regulations, bulletins and General Orders
 Digest and Opinions of TJAG of the AFP
INVESTIGATION

PROSECUTION

TRIAL / ADJUDICATION

JUDGMENT / DECISION
 Persons subject to military law enumerated under
AW 2 are the following:
1. all officers and soldiers in the active service of the
AFP;
2. members of the reserve force from the dates of their
CAD and while on active duty;
3. trainees undergoing military instructions;
4. all other person lawfully called, drafted or ordered
into, or to duty or for training in the service, from the
dates of their call, draft or order to obey the same;
5. cadets, flying cadets and probationary 2Lts;
 OFFICE OF THE INSPECTOR GENERAL
(OTIG)

OFFICE OF THE ETHICAL STANDARD

AND PUBLIC ACCOUNTABILITY
(OESPA)

OFFICE OF THE PROVOST MARSHAL

GENERAL
(OTPMG )
 JURISDICTION

• Office of The Inspector General (OTIG) – has

jurisdiction over issues of unit morale, efficiency,
effectiveness or economy and those not taken up either
by TPMG or OESPA.
• Office of the Ethical Standards and Public
Accountability (OESPA) – has jurisdiction over cases of
graft and corruption and other offenses that are grave
in nature.
• The Provost Marshal General (TPMG) – has jurisdiction
involving cases in violation of policies, regulations on
discipline, law and order and all other cases of
misbehavior and misconduct.
ADMINISTRATIVE CASES

PUNITIVE CASES
ADMINISTRATIVE MEASURES - are those that
result in decision not involving penal sanctions and
may take such mild disciplinary or instructive
forms as admonition, reprimand and the like. It
require only substantial evidence to gain positive
adjudication.

PUNITIVE MEASURES - are those that result in

judgment of fine, hard labor, deprivation of liberty
or combination of these whenever the guilt of those
involved are proven by instrumentality of military
justice, which is a court-martial. Quantum of
evidence needed for conviction of accused is proof
beyond reasonable doubt.
• AW 105 of the Manual for Courts-Martial
- non-punitive measures intended for purely
instructional or correctional purposes to create and
maintain efficiency, such as admonitions and
reprimands, written or oral and not intended as
punishments.
• Efficiency and Separation Board under Executive Order
No. 337 dated 13 Sept 1988
- to pass upon the retention or separation of Officers
due to incompetence, misconduct, immorality,
intemperate use of drugs and alcoholism etc.;
- to determine entitlement of separation and retirement
benefits.
• Articles of War 117 - President may at any time drop
from rolls any officers who have been on AWOL for 3
months. An officer dropped from the rolls by order of
the President is fully separated from the service.
P u n i t i v e a c t i o n s a r e u n d e r t a k e n t h r o u g h t h e
instrumentality of the Courts-Martial System.
PUNITIVE
ARTICLES
• AW 38 Except for desertion, murder or rape committed in
time of war, or for mutiny or for war offenses, no person
subject to military law shall be liable to be tried or
punished by a court-martial for any crime or offense
committed more than two (2) years before the
arraignment of such person.
• That the period of any absence of the accused from the
jurisdiction of the Philippines, and also any period during
which by reason of some manifest impediment the
accused shall not have been amenable to military justice,
shall be EXCLUDED in computing the aforesaid periods.
• AW 54 – Any person who shall procure himself to
be enlisted in the military service of the
Philippines by means of willful misrepresentation
or concealment as to his qualifications for
enlistment, and shall receive pay or allowance
under such enlistment, shall be punished as a
court-martial may direct.
• A fraudulent enlistment is not void, but voidable only at
the option of the government. Statutes prohibiting the
enlistment of deserters, convicted felons, intoxicated
persons, minors, etc., are merely directory and do not
make such enlistments void, However, if the
disqualification is one which incapacitates the persons
from any contract, such as insanity, idiocy, etc., the
enlistment making any contract, such as insanity, idiocy,
etc., the enlistment is void.

• The offense of fraudulent enlistment may be waived and

the soldier may be retained in the service. In such case,
the soldier is entitled to an honorable discharge at the
expiration of the enlistment if the character of his service
so warrants. (p. 188,
• Philippine Military Law, Claro M. Gloria)
• Concealment by the enlister that he was previously
dishonorably discharged;
• Concealment of a discharge w/o honor;
• Concealment of a disability discharge;
• Concealment of a civil court conviction of an offense with
a sentence penitentiary confinement;
• False representation of marital status;
• False representation of age, etc.
• AW 59 – Any person subject to military law who
deserts or attempts to desert the service of the
AFP shall, if the offense be committed in time of
war, suffer death or such other punishment as a
court-martial may direct.
• 1. Unauthorized absence; and
• 2. Intent permanently to abandon the service or
avoid a hazardous or important duty;
• 3. Intent may be inferred from the circumstances
attending in the absence and its duration, but
each case rests upon its own peculiar facts.
• AWOL – Any person subject to military law who fails to
appear at the fixed time to the properly appointed place
of duty or goes from the same w/o proper leave or
absents himself from his command, guard, quarters,
station, or camp w/o proper leave, shall be punished as a
court-martial may direct.
• 1. Where the accused fails to appear at or goes from a
place of duty –
• a) That a certain authority appointed a certain time and
place for a certain duty by the accused; and
• b) That the accused failed to report to such place at the
proper time, or having so reported, went from the same
w/o authority from anyone competent to give him leave to
do so.
• 2. Where the accused is charged with absenting
himself w/o proper leave –
• a.) That the accused absented himself from his
command, guard, quarters, station, or camp for a
certain period; and
• b.) That such absence was without authority from
anyone competent to give him leave.
• 3. Where the accused is charged with absenting
himself w/o proper leave with intent to abandon
the same –
• a.) That the accused absented himself from his
guard as alleged;
• b.) That such absence was without authority from
anyone competent to give him leave; and
• c.) That the facts and circumstances of the case
indicating that the accused intended to abandon
his guard.
• Entries in morning reports are only prima facie
evidence of the facts they recite.
• It is important to inquire whether the person who
made the report , and was responsible for its
correctness, had personal knowledge of the facts
recited.
• If entries were not based upon personal knowledge of the
person who made it, such entries are not competent
evidence of the facts stated and are mere hearsay.
• The Commanding officer is the responsible
maker of the morning report;
• The fact that the clerk who prepared it has no
personal knowledge of the fact entered therein is
immaterial;
• It is sufficient that the commander has personal
knowledge of its correctness.
• In the absence of evidence to the contrary, the
usual presumption of regularity is applicable.
• Capture by an enemy while absent w/o leave restores a
soldier to a duty status;
• When a soldier, while absent w/o leave, is taken to a
civilian hospital because of an injury for which medical
attendance is necessary and such is authorized by the
CO, the soldier is thereby returned to military control; and
• Voluntary appearance by accused.
• More than 90 days - DISCHARGE without
honor under Cir Nr 17 dtd 02 Oct
87

• Not more than 90 days – if terminated by apprehension

DISCHARGE for the
convenience of the government
under Cir Nr 17 02 Oct 87
- if terminated by voluntary
surrender, TWO (2) RANKS
DEMOTION under GHQ
Cir Nr 3 dtd 01 Apr 95
• 5 (3) If the offender returns to military control (RTMC)
after dropping from the roster but within the 90-day
period, the same should be reported to CG, PA for the
approval or clearance of his RTMC. If the offender’s
RTMC has been cleared by the CG, PA, an investigation
report shall be submitted by the Batallion. The reoprt
shall include appropriate punishment to be imposed in
accordance with the Table of Punishment. Otherwise, the
offender shall be informed of the disapproval of the
RTMC.
• Any officer who uses contemptuous or
disrespectful words against the president, V-
President, Congress of the Philippines or
Secretary of National Defense, shall be
dismissed from the service or suffer such other
punishments as a court-martial may direct.
• 1. Contemptuous or disrespectful words have
been used; and
• 2. Those words were spoken in public, published,
or contained in a communication designed to be
made public.
• What about mere adverse criticisms?
• Mere adverse criticisms uttered by an officer/EP
in political discussions though couched in
intemperate language, but not apparently
intended to be disrespectful to the President
personally, or to his office, or to excite animosity
against him, are generally, not regarded as
violations of AW 63.
• AW 64 – Any person subject to military law who
behaves himself with disrespect towards his
superior officer shall be punished as a court-
martial may direct.
• Of what may the offense consist?
• 1. Disrespect by words may be conveyed by
denunciatory language; open declaration of
intention to disobey an order or by making an
unwarranted imputation.
• 2. Disrespect by acts may be exhibited in a
variety of modes – as by neglecting the
customary salute or other rudeness in the
presence of the superior officer.
• AW 65 - Any person subject to military law who,
on any pretense whatsoever, strikes his superior
officer or draws or lifts up any weapon or offers
any violence against him, being in the execution
of his office, or willfully disobeys any lawful
command of his superior officer, shall suffer
death or such other punishment as a court-
martial may direct.
• By the term superior officer is meant an officer of
rank superior to that of the offender.
• Where an enlisted man is the offender, any
commissioned officer, whether or not such officer
is his commanding of f i c e r, i s d e e m e d h i s
superior.
• The superior officer must be known to be such by
the accused at the time of his giving the order
which is not obeyed.
• It is the military duty of an officer to issue orders
to prevent a flagrant breach of military discipline
which he sees about to be committed, whether
he is the offender’s commanding officer or not,
and the refusal to obey such an order is a
violation of AW 65.
• AW 66 – Any soldier who strikes or assaults, or
who attempts or threatens to strike or assault or
willfully disobeys the lawful order of a
noncommissioned officer while in the execution
of his office, or uses threatening or insulting
language, or behaves in an insubordinate or
disrespectful manner towards a
noncommissioned officer while in the execution
of his office, shall be punished as a court-martial
may direct.
• AW 67 – Any person subject to military law who attempts
to create or begins, excites, causes, or joins in any
mutiny or sedition in any company, party, post, camp,
detachment, guard, or other command shall suffer death
or such other punishment as a court-martial may direct.
• In military law, mutiny is defined as concerted
insubordination, or concerted opposition, defiance of, or
resistance to lawful military authority by two or more
persons subject to such authority, with the intent to usurp,
subvert, or override such authority or neutralize it for the
time being.
• The opposition or resistance need not be active violence.
• It thus, may consist simply in a persistent refusal or
omission to obey orders or do duty.
• Sedition is a form of resistance to the civil power,
demonstrated by riot or aggravated disorder, likely not
against military superiors (Winthrop).
• AW 68 – Any officer or soldier, being present at any
mutiny or sedition, does not use his utmost endeavor to
suppress the same, or knowing or having reason to
believe that a mutiny or sedition is to take place, does not
w/o delay give information thereof to his commanding
officer shall suffer death or such other punishment as a
court-martial may direct. Proof of offense?
• 1. Existence of an actual mutiny, or of a purpose
to commit mutiny;
• 2. Presence of the accused at the mutiny, or of
the fact of his having come to the knowledge that
one was intended;
• The neglect of failure to use the proper efforts to
suppress, or the neglect or failure to give the
information to the CO w/o unreasonable delay.
• The article requires that officers or soldiers
having knowledge of any intended mutiny shall
w/o delay, give information thereof to the CO to
prevent an impending mutiny.
• In view of the imperative injunction to act without
delay, an officer or soldier is not permitted to
exercise his discretion whether or not to impart
the information.
• AW 70 – Any person subject to military law
charged with a crime or with a serious offense
under these Articles shall be placed in
confinement or in arrest as circumstances may
require; when charged with a minor offense, such
person shall not ordinarily be placed in
confinement.
• Any person placed in arrest under the provisions of this
Article shall thereby be restricted to his barracks,
quarters or tent, unless such limits shall be enlarged by
proper authority. Any officer or cadet who breaks his
arrest who escapes from confinement, whether before or
after trial or sentence and before he is set at liberty by
proper authority, shall be dismissed from the service or
suffer such other punishment as a court-martial may
direct, and any other person subject to military law who
escapes from confinement or who breaks his arrest,
whether before or after trial or sentence and before he is
set at liberty by proper authority, shall be punished as a
court-martial may direct.
• A person subject to military law is IN ARREST
when he is restrained within certain limits, not by
physical force, but by his moral and legal
obligation to remain w/in his barracks, or tent
unless larger bounds are specified.
• A person subject to military law is IN
CONFINEMENT if he is physically restrained
either by being imprisoned in a guardhouse or
being put under the control of a guard.
• When a person is placed in arrest or confinement
his status is changed “from duty to arrest”.
ARREST-moral confinement

CONFINEMENT-physical
restraint
• Any commissioned officer has the authority to
order an enlisted man into arrest or confinement.
• This authority may be delegated by the
commanding officer of any company or
detachment to his NCOs, to arrest or confine
enlisted men belonging to his own company or
detachment or enlisted men of other coy or
detachment if any form of restraint is necessary.
• In the case of officers, they may be placed in
arrest or confinement only by order of a
“Commanding Officer”.
• As a general rule, a CO may not delegate to
others his power to confine or arrest or arrest
and confine officers.
• The order may be issued thru other officers or be
communicated to the person arrested either in
writing or orally.
• EXCEPTION: In the absence of the commanding
officer, the ranking officer present and on duty is
authorized to place an officer in arrest.
• Personal knowledge of the offense;
• Person to be arrested is notified;
• Order of arrest no particular formality required (Oral or in
writing);
• Authority to release;
• Authority to release from confinement.
• Status of arrest is terminated when officer or soldier is
placed on full duty status.
• AW 84 – Any person subject to military law who
willfully or thru neglect, suffers to be lost,
damaged or wrongfully disposed of, any military
property belonging to the Philippines shall make
good t he loss or damage and s u f f e r s u c h
punishment as a court-martial may direct.
• Unwarranted personal use of the property;
• Causing or allowing it to remain exposed to the
weather;
• Loaning it to an irresponsible person by whom it
is damaged.
• AW 86 – Any officer who is found drunk on duty,
if the offense be committed in time of war, be
dismissed from the service and suffer such other
punishment as a court-martial may direct. Any
person subject to military law, who is found drunk
on duty shall be punished as a court-martial may
direct.
• Any sentinel who is found drunk or sleeping upon
his post, or who leaves it before he is regularly
relieved shall, if the offense be committed in time
of war, suffer death or such other punishment as
a court-martial may direct. If the offense be
committed in time of peace, such other
punishment as a court-martial may direct.
• Any person subject to military law who makes or
causes t o be made any claim a g a i n s t t h e
government or any officer thereof, knowing such
claim to be false or fraudulent; or
• Who steals, embezzles, knowingly and willfully
misappropriates, applies to his own use or
benefit or wrongfully or knowingly sells or
disposes of any arms equipment, ammunition,
money or other property of the gov’t intended for
the military service.
• AW 96 – Any officer, cadet, flying cadet, or
probationary second lieutenant, who is
convicted of conduct unbecoming an
officer and a gentleman shall be dismissed
from the service.
• It is defined as any action or behavior of an
officer in an official capacity, which, in
dishonoring or otherwise disgracing the individual
as an officer, seriously compromises his
character and standing as a gentleman or action
or behavior in unofficial or private capacity,
seriously compromises his position as an officer
and exhibits him as morally unworthy to remain
in the service.
• Knowingly making false official statements;
• Dishonorable neglect to pay debts;
• Using insulting or defamatory language to
another officer in his presence;
• Being grossly drunk and conspicuously
disordered;
• Public association with notorious prostitutes;
Cheating, etc.
• AW 97 – Though not mentioned in these Articles,
all disorders and neglects to the prejudice of
good order and military discipline and all conduct
of a nature to bring discredit upon the military
service shall be taken cognizance of by a general
or special or summary court-martial according to
the nature and degree of the offense, and
punished at the discretion of such court.
• Disobedience of standing orders or of the orders
of an officer when the offense is not chargeable
under a specific article;
• Allowing a soldier to go on duty knowing him to
be drunk;
• Rendering himself unfit for duty by excessive use
of intoxicants or drugs; drunkenness, etc.
• Failing to appear on duty with a proper uniform;
• Appearing with dirty clothing; malingering;
careless discharge of firearms;
• Making false statements to an officer in regard to
matters of duty, etc.
 Article of War 105, otherwise known as the “Disciplinary
Power of the Commanding Officer” was amended by PD
No. 1968 dated 11 January 1985.

 Purpose:
- to make more effective the disciplinary power of the
CO by making stiffer the disciplinary punishments that
may be imposed
- enlarge the scope and categories of COs’ authority to
impose disciplinary punishment
- provide a swifter and more vigorous procedure in the
imposition of punishments and affording members of
the AFP substantial justice, fairness and due process of
law.
 WHO MAY IMPOSE DISCIPLINARY PUNISHMENT? The
CO of any detachment, battalion, squadron, commissioned vessel, or
higher command, or such other officers as may be authorized by the
President can impose disciplinary punishment “upon person of his
command“ only for “minor offenses“ without the intervention of
court-martial. (AW 105)

 The CO may in addition to or in lieu of admonition or reprimand,

impose one or more disciplinary punishments, but shall not include
confinement under guard.

 The authorized punishments are withholding of privileges,

restriction, arrest in quarters, forfeiture, detention, deprivation of
liberty, etc. For enlisted personnel, it includes confinement not under
guard, hard labor, extra duties correctional custody, reduction of
grade, etc.
• Only minor offenses may be disposed of under AW 105;
• AS to what is a minor offense is often a question of judgement
of the CO who should take into account:
1. the nature of the offense;
2.the time and place of the commission;
3. its effect upon the organization as a whole;
4. the persons committing it;
5. the manner in which such offense is customarily punished;
6. the record of the offender; and
7. other circumstances surrounding its commission
(Derelictions not involving moral turpitude or any degree of
criminality than is involved in the average offense).
• Generally, the authority of the CO under the
article cannot be delegated;
• However, communications with respect thereto
may be signed or transmitted by him personally
or thru official communications;
• CO exercising court-martial jurisdiction or an
officer of general of flag rank in command may
delegate his powers to an officer who is one of
his assistants (PD 1650).
• When Admonition or Reprimand is imposed as a
punishment under AW 105, it should be clearly indicated
that it is imposed as a punishment in its punitive
character. Otherwise, it is imposed purely as an
administrative measure. Why is this important?
END OF AW 105
 CONCEPT
A court-martial is a court composed of one
or more members (the member depending upon
the class of the court), the function of which is
to decide whether a person subject to military
law has committed a violation of the articles of
war, and if it finds him guilty, to adjudge
punishment for the offense/s.
 ASPECTS

Temporary in nature
Court of law and justice
Instrumentality of executive power

Criminal court
 TYPES OF COURTS-MARTIAL

GENERAL COURT-MARTIAL

SPECIAL COURT-MARTIAL

SUMMARY COURT-MARTIAL
 General Court-Martial (GCM)
- shall have the power to try any person subject to
military law
- for any serious crime or offense made which are
punishable under the Articles of War.
- GCM Convening Authorities extend from the President
down to the Division Commander in the Army and his
equivalent in the other Major Services (PAF and PN).
- consists of any number of members not less than 5
with one Judge Advocate Officer as Law Member.
 Special Court-Martial (SPCM)
- shall have power to try any person subject to military
law
- for any crime or offense made punishable under the
Articles of War;
- convened by any person who can appoint GCM, COs
of garrison, fort, camp brigade, regiment, detached
battalion or squadron etc.
- no power to adjudge DD or dismissal or confinement
in 6 months nor to adjudge forfeiture of more than 2/3
pay;
- consists of any number of not less than 3 members.
 Summary Court-Martial (SCM)
- shall have the power to try any person subject to
military law, except Officer, Cadet or Probationary
Officer
- for any crime or offense made punishable under the
Articles of War.
- convened by any person who can appoint GCM and
SPCM
- shall consist of one (1) officer. His function is to
dispense with justice promptly for relatively minor
offenses under a simple form of procedure.
 GENERAL COURT-MARTIAL PROCEDURES

PERSON HAVING
0FFENSE KNOWLEDGE OF COMMANDING
OFFENSE OFFICER
COMMITTED REPORTS TO INITIATES
MILITARY INVESTIGATION
AUTHORITIES

REFERS CASE TO
JAGO/SJA FOR PRE-TRIAL
CO ORDERS EVALUATION
ARREST OR INVESTIGATION
AND/OR UNDER AW 71
CONFINEMENT OF PREFERMENT OF
MILITARY CHARGE
OFFENDER
 GENERAL COURT-MARTIAL PROCEDURES

SJA FOR CONVENING

CSAFP/SJAs, AUTHORITY FOR
FOR PRE-TRIAL APPROVAL OR GENERAL COURT
DISAPPROVAL OF MARTIAL FOR
ADVICE RECOMMENDED TRIAL
ACTION

REVIEWING
AUTHORITY FOR
SJA FOR CSAFP APPROVAL,DISAP
OR SJA FOR SJAR PROVAL,OR
REMISSION OF
SENTENCE
 GENERAL COURT-MARTIAL PROCEDURES

OTAG OR BOARD OF
ADJUTANT’S REVIEW FOR
OFFICE OF THE APPELLATE REV TJAG FOR
UNIT FOR OF SENTENCE CONCURRENCE
PUBLICATION OF MENTIONED IN
GCMO AW 50 & AW 47

TAG FOR PUBLICATION OF GCMO, IF

TJAG CONCURS IN THE HOLDING OF THE
JAGO FOR BD OF REV (1) HOLDING LEGALLY
DISPOSITION OR SUFFICIENT THE ROT INVOLVING
PERMANENT DD/BCD/CONF IN THE PENETENTIARY OR
FILING OF (2) AS LEGALLY INSUFFICIENT THE ROT
RECORD OF TO SUPPORT THE FINDING/SENTENCE
TRIAL UNDER AW
34
TO JAGO FOR DISPOSITION/PERMANENT
FILING OF ROT UNDER AW 34 -END-
 GENERAL COURT-MARTIAL PROCEDURES

TAG FOR
PUBLICATION OF
SJA FOR SUPPLEMENTARY
CSAFP OR GCMO
SJAs FOR
DRAFTING OF
SUPPLEMENTA
OP, THRU RY GCMO
CSAFP FOR
CONFIRMATION
OF SENTENCE TJAG FOR
DISPOSITION OR
FILING OF ROT
UNDER AW 34
-END-
HAVE A NICE DAY