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REPUBLIC OF THE P HILIPPINES

DEPARTMENT OF NATIONAL DEFENSE
GENERAL HEADQUARTERS ARMED FORCES OF THE PHILIPPINES
Camp General Emilio Aguinaldo, Quezon City

CIRCULAR 20 April 1986

NUMBER 4

DISCIPLINARY POWERS OF AFP COMMANDING

OFFICERS UNDER ARTICLE OF WAR 105 AND
THE MANUAL FOR COURTS-MARTIAL, AFP

1. PURPOSE. - This Circular prescribes the disciplinary powers of

Commanding Officers of the (New) Armed Forces of the Philippines and the policies
and procedures governing the imposition of disciplinary punishments upon military
personnel of their respective commands.

2. AUTHORITY. -

a. Article of War 105, as further amended by Presidential Decree

Nr 1968, dated 11 January 1985.

b. Chapter XXIV (Sections 105 thru 109) of the Manual for

Courts-Martial, AFP, as amended by Executive Order Nr 1005, dated 28 January
1985.

3. POLICIES. –

a. Maintenance of Discipline – Commanders are responsible for

the maintenance of discipline within their commands, through effective leadership,
including, when required, the use of non-punitive measures.

b. Resort to Disciplinary Powers in every case – A Commanding

Officer should resort to his disciplinary powers under AW 105 as prescribed in this
Circular in every case where that article applies and where non-punitive measures
are considered insufficient, unless it is clear that punishment under AW 105 would
not meet the needs of justice and discipline.

c. Unnecessary use of Court-Martial – Superior commanders

should restrain any tendency of subordinate commanders to resort unnecessarily to
court-martial jurisdiction for the punishment of offenders.

d. Referral to Superior Authority – If a commanding officer

determines that his authority under AW 105 is insufficient to make a proper

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disposition of the case, he may refer the case to a superior commander for
appropriate disposition.

e. Evaluation Before Imposition of Punishment – Before

exercising authority under AW 105, a commanding officer must thoroughly evaluate
each case. No policy may be established whereby certain categories of offenses
must be disposed of under Aw 105 regardless of the circumstances or predetermined
kinds or amounts of punishments must be imposed for certain classification of
offenses that are proper for disposition under AW 105.

f. Determining Appropriate Punishments – Punishments under

AW 105 are primarily corrective in nature. In determining the appropriate kind and
amount of combination of punishments to be imposed, commanding officers, and
also superior officers to whom appeals from punishments imposed under AW 105
and this Circular are made, should consider the following matters:

(1) the age of the offender;

(2) his experience and intelligence;

(3) prior disciplinary and military record of the offender

(4) other facts and circumstances of the case, and

(5) the nature and characteristics of the various forms of

authorized punishments as discussed in paragraph 7, below.

g. Suspension - In determining an appropriate punishment,

commanders should consider the desirability of suspending probationally all or
portion of the punishment selected. Probational suspension of punishment normally
is warranted in the case of first offenders or when persuasive extenuating or
mitigating matters are present. Suspension not only provides as behavioral incentive
to the offender, but also affords the commander an excellent opportunity to evaluate
the offender during the period of suspension.

h. Effect of Errors – Any failure to comply with the procedural

provisions herein prescribed will not invalidate a punishment imposed under AW
105, except to the extent that may be required by a clear and affirmative showing of
injury to a substantial right of the person on whom the punishment was imposed,
which right was neither expressly nor impliedly waived.

i. Enforcement of Punishment – Punishments will be strictly

enforced. Any failure in this respect has, if anything a worse effect on discipline
than an unwarranted condonation of the offense for which the punishment was
imposed. The immediate commanding officer of the person upon whom the
punishment is imposed is charged with the execution of the punishment imposed
pursuant to AW 105.

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j. Degrading Punishments Prohibited – No form of punishment

is permitted which tends to demean or degrade the rank or position of the person on
whom such punishment is imposed. Punishments not sanctioned by the customs of
the service may not be imposed. Examples: carrying a loaded knapsack or “double
timing”. Strictly military duties are not to be degraded by use as punishments, and it
is illegal to impose them under AW 105. Examples: guard duty, drills, practice
hikes, marches.

k. Effectivity of punishments – A disciplinary punishment

imposed under the authority of AW 105 takes effect and will be carried into
execution as follows:

a. If unsuspended, on the date the offender is informed of

the imposition of punishment upon him.

b. If the punishment is suspended, but thereafter vacated,

on the date the commanding officer orders the vacation of the suspension.

l. Statute of Limitation – AW 38 applies to punishment under

AW 105.

4. AUTHORITIES EMPOWERED TO IMPOSE DISCIPLINARY

PUNISHMENTS.

a. Commanding Officers – Only commissioned officers who are

commanding officers of a detachment, company, battalion, squadron, commissioned
vessel, or higher command may, for minor offenses, impose disciplinary
punishments upon military personnel of his command without the intervention of a
court-martial.
b. Other “Commanding Officers” – For purposes of AW 105, the
following shall be deemed as commanding officers with respect to military personnel
on detached service or assigned to their respective offices:

(1) Vice Chief of Staff, NAFP

(2) The Deputy Chief of Staff, NAFP

(3) Deputy Chief of Joint Staff, NAFP, namely: J-1, J-2,

J-3, J-4, J-5, J-6, J-7, and J-8

(4) Chiefs of Special, Administrative, Technical and

Personal Staffs, General Headquarters, NAFP.

(5) Chiefs of General Staff of the Major Services, namely:

Chief of Army Staff, PA; Chief of Constabulary Staff, PC; Chief of Air Staff, PAF;
and Chief of Naval Staff, PN, with respect to military personnel on detached service
or assigned to their respective offices as well as to those on detached service or

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assigned to the General Staff Divisions and Special, Administrative, Technical, and
Personal Staffs of their respective Major Service.

(6) Chiefs of General Staff of AFP Unified Commands,

including NAFP Regional Unified Commands, with respect to military personnel on
detached service or assigned to their respective offices as well as to those on
detached service or assigned to the Unified Staff Divisions and Special,
Administrative, Technical and Personal Staffs of their respective Unified
Commands.

c. Delegation Prohibited - The authority of a commanding

officer under AW 105 cannot be delegated, but communications with respect thereto
may be signed or transmitted by him personally or as provided for official
communications in general. However, a commanding officer exercising general
court-martial jurisdiction or an officer of general or flag rank in command may
specifically delegate his powers under AW 105 to one of his principal assistants.
Unless otherwise prescribed in the delegation, the designated principal assistant has
the same authority under AW 105 as the officer who delegated the powers.

d. “Detached Service, etc, Defined - As used in this Circular, the

terms “detached service” and “assigned” have the same meaning as the term “of his
command”.

5. OFFENSES PROPERLY PUNISHABLE UNDER AW 105.

a. Minor Offenses - Only acts or omissions punishable under the

Articles of War which are considered minor under this Circular may be disposed of
under AW 105.

b. Factors to be Considered in the Determination of Whether an

Offense is “Minor” or not - Whether an offense is minor or serious is often a
question of judgment of the commanding officer. In determining whether an offense
is minor and, therefore, properly disposable under AW 105, the commanding officer
should consider the following:

(1) Nature of the offense and its effect upon the

organization as a whole.

(2) The manner in which the offense is customarily

punished by the military.

(3) The circumstances surrounding the commission of the

offense, such as –

(a) the time and place of commission

(b) the person committing the offense, and

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(c) the record of the offender.

c. Generally, the term “minor offense” includes derelictions not

involving moral turpitude or any greater degree of criminality or seriousness than is
involved in the average offense triable by summary court-martial.

d. “Moral Turpitude” is anything done contrary to justice,

honesty, principle or good morals; an act of baseness or depravity in the private or
social duties which a man owes to his fellowman, or to society, in general; contrary
to the accepted and customary rule of right and duty between man and man.
Everything done contrary to justice, honesty, modesty, or good morals is done with
turpitude. In re Asada, 60 Phil. 915. Examples: Illegal marriage, abduction with
consent, estafa, attempted bribery, perjury, extortion, theft, adultery, arson, attempt
to evade income tax, blackmail, smuggling, trafficking in opium, trespass to
dwelling, libel, seduction under promise of marriage.

e. Offenses which are not “Minor” - The following offenses are

not “minor offenses”:

(1) Those for which the Articles of War prescribe a

mandatory punishment. Examples: AW 56 (False Muster); AW 57 (False Returns);
AW 83 (Spying in Time of War); AW 86 (Drunk on Duty Committed in Time of
War); AW 88 (Personal Interest in Sale of Provisions); AW 96 (Conduct
Unbecoming an Officer and Gentleman).

(2) Those for which the Articles of War authorize the

punishment of dishonorable discharge or bad conduct discharge (See Table of
Maximum Punishments, MCM-AFP, pp. 107-110).

(3) Those which AW 41 authorizes penitentiary

confinement - that is, those offenses of a civil nature and punishable by confinement
for more than one (1) year.

f. Punishment of Serious Offense under AW 105 not Bar to

Court-Martial Trial - As only minor offenses may properly be disposed of under
AW 105, the imposition and enforcement of disciplinary punishment under AW 105
for a serious offense or offense growing out of the same act or omission is not a bar
to trial by court-martial. Put differently, the accused could legally and properly be
brought to trial by court-martial for the serious offense notwithstanding prior
punishment thereafter under AW 105. However, such fact shall be considered in
determining the measure of punishment to be adjudged if the court-martial shall
results in a finding of guilty. Previous punishment of a “minor offense” under AW
105 is a bar to trial by court-martial if the accused is brought to trial for the same
“minor offense”

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6. AUTHORIZED MAXIMUM DISCIPLINARY PUNISHMENTS. –

a. In addition to, or in lieu of, punitive admonition or reprimand,

as distinguished from non-punitive measures (See subpara b, below), a commanding
officer may impose upon military personnel of his command one or more of the
following disciplinary punishments:

(1) Upon commissioned officer of his command -

(a) By any commanding officer -

1. Withholding of privileges for not more

than 30 consecutive days;

2. Restriction to certain specified limits,

with or without suspension from duty, for not more than 30 consecutive days;

3. Arrest in quarters for not more than 15

consecutive days;

4. Forfeiture of not more than one-half

(1/2) of one (1) month’s basic pay;

5. Detention or withholding of not more

than one-half (1/2) of one (1) month’s basic pay per month for three (3) months;

6. Deprivation of liberty on shore not

exceeding 30 consecutive days, with respect to those attached to or embarked in a
commissioned vessel of the Philippine Navy.

(b) By an officer exercising general court-martial

jurisdiction or an officer of General or Flag rank in command

1. Withholding of privileges for not more

than 60 consecutive days;

2. Restriction to certain specified limits,

with or without suspension from duty, for not more than 60 consecutive days;

3. Arrest in quarters for not more 30

consecutive days;

4. Forfeiture of not more than one-half

(1/2) of one (1) month’s basic pay per month for three (3) months;

5. Detention or withholding of not more

than one-half (1/2) of one (1) month’s basic pay per month for six (6) months;

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6. Deprivation of liberty on shore not

exceeding 60 consecutive days, with respect to those attached to or embarked in a
commissioned vessel of the Philippine Navy.

(2) Upon other military personnel of his command -

(a) By any commanding officer -

1. Withholding of privileges for not more

than 30 consecutive days;

2. Restriction to certain specified limits,

with or without suspension from duty, for not more than 30 consecutive days;

3. Arrest in quarters for not more than 15

consecutive days;
4. Forfeiture of not more than one-half
(1/2) of one (1) month’s basic pay;

5. Detention or withholding of not more

than one-half (1/2) of one (1) month’s basic pay per month for three (3) months;

6. Hard labor without confinement for not

more than 15 consecutive days;

7. Confinement not under guard for not

more than 15 consecutive days;

8. Correctional custody for not more than

15 consecutive days;

9. Extra duties, including fatigue or other

duties, for not more than 15 consecutive days;

10. Reduction to one (1) or two (2) inferior

pay grades, if the grade from which demoted is within the promotion authority of the
officer imposing the reduction or any officer subordinate to the one who imposes the
reduction;

11. Deprivation of liberty on shore not

exceeding 30 consecutive days, or confinement on bread and water or diminished
rations for not more than five (5) consecutive days, with respect to those attached to
or embarked in a commissioned vessel of the Philippine Navy.

(b) By a commanding officer in the grade of

Lieutenant Colonel/Commander or above -

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1. Withholding of privileges for not more

than 60 consecutive days;

2. Restriction to certain specified limits,

with or without suspension from duty, for not more than 60 consecutive days;

3. Arrest in quarters for not more than 30

consecutive days;

4. Forfeiture of not more than one-half

(1/2) of one (1) month’s basic pay for two (2) months;

5. Detention or withholding of not more

than one-half (1/2) of one (1) month’s basic pay for four (4) months;

6. Hard labor without confinement for not

more than 30 consecutive days;

7. Confinement not under guard for not

more than 30 consecutive days;

8. Correctional custody for not more than

30 consecutive days;

9. Extra duties, including fatigue or other

duties, for not more than 45 consecutive days;

10. Reduction to the lowest or any

intermediate inferior pay grade, if the grade from which demoted is within the
promotion authority of the officer imposing the reduction or any officer subordinate
to the one who imposes the reduction, but an enlisted person in any grade above E-4
may not be reduced more than two (2) pay grades;

11. Deprivation of liberty on shore not

exceeding 60 consecutive days, or confinement on bread and water or diminished
rations for not more than five (5) consecutive days, with respect to those attached to
or embarked in a commissioned vessel of the Philippine Navy.

b. Non-punitive Measures - AW 105 does not apply to, include,

or limit the use of those non-punitive measures that a commanding officer is
expected to use in order to further strengthen the efficiency of his command or unit,
such as administrative admonition, reprimand, exhortation, disapproval, criticism,
censure, reproof and rebuke, written or oral, not intended or imposed as a
punishment, but as a purely corrective measure, more analogous to instruction than
to punishment, in the strict line of his duty to create and maintain efficiency.

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7. NATURE OF PUNISHMENTS: COMPINATION AND

APPORTIONEMENT

a. Nature of punishments

(1) Admonition and reprimand - An admonition or

reprimand may be imposed in lieu of or combined with other punishments authorized
in paragraph 6 above, when admonition or reprimand is imposed as a punishment
under AW 105, and not as purely corrective or nonpunitive measures (See para 6b,
above), it should be clearly indicated that it is imposed as a punishment under AW
105.

(2) Restriction - This punishment is the least severe form

of deprivation of liberty and involves moral rather than physical restraint.
Restriction may be from a specified geographical limits, and the person undergoing
this form of punishment may be required to report to a designated place at specified
times, if it is considered reasonably necessary to insure that the punishment is being
properly executed. Unless otherwise specified in the restriction order, a person in
restriction may be required to perform any military duty.

(3) Arrest in quarters - As in the case of restriction the

restraint involved in this punishment is enforced by moral obligation rather than by
physical means. An officer undergoing punishment or arrest in quarters may be
required to perform any military duty or duties prescribed by regulations. However,
a military person so punished is required to remain within his quarters during the
period of punishment unless the limits of his arrest are otherwise extended by
appropriate authority. Quarters of a military person may consist of his military
residence, whether a tent, barracks or other quarters assigned to him, or a private
residence occupied by him when he has not been furnished government quarters.

(4) Correctional custody - It is the physical restraint of a

person during duty or non-duty hours, or both and may include extra duties or fatigue
duties. If practicable, it should not be served in immediate association with persons
awaiting trial or held in confinement pursuant to trial by court-martial.

(5) Confinement - The restraint involved in this

punishment is enforced by physical means by being imprisoned in the guard house.
Confinement under guard or control of a guard is not authorized.

(6) Confinement by bread and water or diminished rations

(a) This punishment may be imposed only upon

enlisted persons attached to or embarked in a commissioned vessel of the Philippine
Navy. It involves confinement in a place with persons confined may communicate
only with authorized personnel. A person is attached to or embarked in a vessel if, at
the time the disciplinary punishment is imposed, he is assigned or attached to the

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vessel, is on board for passage, or is assigned or attached to an embarked staff, unit,

detachment, squadron, team, air group, or other regularly organized body.

(b) The ration to be furnished a person undergoing

a punishment of confinement on diminished rations is that specified by the authority
charged with the administration of the punishment, but the ration may not consist
solely of bread and water, unless this punishment has been specifically imposed.

(c) When punishment on bread and water or

diminished rations is imposed, a signed certificate of a medical officer containing his
opinion that no serious injury to the health of the person to be confined will be
caused by that punishment must be obtained before the punishment is executed. The
certificate, which shall be attached to the record of proceedings, shall be in the
following form:

“I certify that from an examination

of_________________, and of the place where he is to be confined, I am of the
opinion that the execution of the foregoing sentence to confinement on (bread and
water) (diminished rations) will (not) produce serious injury to his health”.

(7) Extra duties - This involves the performance of duties

in addition to those normally assigned to the person undergoing the punishment. It
may include fatigue duties. Military duties of any kind may be assigned as extra
duties.

(8) Reduction in grade - This is one of the most severe

forms of disciplinary punishments which may be imposed as penalty for misconduct.
A Commander, therefore, should exercise his authority to effect a reduction with
discretion. As used in AW 105, the phrase, “if the grade from which demoted is
within the authority of the officer imposing the reduction or any officer subordinate
to the one who imposed the reduction” does not refer to the authority to promote the
individual concerned but to the general authority to promote to the grade held by the
individual to be punished.

(9) Forfeiture of basic pay -

(a) This involves a permanent loss of entitlement

to the basic pay forfeited. “Basic pay” is that fixed by statute or regulations for the
grade of the individual concerned. It excludes additional pay, such as longevity pay,
flying pay, hazardous duty pay, incentive pay, combat pay, specialist pay, sea duty
pay, etc.

(b) A monthly contribution from his basic pay that

a military person is required by law to make to entitle him to benefits under the said
law must be deducted before the net amount of pay subject to forfeiture is computed.
The amount to be forfeited will be expressed in peso amounts only (not in pesos and

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centavos) and not in number of day’s pay or fractions of monthly pay. If the
forfeiture is to be applied for more than one month, the amount to be forfeited per
month and the number of months should be stated.

(c) If the punishment includes both reduction in

grade, whether or not suspended, and forfeiture of pay, the forfeiture must be based
on the grade to which reduced.

(d) Forfeiture of pay must not extend to any pay

accrued before the date of its imposition.

(10) Detention or withholding of basic pay -

(a) Unlike forfeiture of basic pay, a detention or

withholding of basic pay involves only a temporary withholding of basic pay, and in
no case shall extend beyond the offender’s term of service. The period for which the
basic pay is to be withheld or detained must be specified at the time the withholding
or detention is imposed.

(b) As in the case of forfeiture of basic pay, only

basic pay may be withheld or detained, and that any monthly contribution from his
pay that any military person is required by law to make to entitle him to the benefits
under the said law must be deducted before the net amount of basic pay subject to
withholding or detention is computed. The rules provided in the preceding sub-
paragraphs (9), (b), (c) and (d) on forfeiture of basic pay are also applicable to
detention or withholding of basic pay.

(c) The amount of basic pay withheld or detain is

returned to the offender at the expiration of the specified period of withholding or
detention or the offender’s term of service, whichever is earlier.

b. Combination and Apportionment of Punishments -

(1) Combination of punishments -

(a) Restriction and extra duties - These

punishments may be combined to run concurrently, but the combination may not
exceed the maximum imposable for extra duties.

(b) Restriction or extra duties with correctional

custody - These punishments may also be combined to run concurrently but not
beyond the maximum duration imposable for correctional custody.

(c) Restriction with arrest in quarters - These

punishments may be combined to run concurrently, but not beyond the maximum
duration imposable for arrest in quarters.

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(d) Forfeiture or withholding of basic pay may be

imposed with a reduction in grade.

(e) Confinement on bread and water or diminished

rations may not be imposed in combination with correctional custody, extra duties or
restriction.

(2) Apportionment of Punishments -

(a) Arrest in quarters and restriction, or two or

more of the punishments of correctional custody, extra duties, and restriction may
not be combined to run consecutively in the maximum amount of punishment
imposable for each. All of these punishments are in the nature of deprivation of
liberty, and when they are combined to run concurrently, there must be an
apportionment as provided herein.

(b) Forfeiture and withholding of basic pay may

not be combined to run either concurrently or consecutively without an
apportionment. Both punishments amount to a deprivation of entitlement to pay,
either permanently or temporarily.

(c) A properly apportioned combination of the

punishments of forfeiture and withholding of basic pay may be imposed with a
reduction in grade.

c. Table of Equivalent Disciplinary Punishments

(1) Where an apportionment is required when combining

certain punishments, the following Table of Equivalent Disciplinary Punishments
will be used in substituting one form of punishment for another:

TABLE OF EQUIVALENT DISCIPLINARY PUNISHMENTS

Kind of Punishment Upon Commissioned Upon Other Military

Officers Personnel
Arrest in quarters 1 day 1 day
Restriction 2 days 2 days
Extra Duties - 1 ½ days*
Correctional Custody - 1 day
Forfeiture of Basic Pay 1 day’s pay 1 day’s pay
Detention of Basic Pay 1 ½ day’s pay 1 ½ day’s pay*

*The factors designated by the asterisks are 2 instead of 1 ½ when the

punishment is imposed by a commanding officer below the grade of Lieutenant
Colonel or Commander (PN). The punishment of forfeiture and detention of basic
pay may not be substituted for the other punishments listed in the table, nor may
those other punishments be substituted for forfeiture or detention of basic pay.

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(2) Illustration of Use of Table -

(a) A commanding officer in the grade of

Lieutenant Colonel or Commander, or above, may impose punishment consisting of
correctional custody for 10 days. Extra duties for 15 days, and restriction to limits for
20 days to run consecutively, using the following calculation: the authorized
maximum correctional custody imposable is 30 days, of which only 10 days have
been imposed; 15 days of extra duties can be substituted for 10 of the unused days of
correctional custody (1 ½ for 1); and 20 days of restriction to limits can be
substituted for the remaining 10 days of unused correctional custody (2 for 1).

(b) A commanding officer exercising GCM

jurisdiction or an officer of general or flag rank in command may impose upon a
commissioned officer of his command a forfeiture of 5 days basic pay and a
detention of 10 days’ basic pay for the first month; the same amount of forfeiture and
detention for the second month; the same amount of forfeiture and detention for the
third month; and detention of 15 days’ pay for the fourth month, calculated as
follows: the authorized maximum forfeiture imposable is one-half (1/2) of one (1)
month’s basic pay per month for three (3) months. However, only 15 days’ pay has
been forfeited, leaving a total permissible detention of 45 days (30x1/2). The
monthly allocation of forfeitures and detention has been made because –

1 the combination of punishment may not

operate so as to deprive the offender of more than one half of his monthly pay in any
one month, and

2 the forfeiture may not be imposed beyond

the third month.

(3) Other allocations, equally within the above

principles, could be made.

(4) Use of the Table –

(a) The Table may be used only when punishment

is initially imposed. It may not be used –

1. in mitigating punishment, or

2. at the time of vacation of suspension of

punishment. For example: a punishment of 30 days correctional custody may not, at
the end of 20 days, be mitigated to restriction for more than 10 days as only 10 days
of the original punishment remains unserved. A punishment of 30 days correctional
custody which has been suspended may not at the time of the vacation of the
suspension be mitigated to restriction for more than 30 days.

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8. PROCEDURE. –

a. Impartial Investigation -

(1) Investigating Officer - The Commanding Officer may

designate an officer to conduct an investigation of any alleged misconduct
committed by a member of his command. The erring member shall be informed of
the charge or accusation against him and given the opportunity to refuse the same by
the submission of counter-evidence in his behalf and any matter in mitigation,
extenuation or defense. In the absence of any unusual circumstances, the counter-
evidence should be submitted not later then five (5) days from receipt of notice.
Where the member waives his right to be investigated, the commanding officer may
proceed to determine and impose the appropriate disciplinary punishment.

(2) Conduct of investigation - the investigation shall be

conducted in writing in all cases involving commissioned officers and in all cases in
which the punishment includes –

(a) reduction in grade,

(b) confinement on bread and water of diminished

rations,

(c) correctional custody,

(d) restriction or extra duties for more than 30

days, or

(e) forfeiture or detention of basic pay.

In other cases, the investigation may be in writing or may be conducted orally,

following the same sequence.

(3) Record of board of officer, etc - The record of a board

of officers, court of inquiry, or other fact-finding body, in which proceedings the
member was accorded the rights of a party with respect to an act or omission for
which disciplinary punishment is contemplated, may be substituted for the impartial
hearing required above.

(4) Summary transcript, summarized record - After the

investigation, the investigating officer will promptly transmit to the commanding
officer a summary transcript of all information presented at the investigation and
having any bearing on the guilt or innocence of the member and the quantum of
punishment to be imposed, or a copy of the report of a board of officers, court of
inquiry or other fact-finding body, together with any additional evidence presented
by the member. When oral proceedings are conducted, the investigating officer will
submit a summarized record.

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(5) Imposition of punishment - The commanding officer,

upon ascertaining to his satisfaction from the summary transcript of summarized
record of the impartial investigation, or the record of a board of officers, court of
inquiry or other fact-finding body, that an offense cognizable by him under AW 105
has been committed, will proceed to determine and impose the disciplinary
punishment without further hearing. The member may, however, be permitted to
appear in person before the officer authorized to impose the punishment and to
submit any matter desired in mitigation, extenuation or defense. Any written
statements or other documentary evidence pertaining to the case which were
considered by the commanding officer shall be attached to the file of the case. The
summarized record of the oral proceedings conducted will also be filed.

(6) Notification to member - The member will be

promptly notified in writing of the punishment and of the offense or misconduct
committed by him; fully of his right to appeal from the punishment so imposed to
superior authority; directed to acknowledge receipt by written endorsement of the
notification of punishment through proper channels, including in his endorsement the
date of such receipt; and to state any appeal he may desire to make. Where the
punishment is imposed by a superior competent authority, the immediate
commanding officer of the member will be informed of the matter and given the
necessary date for the record.

(7) Records to be forwarded to superior authority - The

summary transcript, summarized record, or copy of the record of a board of officers,
court of inquiry or other fact-finding body, together with any written statements or
other documentary evidence considered by the commanding officer imposing the
punishment, or submitted by the member, shall be forwarded to the next superior
competent authority when that reference is made under the policy set forth in
paragraph 3, above, or in case of appeals from the punishment so imposed. If the
superior competent authority imposed punishment under AW 105, the accused shall
be notified in writing, through proper channels, of the punishment imposed on
appeal.

b. Unit AW 105 Punishment Book - The immediate

commanding officer of the member punished under AW 105 will cause a record to
be made and filed in his office or other proper place showing the same offense, the
authority that imposed it, the date the accused received the notice of the imposition
of punishment, the decision of the superior authority on any appeal, any mitigation or
remission of the punishment and any remarks or additional data desired. Copy of
such record of punishment shall be entered into the permanent military personal file
of the member concerned.

c. Prompt Furnishing of Copies of Punishments Imposed -

(1) Commanding officers shall promptly furnish the

Offices of the Adjutant General, Finance Center, Judge Advocate, Inspector General

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of the Major Service and Intermediate Finance Disbursing Units to which their units
belong a copy each of any disciplinary punishment, suspended or not suspended,
imposed by them under AW 105 to military personnel of their respective Commands.

(2) Copies of any suspension, mitigation, remission,

vacation of suspension, or setting aside of any punishment by the commanding
officers to the offices aforementioned.

9. SUSPENSION, MITIGATION, REMISSION AND SETTING

ASIDE:

a. Suspension - The commanding officer who imposed the

punishment or his successor in command or superior competent authority may, at
any time, suspend probationally any part or amount of the unexecuted portion of the
punishment imposed, and may suspend probationally a reduction in grade or a
forfeiture imposed whether executed or not executed.

b. Remission or mitigation and setting aside and restoration - He

may also at any time remit or mitigate any part or amount of the unexecuted portion
of the punishment, whether executed or unexecuted, and restore all rights, privileges
and properly affected. He may also mitigate reduction in grade, whether executed or
unexecuted, to forfeiture or detention of basic pay.

c. Rules on Suspension of Punishments - The following rules

shall be observed regarding suspension of punishments:

(1) Executed punishment of reduction or forfeiture - An

executed punishment or reduction in grade or forfeiture of basic pay may be
suspended only within a period of three (3) months after the date of its imposition.

(2) Period of Suspension - Suspension of a punishment

may not be for a period longer than four (4) months from the date of suspension, and
the expiration of the current enlistment or term of service of the person involved
automatically terminates the period of suspension.

(3) Remission of suspended punishment - Unless the

suspension is sooner vacated, the suspended portions of the punishment are remitted,
without further action, upon the termination of the period of suspension.

(4) Vacation of suspension - Vacation of suspension may

be effected by any commanding officer competent to impose upon the offender
concerned punishment of the kind and amount involved in the vacation of
suspension.

(5) Hearing before Probation Officer - Although a formal

hearing is not necessary to vacate a suspension the probationer should, unless

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impracticable, be given an opportunity to appear before the Probation Officer

designated by orders or the officer authorized to vacate suspension of the punishment
to rebut any derogatory or adverse information upon which the proposed vacation is
based, and may be given the opportunity to so appear in any case.

d. Mitigation -

(1) The following punishments may be mitigated as shown

but the mitigated punishment may not be for a greater period than the punishment
mitigated:
(a) Arrest in quarters to restriction.

(b) Confinement on bread and water or diminished

rations to correctional custody.

(c) Correctional custody or confinement on bread

and water or diminished rations to extra duties or restriction, or both.

(d) Extra duties to restriction.

(e) Forfeiture to withholding of basic pay.

(f) Reduction in grade to forfeiture or withholding

of basic pay. The power to mitigate a reduction in grade to forfeiture or withholding
of basic pay should ordinarily be exercised only within a reasonable time after the
punishment is executed. In the absence of unusual circumstances, three (3) months
is reasonable time. The amount of the forfeiture or withheld pay may not be greater
than the amount that could have been imposed initially under AW 105 by the officer
who imposed the punishment mitigated. Thus, if a commanding officer in grade
below Lieutenant Colonel or Commander imposes a reduction in grade and it is later
mitigated by him or superior competent authority, the maximum mitigated
punishment would be one-half (1/2) of one (1) month’s basic pay for forfeiture or
one-half (1/2) of one (1) month’s basic pay per month for three (3) months for
withholding (See para 7b).

(2) Restriction may not be mitigated to a lesser period of

other punishment in the nature of deprivation of liberty, such as correctional custody
or extra duties, for restriction in the least severe form of deprivation of liberty.

e. Setting Aside Punishments and Restoration of Rights, etc. –

(1) The power to set aside punishment and restore rights,

privileges, and property affected by the executed portion of a punishment should
ordinarily be exercised only when the authority considering the case believes that,
under all the circumstances of the case, the punishment has resulted in a clear
injustice.

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(2) Also, the power to set aside an executed punishment

should be exercised only within a reasonable time after the punishment has been
executed. In the absence of unusual circumstances, three (3) months is a reasonable
time.

f. Application for Suspension, Mitigation, etc - An application

for suspension, mitigation, remission, or setting aside of the punishment, in a whole
or in part, not made within a reasonable time may be rejected by the authority to
whom the application is made. An application made more than 15 days after the
punishment was imposed, in the absence of unusual or special circumstances, may be
considered as not having been made within reasonable time.

10. APPEALS. –

a. Appeal to Next Superior Authority - A person punished under

authority of AW 105 who deems his punishment unjust or disproportionate to the
offense may, through channels, appeal to the next superior authority, but in the
meantime be required to undergo the punishment adjudged. In the absence of
unusual circumstances, an appeal made more than 30 days after the punishment was
imposed may be considered as not having been made within a reasonable time.
Authority “superior” to a particular commanding officer is the authority normally
superior in the chain of command. When the punishment has been imposed under a
delegation of the commander’ punishment (See para 4c), the appeal will not be
directed to that commander.

b. Contents of Appeal - Appeals will be in writing through

proper channels and will include a brief signed statement of the reasons for regarding
the punishment as unjust or necessary. Include with the appeal a copy of the record
of the case.

c. Referral of Case to Judge Advocate Legal Officer for

Consideration and Advice -

(1) The superior authority shall, before acting on an appeal

from any punishment involving –

(a) arrest in quarters for more than 10 days;

(b) correctional custody for more than 10 days;

(c) forfeiture of basic pay for more than 7 day’s

pay;

(d) reduction of one (1) or more pay grades from

the fourth or higher pay grade;

(e) extra duties for more than 15 consecutive days;

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(f) restriction for more than 15 consecutive days;

(g) detention or withholding of basic pay for more

than 15 days; refer the case to his judge advocate or legal officer for consideration
and advice, and may so refer the case upon appeal from any punishment imposed
under AW 105.
(2) If the superior authority has no judge advocate or legal
officer serving on his staff, he shall refer the case for action to a superior authority
who has a judge advocate or legal officer serving on his staff.

(3) In considering the case, the judge advocate or legal

officer is not limited to an examination of any written comprising the record of
proceedings and may make inquiries he determines to be desirables.

b. Power of Superior Authority -

(1) In passing upon appeals, the superior authority will

ordinarily hear no witnesses. He may exercise the same powers with respect to the
punishment imposed as may be exercised under AW 105 by the officer who imposed
the punishment or his successor in command. Thus, under the conditions set forth in
paragraphs 7 and 9, he may suspend, remit, mitigate, or set aside in whole or in part
the punishment imposed.

(2) Whether or not an appeal has been made from the

punishment, any superior authority may exercise the same powers as may be
exercised by the officer who imposed the punishment or his successor in command
under paragraphs 7 and 9.
c. Notification to Appellant of Disposition of Appeal - After
having considered the appeal, the superior authority will transmit the papers, through
proper channels, to the appellant’s immediate commanding officer with a direction to
inform the appellant of the disposition of the appeal.

11. ADMINISTRATIVE AND PENAL SANCTIONS. –

a. Administrative Sanctions -

(1) Non-promotable status of officer - Any officer meted

punishment under AW 105 by a commanding officer exercising general court-
martial jurisdiction or by a general or flag rank in command shall automatically be
considered on non-promotable status for a period of one (1) year from the date of
imposition of the punishment.

(2) Ground for deferment from promotion - The

imposition by a commanding officer exercising general court-martial jurisdiction or
by a general or flag rank in command of three (3) or more disciplinary punishments
under AW 105 during the three (5) years next preceding the consideration for

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promotion of an officer shall constitute a ground for deferment from promotion of

that officer.

(3) Non-promotable status of enlisted person - Any

enlisted person meted punishment under AW 105 by a commanding officer in the
grade of Lieutenant Colonel/Commander or above shall automatically be considered
on non-promotable status for a period of one (1) year from the date of the imposition
of punishment.

b. Penal Sanctions - Any commanding officer who -

(1) refuses to act or delays action on a valid complaint

against a person under his command; or

(2) refuses or delays to impose a disciplinary punishment

under AW 105 when warranted by the evidence; or

(3) otherwise aids or abets the wrongdoing of a

subordinates;

shall be subject to action under AW 105 by his immediate superior officer, or

punished as a court-martial may direct.

12. RESCISSION. - Circular Nr 40, GHQ AFP, dated 28 June 1972, is

hereby rescinded.

13. EFFECTIVITY. - This Circular shall take effect as of 24 February

1985 (15 days after date of publication of Executive Order Nr 1005 in the Official
Gazette).
BY ORDER OF THE DEFENSE MINISTER:

OFFICIAL FIDEL V RAMOS

General, AFP
Chief of Staff

(SGD) JULIAN M MAALA

Colonel, PC (GSC)
Acting The Adjutant General

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