Implementing Rules and Regulations of Republic Act No. 10882

August 8, 2018

IMPLEMENTING RULES AND REGULATIONS OF REPUBLIC ACT NO. 10882, OTHERWISE KNOWN AS "AN ACT EXEMPTING SURVIVING CHILDREN OF MILITARY PERSONNEL WHO ARE MENTALLY INCAPACITATED FROM TERMINATION OF BENEFITS UPON REACHING THE AGE OF TWENTY-ONE (21), AMENDING SECTION 25 OF PD NO. 1638 OTHERWISE KNOWN AS THE AFP MILITARY PERSONNEL RETIREMENT AND SEPARATION DECREE OF 1979, AS AMENDED"

RULE I

Title, Purpose and Construction

SECTION 1. Title. — These rules and regulations shall be known as the Implementing Rules and Regulations (IRR) of Republic Act No. 10882 known as the AFP Derivative Retirement Pension for Mentally Incapacitated Children/Survivors Act of 2016, or the "Rules."

SECTION 2. Purpose. — These Implementing Rules and Regulations (IRR) is promulgated to prescribe the procedures and guidelines for the implementation of Republic Act No. 10882, herein referred to as the "Act," in order to facilitate compliance therewith and to achieve the objective of providing for the exemption from the termination of benefits of surviving children who are mentally incapacitated and certified by an AFP Medical Board to be incapable of employment upon attaining the age of twenty-one (21) years or upon marriage.

SECTION 3. Construction. — This IRR shall be construed and applied in accordance with and in furtherance of the objective of the law. In case of doubt, the same shall be construed liberally and in favor of the mentally incapacitated surviving children of military personnel.

RULE II

Definition of Terms

SECTION 4. Definition of Terms. — For purposes of these Rules, these terms are defined as follows:

a. Act. Refers to RA 10882 otherwise known as "An Act Exempting Surviving Children of Military Personnel who are Mentally Incapacitated from Termination of Benefits Upon Reaching the Age of Twenty-One (21), amending for the Purpose Section 25 of Presidential Decree Numbered Sixteen Hundred and Thirty-Eight, Otherwise Known as the AFP Military Personnel Retirement and Separation Decree of 1979, as amended.

b. Affidavit of Guardianship. A sworn statement of guardian, who is of legal age, sound mind, and not convicted of any crime or offense involving moral turpitude, attesting that the child of the deceased military personnel is under his/her actual care and custody.

c. Affidavit of Undertaking by the Legal Guardian/Attorney-in-Fact. A sworn statement obliging himself/herself:

1. To update the AFPPGMC of the living status of the AFP pensioner once a year;

2. To hold and manage the AFP pensioner's Passbook or AFP pension bank account of his award for the latter's exclusive benefit; and

3. To notify immediately the AFPPGMC of the AFP pensioner's condition and exact whereabouts in case of any untoward incident that happened to the AFP pensioner.

d. AFP Mental Health Board. An AFP unit duly created pursuant to the mandate of RA 10882 having the sole authority to issue Medical Board Certification for the mentally incapacitated child of deceased military personnel applying for a derivative pension.

e. Barangay or DSWD Certificate of Guardianship. A document duly issued either by the Offices of Barangay or the Department of Social Welfare and Development attesting that the child being applied for derivative pension under the RA 10882 is under the care and custody of a person, specifically named therein, who are both residing within its jurisdiction.

f. Certificate of Mental Incapacity and Incapable of Employment (CMIIE). A document duly issued by the AFP Mental Health Board attesting that the child is suffering from mental incapacity and is incapable of employment.

g. Derivative Pension. The monthly annuity equivalent to seventy-five percent (75%) of the monthly retirement pay of the retired or separated military personnel with Complete Disability Discharge (CDD) or fifty per centum (50%) of base and longevity pay of the retired or separated military personnel who died in line of duty.

h. Letter of Guardianship. A document duly issued by the regular court or the Office of the Judge Advocate General (OTJAG), AFP appointing a person of legal age, sound mind, gainfully employed and not convicted of any crime or offense involving moral turpitude to take care of the AFP pensioner — with mental incapacity, and take possession and management of the latter's pension account.

i. Local Civil Registrar (LRC). Refers to the Municipal or City Civil Registrar. AaCTcI

j. Mental Incapacity. A long-term mental, intellectual or sensory impairments wherein interaction with various barriers may hinder full and effective participation in society on an equal basis with others, and results to one's incapacity for employment. For purposes of these Rules and Regulations, children with mental incapacity shall be certified by the AFP Mental Health Board through an issuance.

k. MTF. Refers to Military Treatment Facilities.

l. OTJAG. Refers to the Office of the Judge Advocate General, AFP.

m. OTSG. Refers to the Office of the Surgeon General, AFP.

n. PGMC. Office of the Pension and Gratuity Management Center, AFP.

o. PSA. Refers to the Office of the Philippine Statistics Authority.

p. PUF. Refers to the AFP Pensioner's Update Form completely filled-up by the AFP pensioner or person applying for derivative pension.

q. Surviving-child with mental incapacity (SCMI), in order to qualify for the benefits provided by RA 10882, shall refer to any person born of deceased parent military personnel whose marriage was contracted prior to retirement/separation from the active service, including children, adopted or acknowledged, legitimated, while deceased parents was still on active military service.

RULE III

Policies and Objectives

SECTION 5. Policies. — It is the declared policy of the State that the survivor of a military personnel retired and/or separated under the provisions of PD 1638 shall receive derivative pension upon the decease of the principal pensioner. Further, surviving children of an officer or enlisted man born of his marriage contracted prior to his/her retirement/separation from the service, and children, adapted or acknowledged, while the deceased parent was still on active military service will continue to receive the derivative pension even after reaching the age of 21 or getting married provided that said child is certified by an AFP Mental Health Board to have mental incapacity and is incapable of employment.

Towards this end, the mentally incapacitated child of a military personnel, who is certified by the AFP Mental Health Board as incapable of employment, is given the right to continuously receive lifetime pension, even after attaining the age of 21 or gets married.

SECTION 6. Objectives. —

a. To provide with a lifetime receipt of derivative pension a military personnel's mentally incapacitated child who is incapable of employment even after reaching the age of 21 or after getting married.

b. To protect the right of the mentally incapacitated child for a continuous support from government through his/her lifetime receipt of the derivative pension.

c. To create an AFP Mental Health Board as the AFP Medical Board that will certify that the child of the military personnel is mentally incapacitated and is incapable of employment.

d. To ensure immediate grant of benefit to the SCMI by requiring from the guardian of the SCMI the least number of documentary requirements prior to the non-cancellation of benefit after reaching the age of 21 or getting married.

RULE IV

Derivative Retirement Pension

SECTION 7. Exemption from termination of receipt of survivorship benefits by a surviving child with mental incapacity.

To avail of continued entitlement to survivorship benefits under the law, a surviving child with mental incapacity (SCMI) who had attained twenty-one (21) years of age must be certified by the AFP Mental Health Board to be mentally incapacitated and incapable of employment subject to the provisions of these Rules.

SECTION 8. Procedure on the Processing of Request for Exemption. —

For purposes of entitlement of SCMI certified as an incapable of gainful employment by the AFP Mental Health Board for purposes of continued receipt of survivorship benefit even beyond 21 years of age, the following procedure shall be followed:

a. The SCMI, duly assisted by the surviving parent, if still alive, or in default, by any person designated as guardian by the court or by TJAG, AFP with corresponding Letters of Guardianship, following the order of preference as prescribed in these Rules, shall file a request for evaluation/re-evaluation with the AFP Mental Health Board.

b. Within ten (10) days from receipt of the request, the Board shall conduct an evaluation/re-evaluation to determine whether or not the survivor child is capable of employment.

c. Upon findings of the Board that the survivor child is incapable of employment, a CMIIE to receive benefits shall be issued attesting such incapacity and the eligibility to avail of the benefits under the Act.

d. When the survivor child is found to be mentally capacitated and capable of employment, a Certificate of Disqualification shall be issued by the Board and entitlement to benefit under Presidential Decree (PD) No. 1638, as amended, shall be terminated upon reaching the age of 21 years old or upon contracting marriage.

e. The Board shall furnish copies of CMIIE or Certificate of Disqualification, as the case may be, to the AFP PGMC and to the SCMI, through his/her parent or guardian.

RULE V

The Legal Guardian/Attorney-in-Fact

SECTION 9. Appointment of Guardian for SCMI. —

a. JUDICIAL GUARDIANSHIP AFTER THE DEATH OF THE RETIREE.

As a general rule, legal guardianship belongs to the surviving father or mother of the SCMI unless for good reasons the court, upon filing of a petition, appoints another suitable person as judicial guardian instead of the surviving parent for one who has been declared or adjudged as incompetent.

In default of parents or a judicially appointed guardian, the appointment of a judicial guardian if it becomes necessary follows an order or preference prescribed by law, to wit:

1. The surviving grandparent;

2. The oldest brother or sister, over twenty-one years of age unless unfit or disqualified;

3. The child's actual custodian, over twenty-one years of age, unless unfit or disqualified.

b. APPOINTMENT OF GUARDIAN BY TJAG, AFP AFTER THE DEATH OF A RETIREE.

In case of legal heirs who are incompetent, The Judge Advocate General, AFP is empowered to appoint the best qualified person as guardian and who shall discharge the duties in accordance with his instructions and orders.

For this purpose, the widow/widower, as the case may be, or in the case of her/his inability, the eldest child, if of age, shall be given preference in the appointment of guardian.

c. GUARDIANSHIP OF SCMI DURING THE LIFETIME OF A PARENT-RETIREE.

During the lifetime of a retired military personnel who is a parent of an SCMI, the retiree, upon a petition made and subject to probate by TJAG, may execute a will covering the receipt of derivative retirement benefits in the event subject retiree predeceases the SCMI. For this purpose, the pertinent procedure under the Section 9 of Republic Act No. 136 shall be observed.

SECTION 10. Qualification of the Guardian. — The guardian should be of legal age, sound mind, gainfully employed and not convicted of any crime or offense involving moral turpitude. In addition, OTJAG, in appointing a guardian shall consider the guardian's:

a. moral character;

b. physical, mental and psychological condition;

c. financial status;

d. relationship of trust with the minor;

e. availability to exercise the powers and duties of a guardian for the full period of the guardianship;

f. lack of conflict of interest with the minor; and

g. ability to manage the property of the minor.

SECTION 11. Function of the Legal Guardian. —

a. Update the AFPPGMC of the living status of the AFP pensioner once a year specifically within two (2) months prior to the birth month and birth day of SCMI every year.

b. Hold and manage the AFP pensioner's passbook or AFP pension bank account from a Government Servicing Bank of his ward for the latter's exclusive benefit.

c. Notify immediately the AFPPGMC of the AFP pensioner's condition and exact whereabouts in case of any untoward incident that happened to the AFP pensioner.

d. Notify AFPPGMC of the death of his/her ward within three (3) days from the date of death.

e. When monthly pension of the ward pensioner is insufficient to maintain and educate the ward, the guardian shall present to the AFP, through the AFPPGMC, a written request for issuance of Certificate of Approval authorizing its encumbrance, provided that 50 percent of pension will be retained.

f. Resign when it appear proper. Upon approval of his resignation or removal, OTJAG, may appoint another in his/her place.

g. Apply for the continuation of pension of the SCMI before termination of benefits by reason of reaching the age of 21 or getting married to avoid termination benefits.

SECTION 12. Sworn Statement. — The legal guardian should execute a sworn statement obliging himself/herself compliance to the above functions.

RULE VI

The Judge Advocate General, AFP

SECTION 13. Functions. —

a. Issue declaration of legal beneficiary upon proper and thorough review of documents presented/submitted.

b. Validate or determine the qualification of the legal guardian of the SCMI.

c. Require the guardian to sign an Affidavit of Undertaking by the Legal Guardian/Attorney-in-fact, obliging himself/herself prompt compliance to the functions of the legal guardian.

d. Issue the "Letter of Guardianship" after signature of the guardian on the "Affidavit of Undertaking by the Legal Guardian/Attorney-in-Fact."

e. Nullify "Letter of Guardianship" in case the guardian is unable or unfit to perform his/her duty.

f. Require other documents as necessary in order to facilitate the issuance of above documents such as, but not limited to, the following documents:

1. Barangay or DSWD Certificate of Guardianship and another one (1) authenticated copy of the same.

2. Judicial Decree of Adoption in case of adopted child and another one (1) authenticated copy of the same, in case the child applied for derivative pension is adopted by the deceased parent military personnel.

3. Other proof of acknowledgement of filial/maternal relationship of a parent deceased military personnel such as, but not limited to, their pictures, letter of communications, baptismal certificate, school, medical, or hospital records, as may be required by the AFPPGMC.

RULE VII

The AFP Pension and Gratuity

SECTION 14. Function of the AFP Pension and Gratuity Management Center. —

a. Upon receipt of the documentary requirements for derivative pension of children who, by reason of their mental incapacity, are certified by the AFP Mental Health Board to be incapable of employment, shall process the documents in accordance with the provisions on processing of derivative pension due the beneficiary of deceased military personnel on the DND Circular 04 dated 30 September 2014.

b. Application of SCMI shall be treated by the PGMC a priority in the processing of claims among the rest of survivors.

c. Direct the Satellite offices to provide necessary assistance to the surviving children through his/her guardian in facilitating the availability of documents required to process the non-termination of the benefits of the mentally incapacitated surviving child.

d. Develop a monitoring scheme to secure relevant and up-to-date information on the progress of the enforcement of this policy.

e. Send letter to the Chairperson of the AFP Mental Health Board requesting for the determination of the mental well-being of the child candidate for derivative pension under RA 10882 and issuance of the CMIIE in behalf of the child applicant if found qualified. If available, following documents should be attached to the letter to the AFPMHB:

1. Psychiatric report from attending psychiatrist containing the following:

1.1. Psychological Report

1.2. Developmental Assessment

1.3. Life Skills Inventory

2. Medical certificate from the attending psychiatrist or from the CO of the MTF.

f. Endorse to TJAG necessary documents of the child candidate for derivative pension under RA 10882 as reference in TJAG's issuance of the "Letter of Guardianship" and "Declaration of Legal Beneficiary" (if necessary).

SECTION 15. AFPPGMC Satellite Offices. — Provide necessary assistance to the applicants or derivative pensions under RA 10882.

SECTION 16. Proof of Entitlement. — The following requirements shall be acquired/required by PGMC in order to process the claims of the SCMI:

a. For a child with mental incapacity who is already receiving derivative pension whose military parent died during the effectivity of RA 10882.

1. Certification from the AFP Mental Health Board that the child is mentally incapacitated and incapable of employment.

2. Letter of Guardianship.

b. For a child with mental incapacity, that will be receiving his/her first derivative pension, whose military parent died during the effectivity of RA 10882.

1. If declared as legal beneficiary prior to the retirement of the principal.

1.1. Declaration of legal beneficiary

1.2. Original Copy of the Certificate of Death, with Official Receipt duly issued by the Local Civil Registrar or the PSA, of the deceased military personnel and another one (1) authenticated copy of the same. (From guardian)

1.3. Original copy of the AFP Mental Health Board Certification and another one (1) authenticated copy of the same.

1.4. "Letter of Guardianship" issued by TJAG.

2. If not declared as legal beneficiary prior to the retirement of the principal pensioner.

2.1. Original copy of the AFP Mental Health Board Certification and another one (1) authenticated copy of the same.

2.2. Requirements for transfer of pension as prescribed in the DND Circular No. 4 dated 30 September 2014 with Subject: Managing and Processing of Retirement and Separation of Military Personnel and Transfer of Pension Benefits in the Armed Forces of the Philippines.

RULE VIII

The AFP Mental Health Board

SECTION 17. Creation of the AFP Mental Health Board. — The AFP should create a Mental Health Board to certify that the surviving child is mentally incapacitated and is incapable of employment. The Board shall be called the AFP Mental Health Board.

SECTION 18. Composition of the AFP Mental Health Board. — The AFP Mental Health Board shall be composed of at least five (5) but not more than seven (7) members and a Secretary, duly appointed by the Deputy Chief of Staff for Personnel, J1 as recommended by The Surgeon General (TSG), AFP. There shall be a Chairperson, Assistant Chairperson, and voting members in the Board. The Surgeon General could further recommend alternate members as necessary.

Chairperson, should at least be with the rank of O6 and is a Military Doctor from the V-Luna General Hospital of the AFP Health Service Command.

Members should include the Department Head of the Department of Mental Health and Behavioral Science (DMHBS) of the V-Luna General Hospital and other Medical Specialists as determined by TSG.

SECTION 19. Function of the AFP Mental Health Board. —

a. Determine the mental incapacity leading to incapability for employment of survivor child.

b. Upon determination of the mental incapacity and incapability of employment of the child of deceased parent military personnel, in its regular session, issue a "Certificate of Mental Incapacity and Incapable of Employment," duly signed by the Chairperson and members.

c. Transmit the issued certificate to PGMC, 10 days upon receipt of complete documents necessary for evaluation. SDHTEC

d. Re-evaluate the physical and mental status of the surviving child every five (5) years to determine the need for the continuation of the receipt of the derivative pension.

e. Disqualify applicants to receive pension if the mental incapacity is due to the intentional use and abuse of regulated or prohibited substances like drugs and liquor.

SECTION 20. Office Address of the AFP Mental Health Board. — The members of the Board shall hold their regular session at the Victoriano Luna General Hospital, AFPHSC, V. Luna Avenue, Quezon City.

SECTION 21. Schedule of the Session. — The AFP Mental Health Board should meet at least once every month for determination of the mental incapacity and incapability of employment of the child of the deceased military personnel of the first time applicants; and, to re-evaluate the mental status of the SCMI five (5) years after their first issuance of the certification, and every after five (5) years thereon.

SECTION 22. Quorum Requirement. — No certification shall be issued for the SCMI unless said certificate is duly approved by at least 50 percent plus one of the voting member of the Board.

RULE IX

The Military Treatment Facilities

For purposes of accommodating applicants outside Metro Manila who finds difficulty in appearing to the AFP Mental Health Board which Office is located at the V. Luna General Hospital, AFP HSC, the guardian of the SCMI may apply and submit documentary requirements at the nearest Military Treatment Facilities from his/her and SCMI's residence.

SECTION 23. Functions of the Military Treatment Facilities. —

a. Recommend to the AFP Mental Health Board the issuance of Certificate of Mental Incapacity and Incapable of Employment of the SCMI.

b. Transmit through the fastest means to the AFPMHB the recommendation for issuance of the required certificate with the following original documents as attachments:

1. Psychiatric report from attending psychiatrist containing the following:

1.1. Psychological Report

1.2. Developmental Assessment Life Skills Inventory

2. Medical certificate from the attending psychiatrist or from the CO of the MTF.

c. Attest that the requirements attached to the recommendation for the AFP Mental Health Board for the issuance of the certificate are genuine, duly signed and issued by a person who has legal authority to conduct such evaluation.

RULE X

Office of the Adjutant General, AFP

SECTION 24. Now Current Records Division, OTAG. — The Non-Current Records Division (NRD) of OTAG as the repository of documents of the retired/separated military personnel should provide necessary documents to facilitate the processing of the termination of the benefits of the SCMI.

RULE XI

Monitoring and Reporting

SECTION 25. Monitoring. — The AFPPGMC shall monitor the following:

a. Implementation of these Implementing Rules and Regulations to ensure that SCMI enjoys receiving and is truly benefitted by the lifetime derivative pension provided by the law. A monitoring scheme shall be developed by the AFPPGMC to secure relevant and up-to-date information on the progress of its enforcement.

b. When the guardian becomes incapable of discharging his/her duties due to loss of trust and confidence or if unsuitable due to sickness, mental incapacity, illness and/or convicted of a crime involving moral turpitude, or has wasted the monthly pension.

SECTION 26. Reporting. — The AFPPGMC should report result of monitoring to OTJAG as reference in the nullification of the "Letter of Guardianship."

SECTION 27. Appointment of a New Guardian. — The OTJAG, upon reasonable notice shall nullify the duty of the guardian, remove and compel the latter to surrender the passbook of the ward pensioner.

A new guardian should be appointed by the OTJAG through the issuance of a new "Letter of Guardianship."

RULE XII

Effectivity

SECTION 28. Effectivity. — These Rules and Regulations shall take effect fifteen (15) days after its complete publication in at least two (2) national newspapers of general circulation and submission to the Office of the National Administrative Register, Law Center, University of the Philippines.

Signed on "________" 2018 at Quezon City.

DELFIN N. LORENZANASecretary

Published in the Official Gazette, Vol. 114, No. 30, Page 5197 on July 23, 2018.