Letter to a Lawyer

Dear Attorney,

Good evening. I hope this message finds you well. I am writing to seek legal advice regarding a concern involving an AWOL (Absent Without Official Leave) soldier who intends to apply for an NBI (National Bureau of Investigation) clearance.

Would such an individual be eligible to obtain an NBI clearance given their status? What potential legal complications or issues might arise from this, and are there any steps that can be taken to address them beforehand?

I appreciate your time and expertise in this matter and look forward to your guidance.

Sincerely,
A Concerned Citizen

Legal Considerations: NBI Clearance for AWOL Soldiers in the Philippines

Introduction
The issue of whether an AWOL soldier can obtain an NBI clearance is complex, as it involves the intersection of military laws, administrative regulations, and the mandate of the NBI. In this article, we will explore the legal framework governing this situation, clarify the requirements for securing an NBI clearance, and outline potential implications for AWOL personnel.

What is AWOL Under Philippine Law?

Definition of AWOL
A soldier is considered AWOL when they are absent from their post or duties without official authorization. Under the Armed Forces of the Philippines (AFP) regulations, AWOL is a serious administrative offense and may also constitute a criminal offense under the Articles of War or the Revised Penal Code.
Legal Consequences of AWOL
- Administrative Sanctions: These may include dismissal from service, forfeiture of benefits, and other penalties under AFP regulations.
- Criminal Liability: AWOL may lead to charges such as desertion or abandonment of duty, punishable under Articles 85 and 86 of the Articles of War.
Discharge Status:
A soldier who goes AWOL may eventually be issued a dishonorable discharge, which can have long-term implications on their legal status and ability to seek employment.

What is NBI Clearance?

The NBI Clearance is a document issued by the National Bureau of Investigation certifying that the holder has no pending criminal record or derogatory information in the agency's database. It is commonly required for employment, travel, or other official purposes.

Eligibility Requirements for NBI Clearance
- Personal identification documents (e.g., birth certificate, government-issued IDs).
- Biometric data for verification purposes.
Screening Process
Applicants are screened against the NBI's database of criminal records, pending cases, and warrants of arrest.

Can an AWOL Soldier Obtain an NBI Clearance?

No Active Criminal Case or Warrant
If the AWOL soldier does not have a criminal case or warrant of arrest filed against them, they may pass the NBI clearance process. The absence of derogatory records in the NBI database is the key factor for eligibility.
Pending Cases
If the soldier is facing an active case or warrant related to their AWOL status, the application will likely be flagged. The NBI clearance may be denied until the case is resolved.
Military Records vs. NBI Records
Military records, including AWOL status, are not automatically shared with the NBI unless there is a pending criminal case referred by the AFP or the Department of Justice (DOJ).

Steps an AWOL Soldier Can Take

Verify Legal Status
- Check with the AFP's legal office for any pending administrative or criminal cases.
- Consult with a military lawyer to assess liabilities.
Resolve Pending Cases
- Address any warrants or cases related to AWOL status through legal representation.
- Comply with military requirements or negotiate terms of discharge, if applicable.
Apply for NBI Clearance
Once cleared of legal issues, proceed with the standard application process. Ensure all identification documents are in order and that no derogatory records remain in the database.

Legal Risks and Challenges

Flagging in NBI Database
An AWOL soldier flagged in the database may face delays or denial of clearance. This can occur if the AFP refers a criminal case to the DOJ, which then enters the information into the NBI system.
Potential Arrest
Applying for NBI clearance while an active warrant exists can expose the individual to arrest. It is crucial to resolve all outstanding cases before applying.
Long-Term Employment Consequences
Even if an NBI clearance is obtained, a dishonorable discharge from military service may be a disadvantage in private sector employment, especially for roles requiring high trust.

Key Philippine Legal Provisions

Articles of War: Articles 85 and 86 outline the offenses of desertion and abandonment.
Revised Penal Code: Relevant provisions may apply if AWOL involves criminal acts such as insubordination or dereliction of duty.
AFP Regulations: Internal rules govern administrative actions against personnel.
Republic Act No. 9165: The NBI clearance process must comply with the Data Privacy Act, ensuring fair handling of personal data.

Conclusion

An AWOL soldier seeking an NBI clearance must carefully assess their legal status. While an NBI clearance is possible if there are no pending criminal cases or warrants, unresolved issues may lead to complications or outright denial. Legal counsel is highly recommended to navigate the process and address any liabilities.

For AWOL personnel considering their options, addressing pending cases and clarifying their status with the AFP and the NBI are critical steps toward moving forward.