Fleeing or Fugitive Felon Status and VA

This is one of the situations that you must handle for yourself. Veterans Service Officers usually don't have a clue of what to do. Most attorneys have never heard of this. If you read this page very carefully and you use the tips you'll find here, you can probably fix this for yourself in record time.

Dear Jim,

On November 7, 2007 I was notified by VARO Providence I had been in Fugitive Felon status since December 27th, 2001. In July of 2008, I was fortunate in retaining an attorney (w/o fee) to represent me on appeal. This attorney is a public defender who I found by visiting my local court.

I had turned to VA Watchdog dot Org for instructions. In August 2010 an order of nunc pro tunc was prepared by my public defender and handed down by a Taunton, MA District Court judge. I forwarded this to the VA Regional Office immediately.

I am now in receipt of a letter (01-25-11) notifying me of a favorable decision by a DRO's findings in a Fugitive Felon case dating back to mid-1998.

Again I offer my most sincere thanks for your good works at VAWatchdog dot Org.

Signed

A Grateful Veteran

You get a letter from VA telling you they're taking a lot of money from you. Now what?

You may have received a letter telling you that VA proposes to take back some of the benefit money paid to you because you've been identified as a fugitive (or fleeing) felon.

This usually happens because at some time in the past, you were accused of a crime and a warrant was issued for your arrest.

You may not have known about the warrant. In many cases the warrant isn't executed by the authorities or the veteran changes addresses and the whole thing is put aside and forgotten. Unfortunately, it isn't officially resolved and the warrant may remain valid for years.

The law says that the VA can not pay you your benefit while you have an open warrant. Once they discover the warrant they want that money back. This is a complex and tricky problem when it comes up at VA. Even if you have the warrant quashed, VA will continue to want to take back all the money they paid you while the warrant was open.

Now that you understand your status as a fleeing felon, you have work to do.

We'll assume that as in most instances, the court has no interest in pursuing this or to try to have you extradited for appearance. Many of these warrants are for minor drug possession charges or other crimes so common and ordinary that the authority issuing the warrant has no interest in pursuing you months or years later. Your VA will not care about any of that.

The following must be done by you. If you don't do this, I know of no other help available for you.

You must find a friendly Public Defender or retain a lawyer in the court that the warrant is issued from.

You do not need to hire a "veterans attorney". Almost any attorney who is familiar with the court that the warrant was issued from will be able to handle this procedure for you. A public defender will not charge you for the help.

A private attorney is likely to seek a fee that must be paid in advance.

You may also speak with the clerk of court to ask about the court's procedure for you to seek a pro se appearance before a judge who may help you.

You must ask the PD or your lawyer to move the judge to quash the warrant nunc pro tunc to 1/1/2001.

That's it. As simple as can be. It's only complex if you don't do that stuff above.

Nunc pro tunc is a common legal term, Latin for "now for then." Refers to acts done after the time they should have been done, but given retroactive effect.

Nunc Pro Tunc

Nunc Pro Tunc defined here.

You can explain a little background on why quashing needs to be nunc pro tunc to early date so that the PD can explain to the judge.  

Pretty simple, VA views that any period after enactment of the governing statute (The fugitive felon statute became effective in 2002, but why not have a little margin?) when a warrant was effective is counted against the vet, whether or not he knew about it or could do anything about it (as in your case).  

Any quashing that does not work retroactive still allows VA to keep any withheld funds and generally give you a hard time.

This is usually a very informal matter that any lawyer or PD can take care of for you.

Once you have that order quashing the warrant effective 1/1/2001, have some certified copies made and give one to the SSA folks and if and when VA raises the issue, have one for them.

That should do it. This is the only effective way I'm aware of to deal with the fleeing felon rules.

Title 38: Pensions, Bonuses, and Veterans' Relief
PART 3—ADJUDICATION
Adjustments and Resumptions

§ 3.665   Incarcerated beneficiaries and fugitive felons—compensation.

(a) General. Any person specified in paragraph (c) of this section who is incarcerated in a Federal, State or local penal institution in excess of 60 days for conviction of a felony will not be paid compensation or dependency and indemnity compensation (DIC) in excess of the amount specified in paragraph (d) of this section beginning on the 61st day of incarceration. VA will inform a person whose benefits are subject to this reduction of the rights of the person's dependents to an apportionment while the person is incarcerated, and the conditions under which payments to the person may be resumed upon release from incarceration. In addition, VA will also notify the person's dependents of their right to an apportionment if the VA is aware of their existence and can obtain their addresses. However, no apportionment will be made if the veteran or the dependent is a fugitive felon as defined in paragraph (n) of this section.

(b) Definitions. For the purposes of this section the term compensation includes disability compensation under 38 U.S.C. 1151. The term dependency and indemnity compensation (DIC) includes death compensation payable under 38 U.S.C. 1121 or 1141, death compensation and DIC payable under 38 U.S.C. 1151, and any benefit payable under chapter 13 of title 38, United States Code. The term release from incarceration includes participation in a work release or halfway house program, parole, and completion of sentence. For purposes of this section, a felony is any offense punishable by death or imprisonment for a term exceeding 1 year, unless specifically categorized as a misdemeanor under the law of the prosecuting jurisdiction.

(c) Applicability. The provisions of paragraph (a) of this section are applicable to the following persons:

(1) A person serving a period of incarceration for conviction of a felony committed after October 7, 1980.

(2) A person serving a period of incarceration after September 30, 1980 (regardless of when the felony was committed) when the following conditions are met:

(i) The person was incarcerated on October 1, 1980; and

(ii) An award of compensation or DIC is approved after September 30, 1980.

(3) A veteran who, on October 7, 1980, was incarcerated in a Federal, State, or local penal institution for a felony committed before that date, and who remains so incarcerated for a conviction of that felony as of December 27, 2001.

(d) Amount payable during incarceration—(1) Veteran rated 20 percent or more. A veteran to whom the provisions of paragraphs (a) and (c) of this section apply with a service-connected disability evaluation of 20 percent or more shall receive the rate of compensation payable under 38 U.S.C. 1114(a).

(2) Veteran rated less than 20 percent. A veteran to whom the provisions of paragraphs (a) and (c) of this section apply with a service-connected disability evaluation of less than 20 percent (even though the rate for 38 U.S.C. 1114 (k) or (q) is paid) shall receive one-half the rate of compensation payable under 38 U.S.C. 1114(a).

(3) Surviving spouse, parent or child. A surviving spouse, parent, or child, beneficiary to whom the provisions of paragraphs (a) and (c) of this section apply shall receive one-half the rate of compensation payable under 38 U.S.C. 1114(a).

(e) Apportionment—(1) Compensation. All or part of the compensation not paid to an incarcerated veteran may be apportioned to the veteran's spouse, child or children and dependent parents on the basis of individual need. In determining individual need consideration shall be given to such factors as the apportionee claimant's income and living expenses, the amount of compensation available to be apportioned, the needs and living expenses of other apportionee claimants as well as any special needs, if any, of all apportionee claimants.

(2) DIC. All or part of the DIC not paid to an incarcerated surviving spouse or other children not in the surviving spouse's custody may be apportioned to another child or children. All or part of the DIC not paid to an incarcerated child may be apportioned to the surviving spouse or other children. These apportionments shall be made on the basis of individual need giving consideration to the factors set forth in paragraph (e)(1) of this section.

(f) Effective dates. An apportionment under this section shall be effective the date of reduction of payments made to the incarcerated person, subject to payments to the incarcerated person over the same period, if an informal claim is received within 1 year after notice to the incarcerated person as required by paragraph (a) of this section, and any necessary evidence is received within 1 year from the date of request by the Department of Veterans Affairs; otherwise, payments may not be made for any period prior to the date of receipt of a new informal claim.

(g) Incarcerated dependent. No apportionment may be made to or on behalf of any person who is incarcerated in a Federal, State, or local penal institution for conviction of a felony.

(h) Notice to dependent for whom apportionment granted. A dependent for whom an apportionment is granted under this section shall be informed that the apportionment is subject to immediate discontinuance upon the incarcerated person's release or participation in a work release or halfway house program. A dependent shall also be informed that if the dependent and the incarcerated person do not live together when the incarcerated person is released (or participates in a work release or halfway house program) the dependent may submit a new claim for apportionment.

(i) Resumption upon release—(1) No apportionment or family reunited. If there was no apportionment at the time of release from incarceration, or if the released person is reunited with all dependents for whom an apportionment was granted, the released person's award shall be resumed the date of release from incarceration if the Department of Veterans Affairs receives notice of release within 1 year following release; otherwise the award shall be resumed the date of receipt of notice of release. If there was an apportionment award during incarceration, it shall be discontinued date of last payment to the apportionee upon receipt of notice of release of the incarcerated person. Payment to the released person shall then be resumed at the full rate from date of last payment to the apportionee. Payment to the released person from date of release to date of last payment to the apportionee shall be made at the rate which is the difference between the released person's full rate and the sum of (i) the rate that was payable to the apportionee and (ii) the rate payable during incarceration.

(2) Apportionment granted and family not reunited. If there was an apportionment granted during incarceration and the released person is not reunited with all dependents for whom an apportionment was granted, the released person's award shall be resumed as stated in paragraph (i)(1) of this section except that when the released person's award is resumed it shall not include any additional amount payable by reason of a dependent(s) not reunited with the released person. The award to this dependent(s) will then be reduced to the additional amount payable for the dependent(s).

(3) Apportionment to a dependent parent. An apportionment made to a dependent parent under this section cannot be continued beyond the veteran's release from incarceration unless the veteran is incompetent and the provisions of §3.452(c) (1) and (2) are for application. When a competent veteran is released from incarceration an apportionment made to a dependent parent shall be discontinued and the veteran's award resumed as provided in paragraph (i)(1) of this section.

(j) Increased compensation during incarceration—(1) General. The amount of any increased compensation awarded to an incarcerated veteran that results from other than a statutory rate increase may be subject to reduction due to incarceration. This applies to a veteran whose compensation is subject to reduction under paragraphs (a) and (c) of this section prior to approval of an award of increased compensation as well as to veteran whose compensation is not subject to reduction under paragraphs (a) and (c) of this section prior to approval of an award of increased compensation.

(2) Veteran subject to reduction under paragraphs (a) and (c) of this section. If prior to approval of an award of increased compensation the veteran's compensation was reduced under the provisions of paragraphs (a) and (c) of this section, the amount of the increase shall be reduced as follows if the veteran remains incarcerated:

(i) If the veteran's schedular evaluation is increased from 10 percent to 20 percent or greater, the amount payable to the veteran shall be increased from one-half the rate payable under 38 U.S.C. 1114(a) to the rate payable under section 1114(a).

(ii) If the veteran's schedular evaluation was 20 percent or more, none of the increased compensation shall be paid to the veteran while the veteran remains incarcerated.

(3) Veteran's compensation not subject to reduction under paragraphs (a) and (c) of this section prior to award of increased compensation. If prior to the approval of an award of increased compensation the veteran is incarcerated in a Federal, State, or local penal institution for conviction of a felony and the veteran's compensation was not reduced under the provisions of paragraphs (a) and (c) of this section, none of the increased compensation shall be paid to the veteran for periods after October 7, 1980, subject to the following conditions:

(i) The veteran remains incarcerated after October 7, 1980 in a Federal, State, or local penal institution for conviction of a felony; and

(ii) The award of increased compensation is approved after October 7, 1980. If the effective date of the increase is prior to October 8, 1980, the amount payable for periods prior to October 8, 1980, shall not be reduced.

(4) Apportionments. The amount of any increased compensation reduced under this paragraph may be apportioned as provided in paragraph (e) of this section.

(k) Retroactive awards. Whenever compensation or DIC is awarded to an incarcerated person any amounts due for periods prior to date of reduction under this section shall be paid to the incarcerated person.

(l) DIC parents. If two parents are both entitled to DIC and were living together prior to the time of the DIC payable to one parent was reduced due to incarceration, they shall be considered as two parents not living together for the purpose of determining entitlement to DIC.

(m) Conviction overturned on appeal. If a conviction is overturned on appeal, any compensation or DIC withheld under this section as a result of incarceration for such conviction (less the amount of any apportionment) shall be restored to the beneficiary.

(n) Fugitive felons. (1) Compensation is not payable on behalf of a veteran for any period during which he or she is a fugitive felon. Compensation or DIC is not payable on behalf of a dependent of a veteran for any period during which the veteran or the dependent is a fugitive felon.

(2) For purposes of this section, the term fugitive felon means a person who is a fugitive by reason of:

(i) Fleeing to avoid prosecution, or custody or confinement after conviction, for an offense, or an attempt to commit an offense, which is a felony under the laws of the place from which the person flees; or

(ii) Violating a condition of probation or parole imposed for commission of a felony under Federal or State law.

(3) For purposes of paragraph (n) of this section, the term felony includes a high misdemeanor under the laws of a State which characterizes as high misdemeanors offenses that would be felony offenses under Federal law.

(4) For purposes of paragraph (n) of this section, the term dependent means a spouse, surviving spouse, child, or dependent parent of a veteran.

TITLE 38 PART IV  CHAPTER 53 § 5313

§ 5313. Limitation on payment of compensation and dependency and indemnity compensation to persons incarcerated for conviction of a felony

(a)

(1) To the extent provided in subsection (d) of this section, any person who is entitled to compensation or to dependency and indemnity compensation and who is incarcerated in a Federal, State, local, or other penal institution or correctional facility for a period in excess of sixty days for conviction of a felony shall not be paid such compensation or dependency and indemnity compensation, for the period beginning on the sixty-first day of such incarceration and ending on the day such incarceration ends, in an amount that exceeds—

(A) in the case of a veteran with a service-connected disability rated at 20 percent or more, the rate of compensation payable under section 1114 (a) of this title; or

(B) in the case of a veteran with a service-connected disability not rated at 20 percent or more or in the case of a surviving spouse, parent, or child, one-half of the rate of compensation payable under section 1114 (a) of this title.

(2) The provisions of paragraph (1) of this subsection shall not apply with respect to any period during which a person is participating in a work-release program or is residing in a halfway house.

(b)

(1) All or any part of the compensation not paid to a veteran by reason of subsection (a) of this section may, as appropriate in an individual case, be apportioned under the same terms and conditions as are provided under section 5307 of this title.

(2) All or any part of the dependency and indemnity compensation not paid to a surviving spouse or child by reason of subsection (a) of this section may, as appropriate in an individual case, be apportioned as follows:

(A) In the case of dependency and indemnity compensation not paid to a surviving spouse, any apportionment shall be to the surviving child or children.

(B) In the case of dependency and indemnity compensation not paid to a surviving child, any apportionment shall be to the surviving spouse or other surviving children, as applicable.

(3) No apportionment may be made under this subsection to or on behalf of any person who is incarcerated in a Federal, State, local, or other penal institution or correctional facility for conviction of a felony.

(c) The Secretary shall not assign to any veteran a rating of total disability based on the individual unemployability of the veteran resulting from a service-connected disability during any period during which the veteran is incarcerated in a Federal, State, local, or other penal institution or correctional facility for conviction of a felony.

(d) The provisions of subsection (a) of this section shall apply

(1) with respect to any period of incarceration of a person for conviction of a felony committed after October 7, 1980, and

(2) with respect to any period of incarceration on or after October 1, 1980, for conviction of a felony of a person who on October 1, 1980, is incarcerated for conviction of such felony and with respect to whom the action granting an award of compensation or dependency and indemnity compensation is taken on or after such date.

(e) For purposes of this section—

(1) The term “compensation” includes disability compensation payable under section 1151 of this title.

(2) The term “dependency and indemnity compensation” means death compensation payable under section 1121 or 1141 of this title, death compensation and dependency and indemnity compensation payable under section 1151 of this title, and any benefit payable under chapter 13 of this title.