Fugitive Felons and Veterans' Benefits
Jim Strickland and Veterans' Attorney Douglas Rosinski offer "A Report of Two Experiences."
Congress has empowered the Department of Veterans Affairs (DVA or VA) and the Social Security Administration (SSA) to stop benefits payments to individuals who are fleeing arrest and prosecution for felony crimes. The "fugitive felon" status is determined by the presence of an outstanding warrant for a charge or a probation violation. The thought behind this action is that federal monetary benefits should not be provided to those attempting to avoid arrest and conviction. On the surface, this sounds reasonable and proper. The VA, however, has transformed this reasonable restriction into a punitive regulation that disrupts the lives of veterans unaware of warrants issued long ago, in places that they have not returned to, by authorities that no longer care.
This paper describes two such cases that we have confronted in the last year.
M21-1MR, Part X, Chapter 16 "Fugitive Felon Match," ( http://tinyurl.com/qj7ky7 ), notes that 38 U.S.C. 5313B prohibits payment to beneficiaries of VA benefits if the beneficiary is a "fugitive felon." This prohibition of benefits may also extend to dependents of veterans in some circumstances.
The VA defines a "fugitive felon" as a veteran who is "fleeing to avoid prosecution, custody or confinement for a felony, or considered a fugitive because he/she violated a condition of probation or parole imposed for commission of a felony." The veteran begins the status as fugitive "from the later of the following dates: the date of the warrant, or December 27, 2001, the date of the fugitive felon law" and is taken "out of fugitive felon status from the earlier of the following dates: the date of arrest for the particular warrant that is the subject of the referral from the Office of Inspector General (OIG), or the date the warrant is determined to be invalid by the warrant agency, a court, or OIG." Once a beneficiary is identified as a fugitive felon, VA will provide notice that all benefits paid during the period constitute an "overpayment" and that it has created a "debt" that requires repayment.
A veteran is identified as a fugitive felon using various matching programs and law enforcement databases as described in detail in the M21-1MR. Unfortunately for many veterans, the efficiency and accuracy of these programs is on a similar level as many other VA programs and a match may not be made until years or even decades after a warrant has been issued and forgotten.
Often enough, the veteran isn't aware that a warrant exists.
The notice to the veteran that benefits are being suspended and that a large debt was created by overpayment is usually unexpected and devastating. Although the veteran is notified of the proposal that an adverse action (lowering or eliminating benefits) is about to occur and the veteran is mailed notice of the rights of due process as required by 38 CFR 3.103, most veterans don't fully understand the requirements of what must occur to confront the accusing VA and end or delay the actions.
When the veteran reaches out for help, little is there. The statute is poorly understood by most Veterans Service Officers or attorneys. Further, VA's convoluted attorney fee rules require a beneficiary to pay an attorney out of his or her pocket because there are no "retroactive" benefits from which attorneys fees are usually drawn. Few if any beneficiaries have the money to pay an attorney up front, especially when facing a cutoff of payments. Therefore, veterans are often on their own to fight with the VA.
There are strict requirements of timeliness associated with the notice of adverse action from VA and if a deadline is missed, the system defaults toward an immediate reduction or elimination of benefit payments.
Veteran One is totally and permanently disabled and receives 100% schedular disability compensation as well as Special Monthly Compensation, housing allowances and vehicle modification benefits so that he may drive his handicapped adapted van.
The veteran was away from his home state at the beginning of a holiday weekend when he was stopped by a local police department officer for a minor speeding offense. The officer discovered a warrant for the arrest of the veteran that was 4 years old, issued in a third state, which was the veteran's prior state of residence.
The officer had no knowledge of why the warrant had been issued, but followed his protocol and placed the veteran under arrest and, with assistance, transported the veteran and his electric wheelchair to the local police department for processing and incarceration. As it was a holiday weekend, the veteran languished in a holding cell until the following business Monday when he was released on his own recognizance by a magistrate. The state that had issued the warrant originally declined extradition and showed little interest in the warrant.
Not long after his return home he was notified by VA that he was now in "fugitive felon" status (pertinent documents are here and here). He received notice from VA that he had been overpaid since the date the warrant was issued and that a significant debt had been created. He was also informed that his dependent mother (also receiving benefits and who he resided with) had an overpayment and thus a debt and she was also targeted to repay her debt.
The notice from VA provided specific instructions for the veteran that had to be performed in a timely manner should he wish to disagree and appeal the adverse action. Without his immediate and correct response, recoupment of the hundreds of thousands of dollars of the alleged debt would begin in 90 days.
This veteran didn't know of any warrant but immediately retained an attorney in the city where the warrant had been issued. The attorney discovered that a warrant had been issued for his arrest for a drug violation some 4 years earlier.
The veteran then immediately traveled to that city and appeared before a judge who quashed the warrant. The veteran assumed that VA would accept that as having corrected the situation.
This warrant had been issued after the veteran had failed to obey the order of a police officer to come to the local police station for an interview. The veteran had been in an automobile with a friend in the parking lot of a convenience store awaiting the friend as he made his purchases. As he waited, he opened a prescription bottle of pain medicine lawfully prescribed to him by the local VA clinic. It was a relatively new prescription of a large amount of a narcotic drug in a generic form.
A nearby police officer observed this, became suspicious and confronted the veteran to ask why he had such a large amount of the drug. The officer then confiscated the bottle of pills advising the veteran that he would investigate and that the veteran should come by the police station the next day for an interview and to retrieve his medicine.
The veteran was frightened by this policeman's behavior and went about his business. The next morning the veteran went to his local VA clinic and described what had happened to his primary care practitioner. The consensus of opinion at the clinic was that the officer had likely taken the drugs for his own personal use and that the matter was best left alone. The veteran's prescription was reissued by VA. Soon after, the veteran moved away to another state, forgetting the incident.
The officer who confiscated the drugs had attempted (unsuccessfully) to telephone into the VA clinic to verify the veterans story. When the veteran didn't show up as instructed, the officer had an arrest warrant issued. The warrant was delivered to a wrong address and never followed up. The officer had left his employment there and moved on.
The veteran soon notified VA that he had taken action to have the warrant quashed. He was advised that notwithstanding that, the adverse action would proceed as there had been an outstanding warrant for that period of time. The rules, according to VA, only address that there was a warrant and no other points are considered.
The veteran contacted us for assistance.
This veteran was advised to cease all telephone contact with the RO. He was further advised to write a formal letter advising VA of his Notice of Disagreement (NOD) In that letter he asked that no adverse action (reduction of benefits) would ensue until he had exhausted all appeals. He also asked for a personal hearing with a DRO be scheduled and that the Committee on Waivers and Compromises ( http://tinyurl.com/qkp8cd ) be convened so the a complete waiver of any alleged debt may be granted.
During this time the veteran received a somewhat confusing letter notifying him that the Committee on Waivers and Compromises would not consider his request as there had been no confirmation of debt created (waiver here).
Some 18 months after his first notification of adverse action, the veteran received a brief letter saying, "We determined that discontinuance of your monetary compensation benefits from June xxx is NOT in order. Your compensation benefits will continue unchanged."
Veteran Two is 100% disabled due to mental health issues. When he contacted us he was already deeply involved in the system and was being denied at every turn. His first contact letter opened; "I have been notified by a friend that you may be able to help, but doubt it." The veteran had a history of arrest for possession of marijuana some 20 years prior. He was sentenced to a brief period of probation. During his probation a death in his family occurred in Great Britain and he received verbal approval from his probation officer to travel there. While in Great Britain he decided to extend his time there and contacted his probation officer for approval.
While his memory is somewhat flawed about later events, the veteran reports that along the way he learned that his probation officer had died. The veteran left GB to travel and spend time in New Zealand. He returned to the U.S. eventually, feeling a need to receive more intensive treatment for his mental health issues. During this time the veteran relocated to the east coast, was treated as an inpatient at a VA facility, served on a jury, renewed his passport, was arrested at least twice for minor violations and voted in state and national elections. That there may have been an old warrant never came up.
He learned of the warrant when the VA notified him that his VA benefits were to be cut off. He immediately contacted an attorney and had the local court quash the warrant. Although the warrant was no longer pending, he soon received notice that VA wanted over $155,000 back for payments made between the time the fleeing felon law was enacted until the warrant was quashed. Not knowing what to do, the veteran didn't timely file any Notice of Disagreement and his benefit payments were interrupted as recoupment of his alleged debt went forward. Eventually a Veterans Service Officer assisted the veteran to arrange a personal hearing in front of a DRO. This VSO had no previous experience with the fugitive felon process.
When we were contacted by the veteran, he was to have his hearing in about 5 days. We provided the veteran with statements to read into the record during said hearing (pertinent documents are here and here). An attorney "friend" accompanied the veteran to the hearing but had no standing as a representative and no particular knowledge of VA law or process.
The DRO soon after denied the veterans plea for relief.
After considering the legal basis of the "fugitive felon" status, we arranged for the local attorney to ask the local court to again quash the warrant, this time "nunc pro tunc" to January 1, 2001. "Nunc pro tunc" is a legal term meaning "now for then" that is often used in court orders when the judge wants to make an order retroactive to some date. In this case, the warrant was quashed effective January 1, 2001. Because this date was before the fleeing felon law became effective, there no longer was a period that this veteran could be considered a "fugitive felon." The VA was notified and provided with a copy of the court order. The veteran has been informed by VA that all funds due him that were recouped are being returned and the issue has been dropped.
There are several lessons learned here.
First, VA is ruthless and cold blooded about the fugitive felon issue and will not hesitate to cut off and attempt to recoup past payments. If you have any suspicion regarding a warrant in your past you should consider looking into it and following the advice below.
Second, if a veteran is notified of a "fugitive felon" action, he or she should immediately submit a Notice of Disagreement, a request for personal hearing, notice to VA that the veteran does not wish to begin recoupment, a request for the Committee on Waivers and Compromises to meet and review. These actions will delay a reduction in payments and buy time to plan how to proceed. Ultimately, however, unless VA changes its mind on the issue, other legal action will be required (see next).
Finally, a veteran threatened with "fugitive felon" status should immediately act to get the identified warrant quashed "nunc pro tunc" to January 1, 2001, if it was issued before that date, or "ab initio" (meaning from the start) if issued more recently.