A Veteran may find himself or herself either facing jail time or currently incarcerated. A Veteran will want to know how being incarcerated will impact their benefits, including the effect it could have on dependents. It is important to know that your benefits will be adjusted, but only under certain conditions.
Service- and Non-Service-Connected Benefits
A Veteran who is going to be or is currently incarcerated should be familiar with the 60-day rule. A term of incarceration for a felony conviction that is over 60 days will cause a Veteran to have his or her compensation subjected to reduction. Those convicted of a misdemeanor or felony incarcerated for more than 60 days and receiving a non-service-connected pension will have that compensation discontinued on the 61st day until release when the Veteran may have the non-service-connected pension reviewed by the VA again.
Disability compensation is reduced to 10% for all veterans with a rating of 20% or more who are imprisoned for more than 60 days for a felony conviction. If the Veteran is receiving 10% disability compensation, that rating will be cut in half to 5%. If the Veteran is imprisoned for a misdemeanor, there will be no reduction in service-connected disability compensation. It is important to remember that there is no reduction for a Veterans facing charges or while in trial; there must be a conviction and no fewer than 60 days of incarceration. An important note is that if a Veteran is convicted of a felony that is later overturned on appeal, the VA will send the Veteran retroactive payments for disability compensation but not for pension benefits.
For those Veterans with families, the reduction in disability compensation can be reduced to half if you can prove the spouse and children will suffer due to the reduction in disability compensation. However, the compensation will be directed to the family, not the Veteran.
One question a Veteran may ask is about being released to another program or on parole and the effect it may have on benefits. Most work release programs, such as halfway houses or those under community control, may have full benefits reinstated with the VA. The Veteran must notify the VA that he or she is released and eligible for benefits once again. However, the VA may seek a Compensation and Pension (C&P) exam to evaluate the conditions and could proposed a different rating than the rating prior to incarceration.
A somewhat unknown portion of VA benefits is for fugitive felons. The VA will cut health care and services for a Veteran who is a fugitive felon. A “fugitive felon” is a Veteran who is fleeing law enforcement to avoid custody or confinement after a felony conviction; a Veteran who is fleeing to avoid prosecution for a felony; or a Veteran who has violated a condition of probation or parole for committing a felony. If a Veteran is thinking of hiding this from the VA, the VA will seek overpayments that can be made years after the fact. Although the VA may propose to a Veteran that he or she violated the fugitive felon theory, this does not mean a Veteran cannot appeal the proposal. There are specific facts needed for a Veteran to fall under the category of fugitive felon; thus, not every warrant will fall under the category of fugitive felon.
Protecting Your Benefits
Some Veterans who leave the service may have trouble reintegrating with society. Unfortunately, some may find themselves in the criminal justice system. While the loss or reduction of benefits may be disastrous for your family, it is important that you know what options lie ahead so that you can receive the benefits you rate given your situation.
Chad Lennon is an attorney in the military law practice at Tully Rinckey PLLC, and a Major in the Marine Corps Reserve. Concurrently, he is the Co-Chair for the New York State Bar Association Committee on Veterans, Board of Director for the Suffolk County Bar Association and is an Officer for the Suffolk County Bar Association Academy of Law. He can be reached at (888)-529-4543 or at firstname.lastname@example.org.