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Veterans Law

Incarcerated Veterans and Effect on VA Disability Benefits

January 31, 2021
Incarcerated Veterans and Effect on VA Disability Benefits

Unfortunately, veterans, like anyone, can become involved with the criminal justice system and become incarcerated.  But often, a veteran’s service can cause trauma, which can be hard to recover from once their service has concluded.  This can sometimes lead veterans to use drugs or alcohol to cope with the trauma and may result in incarceration.

Side effects of a veteran’s trauma could take years to manifest.  Conditions like post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI) may cause emotional or irrational temperament, and feelings of isolation.  Sometimes these feelings can cause Veterans to act out.  Veterans with these conditions may also find it difficult to deal with figures of authority.  Too often, these conditions can cause a veteran to experience difficulties in society and/or become involved with the law.

How Are My VA Benefits Affected If I Am Arrested?

If a veteran is arrested, VA does have the power to reduce a veteran’s disability benefits.  Most often, the veteran loses benefits when they enter the criminal justice system.

VA is also prohibited from providing health care services, such as medication and care, at VA expense to those who are considered fugitive felons.  A fugitive felon is defined, by VA, as someone who is:

  • Fleeing to avoid prosecution, custody, or confinement after a conviction; OR an attempt to commit an offense which is a felony under the laws of the place from which the person flees; OR
  • Violating a condition of probation or parole for commission of a felony under Federal or State law.

If the veteran is a fugitive felon, VA will mail a letter to the Veteran, or their beneficiary, to inform them that their benefits are being discontinued.  VA staff will also help the veteran transition from VA programs to alternative care outside the VA healthcare system.  VA is prohibited from covering the cost of alternative care.   VA will also eventually bill the veteran for the cost of care the veteran received while in fugitive felon status.

In order to resolve fugitive felon status, the veteran must contact the Originating Agency, or the agency that issued the felony warrant.  Fugitive felon status may be resolved if one of the following are met:

  • An error was made, such as a case of mistaken identity
  • The warrant is cancelled
  • The warrant has been satisfied by the veteran’s arrest or surrender
  • If the warrant is resolved for any other reason

What Happens to My VA Benefits While I Await Trial?

Veterans who are awaiting trial are considered “innocent until proven guilty.”  This means that VA will not change or terminate the veteran’s benefits until after the outcome of the trial.  In other words, the veteran’s benefits will remain unchanged throughout the trial.

How Are My VA Benefits Affected If I Am Convicted and Incarcerated?

If the veteran is convicted of a felony and serving time in jail, VA may terminate disability benefits after the 61st day of being in jail.  For veterans who are service-connected at 20 percent or higher, their benefits are limited to the 10 percent disability rating.  Veterans who are rated at 10 percent will have their payment reduced by one half.  Some exceptions where a veteran’s pay may not be reduced include the following:

  • Veterans participating in work release programs
  • Veterans residing in halfway houses, or residential re-entry centers
  • Veterans under community control

Importantly, if the veteran was imprisoned for a misdemeanor, their benefits will not be reduced.  VA education benefits may also continue monthly, so long as the veteran is not convicted of a felony and has met the other eligibility requirements.

In addition to the termination of VA disability benefits, VA pension payments will also be terminated after the 61st day of incarceration.  The veteran should be sure to inform VA of their incarceration, as failure to inform VA could result in the loss of all financial benefits and create an overpayment.

What if the Conviction is Overturned?

Veterans who are convicted of a felony that is later overturned on appeal are entitled to retroactive benefits.  This means that VA will pay the veteran for the benefits they did not receive as a result of the initial felony conviction.  It is important that the veteran notifies VA once their conviction has been overturned in order to receive those retroactive benefits.

Can My Benefits Be Reinstated After My Release from Incarceration?

When a veteran is released from incarceration, they are entitled to have their benefit payments reinstated once their day of release comes.  The veteran will need to notify VA of their release within one year in order to receive all the benefits to which they are entitled.  To ensure that VA is aware of the veteran’s release date, the veteran may inform VA of their release date ahead of time, once they have official paperwork indicating the anticipated release date.

Veterans who have previously been incarcerated should also know that they are not barred from applying for VA disability benefits.  Those who may have previously served time for a criminal offense may still file a claim once they are released.  Veterans who are currently incarcerated can also file a claim for benefits.  This will help establish the veteran’s right to benefits once they are released.

Incarcerated Veterans and Apportionment

Though the veteran may be incarcerated, they may apply to have their benefits paid to their family instead.  This is called apportionment.  Apportionment allows the veteran’s family to receive the veteran’s benefits while the veteran is considered ineligible.  This may help in cases where the veteran’s benefits would otherwise be terminated for the period that they would be incarcerated.

Specifically, a veteran’s family may receive any amount of disability benefit that the veteran is unable to receive due to incarceration.  An example of this might be if the veteran is rated at the 50 percent level before incarceration, then the veteran’s benefits will be reduced to the 10 percent level upon incarceration and the family may apply for apportionment to receive the remaining 40 percent.  Upon release, the veteran may apple to receive the full benefits directly once again.

How Can I Apply for Apportionment?

The veteran’s family members, such as a spouse, child, or parent, may apply for apportionment of the veteran’s benefits.  Benefits will be apportioned by VA based on financial need.

VA Form 21-0788, Information Regarding Apportionment of Beneficiary’s Award, is required in order to apply for apportionment.  The form has several sections, which inquire about income, net worth, and monthly living expenses.  The veteran’s family member will want to be sure that they are filling out the form regarding their financial status, not the veteran’s.

Other Resources for Veterans

Veterans who are experiencing difficulty coping, especially with trauma, may be experiencing suicidal thoughts or need crisis support.  The Veteran’s Crisis Hotline offers 24/7 assistance and is a confidential, anonymous resource available to veterans, even if they do not have VA benefits.  Veterans may call the hotline number, 1-800-273-8255 and press 1, or text 838255.

Veterans who may be experiencing a crisis such as homelessness or risk of homelessness can call the VA’s National Call Center for Homeless Veterans.  The hotline is available 24/7.  Family members or friends may also call this number on behalf of the veteran.  Veterans, or their loved ones, may reach VA’s National Call Center for Homeless Veterans by calling 877-424-3838.

Do You Have Questions About VA Benefits for Incarcerated Veterans?

If you have questions regarding VA benefits for incarcerated veterans by applying for apportionment, our team at Chisholm, Chisholm & Kilpatrick LTD may be able to help.  To schedule a free case evaluation, contact us at 800-544-9144.