The rigors and stressors of military life bring out the best in our soldiers, sailors, airmen, and Marines. It can also bring out the worst. To say that the military leaves its mark on a service member’s soul and psyche is an understatement.
This blog addresses those Veterans who are or who have been recently incarcerated and how their incarceration may affect their VA disability benefits.
For more information regarding your specific situation, contact an experienced VA benefits lawyer for a confidential consultation.
As it is unfortunately well known, when Veterans leave the service, many have trouble readjusting to civilian life. The Department of Housing and Urban Development estimates that on any given night, 40,056 Veterans are homeless. The VA estimates that 22 Veterans commit suicide every day. Furthermore, an estimated 181,000 Veterans are in prison or jail.
Any number of issues can cause Veterans to violate the law and receive jail time, including struggles with mental illness, such as PTSD, as well as not having the resources and support necessary to obtain gainful employment or housing.
Unfortunately, the Veterans Administration (VA) can make it difficult to continue receiving benefits if a Veteran is or has been recently incarcerated. The VA will reduce the Veteran’s disability compensation payments after 60 days of incarceration for a felony. If they are entitled to 10% disability compensation, the VA will reduce the benefit to 5%. If they are entitled to 20% to 100% disability compensation, the VA will reduce the benefit to 10%. The Veteran must notify the VA about incarceration to avoid paying a debt. Once a Veteran is released from prison, payments may be reinstated.
The VA will not reduce payments to Veterans convicted of a felony who participate in work-release programs, are under community control, or reside in a residential re-entry center (halfway house). A Veteran incarcerated for a misdemeanor conviction may still receive full benefits without reduction.
If a Veteran receives VA pension payments, the payments may be terminated after 60 days of incarceration in a federal or state prison for a felony or misdemeanor conviction. Payments may resume once the Veteran has been released.
Veterans convicted of felonies may receive education benefits to cover the cost of tuition, books, fees, and other necessary items. If another federal, state, or local program is already paying for these services, the VA cannot make additional payments to the Veteran. However, if another program is paying only for a portion of these costs, the VA may pay the incarcerated Veteran the remaining portion of the costs.
If the VA is limiting compensation benefits due to incarceration, the balance of the benefits may be “apportioned” to a spouse, children, or dependent parents based on individual needs. Factors the VA will consider during an appointment request include:
Either the Veteran or his family members can apply for apportionment. The VA will not automatically grant family members an apportionment, so dependents must file a claim to receive it.
Unfortunately, application for apportionment is often overlooked due to the stress of imprisonment, or if the Veteran has lost touch with his family.
The VA must inform the Veteran that their benefits are subject to reduction while the Veteran is incarcerated and that their dependents may receive the apportionment. The VA must also notify the dependents of the right to receive an apportionment if the VA knows of the dependents’ existence and their location.
If a veteran has more than one dependent seeking apportionment, the VA will apportion all or part of the payment to dependents based on individual needs. Dependents who are incarcerated for a felony may not receive an apportionment.
When the Veteran is eventually released from imprisonment, the VA will not resume paying the award automatically. The VA requires notice that the Veteran has been released before they will begin resuming pay of his full compensation rate. If the VA receives notice within a year of release, the effective date is the date the Veteran was released. If notice is received after a year from release, the effective date is the day the VA received notice from the Veteran.
Where Veterans get into a bind is when they file for an increase after this year-long window. The VA may grant the increase, and decide to pay the Veteran retroactively, starting on the date of release. The VA may later decide that the Veteran did not provide notice within the year window, and then try to reclaim this portion of the Veteran’s increased benefit.
Incarcerated Veterans, also known as “justice-involved” Veterans, have programs available to help them successfully re-enter civilian life after incarceration or deal with their mental and emotional issues stemming from their time in service that may cause them to run afoul of the law.
The HCRV Program strives to help incarcerated Veterans reintegrate into their communities after being released from incarceration. The program provides Veterans with important information they can use to develop a re-entry plan. One main goal of the HCRV is to help Veterans from becoming homeless once they are released.
In many cases, Veterans commit crimes because of underlying mental health and emotional issues. The VJO Initiative seeks to help Veterans avoid facing criminal charges unnecessarily because of their psychological problems.
The VA offers regular access to health care services, such as medical treatment, mental health programs, and substance abuse services, along with other programs and services as needed. It also offers employment services upon release as well as short-term case management services.
To take advantage of the HCRV or VJO programs, Veterans need to contact an HCRV specialist or VJO specialist in their area. Veterans may also contact a local VA benefits attorney for assistance with gaining access to these programs.
As mentioned, the VA could reduce or terminate your benefits if you go to jail, but certain family members, such as your spouse, children, or parents, may receive your benefits as an apportionment.
Additionally, your dependents can petition to receive the full amount of your disability compensation that was reduced while you were in jail. So, if you had a 70% disability rating before going to jail, and the VA reduced your rating to 10%, your dependents could petition to receive the other 60% through apportionment.
Not necessarily. If you’ve only been arrested and are awaiting trial, you shouldn’t receive a reduction in your VA benefits. The criminal justice system presumes innocence until proven guilty, so only a conviction of criminal charges will affect your VA benefits.
If you’ve been convicted of a felony, the VA will reduce or terminate your benefits beginning the 61st day of your incarceration. However, if you complete your sentence, receive parole, complete a work release program, or are sent to a halfway house within 60 days, your benefits may not be affected.
You should notify the VA when you are incarcerated. If you don’t, the VA may consider any disability compensation and pension payments overpayments, and you’ll have to pay the money back. The VA can withhold your monthly check after you get out of prison until the overpayment has been satisfied.
It’s important to notify the VA as soon as you are convicted of a felony and ask about how your dependents can petition for apportionments of your benefits while you’re incarcerated to avoid any overpayment issues.
If you appealed your conviction and had it overturned, the VA may restore the disability compensation benefits it withheld during your incarceration. You must notify the VA of your appeal to receive a retroactive payment. This does not apply to pension payments, and you won’t receive my repayment for benefits made to family members through apportionment.
You can inform the VA of your anticipated release date within 30 days of its occurrence by providing evidence of your scheduled release date. This can come from a parole board or other official prison source.
Your entitlement to VA benefits should resume on the date your incarceration ended if you notify the VA within a year of your release from incarceration. After a year, your benefits will resume when the VA receives notice of your release, so you need to notify them as soon as you can.
Note that the VA may require you to undergo a medical examination to determine if your disability has improved, depending on the specific disability you have.
If you’ve tried to avoid prosecution or imprisonment by fleeing law enforcement, the VA considers you a fugitive felon. A fugitive felon cannot receive VA benefits, nor can their family members or dependents through apportionment. This includes disability compensation, pension, education benefits, medical care, and life insurance.
You can stop being a fugitive felon if authorities clear your outstanding arrest warrant or you surrender to authorities. You may also clear your fugitive felon mark through a dismissal of the charges or through a court order stating you are no longer a fugitive.
If you believe you may be a fugitive felon, you need to contact the law enforcement agency responsible for issuing the warrant and either turn yourself in or explain why the warrant was issued erroneously. It could be the warrant was issued in error, and you may have the chance to clear things up to avoid additional charges and incarceration. However, you also need to contact an attorney for advice and counsel. You must also contact the VA and provide them with evidence that shows your name has been cleared, if applicable.
Veterans who are incarcerated are still eligible to receive medical care. However, the VA is restricted from providing hospital or outpatient care to a Veteran who is incarcerated in another government institution that provides medical care or services.
This does not apply to Veterans who are released from incarceration into a halfway house or similar temporary housing program.
The VA may offer medical care to Veterans once they’re released from incarceration. Veterans should contact their local VA healthcare facility upon release to apply for enrollment.
Some states offer alternatives to incarceration for Veterans dealing with the criminal justice system. Justice for Vets, Veterans’ Treatment Courts, and programs focus on providing rehabilitation and treatment to Veterans instead of punishment and incarceration. Any Veteran facing criminal charges should speak with their attorneys about the alternative options to incarceration. Many of these programs offer resources to help with mental health issues, substance abuse, and trauma.
Berry Law was founded by Vietnam War Veteran and legendary trial lawyer John Stevens Berry Sr. We are proud to have many military Veterans among our attorneys and staff who understand what it means to serve and know, firsthand, the struggles many of our clients face every day.
If you’re a Veteran who was arrested and faces jail time if convicted—or if you’ve already been convicted of a crime and worry about how it will affect your VA benefits–you need an attorney who can explain your options and fight for your rights and future.
The VA disability benefits attorneys at Berry Law may be able to help. We have been successfully representing Veterans for decades, and you can rely on us for impassioned advocacy each step of the way to increase your chances of getting the favorable outcomes you seek. Contact us today for your free evaluation.
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