Citation Nr: 1231237 Decision Date: 09/12/12 Archive Date: 09/19/12 DOCKET NO. 08-16 212 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether the Veteran's VA non-service-connected pension benefits were properly terminated from October [redacted], 2003 to October [redacted], 2005, due to fugitive felon status. ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from March 1967 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) from a November 2007 decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which terminated the Veteran's VA non-service-connected pension benefits, from October [redacted], 2003 to October [redacted], 2005, due to the Veteran's fugitive felon status during this period. FINDINGS OF FACT 1. In November 2002, a judgment and suspended sentence were entered for the Veteran for the offense of felony attempted larceny in October 2002. 2. For the offense of obstructing justice, the State of North Carolina Department of Corrections, issued an arrest warrant, for the Veteran, on October [redacted], 2003. 3. The arrest warrant was cleared when the authorities in the State of North Carolina issued an order, on October [redacted], 2005, revoking the Veteran's probation, activating his suspended sentence, and ordering that he be imprisoned for a period of 4 to 5 months, with credit for 94 days served. 4. VA proposed to terminate the Veteran's VA nonservice-connected pension benefits in a letter dated in February 2007. 5. By letter dated in November 2007, VA implemented the proposal, after following all prescribed procedures, and terminated the Veteran's VA non-service-connected pension benefits, from October [redacted], 2003 to October [redacted], 2005, due to his fugitive felon status during this period. CONCLUSION OF LAW The Veteran's VA nonservice-connected pension benefits were properly terminated, in accordance with governing law and regulation, for the period of time when he was considered a fugitive felon from October [redacted], 2003 to October [redacted], 2005. 38 U.S.C.A. §§ 5107, 5313B (West 2002); 38 C.F.R. § 3.665(n) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). To the extent that this Veteran's claim involves the validity of a creation of an overpayment involving Chapter 53 of Title 38 of the Unites States Code, the duty to notify and assist provisions of the VCAA do not apply. Lueras v. Principi, 18 Vet. App. 435 (2004); Barger v. Principi, 16 Vet. App. 132, 138 (2002); see also 38 U.S.C.A. §§ 5103, 5103A. Nevertheless, the Board observes that the Veteran was notified in February 2007 of the VA's finding that he had been a fugitive felon, of the consequences of this status, in that fugitive felons are prohibited from receiving VA compensation, and how he could submit evidence to show otherwise. II. Laws and Regulations A Veteran eligible for compensation benefits may not be paid such benefits for any period during which he or she is a fugitive felon. 38 U.S.C.A. § 5313B. 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. 38 C.F.R. § 3.665(n)(2). "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. 38 C.F.R. § 3.665(n)(3). III. Factual Background VA treatment records reveal that in August 2003, the Veteran was seen at the Phoenix VA Medical Center, and reported he had just arrived in Phoenix, and had come from North Carolina. In an email dated in January 2007, the Phoenix RO was notified by VA Central Office (VACO) that "the following fugitive felon case was released to your station" and cited the Veteran's name and his Office of Inspector General (OIG) case number. The RO was advised to resolve the fugitive felon issue. In January 2007, the RO conducted an online search through the Arizona Department of Corrections which revealed an inmate with the same name as the Veteran, but because of the different birth date provided, the RO concluded this was not the Veteran. The record reflects that the VA OIG also provided warrant information to the RO, including that the North Carolina Department of Corrections issued a warrant for the Veteran's arrest on October [redacted], 2003, for the offense of obstructing justice. The OIG listed several addresses for the Veteran from January 2004 through August 2004, including initially in [redacted], Tennessee, and then in [redacted], North Carolina. The OIG's investigative summary showed that the Veteran ("fugitive") had not been arrested and the warrant was still valid. An online search conducted in February 2007, on the North Carolina Department of Correction Public Access Information System, revealed that the Veteran did not have a record of any incarcerations, but that he was put on probation and given a suspended sentence after being convicted in November 2002 of attempted larceny, which was noted to be a class I felony. By letter dated in February 2007, the Veteran was notified, at his address in Phoenix, that that VA proposed to terminate his VA benefits. He was notified that VA had been advised by law enforcement authorities that he had been identified as a fugitive felon because he was the subject of an outstanding warrant. The Veteran was further notified that because this could be the result of a recordkeeping problem, no action would be taken to adjust his VA benefits for at least 60 days. The Veteran was advised that this would give him the opportunity to clear the warrant with the agency that issued it or advise VA if the wrong person had been identified. The Veteran was advised that the NC Department of Corrections had issued the warrant on October [redacted], 2003. The Veteran was advised that if VA did not receive evidence establishing that the warrant had been cleared within 60 days of the date of this letter, VA was required to stop his compensation or pension benefits, effective the later of the date of the warrant or December 27, 2001, which was the effective date of the fugitive felon provisions of Public Law 107-103. The Veteran was also notified that the RO was proposing to stop his VA award as of October [redacted], 2003, and that his benefits may be resumed as of the date the warrant was determined by the warrant agency to have been cleared. Received from the Veteran, in February 2007, was a statement in which he indicated he was submitting a document which showed he had been cleared on the warrant question. He submitted a copy of a Judgment and Commitment upon Revocation of Probation, issued by the State of North Carolina, General Court of Justice, Superior Court Division, on October [redacted], 2005, revoking the Veteran's probation, activating his suspended sentence, and ordering that he be imprisoned for a period of 4 to 5 months, with credit for 94 days served. The State of North Carolina, General Court of Justice, Superior Court Division found that the Veteran had violated specific conditions of his probation, as alleged in the Violation Report dated October [redacted], 2003, and that each violation was, in and of itself, a sufficient basis upon which the Veteran's probation could be revoked and the suspended sentence activated. By letter dated in November 2007, VA implemented the proposal to stop benefits, and notified the Veteran that his VA benefits had been stopped, effective October [redacted], 2003, and restarted on October [redacted], 2005, based on his submission of official documents showing the warrant was satisfied on October [redacted], 2005. He was also advised that this action would create an overpayment which must be repaid, and that he would soon be sent a letter by the Debt Management Center explaining the repayment options. A review of the Veteran's Virtual VA efolder shows that by letter dated in December 2007, the Debt Management Center (DMC) notified the Veteran that VA had recently sent him a letter explaining that his entitlement to benefits had changed, and as a result he was paid $5,076 more than he was entitled to receive. Since the Veteran was currently receiving VA benefits, he was advised that VA planned to withhold those benefits until the amount he was overpaid was recouped, and that the withholding was scheduled to begin in March 2008. The Veteran was advised that he had the right to dispute the debt and the right to request waiver. In January 2008, the Veteran requested a waiver of the indebtedness incurred as a result of his fugitive felon status from October [redacted], 2003 to October [redacted], 2005. In February 2008, the Committee on Waivers and Compromises (COWC) granted the Veteran's waiver, finding that there was no indication of fraud, misrepresentation, or bad faith. The fault was found as section 505 of Public Law 107-105 prohibits the payment of benefits to VA beneficiaries while they are in fugitive felon status. It was noted that the degree of fault can be mitigated due to the Veteran's health, and that due to his health, there was no future increased income potential. It was also noted that financial hardship had been shown as the Veteran's income just meets expenses and there were minimal assets. The COWC indicated that as the degree of fault had been mitigated and hardship had been shown, the waiver was granted based on the standard of equity and good conscience. By letter dated in February 2008, the Veteran was notified by the COWC that his request for a waiver had been granted. IV. Discussion Herein, the Veteran is essentially disputing the validity of the debt created (by the termination of his VA benefits from October 2003 through October 2005). However, the Board notes that regardless of the outcome of this decision, the record reflects that the Veteran had previously requested, and was granted by the COWC, a waiver of payment of this debt. In reviewing the record, the Board finds that the law was properly applied to the Veteran's case. In particular, because the warrant for his arrest was issued due to his failure to comply with the terms of his probation, he had knowledge of the consequences of such failure, yet proceeded to follow that illegal course of action. It was his responsibility to comply with the terms of his own probation. Moreover, the record reflects that the Veteran apparently was initially convicted in North Carolina in November 2002, and given probation and a suspended sentence, after committing an attempted larceny. Thereafter, in August 2003, he moved from North Carolina to Arizona (as shown by Phoenix VAMC treatment records). In October 2003, a violation of probation report was filed in North Carolina along with a warrant for the Veteran's arrest being issued by the North Carolina Department of Corrections. While the record shows the Veteran was living in Arizona during this time, it is unclear as to what was happening with him vis-à-vis the arrest warrant between October [redacted], 2003 (the date the violation of probation report was filed and the warrant was issued) and October [redacted], 2005 (the date that his probation was revoked and his suspended sentence was activated, but with credit for time served); and the Veteran has not provided any information or evidence to dispute the validity of the arrest warrant. Rather, the Veteran has provided information showing that the arrest warrant was finally satisfied in October 2005, at which time his probation was revoked. In short, because the Veteran was in violation of a condition of probation imposed for commission of a felony under State law, because a warrant was issued for his arrest and that warrant apparently remained in effect for a period of more than one year, the law is clear that the payment of VA compensation benefits is prohibited during that period of time, from October [redacted], 2003 to October [redacted], 2005. The Board therefore holds that the Veteran's VA compensation benefits were properly terminated for that period of time, and that the debt created through that retroactive termination was properly created. Furthermore, careful review shows that the VA accorded the Veteran complete due process throughout the proceeding. ORDER The termination of the Veteran's VA non service-connected pension benefits from October [redacted], 2003 to October [redacted], 2005, was proper. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs