Citation Nr: 1332905 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 10-25 456 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE The propriety of the finding that the Veteran was a fugitive felon resulting in the discontinuance of Department of Veterans Affairs disability compensation for the period from January [redacted] 2008 to March [redacted] 2008. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty in the Marine Corps from December 1987 to December 1991, with an earlier unverified period of service in the Air Force from December 1984 to April 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2008 administrative decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In September 2012 a Travel Board hearing was held before the undersigned. A transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. A warrant for the arrest of the Veteran for failure to comply with a state circuit court order to pay child support was issued on January [redacted], 2008; the warrant was cleared on March [redacted], 2008, when the Veteran turned himself in to authorities to address the matter. 2. For the period of January [redacted], 2008 to March [redacted], 2008, the Veteran's VA disability compensation was discontinued. 3. The evidence does not establish that the Veteran met the definition of a fugitive felon during the period of January [redacted], 2008 to March [redacted], 2008, as the evidence does not show that he was engaged in the intentional act of fleeing from prosecution, or custody or confinement after conviction, for a felony offense, or that he was in violation of a condition of probation or parole for a felony conviction. CONCLUSION OF LAW The Veteran was not a fugitive felon for the period of January [redacted], 2008 to March [redacted], 2008, and the discontinuance of his VA disability compensation during that period was not in accordance with law. 38 U.S.C.A. § 5313B (West 2002); 38 C.F.R. § 3.665(n) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the decision herein is entirely favorable to the Veteran, VCAA compliance need not be addressed. Legal Criteria, Factual Background, and Analysis The Veteran contends that his VA disability compensation should not have been dicontinued for the period from January [redacted], 2008 to March [redacted], 2008, based on an outstanding warrant for his arrest, because he did not flee prosecution and he surrendered to the authorities upon learning of the existence of the warrant. The Board agrees that the Veteran did not meet the VA definition of "fugitive felon" and therefore finds that the discontinuance of his compensation was not in accordance with law. Compensation is not payable on behalf of a veteran for any period during which he is a fugitive felon. 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. The term "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); 38 U.S.C.A. § 5313B (West 2002). Here, the Veteran was wanted for failure to comply with a court order to pay child support. According to documentation from the State of Wisconsin, Department of Corrections, a local judge ordered the Veteran to pay $3,468 towards child support within two weeks or report to [redacted] County jail in Janesville, Wisconsin for 30 days. As the Veteran had apparently failed to address the child support matter, the Wisconsin Department of Corrections issued a warrant for his apprehension on January [redacted] 2008. It was noted that his violation of probation was for failing to address the child support matter as directed, and not for any new criminal behavior while on probation. The warrant was cancelled (cleared) on March [redacted] 2008, when the Veteran was taken into custody at the Winnebago County, Illinois jail. He was then transported to the [redacted] County jail in Janesville, Wisconsin, where his probation hold was released on April 2, 2008, at which time he had resolved the child support matter. For the period of time leading up to the issuance of the warrant and for the two-month period in which the warrant was outstanding, the Veteran's mailing address in [redacted], Illinois did not change. By letter in April 2008, the RO informed the Veteran of its proposal to terminate his VA disability compensation, effective January [redacted] 2008, because VA law prohibits payment of VA benefits to beneficiaries while they are fugitive felons. The RO indicated that it had been notified by law enforcement authorities that he had been identified as a fugitive felon as he was the subject of an outstanding warrant. By letter in October 2008, the RO notified the Veteran that it had discontinued his disability compensation, effective January [redacted] 2008 (the date the warrant issued). The RO informed him that the action created an overpayment in his account. Documents in the Veteran's claims file (i.e., those uploaded to the electronic version of his claims file) indicate that a November 2008 letter from the VA Debt Management Center in St. Paul, Minnesota contained notice that the Veteran's overpayment amount was $25,607.40. After inquiring as to why his benefit payments had stopped and why a large debt had accrued in his account, the Veteran in December 2008 submitted the documentation from the State of Wisconsin, Department of Corrections to show that the warrant for his arrest was cancelled on March [redacted] 2008. He requested that his benefits be resumed (payments were not reinstated until May 2009). Also in December 2008, the Veteran submitted a statement, articulating his disagreement with the RO's termination action and expressing his belief that he was unjustly characterized as a fugitive felon. In a June 2010 statement, the Veteran further explained that while he was dealing with the matter of child support, he was on probation for disorderly conduct. He asserted that the judge in the child support case ordered him to pay $3,000 in child support or go to jail. He claims that he paid the court-ordered amount three weeks later but that the custodian (mother) of his minor child failed to notify the court of this and his probation officer assumed he had not discharged his duty. He stated that he turned himself in to the authorities in order to take care of the matter in court. He asserted that the matter was quickly cleared up and he was immediately released from jail. Of record is a Final Child Support and Contempt Order, dated in January 2007, which was issued by a [redacted] County circuit court judge in Wisconsin. It indicates that the Veteran was found to be in contempt for non-compliance with a Temporary Order dated in July 2006 with respect to his failure to pay all child support obligations. He was to be sentenced to the [redacted] County jail for 30 days for his contempt, but the sentence was to be stayed (and the finding of contempt was to be vacated) if he complied with certain "purge conditions" related to timely payment of child support including arrearages. It was in regard to this Final Child Support and Contempt Order and child support matter that the warrant for the Veteran's arrest was issued in January 2008. In reviewing the record, the warrant was issued based on alleged non-compliance with court-ordered child support obligations, and such contempt of the court directives to satisfy the obligations was to result in a jail stay of 30 days. The documentation from the Wisconsin Department of Corrections and the [redacted] County, Illinois circuit court does not demonstrate that the Veteran was attempting to avoid prosecution for a felony offense or trying to avoid custody or confinement after a conviction for a felony offense, which comprise one of the definitions of "fugitive felon." 38 C.F.R. § 3.665(n). VA's General Counsel has noted that the legislative history, which barred fugitive felons from receiving Supplemental Security Insurance from the Social Security Administration (SSA) and food stamps from the Department of Agriculture, was designed to cut off the means of support that allows fugitive felons to continue to flee, and it was the intent of Congress to deny fugitives the means. VAOPGCPREC 7-2002 (Dec. 3, 2002). Here, the Veteran maintains that he did not flee prosecution and in fact surrendered himself to authorities in Illinois after learning of the warrant issued in Wisconsin. At his September 2012 hearing, he testified that he was never served the warrant in person or by certified letter and that he learned of the warrant through his father, who was a long-time deputy sheriff in the [redacted] jurisdiction where they resided. A document entitled "Apprehension Cancellation" from the Wisconsin Department of Corrections indicates that the Veteran was taken into custody on March [redacted], 2008 by the [redacted] police department. The Veteran testified, in a credible manner, that he only knew about the warrant from March 24, 2008. Further, the evidence of record shows that the Veteran maintained the same address and did not move either prior to or during the period that the warrant was outstanding. In the view of the Board, the evidence does not support a finding of an intentional act of flight during the period of January [redacted] 2008 to March [redacted] 2008, when the warrant was outstanding. There is no evidence to contradict the Veteran's statements that he did not learn of the warrant until just before he presented himself to the [redacted] police on March [redacted], 2008, and that he was never even served the warrant. Further, there is no evidence to demonstrate that the Veteran took any action to avoid any attempt at service of a warrant, or even that an attempt had been made to serve the warrant on the Veteran during the period from January [redacted] 2008 to March [redacted], 2008. As earlier noted, the Veteran did not change his address or otherwise absent himself from the jurisdiction in order to avoid prosecution. In this case, the only evidence indicating that the Veteran was a fugitive felon was the existence of the warrant that issued on January [redacted] 2008 and remained outstanding for two months. The totality of the evidence shows that, rather than attempting to evade prosecution, the Veteran's actions show that he was trying to resolve his legal matters. He did not relocate during the period of the outstanding warrant, and according to his testimony he turned himself in to authorities to resolve the child support matter. Accordingly, there is no evidence of flight to avoid prosecution, or custody or confinement after felony conviction. The other definition of "fugitive felon" for VA purposes involves one who violates a condition of probation or parole imposed for committing a felony under Federal or State law. 38 C.F.R. § 3.665(n). As to this provision, there is no evidence that the warrant issued on January [redacted] 2008 for the Veteran's arrest was made on the basis of violating probation or parole following a felony conviction. While the warrant was issued because the Veteran had allegedly not complied with certain "purge conditions" related to the timely payment of child support including arrearages, as set forth by a court in a Final Child Support and Contempt Order, it is not shown that the Veteran had actually violated a probationary condition for a felony conviction. Incidentally, the Board takes notice that Wisconsin law provides that "[a]ny person who intentionally fails for 120 or more consecutive days to provide... child support which the person knows or reasonably should know the person is legally obligated to provide is guilty of a Class I felony. A prosecutor may charge a person with multiple counts for a violation under this subsection if each count covers a period of at least 120 consecutive days and there is no overlap between periods." Wis. Stat. § 948.22(2). There is no evidence to show that the Veteran has been prosecuted under the Failure to Support provisions of Wisconsin state law. It is noted that the Veteran conceded in a statement received in June 2010 that he was on probation for "disorderly conduct," and he testified at a hearing that his probation officer had been contacted frequently by an attorney seeking court-ordered child support on behalf of her client (the custodian/mother of his child). Moreover, a document entitled "Cancellation of Order to Detain" from the Wisconsin Department of Corrections to the [redacted] County jail indicates that he had a felony conviction (it did not specify what that conviction was for, or its conditions of probation). Nevertheless, there is no evidence to show that failure to pay child support constituted a violation of a condition of probation for a felony conviction of the Veteran. In any case, the fact that the Veteran did not spend 30 days in jail, which was the court-ordered penalty for contempt/non-compliance with the child support payment obligations, and instead was released the day after arriving at [redacted] County jail because the child support matter had been resolved, indicates that he had not failed to pay child support as ordered. Indeed, the Veteran has maintained in statements and testimony that he paid the court-ordered child support in a timely manner, and the warrant was issued in error. In the view of the Board, as the record now stands there is no evidence to support a finding that the Veteran had violated a condition of probation for a felony conviction. In light of the foregoing reasons, the Board concludes that the Veteran was not a "fugitive felon" within the meaning of applicable VA law and that the termination of VA disability compensation for that time period was not in accordance with law. As VA disability compensation was not properly discontinued from January [redacted] 2008 to March [redacted] 2008, the VA disability compensation should be restored for that period. ORDER The appeal to establish that the Veteran was not a fugitive felon from January [redacted] 2008 to March [redacted] 2008, and that his VA disability compensation during that period was improperly discontinued is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs