Citation Nr: 18160749 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 16-31 124 DATE: December 27, 2018 ORDER The Veteran was not a fugitive felon, which would preclude Department of Veterans Affairs (VA) compensation benefits, and the appeal is granted. FINDING OF FACT The Veteran did not meet the definition of a fugitive felon. CONCLUSION OF LAW Termination of the Veteran’s compensation was not proper. 38 U.S.C. § 5313B; 38 C.F.R. § 3.665. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1988 to May 1992. Whether the Veteran was a fugitive felon, which would preclude VA compensation benefits The Veteran’s VA compensation benefits were discontinued effective February 1, 2012 based upon VA’s finding that the Veteran was a fugitive felon. With regards to “fugitive felon” status, the Board notes that prior VA policy was to presume that a beneficiary was a fugitive felon if he or she was the subject of any felony arrest warrant. However, in June 2014, the Undersecretary for Benefits of the Veterans Benefits Administration (VBA) issued new fugitive felon policy and procedures. VBA Letter 20-14-09 (June 23, 2014). VBA Letter 20-14-09 indicates that VBA previously presumed that a beneficiary was a fugitive felon if he or she was the subject of any felony arrest warrant. The letter stated that, effective immediately, VBA no longer presumes that any valid outstanding felony arrest warrant establishes a beneficiary’s fugitive felon status under 38 U.S.C. § 5313B. The letter further states that VBA will request information only for beneficiaries who have a felony arrest warrant with a National Crime Information Center (NCIC) offense code indicating flight or a probation or parole violation. These codes are: 4901 - Escape 4902 - Flight to avoid prosecution 4999 - Flight-escape 5011 - Parole violation 5012 - Probation violation 8101 - Juvenile offender abscond while on parole 8102 - Juvenile offender abscond while on probation VBA will discontinue benefits based on fugitive felon status only if: a judge issued a felony arrest warrant with a NCIC offense code indicating flight or a probation or parole violation; VA provided the beneficiary notice regarding the reason for the warrant and an opportunity to present evidence, such as an acknowledgment of the validity of the warrant or failure to respond to the due process notification, or that he or she did not flee from justice or did not violate any condition of probation or parole; and VA determines, based upon the warrant and evidence submitted by the beneficiary (if any), that the beneficiary was fleeing from justice or violated a condition of probation or parole. Benefits will be terminated for Veterans while they are fugitive felons and dependents of Veterans while the Veteran is a fugitive felon. Although the aforementioned policy change was not in effect at the time that a felony warrant was issued in this case, the reasoning behind that policy change is nonetheless for application to the facts of this case. In reviewing the extant law regarding the requirement of knowledge of a warrant in order for a veteran to be characterized as a “felony fugitive” under 38 U.S.C. § 5313B(b)(1)(A), the Board acknowledges that the United States Court of Appeals for Veterans Claims (Court) held that actual knowledge was not required to be a fugitive felon with respect to § 5313B(b)(1)(B), noting that the “plain language of the statute very simply defines a ‘fugitive felon’ as one who violates the conditions of probation.” See Mountford v. Shinseki, 24 Vet. App. 443, 448 (2011). However, this holding does not necessarily apply to the fleeing from prosecution or conviction provision of subsection (b)(1)(A), as the Mountford case involved fugitive felon status by virtue of the violation of the terms or probation under subsection (b)(1)(B) of the statute rather than fleeing to avoid prosecution under subsection (b)(1)(A). Indeed, the Court had earlier observed that “the plain language of section 5313B(b)(1)(B) provides that a person is a fugitive felon by reason of violating a condition of probation or parole imposed for commission of a felony under Federal or State law,” and thus “that violation of a condition of probation makes one a fugitive felon.” Id. at 447. The Court did not state whether the issuance of a warrant in itself based on an alleged offense constituting a felony committed by someone not on probation or parole likewise automatically makes one a fugitive felon under 5313B(b)(1)(A). Some guidance on the issue may be found in the Social Security Administration’s (SSA’s) counterpart of VA’s fugitive felon law. In this regard, a VA Office of General Counsel opinion observed that the VA fugitive felon provision was modeled after Public Law No. 104-193, which barred fugitive felons from receiving Supplemental Security Insurance from SSA and food stamps from the Department of Agriculture. VAOPGCPREC 7-2002. It was noted that Public Law No. 104-193 “was designed to cut off the means of support that allows fugitive felons to continue to flee.” Id. (quoting S. Rep. No. 107-86, at 17 (2001)). The provisions of SSA’s fugitive felon statute are essentially identical to the provisions of 38 U.S.C. § 5313B(b)(1) cited above. See 42 U.S.C. § 1382 (e)(4)(A). In interpreting SSA’s fugitive felon law, the United States Court of Appeals for the Second Circuit held that the statute’s use of the words “to avoid prosecution” confirms that for “flight” to result in a suspension of benefits, it must be undertaken with a specific intent, i.e., to avoid prosecution. Oteze Fowlkes v. Adamec, 432 F.3d 90, 97 (Fed. Cir. 2005). Although not controlling on VA, the Second Circuit’s interpretation of SSA’s fugitive felon statute as requiring knowledge of the warrant provides support for a similar finding with regard to subsection § 5313B(b)(1)(A) of VA’s fugitive felon statute which, as stated, was modeled after and contains language identical to SSA’s version. VA was informed in August 2015 that the Veteran was wanted on an active warrant for a probation violation. The Veteran credibly testified during his September 2016 hearing that he moved from Atlanta to South Carolina because he was homeless and wanted to move closer to family. Based upon this testimony, the Board finds that the Veteran was not a fugitive felon, and his VA compensation benefits should not have been discontinued. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Parke