Citation Nr: 1820745 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 13-28 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Whether the termination of Department of Veterans Affairs compensation benefits was proper for the period from July 23, 2004 to September 11, 2009 by reason of the Veteran's status as a fugitive felon. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The Veteran served on active duty from March 1970 to April 1971. This matter comes before the Board of Veterans Appeal (Board) from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran's claim was later transferred to the VA RO in Atlanta, Georgia, which has current jurisdiction. The Veteran testified before the undersigned Veterans' Law Judge (VLJ) in May 2016. A transcript of that hearing is associated with the claims file. This case was remanded in July 2016. The requested development having been accomplished, the case is now again before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2014). FINDING OF FACT The preponderance of the evidence shows the Veteran was a fugitive felon from July 23, 2004 to September 11, 2009. CONCLUSION OF LAW The termination of the Veteran's VA compensation benefits from July 23, 2004 to September 11, 2009, based on his being a fugitive felon was proper. 38 U.S.C.A. § 5313B (2014; 38 C.F.R. § 3.665(n) (2017); VBA Letter 20-14-09 (June 23, 2014). REASONS AND BASES FOR FINDING AND CONCLUSION The issue before the Board is whether the Veteran was properly considered a "fugitive felon" under VA law. After reviewing the procedural and factual background, including consideration of recent changes in VA policy regarding the designation of Veterans as "fugitive felons," the Board finds that a preponderance of the evidence supports a determination that the Veteran was a "fugitive felon" and that, therefore, the cessation of VA compensation benefits was proper. Effective December 27, 2001, the law prohibits the payment of compensation benefits for any period during which a veteran was a fugitive felon. 38 U.S.C. § 5313B (2014); 38 C.F.R. § 3.665(n). 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. § 3.666(e)(2). The term "felony" includes a high misdemeanor under the laws of a state which characterizes as high misdemeanor offenses that would be felony offenses under Federal law. 38 C.F.R. § 3.666(e)(3). 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) (as referenced in M21-1 Live). VBA Letter 20-14-09 indicated 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 stated 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. When a warrant is dismissed, recalled, or quashed, there was still a valid warrant up until the date the warrant was cleared and VA benefits are subject to adjustment from the warrant date until the date it is recalled, dismissed, or quashed, unless there was a specific determination that the warrant was void from its inception because of mistaken identity or a defect in the warrant, or the court order specifically states that the recall is effective from a specific date that is on or before the date of the warrant, or uses the terminology nunc pro tunc, which refers to changing back to an earlier date. See M21-1, Pt. X, Ch. 16.2 (f). In the present case, the RO became aware in 2009 that the Veteran had been the subject of a warrant issued in the state of Massachusetts for the offense of stealing a vehicle: warrant #0264CR002752 (hereinafter #2752), dated July 23, 2004. See Office of Inspector General (OIG) Notification (rec'd 3/3/2009). In March 2009, the RO notified the Veteran that it 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 given 60 days in which to clear the warrant or advise VA if he believed he was not the person identified in the warrant or his benefits would be terminated. In June 2009, the RO notified the Veteran it had terminated the Veteran's benefits effective July 23, 2004 because he had been identified as a fugitive felon. In September 2009, the Veteran informed the RO that the warrant had been removed. In November 2009, the RO received copies of warrant cancellations for two warrants dated in October 2009, effective September 11, 2009. Warrant #2752 was notated Default Removed; Case Continued for pretrial hearing. The second warrant, #0164CR003502 (hereinafter #3502), was similarly notated, but the scheduled event was identified as a probation violation hearing. In an October 2009 notification letter, the RO stated that it had restored the Veteran's VA benefits effective September 11, 2009 due to his fugitive felon status being cleared. In June 2010, the Veteran submitted a notice of disagreement as to the propriety of the termination of benefits, arguing that the charges had been dropped. In May 2016, the Veteran testified before the undersigned VLJ. He and his representative asserted that the crime for which the warrant at issue had been issued was not a felony, but a probation violation. The Veteran argued that the charges against him had been reduced and dismissed, and that he could not be a fugitive felon as his probation officer, and the Court, knew his whereabouts. See, generally, May 2016 Board Hearing Transcripts; see also February 2018 Information Hearing Presentation. In July 2016, the Board remanded this claim for clarification as to whether or not the Veteran had been charged with a felony, given the change in policy reflected in VBA Letter 20-14-09. In July and October 2017 VA Reports of General Information, VA personnel reported that the OIG determined that the vehicle theft that is the subject of warrant #2752 is a felony. See July and October 2017 VA Forms 21-0820, Report of General Information (rec'd 7/12/2017 and 10/31/2017, respectively). Review of additional court documents provided by the District Court that issued warrant #2752 reveals that the Veteran was charged with motor vehicle larceny. He appeared before the District Court in 2002, 2004 and 2009. In 2009, notes reflect that he was released on personal recognizance with bail warning. The criminal docket shows that charges were to be dismissed upon payment of court costs/restitution, which were to be paid by June 1, 2010. See Criminal Docket #L4 2752 (rec'd 11/3/2017). However, the assessed fines/costs were not paid in full until 2018, at which time charges were dismissed and warrant #2752 was canceled. See Criminal Docket 2 Warrants (rec'd 1/31/2018). Notwithstanding the cancelation of warrant #2752 and dismissal of charges in 2018, the District Court has not advised, and there is no other evidence to support, that the District Court specifically determined that the warrant was void from its inception because of mistaken identity or a defect in the warrant. Nor do the documents from the District Court specifically state that the recall is effective from a specific date that is on or before the date of the warrant. As an aside, the Board observes that the second warrant represented in the documentation provided by the District Court, warrant #3502, references a probation violation hearing and that the Veteran had been sentenced to probation with a charge of motor vehicle larceny. The documents further reflect that the charge was to be reduced to use without authority. However, the date of the offense is in 2001, whereas the date of the offence in warrant #2752 is in 2002. Warrant #2752, the subject of this decision, is thus distinguished from Warrant #3502, which was apparently the warrant the Veteran had in mind when he testified as to the circumstances of reduced charges and probation violation. Accordingly, the preponderance of the evidence establishes that the Veteran was a fugitive felon from July 23, 2004 to September 11, 2009, and termination of his VA benefits for that time period is proper. The benefit-of-the-doubt doctrine does not apply, as the preponderance of the evidence is against the claim. The instant decision only addresses the sole appellate issue of fugitive felon status under warrant #2752 and forfeiture from July 23, 2004 warrant to September 11, 2009, and does not address suspension or forfeiture of compensation benefits due to other outstanding warrants or warrant periods. ORDER Termination of VA compensation benefits was proper for the period from July 23, 2004 to September 11, 2009. Restoration is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs