Citation Nr: 20023042 Decision Date: 04/02/20 Archive Date: 04/02/20 DOCKET NO. 19-26 054 DATE: April 2, 2020 REMANDED Termination of the Veteran’s benefits from March 4, 2016 to September 13, 2016 and from June 5, 2017 to May 23, 2019, based on fugitive felon status is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Marine Corps from May 1997 to August 1997 and from February 2003 to August 2004. This matter comes before the Board of Veterans' Appeals (Board) from a July 2018 decision of a Department of Veterans Affairs (VA) Regional Office (RO) that suspended the Veteran's benefits based on a finding that he was a fugitive felon. 1. The Appeal is Remanded. Although the Board regrets any further delay, this appeal must be remanded. For the purposes of VA compensation benefits, such benefits may not be paid to any Veteran for any period which he or she is a fugitive felon. 38 U.S.C. § 5313B. Generally, 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). Neither actual acknowledges that a warrant has been issued nor an adjudication of guilt is required for a Veteran to be considered a fugitive felon. See Mountford v. Shinseki, 24 Vet. App. 443, 448 (2011). 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. In this matter, the Board finds no offense codes for the Veteran’s warrants. The FFP-3’s obtained by the Department of Veteran’s Affairs Office of Inspector General indicate that the offense committed was “Probation Violation- See Mis.” A July 2018 Report of General Information indicates the status of warrants was verified, but the offense code is not found there either. Given, the Veteran has indicated and provided documentation that his parole terms were changed around the periods on appeal, the offense code is probative in determining the Veteran’s status at the time. The matters are REMANDED for the following action: 1. Ensure that all proper procedures have been followed pursuant to the updated guidance set forth by the Undersecretary for Benefits of the VBA regarding fugitive felons in VBA Letter 20-14-09 (June 23, 2014) to include, as needed, identifying the National Crime Information Center (NCIC) offense code associated with the Veteran's warrants. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Teague, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.