Citation Nr: 21028808 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 10-13 604 DATE: May 12, 2021 ORDER The termination of payment of Department of Veterans Affairs (VA) disability compensation benefits to the Veteran due to status as a fugitive felon effective as of December 27, 2001, was proper, and the appeal is denied. FINDINGS OF FACT 1. The Veteran's VA disability compensation benefits were retroactively terminated effective December 27, 2001, due to a July 27, 2001, outstanding warrant for a parole violation, and reinstated on November 8, 2006. 2. The Veteran met the statutory definition of a fugitive felon. CONCLUSION OF LAW The termination of payment of VA disability compensation benefits to the Veteran due to status as a fugitive felon effective as of December 27, 2001, was proper; the criteria for entitlement to the restoration of benefits are not met. 38 U.S.C. § 5313B (2020); 38 C.F.R. § 3.665(n) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1974 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating action issued by a VA Regional Office (RO). In June 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In April 2018, the Veteran testified at a RO hearing before a Decision Review Officer. A summary of the hearing is associated with the record. In December 2013, June 2016, and October 2019, the Board remanded the case for additional development and it now returns for further appellate review. Propriety of the termination of payment of VA disability compensation benefits to the Veteran due to status as a fugitive felon effective as of December 27, 2001. The Veteran contends that his benefits should not have been terminated because he was unaware of the July 27, 2001, warrant, and he was not hiding, avoiding law enforcement, or fleeing to avoid prosecution or confinement. Notwithstanding, the Board finds the termination of benefits was proper because the Veteran met the definition of a fugitive felon due to a warrant issued for a parole violation. The law prohibits the payment of compensation benefits for any period during which a veteran is a fugitive felon. 38 C.F.R. § 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. 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). Previously, VA presumed that a beneficiary was a fugitive felon if the beneficiary was the subject of any felony arrest warrant. M21-1 Manual Rewrite (MR) Part X, Chapter 16, Topic 1, Block c. 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 the beneficiary was the subject of any felony arrest warrant. The letter states that, effective immediately, VBA no longer presumed that any valid outstanding felony arrest warrant established 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. Those 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 Thus, VA 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. When a warrant is dismissed, recalled, or quashed, there is 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. M21-1, Pt. X, Ch. 16. The record shows, and the Veteran does not dispute, that a warrant was issued on July 27, 2001, with the noted offense of obstructing justice. The NCIC code was W120568917. In a March 2010 letter, the Oklahoma State Department of Corrections (ODOC) clarified that the July 27, 2001, warrant was issued for a parole violation. The letter also reiterated that the Veteran was arrested on that warrant on September 7, 2006, in Idaho, and returned to Oklahoma custody on November 7, 2006, for the parole violation. On May 30, 2007, the Governor revoked the Veteran's parole, and the warrant was cleared. He then completed a parole sentence on August 22, 2008. Prior to the July 27, 2001, warrant, the Veteran was convicted of second-degree burglary, receiving or possessing or concealing stolen property, false declaration of ownership at a pawn shop, and possession of a controlled substance in August 1995. He was sentenced to three years for the first three convictions, and six years for the last conviction. A July 2002 Social Security Agency (SSA) prisoner computer match noted that the Veteran had been convicted of a felony offense and served from February 1995 to May 1995. ODOC records show that the Veteran served a sentence from August 1995 to December 1997. Thereafter, the Veteran was convicted again in July 1996 on one count of escape from confinement, and two counts of receiving or possessing or concealing stolen property. He was sentenced to 10 years for the latter and five years for the former. Notably, the ODOC records indicate that he was sentenced to 1738 days beginning in May 2007 for the 1996 conviction for one of the counts of receiving or possessing or concealing stolen property. Notably, the timelines for the above sentences do not align, and there is a question in the record as to the exact dates of incarceration. The Veteran reported during a November 2004 Vocational Rehabilitation Evaluation that he was sentenced to three years in 1993 for cocaine possession, but only served seven months. Then, he did not report to his parole officer and was arrested, and given a 10-year sentence for escape. He reported he served six and a half years, and was released in 1999. The Veteran reported that he worked with a physician doing general maintenance from 1999 to 2004, all in Oklahoma. The Veteran's resume notes that work history. Thus, the record tends to indicate that the Veteran was not serving a consecutive sentence from 1996 to 2004. A separate July 2002 SSA Prisoner Match found that the Veteran was confined in Oklahoma County Jail on November 27, 2001, without a release date. However, the Veteran did not report any long-term incarceration at that time. At the Board hearing, the Veteran testified that he had been confined for a short period in 2003 in Oklahoma County Jail after traffic violations. There is no evidence of record showing that any of those confinements were related to the July 2001 warrant. Based on the foregoing information, the Veteran was a fugitive felon from July 21, 2001, until his transfer to Oklahoma custody on November 7, 2006, when the warrant was cleared. The Veteran does not dispute the basic tenets of the timeline above. Rather, he contends that he was not, in fact, fleeing or a fugitive. The Board notes the Veteran's argument, and it appears from the record that he did not know of the warrant and was not fleeing or hiding, as he was working within Oklahoma, he made numerous correspondences with VA during that period, and he was separately incarcerated. Nonetheless, the Board is confined by the statutory definition in this case, and as the warrant was issued for a parole violation, he met the definition of a fugitive felon as of July 21, 2001. The plain language of 38 U.S.C. § 5313B(b)(1)(B) is unambiguous and 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. Actual knowledge that a warrant had been issued is not part of the statutory requirement under 38 U.S.C. § 5313B. Neither the statute nor its legislative history suggested that to be a fugitive felon one must have knowledge of the warrant. Mountford v. Shinseki, 24 Vet. App. 443 (2011). Accordingly, while the Veteran argues that he did not know of the warrant, any lack of knowledge is not relevant for a determination as to whether the Veteran met the definition of a fugitive felon. Further, the Veteran was on parole at that time for the conviction of receiving or possessing or concealing stolen property, which is a felony under Oklahoma law. 21 OK Stat § 21-1713. Thus, the warrant was for a violation of parole imposed for commission of a felony, and thus he met both requirements for the definition of a fugitive felon as required by the statute and regulation. The Veteran's intervening incarcerations are also not relevant in the instant case, as the warrant was still valid and promulgated. He argues that it should have been executed and cleared long before it actually was, because of the incarcerations and his openly living in Oklahoma. However, the Veteran's quarrel is with the state for not adjudicating the warrant during any of his incarcerations since July 27, 2001, and the lack of that action does not make the warrant any less valid, however frustrating that may be. Jenkins v. Shulkin, No. 16-1376, 2017 U.S. App. Vet. Claims LEXIS 1167, at *5 (Vet. App. Aug. 16, 2017). Additionally, the Veteran provided evidence in August 2019 that the Governor of Oklahoma had issued a full pardon to restore all the rights of citizenship to the Veteran for all of the convictions, and revoked his parole. Unfortunately, a pardon is prospective, and not retrospective, and thus does not change the validity of the July 27, 2001, arrest warrant. Further, revocation of parole is also prospective, and does not apply to previous parole terms or violations. Therefore, the pardon and revocation of parole do not change the Veteran's fugitive felon status from July 27, 2001, to November 7, 2006. Finally, the effective date of December 27, 2001, for the termination of benefits was also proper. Although the warrant was issued July 27, 2001, the fugitive felon provisions of 38 U.S.C. § 5313B were not enacted as effective until December 27, 2001. Consequently, as a warrant was issued on July 27, 2001, for a violation of parole imposed for the commission of a felony, the Veteran was a fugitive felon. Therefore, VA properly terminated benefits effective December 27, 2001, until November 7, 2006, when the warrant was cleared. While the Board is sympathetic to the Veteran's claim, it must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonathan M. Estes 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.