Citation Nr: 22012103 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 20-26 511 DATE: March 2, 2022 ORDER The reduction of the Veteran's Department of Veterans Affairs (VA) disability compensation benefits beginning May 4, 2014, based on a felony incarceration, was improper; the appeal is granted. FINDING OF FACT The Veteran was incarcerated following a guilty plea under the Georgia First Offender Act, which did not result in a conviction of a felony. CONCLUSION OF LAW The reduction of the Veteran's VA disability compensation benefits beginning May 4, 2014, was improper. 38 U.S.C. § 5313 (2021); 38 C.F.R. § 3.665 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2006 to March 2009. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a December 2017 rating decision by a VA Regional Office, which is the Agency of Original Jurisdiction (AOJ). In connection with his appeal, the Veteran was scheduled for a hearing with a Decision Review Officer in November 2017, but did not appear. He was also scheduled for a Board hearing in March 2021, but prior to the hearing he cancelled his hearing request. The Veteran has a concurrent appeal before the Board under the Modernized Appeal System, for a waiver of the debt in question here. That appeal will be addressed in a separate decision. The Veteran has requested an extension of time to submit additional argument and evidence. February 17, 2022 Correspondence. The Board denies that request as the record supports a favorable outcome. Propriety of the reduction of the Veteran's VA disability compensation benefits beginning May 4, 2014, based on a felony incarceration. The Veteran contends that the reduction in VA disability compensation beginning May 4, 2014, due to his incarceration was improper as he was not convicted of a felony offense. In this regard, the Veteran argues that as he pled guilty to the offenses for which he was incarcerated under the Georgia First Offender Act, he was never convicted of a felony. Upon review, the Board agrees, and finds the reduction was improper as there is no conviction of a felony in the instant case. Under VA laws and regulations, a person who is incarcerated in a Federal, State or Local penal institution in excess of 60 days for conviction of a felony will not be paid compensation in excess of that amount specified in 38 C.F.R. § 3.665 beginning on the 61st day of incarceration. 38 U.S.C. § 5313(a)(1); 38 C.F.R. § 3.665(a). VA reduces a veteran's benefits pursuant to 38 C.F.R. § 3.665(a) upon showing: (1) incarceration in a penal institution; (2) for a period in excess of 60 days; (3) a conviction for (4) a felony. See Mulder v. McDonald, 805 F.3d 1342 (Fed. Cir. 2015); Mulder v. Gibson, 27 Vet. App. 10 (2014). The basic facts in the instant case are not in dispute. VA received notice in August 2013 that the Veteran was incarcerated in Appling County Jail as of April 2, 2013. VA notified the Veteran in September 2013 that VA reduces disability compensation for incarcerated veterans, and informed of his procedural rights. VA then received further information that he had been incarcerated by the Georgia Department of Corrections beginning March 5, 2014. Thus, in an April 2016 letter, the AOJ notified the Veteran it planned on reducing his benefits beginning the 61st day of his incarceration following the conviction of a felony. In June 2016, the Veteran informed the AOJ that he had not been convicted of a felony, noting that he was incarcerated under the Georgia First Offenders Act. The AOJ contacted the Appling County Clerk, who confirmed the Veteran was not convicted of a felony offense, as he had pled under the Georgia First Offender Law. Thus, the AOJ sent the Veteran notice in July 2017 to disregard the proposal as he was covered under this law. Notwithstanding the prior letter, in the December 2017 decision on appeal, the AOJ then reduced the Veteran's disability compensation beginning May 4, 2014, due to incarceration for a felony offense. Upon review of the record, the reduction in disability compensation was improper as the Veteran did not have a conviction of a felony offense, as required by law for the reduction. See Mulder, supra. In this regard, the Veteran's guilty plea notes it was a First Offender entered under the Official Code of Georgia Annotated (O.C.G.A.) § 42-8-60. See February 2014 Plea (received December 22, 2017). Importantly, because the Veteran was sentenced as first offender, under Georgia law he was not convicted of a felony offense. The Georgia Court of Appeals noted that per their Supreme Court, "a first offender's guilty plea does not constitute a 'conviction' as that term is defined in the Criminal Code of Georgia." Mays v. State, 345 Ga. App. 562, 565 (2018) (citing Williams v. State, 301 Ga. 829, 831 (2017)). Therefore, as the Veteran was not incarcerated for the conviction of a felony, the requirements for a reduction in VA benefits under 38 U.S.C. § 5313(a)(1) and 38 C.F.R. § 3.665(a) are not met. Therefore, the reduction in the Veteran's disability (Continued on the next page) compensation beginning May 4, 2014 was improper. The appeal is granted as a matter of law. J. B. FREEMAN 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.