Citation Nr: 22014704 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 14-26 516 DATE: March 14, 2022 ORDER The August 2011 termination of benefits due to fugitive felon status was improper; restoration of Department of Veterans Affairs (VA) benefits is granted. FINDINGS OF FACT 1. The Veteran's VA disability compensation benefits were terminated effective August 24, 2010, to October 21, 2010, due to fugitive felon status due to an August 24, 2010, outstanding warrant. 2. From August 24, 2010, the Veteran was not fleeing to avoid prosecution or custody or confinement after conviction for a felonious offense, or attempting to commit a felonious offense, and was not violating a condition of probation or parole imposed for commission of a felony. CONCLUSION OF LAW VA having improperly discontinued the Veteran's pension benefits from August 24, 2010, based on fugitive felon status, the criteria for entitlement to the restoration of these benefits are met. 38 U.S.C. § 5313B (2021); 38 C.F.R. § 3.665(n) (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1991 to June 1993. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from an August 2011 rating decision by a VA Regional Office, which is the Agency of Original Jurisdiction (AOJ). In November 2021, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing, and a transcript of the hearing is associated with the record. Propriety of the August 2011 termination of benefits due to fugitive felon status. The Veteran contends that the August 2011 termination of benefits, effective August 24, 2010, to October 21, 2010, based on fugitive felon status was improper. Specifically, the Veteran contends he never knew of the warrant's existence, it was issued in error, and he was not fleeing. Upon review of the record, the Board agrees and finds that the termination of benefits was improper as the Veteran did not meet the statutory definition of a fugitive felon. 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). By way of background, the Veteran has been in receipt of VA disability compensation benefits since June 1993, with a combined 30 percent rating since August 1996. In April 2011, VA Office of the Inspector General issued a Fugitive Felon Investigative Summary Form indicating a felony arrest warrant had been issued for the Veteran on August 24, 2010, for a sexual assault offense. The AOJ contacted the Dallas County Sheriff's office in May 2011, who informed the AOJ contact that the warrant was cleared on October 21, 2010, when the Veteran was arrested. In May 2011, VA then notified the Veteran it had received evidence he was the subject of a felony arrest warrant and was considered a fugitive felon; and therefore, it planned to terminate his benefits from August 24, 2010, to October 21, 2010. Then in August 2011, VA initiated the rating action terminating the Veteran's benefits, and sent notice to the Veteran, after which the current appeals process began. The Veteran submitted a November 2011 letter from the attorney who represented him in the criminal proceedings in Texas. The letter attested to the fact that the issuance of the August 24, 2010, warrant was a clerical error on the part of the court, and all parties were unaware of its existence until the Veteran was arrested. The attorney attested that the Judge in the case ordered the Veteran released immediately after learning the facts of the situation. In his March 2012 notice of disagreement, the Veteran explained that the warrant was issued due to an insufficient bond. In this regard, he submitted his judicial information, which noted his bond was originally set at $ 25,000 on April 4, 2008. See March 2012 Prison/Convict Information. Then, on august 24, 2010, the bond was raised to $50,555. Shortly thereafter, on September 2, 2010, it was noted as set as $50,555 again. Later in the document, in the general comments section, the document noted that his bond was found insufficient on August 24, 2010, and then reinstated and continued on the same bond on September 3, 2010. Id. Parenthetically, the Board notes that the Veteran was found not guilty of the charges. He further later had his record expunged in normal course. This explains the AOJ's later unfruitful attempts to retrieve information regarding the Veteran warrant and fugitive status. Based on the foregoing, the Board finds that the Veteran did not meet the statutory definition of a "fugitive felon," and thus, the termination of his benefits was improper. Initially, the Veteran's arguments that the warrant was issued due to clerical error are persuasive. Specifically, the Veteran's attorney in the criminal proceedings, who was an officer of the court, attested to this fact. Further, the warrant was issued corollary to a sua sponte finding by a magistrate judge that the originally issued bond was insufficient, primarily due to the raising of his bond amount that same day. This in itself is a clerical issue. The later proceedings include further clerical revisions to the nature of the bond, without issuance of additional warrants. Further, the record does not show that the Veteran was convicted of a felony, or that he had probation or parole imposed. Thus, the only manner in which he could be a "fugitive felon" is if he was "fleeing to avoid prosecution." 38 C.F.R. § 3.665(n)(2) (emphasis added). Here, there is no evidence the Veteran was fleeing. Importantly, the Veteran stated he had no knowledge the warrant was issued. The Board finds no reason to doubt the veracity of the Veteran's testimony, in particular considering the attorney's statement, and the fact that he again posted his bond and was released pre-trial. Moreover, the original indictment was made in May 2008. The Veteran posted his bond at that time, and continued to wait for roughly 4 years for his court dates until he actually went to trial. This shows he had no intention of fleeing. After his bond was found insufficient and raised to $50,555, he again posted bond and awaited his court date. Therefore, resolving all doubt in his favor, the record persuasively shows that the Veteran had no intent, plan, or actual attempt to flee to avoid prosecution, and thus he could not have been a fugitive. Accordingly, based on the foregoing, the Board concludes that the Veteran was not a fugitive felon from August 24, 2010, to October 21, 2010. As such, the discontinuance of his compensation payments for that period of time was improper. Michael A. Pappas 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.