Question:
Jim,
I know you are a busy man but I really need assistance on where to go and what to do.
I am 100% rated. I am also awarded SMC and I drive a handicap equipped vehicle funded by VA. My home is being modified to accommodate my wheelchair, funded by VA, I was stopped for speeding in a state away from my home state the day after Thanksgiving 2007 and the officer stated I had a felony warrant out of a 3rd state. Since I had never been arrested nor even had a traffic violation I had no reason to ever suspect I had a Warrant. The officer couldn't tell me what the warrant was for, he just arrested me. I stayed in jail for a gruesome 5 days and posted a Fugitive Bond of $1000. Now I have to go to to the state where the warrant was issued to post a bond there to get this cleared up.
But, just yesterday I get "The Letter" from the VA stating that I was a Fugitive since they posted the Warrant on June 2006 that regardless if I get this cleared up or not they will with hold my check from that date until the date I show them the Warrant has been taken care of. That comes to about $60,000 for me. I'm positive I can get the Warrant business straightened out but the $60K scares the daylight out of me.
I have bills, a home and like everyone don't have $60k in the bank. If worse comes to worse is there any way to allocate that money to my mother, or request a hardship waiver. I had no knowledge of a warrant and I know they could care less if I knew or not but mistakes happen and this is one. I am in such a state of depression and am really borderline suicidal right now b/c I will be leaving my mother in a hell of a fix and I will be worth more dead than alive..I can't believe things like this happen especially in my mundane existence but there it is..a slap in the face..
Now..they state I can request a hearing within 30 days but if they don't hear from in within 60 days my check will be STOPPED March 1, 2008.
Please tell me what to do. The DAV rep is out until December 17th on vacation or leave whatever the case...I'm not sure they can handle this kind of stuff or not since it is not benefits.
Please tell me what to do if anything or go the other route..I'll be honest this scares the living crap out of me and it seems like something should have been written to protect the ones who knew nothing or could allocate the money to someone else. I did that before in that I had my mother granted approval to receive my checks every month...this is long..I'm sorry but I'm just bouncing off the walls..Thanks for your help and time.
Answer:
When I read your letter in December of 2007 I was shocked at how little I knew of the interaction that VA may have with law enforcement agencies. I'd glanced at rules about "fugitive felons" but since I don't know any, I didn't pay much attention. I suppose I thought the term would only apply to someone who broke out of prison after shooting a guard or two and was on a crime spree, terrorizing everyone they meet.
Not so.
The fact is that if you are in trouble with the law, your Veterans Benefits Administration wants to know about it and through a complex network of connections to other government agencies, they'll most often find out that you are in trouble.
Yes, this is the same agency that can't find the doctor's letter you submitted in evidence to support your claim. But they can manage to track you down to a small town police department's jail in a state where you don't reside based on a 2 year old felony warrant from another state entirely.
I wanted to know about the mystery warrant before I got too deep into this with you. I'm like many law abiding citizens, I have a deep suspicion of people who are arrested protesting their innocence as the cuffs are applied. The police don't arrest people without good reason, right? You said you'd never been arrested before. Because this was a felony warrant, that told me the alleged violation was more than a civil suit about property or similar.
As it unfolded, it seems that in June of 2006 you were in a vehicle in the parking lot of a convenience store. You were in that city and state visiting a friend. You were in the passenger seat and it wasn't your vehicle nor were you driving. You and your friend had purchased non-alcoholic beverages. You were in pain (a frequent problem from your service connected disability) and you opened a bottle of VA prescribed pills that were in the original labeled container and retrieved the appropriate dose of your medicine.
You were being observed by a police officer. He approached you to ask about those pills you were taking. He was suspicious because there were a lot of them and the drug, methadone, to his thinking was a drug used only by addicts. He checked you for warrants, asked about the reasons you were in his town and state and asked why you had so many pills.
In the end, the officer didn't arrest you nor did he write you any ticket or other documenting paperwork. He did confiscate your pills so that he could complete his investigation into the legitimacy of why you had methadone in a public place. He told you that you could call the station in a couple of days to find out the result of his investigation.
As one would suspect, you were frightened and indignant. The next day you were scheduled to return to your home state and you did. You went to your VA primary care physician and explained what happened and he refilled your pain medicine. While speaking to your doctor, the VA pharmacist and others, you were advised to just leave well enough alone. The common thought seemed to be that the police officer probably kept those drugs for his personal use. Hey, it happens. If you tried to recover the medicine, you'd only make trouble for yourself.
Little did you realize that the officer apparently tried to call the local VA clinic to ask why you had all those narcotics. We'll never know just what happened but we'll assume he was greeted by the infamous VA telephone triage system and was subjected to an hour or two of listening to how important his call was to the VA, endless transfers, disconnects and maybe even people who wouldn't give him information due to privacy laws.
Whatever it was that happened, since you didn't show up to recover your prescription, his suspicions were confirmed and a warrant was issued for your arrest. You were suddenly a felon with a warrant, a fugitive from the law who was fleeing to avoid lawful arrest and detention on a serious drug possession charge.
The system recognized that you resided in another state. So your name and numbers were entered into a national database, your home state was notified and this trickled down to your county of residence. Your local sheriff is charged with delivering subpoenas to appear in court to answer such charges and thus a deputy came looking for you.
We now know that the summons to appear was delivered to the wrong address. Somewhere along the line your house numbers were transposed and a digit removed. As you were by now a known felon, a fugitive drug addicted criminal fleeing from the justice system, it's likely that it was believed that you intentionally gave a fake address to throw off your pursuers. That it was a drug offense escalated the issue due to the priority of our country's ongoing war on drugs. Your name was entered into the FBI database.
Then you made the mistake of speeding during a holiday season in a small town. You were jailed for almost 5 days before a judge could be brought to a bench to free you on a bond amount you couldn't afford. You still weren't told what the original warrant was for.
While you were trying to correct this nightmarish FUBAR, the VBA stepped in with the news that your benefits were to be suspended.
When I enter a new benefits situation, I have a set of resources that provide me with the great majority of the answers I need. The most practical and useful is the M21-1MR. This is the document that details to the VBA just how they should handle a particular situation. While addressing things in practical terms, it also provides links to the text of the law for more detailed information.
In this case, the M21-1MR was my second thought. The first thing I told the veteran was that he needed a lawyer. As it happened, he was retaining a lawyer to represent him in the town where the warrant originated. That lawyer knew nothing of VA law. The VA benefits certified lawyers he contacted weren't familiar with the issues of fugitive felons and the VBA and there weren't any VSO's who would help either. His POA DAV representative was on vacation. He contacted me.
My approach to dealing with any situation that concerns VBA is almost always the same. There are priorities to be considered. In this instance, the veteran could not afford any sudden cut of his benefits. Whenever you get a letter from VBA you must read it carefully and then read it again. Most communications from VBA require a "timely" response. As you might suspect, this is an unforgiving rule and you ignore it at great risk. The VBA doesn't adhere to such a rule itself...it can respond to you in a week or a year or never and there's no penalty imposed.
This letter, like most from VBA, offers the veteran 2 periods in which to respond. The first 30 day period and then the 60 day period that runs concurrently. If you wish a personal hearing you have 30 days to reply. If you wish to file a Notice of Disagreement (NOD) to the action contemplated by VA, you have 60 days to reply.
During the first 30 day period you may reply and instruct VBA that you do not want any deductions made from your award while you await the outcome of your appeals. This is effective in almost all actions that would deduct all or part of your money for such things as apportionment, recoupment of an overpayment and so on. If you don't specifically instruct VBA that you don't want the proposed reduction or recoupment action to be initiated, they will proceed and when you win your appeal, that amount is repaid to you.
Before we did anything else, we drafted a brief letter to the VARO and instructed that we wished a personal hearing and that no deductions be made while we appealed. This buys time for the veteran to better study the options available.
The letter was timely delivered via certified mail, return receipt requested. It's worth noting that in theory, a telephone call should suffice and have the same effect. I recommend that you never call the VBA for any reason. When an issue as important as this hangs in the balance, trusting your fate to a telephone call is beyond foolish.
Now that step one was completed and we had some time, we went back to the M21-1MR. There we see, "Part 10. Matching Programs". The introduction in Chapter One tells us, "The Department of Veterans Affairs (VA) receives information on a regular basis from several Federal agencies and compares it to information used to determine the status of VA beneficiaries. The matches identify cases where there are apparent contradictions between information contained in VA records and information furnished by other Federal agencies that affect entitlement."
Read on to learn, "Information derived from the matches may be used to adjust VA benefit payments. Consider all instances of failure to report income or other entitlement factors for a possible fraud referral under the provisions of M21-1MR, Part III, Subpart vi, 5.A (TBD) or M21-1, Part IV, Chapter 36, Subchapter I." Now we know that if you pay taxes to IRS on earned income while you collect 100% IU from the VBA, you're likely to be "matched" for your fraudulent activity.
The authority and responsibility for these matches rests at Pension Maintenance Centers (PMC). Much of the following verbiage is copied and pasted in from the M21-1MR. I won't bother with "quotation" marks so that it may read easier.
The PMCs in Philadelphia, St. Paul and Milwaukee are responsible for receiving and processing all reports from matching programs involving pension recipients, including reports from
• Income Verification Matches
• SS Verification Matches
• SS Number Matches
• Prison and Fugitive Felon Matches
• Total Disability Income Provision (TDIP) Review Matches
• Civil Service Verification Matches, and
• Railroad Retirement Verification Matches.
From there we drill down to our concern today; Chapter 16 - Fugitive Felon Match.
Early on we see that;
38 U.S.C. 5313B prohibits payment to
· Department of Veterans Affairs (VA) beneficiaries while they are fugitive felons, and
· dependents of a veteran beneficiary who is a fugitive felon.
So far, so good. But at this point we see that the rules regarding fugitive felons are harsh and unforgiving.
A fugitive felon is defined as a person who is
• fleeing to avoid prosecution, custody or confinement for a felony, or
• considered a fugitive because he/she violated a condition of probation or parole imposed for commission of a felony.
A beneficiary or dependent who is the subject of a valid outstanding felony arrest warrant is presumed to be a fugitive felon for VA purposes.
A person is considered to be in fugitive felon status from the later of the following dates:
• the date of the warrant, or
• December 27, 2001, the date of the fugitive felon law.
This following deserves your very close attention, particularly the last sentence beginning with "Note";
VBA is responsible for
· controlling fugitive felon forms referred by OIG
· initiating due process procedures
· discontinuing benefits to beneficiaries and dependents during periods when the beneficiary or dependent is in fugitive felon status, and
· resuming benefits when adequate evidence is received that the warrant has been cleared.
Note: Upon receipt of adequate evidence that the warrant has been cleared, VA usually resumes benefits on the date the warrant is cleared, and not retroactively to the date benefits were discontinued. Typically, an “invalid” warrant was valid until the date it was declared invalid.
It's made clear above that if you are issued a warrant in January and because of bureaucratic bungling you don't learn of it until June and it's dropped with no charges or convictions in July, between January and July your benefits will not be paid. If you received benefits during that period, you are now in that status known as "overpayment" and recoupment processes will begin.
"But Jim", you cry to me, "I didn't know about this warrant. I took care of it as soon as I found out about it. I went to their court and there were no charges, no convictions, the DA confessed that it appears it was the fault of the city for getting my address wrong and an assistant district attorney apologized to me later for all my trouble. I didn't do anything wrong! VA understands all that and won't take my benefits, right?"
Wrong. Read on, from our now favorite guide...
The fact that a warrant has been dismissed, recalled, quashed (that is, annulled or set aside), or otherwise cleared does not mean that no action is required on the fugitive referral, unless it has been established that the warrant was cleared effective on or before the date the beneficiary went into fugitive status.
In most cases in which a warrant is dismissed, recalled, or quashed, there was still a valid warrant up to the date the warrant was cleared. VA benefits are subject to adjustment from the warrant date (or date of the law) until the recall/dismissal/quash date.
VA will make reasonable efforts to contact the official to establish that the beneficiary is no longer in fugitive status, but ultimately it is the responsibility of the beneficiary to provide evidence that fugitive status has been cleared.
Notes:
• Evidence that the beneficiary’s fugitive status has been cleared must originate with an official source at some level of government.
• Uncorroborated statements by the beneficiary, a family member, or a private attorney may not be used to establish that a beneficiary is no longer in fugitive status.
VA benefits may be discontinued because of fugitive felon status only if there is a valid felony warrant. If the beneficiary alleges that the warrant was for a misdemeanor, develop to determine whether there was a valid felony warrant. When developing the case, keep in mind that
• it is essential to distinguish between the warrant and the resolution of the criminal case in a situation where a beneficiary has been convicted of an offense
• the fact that the beneficiary was not convicted of a felony is not relevant to resolution of the fugitive felon issue, and
• the fact that an individual was charged with a felony but later pleads down to a misdemeanor does not change the fact that the warrant was a felony warrant.
Note: Some cases referred to an RO involve beneficiaries who were originally convicted of misdemeanors, but who violated probation or parole, which resulted in issuance of a felony warrant. It is the warrant agency’s characterization of the warrant as a felony warrant that is controlling.
In some instances the record of a criminal case may be expunged. This is normally done for first-time offenders to keep their records clean. Expunging a record is done after the fact and normally does not affect the underlying validity of a warrant.
Note: If the record was expunged at the request of the beneficiary, the beneficiary is responsible for requesting that the record be opened to establish that he/she is out of fugitive status.
In some instances a jurisdiction may seal the record of a criminal case. Sealing the record does not necessarily affect the determination as to whether a fugitive felon award adjustment is required. Again, the issue is whether there was a valid felony warrant for some period of time on or after the date of the fugitive felon law (December 27, 2001).
If you have been identified as a fugitive felon by the VBA your first reaction is probably disbelief and then anger will quickly follow. If you're as smart as the veteran who wrote to me to ask for help, you'll get past that quickly and begin to act for yourself. There is a light at the end of the tunnel.
"Overpayments created under the fugitive felon program are subject to waiver or compromise" says our M21-1MR. This veteran's VARO should have notified him of his right to seek waiver or compromise but didn't. The veteran was never notified that, "A debt that arises as a result of the payment of benefits to VA beneficiaries under the fugitive felon provision of law is subject to waiver consideration in accordance with 38 U.S.C. 5302, 38 CFR 1.955 – 1.970, and MP-4, Part I, Chapter 8."
That could have been a point of a future appeal.
In our case, we took the time in December 2007 to timely notify the VARO of the desire for a personal hearing and that compensation benefit payments continue uninterrupted. In January and February 2008 the veteran returned to the court of the town that issued the warrant. His problems were quickly settled with no arrest, no conviction, no fine and no record of any of that. In March we notified the VARO that the issue was settled.
In May 2008 the veteran was notified by his VARO "Please be advised that even if you do submit evidence establishing that the warrant has been cleared, we are still required to stop your compensation or pension benefits from June 2006 until the date the warrant is cleared."
We immediately notified the VARO that there should be no further action to lower the benefit until such time as a personal hearing was held and an appeal was formally made to the Committee On Waivers & Compromises. You can read more on that here http://www.va.gov/publ/direc/finance/05GC1_01bul.htm
On July 2nd 2008 the veteran received notice that there would be no need for the plea to go to the Committee On Waivers & Compromises. He was informed that no overpayment had been created and there was no reason to involve that Committee. Our interpretation of this letter is that the VARO completed its investigation and that the issue is settled.
Because of his quick action this veteran was able to overcome what could have been a financial disaster. He followed all the rules as strictly as the VBA did and was thorough in his documentation. His actions were timely even when it was inconvenient for him. Although he's severely disabled, he gathered together his letters to the VARO and got to a post office to properly deliver them.
Once your life is affected by any VA benefit, you are a part of that network forever and you're subject to each of the arcane rules and regulations that govern your DVA. The wise veteran pays close attention to all things VBA and is constantly learning. The benefits you earned are there for you to use as you deserve.
With that privilege comes the responsibility of protecting your benefits from the very agency that awarded them. The veteran who remains vigilant most often goes home the winner.
Jim Strickland's Mailbag: Volume #54 for 2008
NOTE: Letters in my mailbag are reprinted just as they come to me. Spelling and grammar are left as is and only small corrections are made to improve readability, ensure anonymity or delete expletives that may offend some readers. This is not legal advice. You should always seek the advice of an attorney who is qualified in Veterans' law before you make any decisions about your own benefits.
07.09.08
