You went through a tough process to qualify for your VA benefits. If you get involved in the criminal justice system, you risk losing the compensation you fought so hard to win. Title 38 VA Benefits regulations that authorize your benefits also include provisions to reduce, restrict, or suspend them. CFR §3.665, Incarcerated beneficiaries and fugitive felons – compensation, explains the potential outcomes of what could happen to your VA benefits if you go to jail.

When a court charges you with a crime, the Veteran’s Administration doesn’t automatically take away your benefits. A criminal charge only leads to a partial or total disruption of your compensation when the court convicts you, incarcerates you, or you flee prosecution. Your outcome depends on several factors.

  • Does the alleged crime involve a misdemeanor or a felony?
  • Did the court convict you?
  • Did your sentence include incarceration in a federal, state, or local prison?
  • Did the court sentence you to an alternative confinement program? (halfway house, etc)
  • If your sentence involved incarceration, how long will you spend in prison?

You Have Defense Alternatives

As the Veterans Administration bases its penalties on conviction and imprisonment, your challenge begins with properly defending your case.

Veterans Trauma Court

If you qualify, a criminal attorney can refer your case to Colorado’s Veteran’s Trauma Court. The VTC is an option for high-risk veterans and active military personnel with trauma spectrum disorders and substance abuse issues. Instead of imprisonment, the VTC emphasizes counseling, substance abuse treatment, and other post-plea accountability programs.

Defending Your Case

VTC isn’t geared toward veterans who prefer to defend themselves against a pending criminal charge. When you work with a criminal defense attorney, you focus on crafting a strong defense strategy that ultimately helps you retain your VA benefits. A criminal attorney can ask the court to dismiss the charges against you or to reduce them. Your attorney may seek probation, a community incarceration alternative, or some other solution that prevents the VA from suspending or reducing your benefits.

Disability Compensation Reduction

If a court convicts you of a felony, and you are imprisoned in a federal, state, or local penal institution for more than 60 days, the VA reduces your benefits. If you have a disability rating of 20% or more, they reduce it to 10%. When your disability rating is 10%, the VA reduces it by 50%. If you qualify for a rate increase while you’re in prison, they reduce the new amount unless it’s a statutory rate increase.

VA Benefits Reduction Exceptions

The Veterans Administration doesn’t reduce your VA benefits if you’re in a work-release program, a halfway house, or a residential re-entry center. This exception also applies if you are within community control.

Veterans’ Pension Termination

If you receive a pension, the VA implements harsher penalties. They terminate your pension after 60 days imprisonment in a federal, state, or local institution. The VA pension penalty applies to either a felony or a misdemeanor conviction. When you are released from prison, the VA may resume your payments if you meet their eligibility requirements. If you fail to notify the VA of your incarceration, they suspend all of your financial benefits until you pay back any overpayments.

Education Benefits

If you are incarcerated for a crime other than a felony, you still qualify for your full monthly educational benefits. If you are convicted of a felony but reside in a halfway house, residential re-entry center, or you are involved in a work-release program or under community control, you continue to receive your educational benefits.

If you are convicted and incarcerated due to a felony crime, you remain eligible for VA-paid tuition, fees, books, equipment, and supplies. The VA will pay only those costs not paid by another federal, state, or local program.

Your Spouse May File an Apportionment Claim

While you’re imprisoned, your spouse, dependent children, or dependent parents may qualify for apportionment (payment) of some or all of your reduced or suspended benefits. The VA apportions benefits based on financial need or special needs. They evaluate income and living expenses and compensation available through other sources.

  • If the VA is aware that an imprisoned veteran has dependent family members, they notify both the incarcerated veteran and their family members if they qualify for apportionment during the incarceration.
  • The VA won’t pay any benefits to or on behalf of anyone who is incarcerated for a felony conviction.
  • Family members do not receive payments automatically. They must file a claim using VA Form 21-0788, MAR 2018.
  • The VA will explain to the veteran the conditions for resuming apportioned benefits after their release.

Fugitive Felons

If you become a fugitive felon, the Veterans Administration won’t pay any cash benefits to you, to anyone on your behalf, or to your family members. This applies when you are trying to avoid prosecution or imprisonment for a felony. It also applies if you violate the terms of your parole. Benefits withheld from fugitive felons include disability compensation, pensions, education benefits, life insurance, and medical care. The VA eliminates fugitive felon restrictions under these circumstances.

  • You no longer have an outstanding warrant.
  • A law enforcement agency arrests you
  • You surrender
  • A court dismisses the charges against you
  • You produce court documents that verify you are no longer a fugitive

You May Apply For Benefits While You’re Incarcerated

You may apply for benefits while you are incarcerated. If approved, you will receive benefits that comply with reductions or terminations outlined in 38 CFR §3.65. If you apply to the VA and receive reduced benefits while you’re imprisoned, you will have access to full benefits when you are released.

Resumption of VA Benefits

If the VA reduces or restricts your veteran’s benefits due to a criminal conviction, they reinstate them under these circumstances:

  • Release from prison: When the prison releases you, the VA reinstates your benefits. They rate you based on your service-connected disability severity when you’re released from prison. The VA also resumes your benefits if the prison releases you to a halfway house, re-entry center, or community-based environment.
  • Conviction Overturned on Appeal: If you successfully appeal your criminal conviction, the VA pays the disability compensation benefits they previously withheld. They reduce your payment by the amount of any apportionment to your dependents. The VA does not repay withheld pension payments when you win on appeal.

Contact a Criminal Defense Attorney

If you are a veteran who has been charged with a crime, you must contact a criminal attorney as soon as possible. A criminal conviction not only places you at risk for fines and imprisonment, but it may also affect your VA benefits. When you consult with a criminal attorney, they take immediate action on your behalf. Attorneys work to defend you and protect your benefits.

Reach out today to schedule a free consultation to discuss your charges and your options.