Part X, Chapter 16. Fugitive Felon Match (Department of Veterans Affairs)

M21-1MR, Part X, Chapter 16 Chapter 16. Fugitive Felon Match 1. Identification of Fugitive Felons

Introduction This topic contains information on the identification of fugitive felons, including

 the legal basis for the fugitive felon match  the objectives of the fugitive felon match  the definition of fugitive felon  determining the start and end dates of fugitive felon status, and  the responsibilities of the  Office of Inspector General (OIG), and  Veterans Benefits Administration (VBA).

Change Date March 20, 2007 a. Legal Basis 38 U.S.C. 5313B prohibits payment to for the  Department of Veterans Affairs (VA) beneficiaries while they are fugitive Fugit felons, and ive Felo  dependents of a veteran beneficiary who is a fugitive felon. n Matc Notes: h  The prohibition of payment under 38 U.S.C. 5313B does not apply to Old Law Pension or Section 306 Pension beneficiaries.  Dependent children of a fugitive surviving spouse may receive benefits in their own right. However, a primary beneficiary may not receive additional compensation or Dependents and Indemnity Compensation (DIC) or a higher maximum annual pension rate for a fugitive felon dependent.

Reference: For more information on the prohibition of payment to fugitive felons, see  38 CFR 3.665(f) (compensation and DIC)  38 CFR 3.666(e) (pension), and  VAOPCGPREC 7-2002.

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16-1 M21-1MR, Part X, Chapter 16

1. Identification of Fugitive Felons, Continued b. Objectives The objectives of the fugitive felon match are to of the  assist law enforcement agencies (LEAs) in the apprehension of fugitives, Fugit and ive Felo  prevent payment of benefits to fugitive felons. n Matc h c. Definition: A fugitive felon is defined as a person who is Fugit ive  fleeing to avoid prosecution, custody or confinement for a felony, or Felo  considered a fugitive because he/she violated a condition of probation or n 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.

Note: An arrest warrant is simply an order from a magistrate or other official authorized to issue such warrants directing that a named individual be arrested and brought before the issuing official.

d. A person is considered to be in fugitive felon status from the later of the Dete following dates: rmin ing  the date of the warrant, or the Start  December 27, 2001, the date of the fugitive felon law. Date of Fugit ive Felo n Statu s

16-2 M21-1MR, Part X, Chapter 16 e. Determining A person is considered to be out of fugitive felon status from the earlier of the the following dates: Endi ng  the date of arrest for the particular warrant that is the subject of the referral Date from the Office of Inspector General (OIG), or of Fugit  the date the warrant is determined to be invalid by the warrant agency, a ive court, or OIG. Felo n Important: There may be multiple warrants on an individual fugitive. Do Statu not resume benefits without determining that the warrant that has been s cleared is the same as the warrant which was the object of the referral.

1. Identification of Fugitive Felons, Continued f. OIG is responsible for Resp onsib  entering into computer matching agreements with law enforcement ilities authorities (LEAs) of OIG  matching lists of fugitives from Federal and State LEAs with VA records to identify VA beneficiaries who may be fugitive felons  investigating matched cases to determine whether the fugitive and the VA beneficiary are the same person  referring information about the beneficiary such as his/her address and direct deposit number to the LEA (Note: The LEA is given 60 days to apprehend the beneficiary.)  referring matched cases to the Veterans Benefits Administration (VBA) after the expiration of the 60 days delay period allowed for the LEA to apprehend the fugitive, and  providing VBA with ongoing advice, assistance, and investigative resources to help resolve issues concerning the legal status of fugitive felons. g. VBA is responsible for Resp onsib  controlling fugitive felon forms referred by OIG ilities  initiating due process procedures of VBA  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.

References: For more information on  the effective dates of award adjustments, see  M21-1MR, Part X, 16.2.d, and  M21-1MR, Part X, 16.2.e, and  evidence required to show that fugitive status has been cleared, see M21- 1MR, Part X, 16.3.a.

16-4 M21-1MR, Part X, Chapter 16 2. Fugitive Felon Award Adjustments

Introduction This topic contains information on fugitive felon award adjustments, including

 the forms OIG uses to refer cases to VBA  the actions taken to process referral forms  due process procedures  the effective dates to discontinue or resume an award  handling cases in which the warrant has been cleared  determining whether 38 CFR 3.31 applies to the payment date  the use of reason code 47 in the Benefits Delivery Network (BDN)  the award action to take when discontinuing payments  handling cases involving disability, severance, or readjustment pay recoupment, and  adjusting awards involving entitlement to clothing allowance.

Change Date September 3, 2009 a. Forms OIG In general, OIG uses a standardized form, FFP-3, VA Investigative Summary Uses Form, for referring fugitive felon cases to VBA. However, on occasion, a to case will be referred on FFP-2, Law Enforcement Certification Form, or Refe similar forms. r Case s to VBA b. Actions The table below shows the actions OIG, Compensation and Pension (C&P) Take Service, and the regional office (RO) take to process fugitive felon referral n to forms. Proc ess Refe rral For ms

Step Action

1 Periodically, OIG sends batches of FFP-3 forms involving beneficiaries in receipt of compensation or pension to C&P Service.

Note: Unless all major identifying data match exactly, OIG agents independently verify that the VA beneficiary and the fugitive are one and the same before referring the FFP-3 forms to VBA.

2. Fugitive Felon Award Adjustments, Continued b. Actions Taken to Process Referral Forms (continued)

Step Action 2 C&P Service

 sorts the FFP-3 forms by office of jurisdiction, and  sends them to the attention of the primary fugitive felon coordinator at the RO.

Note: C&P Service will generally not refer an FFP-3 form to the RO if the warrant was cleared within 30 days of issuance.

Reference: For more information, see M21-1MR, Part X, 16.4.a. 3 Upon receipt of the FFP-3 forms, the RO initiates development or due process action with the beneficiary, as appropriate.

Note: Development is not usually necessary before initiating due process procedures, because OIG will have verified that the warrant was still outstanding before referring the case to VBA In almost all cases the RO can initiate due process procedures upon receipt of the FFP-3 form. c. Due Process Do not take adverse action without first affording the beneficiary due process Proc as required by 38 CFR 3.103. Advise the beneficiary at the time of the edur proposed award adjustment of the reason for the adjustment and furnish es notice of procedural and appellate rights.

Note: You may request an example of a notice of proposed adverse action for fugitive felon cases by sending an e-mail to the VAVBAWAS/CO/212A mailbox.

References: For more information on  due process procedures, see M21-1MR, Part I, 2, and  how to handle a fugitive felon’s request for a hearing, see M21-1MR, Part X, 16.4.e.

2. Fugitive Felon Award Adjustments, Continued d. Effective Discontinue an award effective the date the beneficiary is in fugitive felon Date status, which is the later of the following dates: to Disc  the date of the warrant, or ontin ue  December 27, 2001, the date of the fugitive felon law. an Awa rd e. Effective Resume an award effective the date the beneficiary is out of fugitive felon Date status, which is the earlier of the following dates: to Resu  the date of arrest for the particular warrant that is the subject of the referral me from OIG, or an Awa  the date the warrant is determined to be invalid by the warrant agency, a rd court, or OIG. f. Handling The fact that a warrant has been dismissed, recalled, quashed (that is, annulled Case or set aside), or otherwise cleared does not mean that no action is required on s in the fugitive referral, unless it has been established that the warrant was Whic cleared effective on or before the date the beneficiary went into fugitive h the status. War rant In most cases in which a warrant is dismissed, recalled, or quashed, there was Has still a valid warrant up to the date the warrant was cleared. VA benefits are Been Clea subject to adjustment from the warrant date (or date of the law) until the red recall/dismissal/quash date.

Exception: Do not adjust the award in cases in which  the warrant is specifically determined to have been void from its inception because of mistaken identity or a defect in the warrant, or  the court order  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.

2. Fugitive Felon Award Adjustments, Continued g. Determining When a beneficiary is determined to be out of fugitive felon status, do not Whe defer the resumption of payments until the first of the following month. This ther resumption is considered an adjustment under 38 CFR 3.31(c), an exception 38 to the general provisions of 38 CFR 3.31. CFR 3.31 Example: If a beneficiary is determined to be out of fugitive felon status on Appl ies to October 14, 2006, resume payments as of October 14, not November 1. the Pay Exception: If a beneficiary fails to reopen a claim within one year after ment notification of discontinuance of benefits due to fugitive status Date  resume benefits, if appropriate, from the date of claim, and  delay payments until the first of the month after the effective date of the award per 38 CFR 3.31.

Reference: For more information on the effective date to resume the award, see M21-1MR, Part X, 16.2.e. h. Use of If you are working the case in the Benefits Delivery Network (BDN), use Reas reason code 47 on award lines adjusting for a beneficiary’s fugitive status (in on or out of fugitive status). Code 47 in BDN

2. Fugitive Felon Award Adjustments, Continued i. Award Use the table below to determine the award action to take when discontinuing Actio payments to fugitive felons. n to Take Note: The FFP-3 referral form will always show a warrant date, but it may or Whe may not show an arrest or warrant invalid date. n Disc ontin uing Pay ment s

If the FFP-3 form shows … Then … a warrant date only put the award in a zero-rate status on an open-ended basis by stopping the award (making it a type “E” terminated master record.)  a warrant date, and  discontinue the award effective  an arrest or warrant invalid date the date of the warrant (but not earlier than December 27, 2001), and  resume payments effective the arrest or warrant invalid date. j. Handling A beneficiary is not entitled to have the recoupment balance reduced while in Case fugitive status. Therefore, if the benefits are being withheld to recoup a s disability, severance, or readjustment pay balance, discontinue the award. Invol ving Reference: For more information on discontinuing payments to fugitive Disa felons, see M21-1MR, Part X, 16.2.d. bility , Seve ranc e, or Read just ment Pay Reco upm ents

2. Fugitive Felon Award Adjustments, Continued k. Adjusting an Use the table below when adjusting an award involving entitlement to Awa clothing allowance. rd Invol Note: Under 38 U.S.C. 5313B, the annual clothing allowance amount must ving be reduced by 1/365th for each day the beneficiary is in fugitive status during Entit the 12-month period preceding the August 1 determination of clothing leme nt to allowance eligibility. Clot hing Allo wanc e

When … Then … reducing an award to the zero rate enter “YES” in the after a veteran enters fugitive felon INCARCERATION IND field of status the M15 screen by using the CORR command. resuming benefits after a veteran is  enter “NO” in the out of fugitive felon status INCARCERATION IND field of the M15 screen, and  follow the procedures in M21- 1MR, Part IX, Subpart i, 7.3, to adjust the clothing allowance benefit.

16-11 M21-1MR, Part X, Chapter 16 3. Fugitive Felon Status Issues

Intro This topic contains information on fugitive felon status issues, including ducti on  the evidence required to establish that a beneficiary is no longer in fugitive status  verifying a beneficiary is no longer a fugitive  when and how to contact the regional OIG fugitive felon coordinator  following the recommendations of the OIG fugitive felon coordinator  determining an incarcerated beneficiary’s fugitive status  handling a beneficiary’s allegation of a misdemeanor warrant  the action to take when a dependent is fugitive  expunged records, and  sealed records.

Change Date February 5, 2008 a. Evidence The beneficiary may establish that he/she is no longer in fugitive status by Requ ired  submitting official documentation such as a court order or letter from the to warrant agency, or Esta blish  providing the name, title and address or name, title, and telephone number That of an official who can verify that he/she is no longer in fugitive status. a Bene VA will make reasonable efforts to contact the official to establish that the ficiar beneficiary is no longer in fugitive status, but ultimately it is the y Is responsibility of the beneficiary to provide evidence that fugitive status has No been cleared. Long er in Notes: Fugit  Evidence that the beneficiary’s fugitive status has been cleared must ive originate with an official source at some level of government. Statu  Uncorroborated statements by the beneficiary, a family member, or a s private attorney may not be used to establish that a beneficiary is no longer in fugitive status.

3. Fugitive Felon Status Issues, Continued b. Verifying a Use the table below to verify a beneficiary is no longer a fugitive. Bene ficiar y Is No Long er a Fugit ive

If … Then …  the beneficiary does not furnish contact that official. acceptable documentary proof that he or she is out of fugitive status, but  does furnish the name and address or telephone number of an official such as a parole officer who can verify that he/she is no longer in fugitive status the official confirms that the document this information on VA beneficiary is no longer in fugitive Form 119, Report of Contact. status you are unable to  advise the beneficiary of this fact, and  contact the official with the  remind him/her that payments information provided by the cannot be resumed until VA beneficiary, or receives proof that the beneficiary  obtain a better address/telephone is no longer in fugitive status. number from other sources you are able to contact the official, contact the regional OIG fugitive but the official is unwilling to felon coordinator for assistance. release the information Reference: For more information on contacting the regional OIG felon coordinator, see M21-1MR, Part X, 16.3.c.

Note: If a beneficiary presents to law enforcement authorities (LEAs) in a jurisdiction other than that which issued the warrant, it is the responsibility of the beneficiary to make arrangements to get the warrant cleared in the event that the warrant agency will not extradite, and the local agency does not arrest the beneficiary on the warrant. The individual is considered to be in fugitive status until the warrant is cleared by arrest or otherwise.

3. Fugitive Felon Status Issues, Continued c. When to It is appropriate to contact the OIG fugitive felon coordinator for advice when Cont act  you are having difficulty getting information from an LEA or making sense the of information from an LEA, or OIG Fugit  a beneficiary admits that there was a valid felony warrant, but ive  denies ever having received notice of the warrant, or Felo  alleges that there are other extenuating circumstances why the warrant n was not cleared. Coor dinat or d. How to To request assistance from the OIG fugitive felon coordinator Cont act  e-mail the VAVBAWAS/CO/212A mailbox the  requesting the name of the applicable regional OIG fugitive felon OIG Fugit coordinator, and ive  specifying the jurisdiction where the warrant was issued, and then Felo  contact the OIG fugitive felon coordinator (by e-mail) with a concise n summary of the known facts and the issue to be resolved. Coor dinat or e. Following Follow the recommendations of the OIG fugitive felon coordinator as to the whether to discontinue benefits. It is the policy of OIG and VBA to resolve Reco reasonable doubt in favor of the beneficiary. mme ndati The OIG fugitive felon coordinator will generally recommend that benefits ons payments not be discontinued if the evidence establishes that the beneficiary of OIG was unaware of the warrant or made good faith attempts to clear the warrant Fugit as soon as he/she knew or should have known of the existence of the warrant. ive Felo A decision not to take action on a valid felony warrant may be made only if a n documented recommendation from OIG is of record, or if C&P Service Coor advises by e-mail that no action is required. dinat or Notes:  A recommendation from OIG is not required if evidence from a court or an LEA establishes that there was no valid felony warrant.  An OIG recommendation is required only if the warrant was valid, but award action is not being taken because of extenuating circumstances.

3. Fugitive Felon Status Issues, Continued f. Determining Do not assume that a warrant is cleared when a beneficiary is incarcerated an unless the beneficiary is incarcerated by the agency that issued the warrant. Inca (Example: The evidence shows that the beneficiary is incarcerated by the rcera Michigan Department of Corrections, and the warrant was issued by the ted Michigan Department of Corrections.) Bene ficiar y’s A fugitive felon is often incarcerated for reasons unrelated to the warrant that Fugit was the subject of the fugitive felon referral. In this situation, the warrant ive agency may file notice of the warrant at the prison facility. This is referred to Statu as “lodging” the warrant. s If there is documented evidence that a warrant was lodged at a prison facility, you may consider the warrant cleared and the beneficiary removed from fugitive status as of the date the warrant agency lodged the warrant at the prison facility.

Note: Although VA considers that a warrant is cleared when it is lodged at the prison, the warrant is technically still valid until the warrant agency picks up the beneficiary from the prison and returns the beneficiary to the jurisdiction that issued the warrant.

Reference: For more information on award adjustments resulting from a beneficiary’s imprisonment, see M21-1MR, Part III, Subpart v, 8.A.

3. Fugitive Felon Status Issues, Continued g. Handling a VA benefits may be discontinued because of fugitive felon status only if there Bene is a valid felony warrant. If the beneficiary alleges that the warrant was for a ficiar misdemeanor, develop to determine whether there was a valid felony warrant. y’s When developing the case, keep in mind that Alleg ation of a  it is essential to distinguish between the warrant and the resolution of the Misd criminal case in a situation where a beneficiary has been convicted of an emea offense nor  the fact that the beneficiary was not convicted of a felony is not relevant to War resolution of the fugitive felon issue, and rant  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.

3. Fugitive Felon Status Issues, Continued h. Action to Use the table below to determine the action to take if the person identified on Take the fugitive felon referral form is a dependent of a primary beneficiary. Whe n a Note: If the fugitive is the only dependent on the award, consider the primary Depe beneficiary to be without a dependent during the period the dependent is in nden fugitive status. t is Fugit ive

If the dependent … Then … is not an apportionee  remove the dependent from the award effective the date of the warrant (but not earlier than December 27, 2001), and  restore the dependent to the award effective the date the warrant is cleared. is an apportionee  discontinue the apportionee’s award effective the date of the warrant (but not earlier than December 27, 2001), but  do not do not restore withheld benefits to the primary beneficiary until the earlier of the following dates:  the date the apportionee is out of fugitive status, or  one year from the date of notification to the apportionee that benefits were discontinued. i. Expunged In some instances the record of a criminal case may be expunged. This is Reco normally done for first-time offenders to keep their records clean. Expunging rds 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.

3. Fugitive Felon Status Issues, Continued j. Sealed In some instances, a jurisdiction may seal the record of a criminal case. Reco Sealing the record does not necessarily affect the determination as to whether rds 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).

Notes:  Request assistance from the OIG fugitive felon coordinator if a sealed record is encountered. For more information on contacting the OIG fugitive felon coordinator, see M21-1MR, Part X, 16.3.c.  If the record was sealed at the request of the beneficiary, the beneficiary is responsible for requesting that the record be unsealed to establish that he/she is out of fugitive status.

16-19 M21-1MR, Part X, Chapter 16 4. Fugitive Felons – Additional Information

Introduction This topic contains additional information on fugitive felon cases, including

 regional office (RO) jurisdiction over fugitive felon cases  Pension Management Center (PMC) jurisdiction over fugitive felon cases  RO fugitive felon coordinators  fugitive felons identified from other sources  hearing requests from fugitive felons  waiver or compromise of overpayments  end products (EPs)  reporting requirements, and  where to send questions.

Change Date September 3, 2009 a. RO The regional office (RO) with jurisdiction of the claims folder shown in the Juris corporate record is responsible for working the fugitive felon case. If the dicti folder is located in the Records Management Center (Fldr Loc 376), the RO on of jurisdiction in the BDN/Share M11 screen is responsible for working the Over fugitive felon case. Fugit ive Felo If you receive a referral on a case over which you do not have jurisdiction, n send the referral document to the office of jurisdiction as active mail. Case s Do not transfer a folder to another regional office unless there is a valid reason for transfer. It is not proper to permanently transfer a folder simply because a beneficiary living within the U.S. resides in the jurisdiction of another station.

Note: If you feel that a fugitive felon case has been improperly transferred to your RO, advise C&P Service by sending an e-mail to the VAVBAWAS/CO/212A mailbox.

Reference: For more information on jurisdiction and transfer of claims files, see M21-1MR, Part III, Subpart ii, 5.

4. Fugitive Felons – Additional Information, Continued b. PMC Claims folders on fugitives entitled to pension may be permanently Juris transferred to the Pension Management Center (PMC) of jurisdiction unless a dicti veteran is also entitled to compensation but is receiving pension as the greater on benefit. Over Fugit When permanently transferring a fugitive felon case to a PMC, attach the ive Felo fugitive felon worksheet as active mail. Do not send the FFP-3 form to the n PMC without the claims folder. Case s c. RO Fugitive Each RO is required to designate a primary and two alternate fugitive felon Felo coordinators. The fugitive felon coordinator is the point of contact with VA n Central Office (VACO) on fugitive issues. Coor dinat New fugitive felon referral forms will be sent to the attention of the primary ors fugitive felon coordinator and questions concerning fugitive issues will be addressed to the primary fugitive felon coordinator.

Note: An RO may update its primary and alternate fugitive felon coordinator designations by sending an e-mail to the VAVBAWAS/CO/212A mailbox. d. Fugitive Do not initiate due process on a fugitive felon case without a referral from Felo OIG on an FFP-3 form or similar document. If you identify a possible ns fugitive felon from other sources, send an e-mail with identifying information Ident and other available details to the VAVBAWAS/CO/212A mailbox. ified Fro C&P Service will refer the information to OIG to determine whether or not to m Othe issue an FFP-3 or other referral document. r Sour ces

4. Fugitive Felons – Additional Information, Continued e. Hearing If a fugitive felon requests a hearing Requ ests  schedule the hearing under normal procedures, and Fro  send an e-mail to the VAVBAWAS/CO/212A mailbox that includes m Fugit  information identifying the fugitive felon ive  the date and location of the hearing, and Felo  the name of a point of contact at the RO. ns C&P Service will send this information to OIG to coordinate with the LEA.

Note: If law enforcement authorities plan to attempt to apprehend the fugitive, you will be notified. Otherwise, proceed with the hearing as usual. f. Waiver or Overpayments created under the fugitive felon program are subject to waiver Com or compromise. The special procedures that apply to fugitive felon cases are pro contained in OF Bulletin 05GC1.01, Further Instructions on the Impact of the mise Fugitive Felon Act on Committees on Waivers and Compromises. of Over Important: Paragraph 3d of OF Bulletin 05GC1.01 states that “a fugitive pay ment felon who either knowingly flees to avoid prosecution, custody, or s confinement or knowingly violates a condition of probation or parole would most likely be unable to present any information or evidence that would mitigate his or her degree of fault. In such situations, Committee members should deny waiver.”

4. Fugitive Felons – Additional Information, Continued g. End Establish end product (EP) 290 upon receipt of the OIG referral. The date of Prod claim is the date of the accompanying transmittal document. If a fugitive ucts felon referral is sent by fax, use the date of the fax as date of claim.

Take EP 290 and establish EP 600 at the point at which any development is completed and the notice of proposed adverse action is dispatched. For most fugitive felon cases, no development will be required before the initiation of due process. In such cases, take EP 290 and establish EP 600 upon receipt of the OIG fugitive felon referral. Process the award under EP 600.

A new EP 290 is established when

 an award has been placed in zero-rate status, and  the beneficiary subsequently contacts the RO alleging that he/she is no longer in fugitive status.

Important: While a beneficiary is in fugitive felon status  cancel the pending issue, discontinue development, and disallow any claims for increase received, but  continue processing pending appeals. h. Reporting No recurring report is required on fugitive felon cases. However, ROs must Requ respond to requests from VACO for information about specific fugitive felon irem cases. ents If the fugitive felon referral form included an FFP-4, VA Feedback Form, complete the FFP-4 and send it by regular mail to VACO. Send an e-mail to the VAVBAWAS/CO/212A mailbox to get the current address for mailing completed FFP-4 forms. The FFP-3 form should remain in the claims file. i. Where to Send questions about fugitive felon issues to the VAVBAWAS/CO/212A Send mailbox. Ques tions Reference: For information on when to address questions directly to the regional OIG fugitive felon coordinator, see M21-1MR, Part X, 16.3.c.