Overview
In This Section |
This section contains the following topics:
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1. General Information About Incarcerated Beneficiaries
Introduction |
This topic contains general information about incarcerated beneficiaries, including
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Change Date |
April 15, 2016 |
III.v.8.A.1.b. Regulatory Requirements for Reducing or Discontinuing Benefits During Incarceration |
38 CFR 3.665 requires the reduction of a beneficiary’s disability compensationor Dependency and Indemnity Compensation (DIC) when the beneficiary is incarcerated more than 60 days following conviction of a felony.
38 CFR 3.666 requires the discontinuance of a beneficiary’s pension when the beneficiary is incarcerated more than 60 days following conviction of a felony or misdemeanor.
Notes:
References:
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III.v.8.A.1.c. Effect of a Dependent’s Incarceration on a Beneficiary’s Award |
38 CFR 3.666 requires the removal of an incarcerated dependent from a beneficiary’s award if the beneficiary receives pension. There is no such requirement, however, if the beneficiary is a
References: For more information on
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III.v.8.A.1.d. Periods During Which VA May Not Reduce or Discontinue Benefits |
Do not reduce or discontinue benefits for any period during which a beneficiary is
Notes: “Residential re-entry center” is a term used by the Bureau of Prisons (BOP) in lieu of the traditional term “halfway house.”
Reference: For information regarding beneficiaries that are transferred from a foreign penal institution to a Federal, State, or local penal institution to serve the remainder of their sentence for a foreign conviction, see M21-1, Part III, Subpart v, 8.A.4.b.
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III.v.8.A.1.e. Matching Programs for Identifying Incarcerated Beneficiaries |
Beneficiaries who have been incarcerated in Federal or State penal institutions may be identified through computer-matching programs.
Through agreements between VA, BOP, and the Social Security Administration (SSA), periodic computer matches are run to compare VA beneficiaries’ identifying data with BOP and SSA records.
Note: VA also receives notice of the incarceration of beneficiaries through other unofficial sources.
References: For more information on the
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III.v.8.A.1.f. Beneficiaries and Dependents That Are Fugitive Felons |
Disability compensation, DIC, and pension are not payable
A fugitive felon is anyone that is
References:
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2. Benefit-Specific Effects of a Beneficiary’s Incarceration
Introduction |
This topic contains information regarding the benefit-specific effects of a beneficiary’s incarceration, including
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Change Date |
April 15, 2016 |
III.v.8.A.2.a.Effect of Incarceration on Payments of Disability Compensation |
The table below shows the amount to which VA must reduce a Veteran’s disability compensation when the Veteran is incarcerated for more than 60 days following conviction for a felony.
Important: Reduction is necessary only if the Veteran
Note: Pay the Veteran the full amount of any benefit due him/her for periods priorto October 1, 1980.
References: For more information on
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III.v.8.A.2.b.Effect of Incarceration on Ratings of TDIU |
38 CFR 3.341(b) prohibits the assignment of an initial or reinstated rating of total disability due to individual unemployability (TDIU) during a period of incarceration. There is no requirement, however, to discontinue a rating of TDIU solely because a Veteran was incarcerated and, thereby, removed from the work-possible environment.
Important: Although a rating of TDIU may remain in effect during a Veteran’s incarceration, the Veteran’s disability compensation is still subject to the reduction described in M21-1, Part III, Subpart v, 8.A.2.a.
References: For more information on
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III.v.8.A.2.c.Increased Disability Evaluations During Incarceration |
Follow the instructions in the table below if VA increases a Veteran’s combined disability evaluation from an effective date that falls within a period during which VA reduced the Veteran’s disability compensation due to incarceration.
Important: As stated in M21-1, Part III, Subpart v, 8.A.2.b, 38 CFR 3.341(b)prohibits the assignment of an initial or reinstated rating of TDIU during a period of incarceration.
Reference: For more information on handling increased disability evaluations during incarceration, see 38 CFR 3.665(j).
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III.v.8.A.2.d.Effect of Incarceration on Payment of the Clothing Allowance |
38 CFR 3.810(d) requires a reduction in VA’s clothing allowance if
Reference: For more information on VA’s clothing allowance, see M21-1, Part IX, Subpart i, 7. |
III.v.8.A.2.e.Effect of Incarceration on Payments of DIC |
When a beneficiary entitled to DIC is incarcerated for more than 60 days following conviction of a felony, 38 CFR 3.665(d)(3) requires VA to reduce the beneficiary’s monthly award to an amount equal to one half of the amount payable for an SC disability evaluated as 10-percent disabling.
Important:
References: For more information on
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III.v.8.A.2.f. Effect of Incarceration on Pension Awards |
When a beneficiary entitled to pension is incarcerated for more than 60 days following conviction of a felony or misdemeanor, 38 CFR 3.666 requires VA to discontinue his/her payments of pension.
Before discontinuing Veterans Pension due to incarceration, review the Veteran’s claims folder to determine whether he/she is also entitled to disability compensation. If entitlement to both benefits exists, follow the instructions in M21-1, Part III, Subpart v, 8.B.3.
References: For more information on
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III.v.8.A.2.g. Determining Whether VA Is Paying Education Benefits to an Incarcerated Beneficiary |
When reducing or discontinuing benefits because of incarceration, review the TINQ (treasury inquiry) screen or education master record in the Benefits Delivery Network (BDN) to determine whether VA is paying education benefits to the incarcerated beneficiary, as these benefits might also require adjustment.
If VA is paying education benefits, e-mail a copy of the official notice of incarceration to the regional processing office (RPO) of jurisdiction.
Note: Access to BDN is limited. Inquire with local management to identify individuals with access.
References: For more information on
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3. Handling Notice of a Beneficiary’s Incarceration
Change Date |
September 7, 2018 |
III.v.8.A.3.a. Action to Take Upon Receipt of Notice of Incarceration |
Follow the steps in the table below upon receipt of notice of the incarceration of a beneficiary or a beneficiary’s dependent.
Exception: When processing an SSA Prison Match case, follow the instructions inM21-1, Part X, 15.2 instead of the procedures described in the table below.
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III.v.8.A.3.b. Identifying Official Sources of Information Regarding a Beneficiary’s Incarceration |
An official source, for the purpose of this section, includes
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III.v.8.A.3.c. Identifying Official Notice of a Beneficiary’s Incarceration |
Each of the following constitute official notice of a beneficiary’s incarceration:
Important: Statements affirming incarceration from a private attorney or a member of a beneficiary’s family do not constitute official notice.
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III.v.8.A.3.d. Verifying the Details of Incarceration |
Prior to issuing due process for a reduction or discontinuance of benefits based on incarceration, obtain the following information from an official source:
Note: M21-1, Part III, Subpart v, 8.A.3.e describes the available means for obtaining the information referenced in this block.
Reference: For a definition of official source, see M21-1, Part III, Subpart v, 8.A.3.b.
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III.v.8.A.3.e. Available Means for Requesting/ Obtaining Information From Official Sources |
The available means for requesting/obtaining information from official sources consist of the following:
Note: Many correctional facilities have websites that
Follow the instructions in the table below to document information obtained from an official source regarding a beneficiary’s or dependent’s incarceration.
Reference: For more information on uploading documents to electronic claims folders (eFolders), see
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III.v.8.A.3.f. Notifying a Beneficiary of VA’s Intent to Reduce or Discontinue Benefits Due to Incarceration |
An incarcerated beneficiary is entitled to due process before VA reduces or discontinues his/her benefits. When notifying the beneficiary of the proposed action,
Important:
References: For more information on
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III.v.8.A.3.g. Adjusting a Beneficiary’s Award in the Claims-Processing System |
Follow the steps in the table below to adjust a beneficiary’s award based on incarceration.
References: For more information on adjusting awards in the
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III.v.8.A.3.h. Re-incarceration for the Same Conviction Following a Period of Release |
The instructions contained in M21-1, Part III, Subpart v, 8.A.3.a apply equally to instances of re-incarceration for the same conviction following a period of release.
Re-incarceration may occur, for example, following a parole violation or dismissal from a halfway house or work-release program.
Example:
Results:
Reference: See VAOPGCPREC 2-1996 for a discussion regarding
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III.v.8.A.3.i.Handling Notice That Charges Were Dismissed or Overturned or the Type of Conviction Was Changed |
Restore to a beneficiary whose benefits VA reduced or discontinued due to his/her incarceration all benefits to which he/she is otherwise entitled upon receipt of notice from an official source that
Restore benefits to the beneficiary effective the same date VA reduced or discontinued them as a result of the beneficiary’s incarceration.
Important: Do not restore to the beneficiary benefits that VA apportioned (disability compensation/DIC) or paid (pension) to his/her dependents as a result of the incarceration.
References:
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4. Other Considerations When Adjusting an Award Due to Incarceration
Introduction |
This topic contains information on effective dates and rates for the discontinuance or reduction of benefit awards due to incarceration, including
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Change Date |
February 9, 2016 |
III.v.8.A.4.a. Calculating the 61st Day of Incarceration |
When calculating the 61st day of incarceration (or re-incarceration, as discussed inM21-1, Part III, Subpart v, 8.A.3.h), start with the first, full day of imprisonmentfollowing conviction.
Do not include in the calculation the number of days a beneficiary spent in confinement while awaiting trial, or for examination or treatment, even if the beneficiary is credited for those days as “time served” following conviction.
Reference: For a discussion of the issue of time served prior to conviction, seeVAOPGCPREC 3-2005.
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III.v.8.A.4.c.Recoupment ofSeparation Benefits During Incarceration |
Follow the instructions in the table below when
Exception: If VA is withholding disability compensation to recoup voluntary separation pay from an Air Force Veteran, follow the instructions in M21-1, Part III, Subpart v, 4.B.4.c.
References: For more information on
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5. Resuming the Payment of Benefits When Incarceration Ends
Introduction |
This topic contains instructions for resuming benefits to Veterans whose benefits have been reduced or discontinued due to incarceration, including
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Change Date |
September 7, 2018 |
III.v.8.A.5.a.Handling Notice That Incarceration Has Ended |
VA does not require beneficiaries to submit a specific form to report that incarceration has ended or to request a resumption of benefits after incarceration has ended. A beneficiary may report release from incarceration
Important:
References: For more information on
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III.v.8.A.5.b. Determining the Date Incarceration Ended |
For VA purposes, incarceration ends when a beneficiary
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III.v.8.A.5.c. Principles That Apply to the Adjustment of a Beneficiary’s Award When Incarceration Ends |
Resume the payment of benefits at the full rate to which a beneficiary is otherwise entitled upon receipt of notification (or confirmation) from an official source that incarceration has ended.
The effective date for adjusting the beneficiary’s award to reflect the change in status is the date incarceration ended if VA receives notice within one year of that date. Otherwise, the effective date is the date VA first receives notice that incarceration has ended.
Exception: The principle described in the preceding paragraph is based on the assumption that VA received notice incarceration had ended after VA had already discontinued or reduced benefits due to incarceration. When discontinuing or reducing benefits and resuming them in a single award action (because, for example, VA was unaware of a beneficiary’s incarceration until it received notice that incarceration had ended), the proper effective date for resuming benefits is the date incarceration ended, regardless of how long after this date VA received notice.
The table below describes other principles that apply to the adjustment of a beneficiary’s award at the end of a period of incarceration.
Important:
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Historical_M21-1III_v_8_SecA_10-12-16.doc | May 16, 2019 | 258 KB |
4-29-19_Key-Changes_M21-1III_v_8_SecA.docx | May 16, 2019 | 67 KB |
Historical_M21-1III_v_8_SecA_9-7-18.docx | May 16, 2019 | 87 KB |
Change-July-22-2015-Transmittal-Sheet-M21-1III_v_8_SecA_TS.docx | May 16, 2019 | 43 KB |
in Chapter 8 Incarceration, Part III General Claims Process, Subpart v General Authorization Issues and Claimant Notification
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