Overview
In This Section |
This section contains the following topics:
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1. Paying Pension to the Dependent(s) of an Incarcerated Veteran
Introduction |
This topic contains information on the payment of pension to the dependent(s) of an incarcerated Veteran, including
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Change Date |
March 28, 2018
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III.v.8.B.1.a. Right of an Incarcerated Veteran’s Dependent(s) to Receive Pension |
38 CFR 3.666 requires the Department of Veterans Affairs (VA) to discontinue a Veteran’s disability pension effective the 61st day of incarceration following conviction of a felony or misdemeanor. However, this same regulation allows VA to pay pension to the Veteran’s spouse and/or child(ren) while the Veteran is incarcerated.
Exception: VA may not pay pension to the dependent(s) of an incarcerated Veteran if
Notes:
Reference: For more information about adjusting benefits based on a Veteran’s incarceration, see M21-1, Part III, Subpart v, 8.A.
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III.v.8.B.1.b. Form Claimants Must Submit to Request Payment of an Incarcerated Veteran’s Pension |
Effective March 24, 2015, a claimant must submit VA Form 21-0788 to request payment of an incarcerated Veteran’s pension.
Notes:
Reference: For more information about handling incomplete applications, seeM21-1, Part I, 1.B.1.g.
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III.v.8.B.1.d. Determining the Amount of Pension VA May Pay to the Dependent(s) of an Incarcerated Veteran |
38 CFR 3.666(a) limits the amount of pension VA may pay to an incarcerated Veteran’s dependent(s) to the lesser of the following:
Scenario:
Result: 38 CFR 3.666(a) limits the monthly amount of pension VA may pay to the spouse and children to $849.00. This represents the monthly amount of Survivors Pension to which the spouse would be entitled, which is also less than the monthly amount of pension to which the Veteran was entitled prior to incarceration.
Reference: To view current Survivors Pension rates, see the current Survivors Pension Rate Tables.
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III.v.8.B.1.e. Determining the Effective Date of Entitlement and the Effective Date of Payment |
If VA receives a completed and signed VA Form 21-0788 within one year of the date VA notified the Veteran of the rights of his/her dependent(s) to receive pension during his/her incarceration, the effective date of entitlement, if entitlement exists, is the 61st day of incarceration. Otherwise, the effective date can be no earlier than the date VA receives the form.
Important:
Reference: For an example of how the policies described in this block are applied, see M21-1, Part III, Subpart v, 8.B.1.h.
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III.v.8.B.1.g. Procedure for Reducing/
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Follow the instructions in the table below to reduce or eliminate an existing overpayment in a Veteran’s account when
Important:
Note: The offset of the Veteran’s debt will be reflected in FAS after authorization of the award action described in the table above.
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III.v.8.B.1.h. Example: Payment of Pension to the Dependents of an Incarcerated Veteran |
Scenario:
Note: VA does not always discontinue a Veteran’s pension due to incarceration and process the payment of pension to his/her dependent(s) at the same time (as described in the example above). Often, VA does not receive a request for the payment of pension to the dependent(s) of an incarcerated Veteran until after it has discontinued the Veteran’s benefits. If this were the case in the example above, the effective date of payment of pension to the Veteran’s spouse (November 1, 2015) would remain the same, as long as VA received the request before September 8, 2016.
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III.v.8.B.1.j. Discontinuing the Payment of Pension to a Veteran’s Dependent(s) After Incarceration Ends |
If VA receives notice that a Veteran’s incarceration has ended, and VA has been paying pension to the Veteran’s dependent(s) during his/her incarceration,
Notes:
Reference: For more information about elections between VA benefits, see M21-1, Part III, Subpart v, 4.A.2.
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2. Apportioning an Incarcerated Veteran’s Compensation to His/Her Dependent(s)
Introduction |
This topic contains information on apportioning an incarcerated Veteran’s compensation to his/her dependent(s), including
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Change Date |
March 28, 2018
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III.v.8.B.2.a. Right of an Incarcerated Veteran’s Dependent(s) to an Apportionment |
38 CFR 3.665 requires VA to reduce a Veteran’s disability compensation to the amount payable under 38 CFR 3.665(d) effective the 61st day of incarceration following conviction of a felony. However, this same regulation also allows VA to apportion all or part of the compensation no longer payable to the Veteran to his/her
Exception: VA may not apportion compensation to
Notes:
Reference: For more information about adjusting benefits based on a Veteran’s incarceration, see M21-1, Part III, Subpart v, 8.A.
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III.v.8.B.2.b. Form Claimants Must Submit to Request Apportionment of an Incarcerated Veteran’s Disability Compensation |
Effective March 24, 2015, claimants must submit VA Form 21-0788 to request apportionment of a Veteran’s disability compensation.
Notes:
Reference: For more information about handling incomplete applications, seeM21-1, Part I, 1.B.1.g.
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III.v.8.B.2.c. Avoiding Unnecessary Apportionment Development |
Do not routinely undertake the development discussed in M21-1, Part III, Subpart v, 3.A.2 in connection with a request for an apportionment of benefits withheld due to incarceration. Such development is unnecessary and not required because the
References: For more information about
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III.v.8.B.2.d. Determining the Effective Date of Entitlement and the Effective Date of Payment |
If VA receives a VA Form 21-0788 within one year of the date VA notified the Veteran of the rights of his/her dependent(s) to an apportionment during his/her incarceration, the effective date of entitlement to the apportionment, if granted, is the 61st day of incarceration. Otherwise, the effective date can be no earlier than the date VA receives the claim.
It is possible for some amount of time to pass between the 61st day of incarceration and the date VA actually adjusts the Veteran’s award based on his/her incarceration. In most cases, this retroactive adjustment will result in the creation of an overpayment in the Veteran’s account. The existence of such an overpayment must be considered when determining the proper effective date ofpayment of the apportionment, as explained in the table below.
Note: The instructions in the table below are based on an assumption that VA received the VA Form 21-0788 within one year of the date VA notified the Veteran of the rights of his/her dependent(s) to an apportionment.
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III.v.8.B.2.e. Notice of Incarceration Received After Incarceration Has Ended |
If VA does not receive notice of a Veteran’s incarceration until after incarceration has ended, and reduction of the Veteran’s benefits due to incarceration is otherwise in order, no apportionment of the Veteran’s benefits is payable to the Veteran’s dependent(s).
Important: VA may still grant an apportionment of the Veteran’s benefits under these circumstances, but only for the purpose of reducing the overpayment resulting from retroactive reduction of the Veteran’s benefits due to incarceration (by means of procedures outlined in M21-1, Part III, Subpart v, 8.B.1.g). The Veteran’s dependent(s) will not receive any actual payments.
Exception: Do not grant an apportionment under the circumstances described in this block if the justification for doing so is based solely on the policy expressed in the notes in M21-1, Part III, Subpart v, 8.A.4.c.
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III.v.8.B.2.f. Example: Apportionment of an Incarcerated Veteran’s Compensation |
Scenario:
Note: VA does not always reduce a Veteran’s compensation due to incarceration and process a corresponding apportionment at the same time (as described in the example above). Oftentimes, VA does not receive a claim for an apportionment until after it has reduced or discontinued the Veteran’s benefits. If this were the case in the example above,
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III.v.8.B.2.h. Determining the Amount of Compensation to Apportion to an Incarcerated Veteran’s Dependent |
Determine the amount of compensation, if any, to apportion to an incarcerated Veteran’s dependent based on the dependent’s individual need.
Notes:
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III.v.8.B.2.i. Handling Apportioned Awards When the Veteran Is Reunited With His/Her Dependent(s) After Incarceration Ends |
When incarceration ends, presume a Veteran is reunited with the dependent(s) to whom VA apportioned his/her compensation during incarceration unless there is evidence to the contrary. As long as there is no evidence to the contrary, take the actions described in the table below.
Note: Because a Veteran’s dependent(s) has(have) already been notified of the temporary nature of the apportionment (in accordance with the instructions in M21-1, Part III, Subpart v, 8.B.2.g), there is no need to provide notice of proposed adverse action to the dependent(s) before discontinuing the apportionment when incarceration ends.
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III.v.8.B.2.j. Example: Award Adjustments When a Veteran Is Reunited With His/Her Dependent(s) |
Scenario:
Actions:
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III.v.8.B.2.k. Handling Apportioned Awards When the Veteran Is Not Reunited With His/Her Dependent(s) After Incarceration Ends |
Take the actions described in the table below if
Exceptions:
Note: Because a Veteran’s dependent(s) has(have) already been notified of the temporary nature of the apportionment (in accordance with the instructions in M21-1, Part III, Subpart v, 8.B.2.g), there is no need to provide notice of proposed adverse action to the dependent(s) before reducing the apportionment when incarceration ends.
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III.v.8.B.2.l. Deciding Whether Continuation of the Apportionment Is Appropriate |
After taking the actions described in M21-1, Part III, Subpart v, 8.B.2.k
In the development letter, remind the apportionee that
After releasing the development letter, follow the instructions in the table below, and make any necessary subsequent apportionment decision or adjustment in accordance with instructions in M21-1, Part III, Subpart v, 3.A.3.
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III.v.8.B.2.m. Handling Responses That VA Receives After Discontinuing an Apportionment |
Follow the instructions in the table below if
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III.v.8.B.2.n. Example: Award Adjustments When a Veteran Is Not Reunited With His/Her Dependent(s) |
Scenario:
Actions:
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3. Incarcerated Veterans Entitled to Both Compensation and Pension
Introduction |
This topic contains information about incarcerated Veterans who are entitled to both compensation and pension, including
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Change Date |
June 29, 2015
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III.v.8.B.3.a. Paying Compensation in Lieu of Pension During Incarceration |
38 CFR 3.666 requires VA to discontinue the payment of pension to a Veteran incarcerated for more than 60 days following conviction of a felony or misdemeanor, whereas 38 CFR 3.665 requires VA to reduce the payment ofcompensation to a Veteran incarcerated for more than 60 days following conviction of a felony.
Because the law allows Veterans entitled to compensation to continue receiving at least a portion of their benefits during incarceration, compensation is often the greater benefit for Veterans entitled to both compensation and pension whose awards are subject to adjustment due to incarceration.
Follow the instructions in the table below when
Important: Do not reduce a Veteran’s compensation based on his/her incarceration if the incarceration is for conviction of a misdemeanor.
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III.v.8.B.3.b. Resuming the Benefits of a Veteran Entitled to Both Compensation and Pension When Incarceration Ends |
If a Veteran entitled to both compensation and pension was receiving compensation in lieu of pension during incarceration, follow the instructions in the table below when incarceration ends.
Notes:
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12-9-16_Key-Changes_M21-1III_v_8_SecB.docx | May 16, 2019 | 73 KB |
1-26-16_Key-Changes_M21-1III_v_8_SecB-1.docx | May 16, 2019 | 91 KB |
3-28-18_Key-Changes_M21-1III_v_8_SecB.docx | May 16, 2019 | 164 KB |
6-20-17_Key-Changes_M21-1III_v_8_SecB.docx | May 16, 2019 | 166 KB |
Transmittal-Sheet-M21-1MRIII_v_8_SecB_TS.docx | May 16, 2019 | 46 KB |
Transmittal-Sheet-M21-1MRIII_v_8_SecB_TS2.docx | May 16, 2019 | 37 KB |
in Chapter 8 Incarceration, Part III General Claims Process, Subpart v General Authorization Issues and Claimant Notification
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