In This Section

Introduction

• definition of incarceration
• regulatory requirements for reducing or discontinuing benefits during incarceration
• effect of a dependent’s incarceration on a beneficiary’s award
• periods during which VA may not reduce or discontinue benefits
• data-matching programs that identify incarcerated beneficiaries and dependents, and
• beneficiaries and dependents that are fugitive felons.

Change Date

VI.iii.1.A.1.a.  Definition: Incarceration

VI.iii.1.A.1.b.  Regulatory Requirements for Reducing or Discontinuing Benefits During Incarceration

• A beneficiary, for the purpose of the two preceding paragraphs, is limited to
  • Veterans that are entitled to disability compensation or pension
  • surviving spouses, children, and parents that are entitled to DIC, and
  • surviving spouses and children that are entitled to Survivors Pension.
• The requirement to reduce or discontinue benefits applies to beneficiaries incarcerated in a Federal, State, or local penal institution or correctional facility, including privately owned correctional facilities that are operated under contract with a State.
• The proper effective date for reducing or discontinuing benefits is the 61^st day of incarceration.

• privately owned correctional facilities, see VAOPGCPREC 5-2006
• the effect a beneficiary’s incarceration has on an award of
  • disability compensation, see M21-1, Part VI, Subpart iii, 1.A.2.a–c
  • DIC, see M21-1, Part VI, Subpart iii, 1.A.2.e, and
  • pension, see M21-1, Part VI, Subpart iii, 1.A.2.f
• incarcerated apportionees and custodians, see M21-1, Part VI, Subpart iii, 1.C.6, and
• processing notices of incarceration, see M21-1, Part VI, Subpart iii, 1.A.3.a.

VI.iii.1.A.1.c.  Effect of a Dependent’s Incarceration on a Beneficiary’s Award

• Veteran receiving disability compensation, or
• surviving spouse receiving DIC.

• removing an incarcerated dependent from a pension award, see M21-1, Part VI, Subpart iii, 1.C.1
• the effect of an apportionee’s incarceration on the apportionment, see M21-1, Part VI, Subpart iii, 1.C.6, and
• dependents that are fugitive felons, see M21-1, Part VI, Subpart iii, 1.A.1.f.

VI.iii.1.A.1.d.  Periods During Which VA May Not Reduce or Discontinue Benefits

• participating in a work-release program
• under community control (per VAOPGCPREC 59-1991)
• incarcerated in a foreign penal institution, or
• residing in a
  • halfway house
  • residential re-entry center, or
  • civil commitment center.

VI.iii.1.A.1.e.  Data-Matching Programs That Identify Incarcerated Beneficiaries and Dependents

VI.iii.1.A.1.f.  Beneficiaries and Dependents That Are Fugitive Felons

• to a beneficiary that is a fugitive felon, or
• for a dependent that is a fugitive felon.

• fleeing to avoid prosecution, being taken into custody, or confinement, after being convicted for, or attempting to commit, an offense that is a felony, or
• violating a condition of probation or parole imposed for commission of a felony.

• the requirement to suspend benefits of fugitive felons, see
  • 38 CFR 3.665(n) (for compensation and DIC), and
  • 38 CFR 3.666(e) (for pension)
• identifying fugitive felons, see M21-1, Part XIV, 8.1, and
• adjusting awards based on fugitive felon status, see M21-1, Part XIV, 8.2.

Introduction

• effect of incarceration on
  • payments of disability compensation, and
  • ratings of total disability due to individual unemployability (TDIU)
• increased disability evaluations during incarceration
• effect of incarceration on
  • payment of the clothing allowance
  • payments of DIC, and
  • pension awards, and
• determining whether VA is paying education benefits to an incarcerated beneficiary.

Change Date

VI.iii.1.A.2.a. Effect of Incarceration on Payments of Disability Compensation

• committed the felony after October 7, 1980
• was incarcerated on October 1, 1980 (regardless of the date the Veteran committed the felony), and VA granted entitlement to disability compensation with an effective date that is after September 30, 1980, or
• was incarcerated on or before October 7, 1980, for a felony committed prior to that date, and the Veteran remained incarcerated for the same conviction through December 27, 2001.  (Reductions under this last condition take effect beginning with the payment of disability compensation VA makes for the month of April 2002.)

• processing notices of incarceration, see M21-1, Part VI, Subpart iii, 1.A.3.a, and
• apportioning an incarcerated Veteran’s disability compensation to dependent(s), see M21-1, Part VI, Subpart iii, 1.B.2.

VI.iii.1.A.2.b. Effect of Incarceration on Ratings of TDIU

• ratings of TDIU, see M21-1, Part VIII, Subpart iv, 3.C
• treating confinement in a mental institution as incarceration for VA purposes, see Philbrook v. Wilkie, and
• the effect of removal from the work-possible environment on a rating of TDIU, see VAOPGCPREC 13-1997.

VI.iii.1.A.2.c. Increased Disability Evaluations During Incarceration

VI.iii.1.A.2.d. Effect of Incarceration on Payment of the Clothing Allowance

• a Veteran entitled to this benefit is incarcerated for more than 60 days, and
• the Veteran receives clothing at no cost from the penal institution.

VI.iii.1.A.2.e. Effect of Incarceration on Payments of DIC

• Reduction of DIC due to incarceration is necessary only if the beneficiary
  • committed the felony after October 7, 1980, or
  • was incarcerated on October 1, 1980 (regardless of the date the beneficiary committed the felony), and VA granted entitlement to DIC with an effective date that is after September 30, 1980.
• Pay beneficiaries the full amount of any benefit due them for periods prior to October 1, 1980.
• If a parent’s DIC award is less than half of the amount payable for an SC disability evaluated as 10-percent disabling, do not adjust the award.

• incarcerated apportionees, see M21-1, Part VI, Subpart iii, 1.C.6
• processing notices of incarceration, see M21-1, Part VI, Subpart iii, 1.A.3.a, and
• the apportionment of an incarcerated surviving spouse’s or child’s DIC, see
  • M21-1, Part VI, Subpart iii, 1.C.3 and 4, and
  • 38 CFR 3.665(e)(2).

VI.iii.1.A.2.f. Effect of Incarceration on Pension Awards

• the effect of an apportionee’s incarceration on an apportionment, see M21-1, Part VI, Subpart iii, 1.C.6
• processing notices of incarceration, see M21-1, Part VI, Subpart iii, 1.A.3.a, and
• the apportionment of an incarcerated
  • Veteran’s pension to dependents, see
    • M21-1, Part VI, Subpart iii, 1.B.1, and
    • 38 CFR 3.666(a)
  • surviving spouse’s pension to eligible children, see
    • M21-1, Part VI, Subpart iii, 1.C.2, and
    • 38 CFR 3.666(b)(1), and
  • child’s pension to a surviving spouse or other eligible children, see 38 CFR 3.666(b)(2).

VI.iii.1.A.2.g.  Determining Whether VA Is Paying Education Benefits to an Incarcerated Beneficiary

• what constitutes official notice, see M21-1, Part VI, Subpart iii, 1.A.3.c
• determining the RPO of jurisdiction, see M22-4, Part III, 1.02, and
• the e-mail address of individual RPOs, see M21-1, Part XIII, Subpart i, 1.B.3.b.

Introduction

• action to take upon receipt of notice of incarceration
• identifying official
  • sources of information regarding an individual’s incarceration, and
  • notice of incarceration
• verifying the details of incarceration
• available means for requesting/obtaining information from official sources
• adjusting a beneficiary’s award based on incarceration
• re-incarceration for the same conviction following a period of release, and
• handling notice that charges against an incarcerated
  • beneficiary were dismissed or overturned or the type of conviction was changed, and
  • former apportionee were dismissed or overturned or the type of conviction was changed.

Change Date

VI.iii.1.A.3.a.  Action to Take Upon Receipt of Notice of Incarceration

• beneficiary, to include an apportionee, or
• dependent on a beneficiary’s award.

• As indicated in M21-1, Part VI, Subpart iii, 1.A.1.c, there is no requirement to remove an incarcerated dependent from the award of a
  • Veteran in receipt of disability compensation, or
  • surviving spouse in receipt of DIC.
• Instead of following the procedure described in the table below, follow the instructions in M21-1, Part VI, Subpart iii, 1.C.6, if the incarcerated individual is
  • an apportionee, and
  • the custodian of one or more other apportionees.

VI.iii.1.A.3.b.  Identifying Official Sources of Information Regarding an Individual’s Incarceration

• Federal, State, and local government authorities, such as
  • law enforcement officials
  • officials at correctional facilities
  • prosecutors, and
  • parole officers
• BOP’s website (http://www.bop.gov/), and
• official websites of individual correctional facilities.

VI.iii.1.A.3.c.  Identifying Official Notice of Incarceration

• an 800 series work item that was system-generated as a result of the data-matching programs described in M21-1, Part XIV, 7
• a completed VA Form 21-4193 from a correctional facility, and
• evidence of incarceration that originated from an official source, including statements affirming incarceration from
  • prison or law enforcement authorities
  • prosecutors, or
  • parole officers.

VI.iii.1.A.3.d.  Verifying the Details of Incarceration

• type of conviction (such as felony, misdemeanor, or infraction)
• date (month, day, year) of conviction
• date (month, day, year) of incarceration following conviction, and
• an indication that incarceration lasted for more than 60 days following the date of conviction.

VI.iii.1.A.3.e.  Available Means for Requesting/ Obtaining Information From Official Sources

• contacting (by telephone or e-mail) the correctional facility where the individual is/was incarcerated
• accessing BOP’s website (http://www.bop.gov/), and/or
• asking the correctional facility where the individual is/was incarcerated to complete and return VA Form 21-4193.

• display telephone numbers and/or e-mail addresses of facility officials, and/or
• allow visitors to access inmate locator data.

• M21-1, Part II, Subpart ii, 2.A.1.b, and
• the Veterans Benefits Management System (VBMS) Core User Guide.

VI.iii.1.A.3.f.  Adjusting a Beneficiary’s Award Based on Incarceration

VI.iii.1.A.3.g.  Re-Incarceration for the Same Conviction Following a Period of Release

• VA begins paying a Veteran disability compensation at the full rate of entitlement after release from prison and placement on parole.
• Three months later, the Veteran violates parole and is re-incarcerated.

• VA must complete each of the steps in the procedure outlined in M21-1, Part VI, Subpart iii, 1.A.3.a, to include the issuing of a new notice of proposed adverse action.
• VA may not reduce the Veteran’s disability compensation any earlier than the 61^st day of re-incarceration.

• the payment of benefits while a beneficiary is on parole, and
• re-incarceration of a beneficiary.

VI.iii.1.A.3.h.  Handling Notice That Charges Against an Incarcerated Beneficiary Were Dismissed or Overturned or the Type of Conviction Was Changed

• charges that resulted in a beneficiary’s incarceration have been dismissed or were overturned, or
• type of conviction (felony) that resulted in incarceration has changed such that a reduction or discontinuance of benefits is no longer required under 38 CFR 3.665.

VI.iii.1.A.3.i.  Handling Notice That Charges Against an Incarcerated Former Apportionee Were Dismissed or Overturned or the Type of Conviction Was Changed

• charges that resulted in incarceration have been dismissed or were overturned, or
• type of conviction (felony) that resulted in incarceration has changed such that discontinuation of the apportionment may no longer be necessary under 38 CFR 3.665.

Introduction

• calculating the 61^st day of incarceration
• incarceration in and transfer from a foreign penal institution, and
• recoupment of separation benefits during incarceration.

Change Date

VI.iii.1.A.4.a.  Calculating the 61^st Day of Incarceration

VI.iii.1.A.4.b.  Incarceration in and Transfer From a Foreign Penal Institution

• is later transferred to a U.S. penal institution to serve the remainder of the sentence, and
• was incarcerated in the foreign penal institution for conviction of an offense that is equivalent to a
  • felony (if the beneficiary receives disability compensation or DIC), or
  • felony or misdemeanor (if the beneficiary receives pension).

VI.iii.1.A.4.c. Recoupment of Separation Benefits During Incarceration

• VA is withholding all or part of a Veteran’s disability compensation to recoup separation benefits (including disability severance pay), and
• the Veteran is incarcerated following conviction for a felony.

• recouping separation benefits, see M21-1, Part VI, Subpart ii, 2, and
• the actions to take after incarceration ends, see M21-1, Part VI, Subpart iii, 1.A.5.

Introduction

• acceptable notice that incarceration has ended
• determining the date incarceration ended
• handling notice that a beneficiary’s incarceration has ended
• principles that apply to the resumption or adjustment of a beneficiary’s award after incarceration ends
• determining the proper effective date for resuming benefits after incarceration ends, and
• handling notice that a former apportionee’s incarceration has ended.

Change Date

VI.iii.1.A.5.a.  Acceptable Notice That Incarceration Has Ended

• in writing
• by telephone or e-mail, or
• through a VA claims submission service website.

VI.iii.1.A.5.b.  Determining the Date Incarceration Ended

• is released from prison
• is placed under community control (per VAOPGCPREC 59-1991)
• begins participation in a work-release program, or
• moves to a
  • halfway house
  • civil commitment center, or
  • residential re-entry center (as defined in M21-1, Part VI, Subpart iii, 1.A.1.d).

VI.iii.1.A.5.c.  Handling Notice That a Beneficiary’s Incarceration Has Ended

VI.iii.1.A.5.d.  Principles That Apply to the Resumption or Adjustment of a Beneficiary’s Award After Incarceration Ends

VI.iii.1.A.5.e.  Determining the Proper Effective Date for Resuming Benefits After Incarceration Ends

• The beneficiary referenced in this block does not include a former apportionee whose apportionment VA discontinued because the former apportionee was incarcerated.
• Apply the exclusion identified in 38 CFR 3.31(c)(3)(v) when determining the effective date of payment.

• proper effective date for resuming the apportionment of a former apportionee whose apportionment VA discontinued because the former apportionee was incarcerated, see M21-1, Part VI, Subpart iii, 1.A.5.f, and
• difference between the effective date of entitlement and the effective date of payment, see M21-1, Part VI, Subpart i, 1.A.

VI.iii.1.A.5.f.  Handling Notice That a Former Apportionee’s Incarceration Has Ended