If you are a veteran facing criminal prosecution and jail time, you need to think about how your VA benefits may be affected in strategizing your case. If you are convicted of a crime and incarcerated, the Department of Veterans Affairs may be able to reduce or terminate your VA disability benefits. In order to plan the best strategy to avoid or lessen the impact of this possibility, consult with an experienced criminal defense attorney.
When will the VA Stop or Reduce my Benefits?
Criminal charges alone will not affect your VA disability benefits; however, a conviction for a serious crime might reduce them. If you are sentenced to jail or prison for less than 60 days, you are paroled before then, or you are sent to a work-release program or halfway house, your VA benefits will not be affected. You must be considered incarcerated for more than 60 days for your disability benefits to be changed.
If you are convicted of a felony and incarcerated for longer than 60 days, your disability benefits will be reduced or terminated on your 61st day in jail or prison. Your monthly payment will be reduced based on how you were rated for a service-connected disability: if you were rated at 10%, the payment will be halved, and if you were rated at 20% or higher, the payment will be reduced to 10% of the usual level. Once you are released, your monthly payment may be reinstated.
Veterans that receive VA pension will stop getting payments on the 61st day after being in jail. Once you are released from prison your pension payments may resume depending on the eligibility requirements from the VA.
Notify the Department of Veterans Affairs Regional Office as soon as you are incarcerated. If you fail to do so and continue to receive benefits, they will be considered an overpayment and result in you losing all further payments until you repay that amount.
Can my family access my VA benefits while I am incarcerated?
The VA may be able to apply the benefits you would have received had you not been incarcerated to your family through a process called “apportionment”. Your family can apply for apportionment to receive your pension while you are otherwise ineligible to receive it. It is important to know that this is not an automatic process. Your family must apply for it in order to claim your VA benefits. To do so, they should contact the nearest VA office. They will be asked to provide information including income and living expenses, and the VA will consider these along with the amount available for apportionment as well as any special needs. Make sure to keep the VA updated about your incarceration status if your benefits are being apportioned.
What happens to my VA education benefits if I am convicted of a crime?
You can still receive full educational benefits as long as you have not been incarcerated after conviction for a felony. If you have been convicted of a misdemeanor or gross misdemeanor, you can still receive the full monthly benefit, even while in jail. If you are convicted of a felony, you can only receive the full monthly benefit if you are living in a halfway house, or you are in a work-release program. If you are incarcerated for a felony, you can continue to receive some benefits, but only toward the costs of tuition, fees, and necessary books and supplies. However, the VA benefit cannot be paid if another program is covering these costs.
After my release, how do I resume my benefits?
You need to ensure that the VA has received official notification of your release from incarceration. You can enable this to go more quickly by bringing an official discharge paper or parole agreement to your VA Benefits Regional Office. If you have been out of prison but have not yet claimed your benefits, make sure to notify the VA within one year of your release. If you do so, you will be compensated for your VA benefits from the date of release. If you wait for more than a year, your benefits will start the date the VA was notified of your release.
If your conviction is overturned on appeal, the VA will provide you with a retroactive payment of your disability benefits. You must notify the VA once your conviction is overturned in order to receive the payment.
What are some considerations I should think about in pleading to a criminal charge?
If you are asked to plead guilty to a criminal charge in a way that will result in longer than 60 days of incarceration, your VA benefits will be affected. It is vital to work with an experienced criminal attorney to strategize ways to lessen the impact on your disability benefits. A criminal lawyer will help you determine the best approach to negotiating a plea agreement in terms of whether to bargain for felony versus misdemeanor charges, asking for work-release, parole eligibility, and more.
Does the criminal justice system have any resources for Veterans?
In some states, there are alternatives to the criminal justice system for veterans called Veterans’ Treatment Courts. These focus on providing rehabilitation and treatment rather than punishment for a crime. There are 334 of these courts in the United States, and they help connect veterans who are dealing with mental health issues, substance abuse, and trauma to resources. In Clark County, we have a Veterans Treatment Court available for those that qualify in Las Vegas, North Las Vegas, and Henderson. Make sure to tell your criminal defense attorney that you are a veteran to see if you are eligible to participate in this alternative.
Reach out today to schedule a consultation to discuss your criminal case and your options moving forward. Attorney Craig W. Drummond is a U.S. Army Veteran and former JAG Attorney who is particularly knowledgeable in how criminal charges can affect Veterans and U.S. Military members.