Veteran Involvement in the U.S. Capitol Breach: Possible Effects on VA Benefits

Veteran Involvement in the U.S. Capitol Breach: Possible Effects on VA Benefits

February 16, 2021
Veteran Involvement in the U.S. Capitol Breach: Possible
Effects on VA Benefits
Overview
(18 U.S.C. §2383), seditious conspiracy (18 U.S.C. §2384),
On January 6, 2021, a crowd gathered on the U.S. Capitol
advocating the overthrow of government (18 U.S.C.
grounds, breached security, entered and occupied portions
§2385), and mutiny or sedition (Art. 94, UCMJ; 10 U.S.C.
of the Capitol building, and damaged federal property. The
§894). Section 6105 requires the Attorney General (for
breach resulted in injuries to nearly 140 District of
federal crimes) and the Secretaries of Defense and
Columbia Metropolitan and U.S. Capitol Police officers. In
Homeland Security (for UCMJ offenses) to notify VA when
addition, the breach led to at least five deaths. According to
a veteran is indicted or convicted of a listed offense.
some media reports’ analysis of the Department of Justice’s
list of individuals charged, approximately 20% of those
Although Sections 6104 and 6105 both result in the
involved in the disturbances at the U.S. Capitol have served
forfeiture of benefits by veterans who commit certain
or are currently serving in the U.S. military. This In Focus
offenses, they differ in a couple key ways. First, for Section
discusses how a veteran’s involvement in the events of
6105 to apply, an individual must be convicted of a listed
January 6 could affect, terminate, or ultimately bar a
offense by a court or military court-martial. In contrast,
veteran from access to benefits provided by the Department
Section 6104 requires only a determination by the VA
of Veterans Affairs (VA) or the Department of Defense
Secretary that the individual is guilty of the listed offenses.
(DOD).
Second, while the VA Secretary has discretion to continue
payments to the dependents of an individual who forfeits
Forfeiture of VA Benefits
benefits under Section 6104, conviction of an offense under
Title 38 of the U.S. Code governs VA benefits for veterans
Section 6105 terminates both an individual’s right to VA
and their dependents. Under Sections 6104 and 6105,
benefits and the right of dependents to VA benefits.
veterans and other individuals receiving VA benefits who
commit mutiny or treason or who are convicted of
Effect of Conviction and Incarceration
“subversive activities,” as listed in Section 6105(b), forfeit
In addition to the forfeiture provisions for mutiny, treason,
their right to VA benefits, including health care, disability
or subversive activities, VA is to reduce or suspend the
compensation, educational benefits, and burial benefits. In
monthly benefits of individuals convicted of other certain
addition, individuals who forfeit their VA benefits because
crimes who are incarcerated for more than 60 days.
they are convicted of engaging in subversive activities also
forfeit their dependents’ entitlement to VA benefits,
Under Title 38, Section 5313, of the U.S. Code and Title 38,
including dependency and indemnity compensation (DIC),
Section 3.665, of the Code of Federal Regulations, if a
educational benefits, and burial benefits.
veteran receiving disability compensation or an individual
receiving DIC is convicted of a felony and incarcerated for
Forfeiture for Treason or Mutiny (38 U.S.C. §6104)
more than 60 days, VA is to reduce that individual’s
Section 6104 of Title 38 applies to individuals “guilty of
monthly compensation payment effective the 61st day of
mutiny, treason, sabotage, or rendering assistance to an
incarceration. For a veteran with a disability rating of 20%
enemy of the United States.” Forfeiture of benefits under
or higher, VA is to reduce the monthly payment to the 10%
this section does not require an individual to be convicted in
level under Title 38, Section 1114(a), of the U.S. Code. For
a court of law. Instead, when the Secretary of VA, on the
a veteran with a 10% disability level, or for a non-veteran
basis of “satisfactory” evidence, determines that an
receiving DIC, VA is to reduce the individual’s monthly
individual is guilty of one of these offenses, that individual
payment by 50%. An incarcerated individual’s dependents
forfeits the right to VA benefits. The Secretary has
may apply for the remaining balance of the individual’s
discretion to continue payments to the dependents of an
compensation through a process called “apportionment.”
individual who forfeits benefits under this section.
VA is to resume the pension payments upon the
individual’s release so long as the individual notifies VA
Forfeiture for “Subversive Activities” (38 U.S.C.
within one year of release. The individual is not, however,
§6105)
permitted to receive retroactive payments for the benefits
Like Section 6104, Section 6105 provides that individuals
withheld during incarceration.
who commit certain offenses forfeit their right to VA
benefits. Specifically, it applies to individuals who are
Under Title 38, Section 1505(a), of the U.S. Code and Title
convicted of “subversive activities,” a list of federal crimes
38, Section 3.666, of the Code of Federal Regulations, if an
under Titles 18, 42, and 50 of the U.S. Code and offenses
individual receiving a VA disability or death pension is
under the Uniform Code of Military Justice (UCMJ). As
incarcerated following conviction of a felony or
potentially relevant to the January 6 breach of the U.S.
misdemeanor, VA is to suspend payment of the pension
Capitol, these offenses include rebellion or insurrection
effective the 61st day of imprisonment. The incarcerated
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Veteran Involvement in the U.S. Capitol Breach: Possible Effects on VA Benefits
individual’s dependents may apply for apportionment. VA
shopping at military exchanges. Military retirees, their
is to resume the pension payments upon the individual’s
dependents, and veterans with permanent service-connected
release so long as the individual notifies VA within one
disabilities rated as total or 100% disabled are also eligible
year of release.
for no-cost space-available air travel on military aircraft (10
U.S.C. §2641b). In addition to these benefits, military
VA regulations also limit an individual’s access to other
retirees are eligible for pensions, survivor annuities
benefits while incarcerated, including clothing allowances,
(Survivor Benefit Plans), and health care benefits for
subsistence allowances, and some education benefits. Under
themselves and their dependents.
Title 38, Section 3.810(d), of the Code of Federal
Regulations, VA is to reduce an individual’s clothing
Conditions for Revocation of DOD Benefits
allowance in proportion to the number of days the
Military retirees are subject to the UCMJ pursuant to Title
individual was incarcerated during the previous 12-month
10, Section 802, of the U.S. Code and may be tried by
period. Likewise, Title 38, Section 3108(g)(1), of the U.S.
military court-martial. Punitive articles that may be charged
Code prohibits payment of subsistence allowances to an
under the UCMJ include, among others, riot or breach of
individual pursuing a rehabilitation program while
peace (Art. 116), property destruction (Art. 109),
incarcerated for conviction of a felony. Similarly, Title 38,
conspiracy (Art. 81), mutiny or sedition (Art. 94), and
Section 21.5139, of the Code of Federal Regulations directs
soliciting commission of offenses (Art. 82). While retirees
VA to either reduce or terminate educational assistance
are subject to prosecution under the UCMJ, that does not
allowances (payments for tuition, fees, books, etc.) to
preclude them from also being charged and tried for federal
individuals incarcerated for a felony conviction.
or state offenses under other statutory authorities.
Therefore, military retirees can be charged and convicted
Benefits for a recipient who is only convicted of a crime—
for offenses under both the UCMJ and the U.S. Code.
but not incarcerated—are generally not subject to a
reduction or termination unless the individual commits one
In general, criminal prosecution or incarceration of a
of the crimes resulting in forfeiture, discussed above, or are
military retiree will not result in a loss of earned military
a “fugitive felon,” as discussed below.
retired pay. However, under Title 5, Section 8312, of the
U.S. Code, conviction of offenses related to treason,
Fugitive Felons
sedition, or subversive activities may result in the loss of
VA’s “fugitive felon” rule suspends the VA benefits of
military retired pay and survivor annuity. If a retired
certain fugitives who have been charged with or convicted
servicemember is required to forfeit military retired pay, he
of felonies. Section 5313B(b)(1) of Title 38 of the U.S.
or she may also be ineligible to access benefits that are
Code defines fugitive felon as:
contingent on eligibility for retired or retainer pay,
including commissary and exchange privileges, and
a person who is a fugitive by reason of –
medical benefits. Similarly, veterans who are not retirees or
entitled to retired pay may lose access to DOD benefits if
(A) fleeing to avoid prosecution, or custody or
they become ineligible for certain VA benefits or status
confinement after conviction, for an offense, or
(e.g., service-connected disability) due to a conviction for
an attempt to commit an offense, which is a
subversive activities under the provisions of Title 38,
felony under the laws of the place from which
Section 6105, of the U.S. Code.
the person flees; or
Related Resources
(B) violating a condition of probation or parole
imposed for commission of a felony under
CRS Report R46511, Veterans Benefits Administration
(VBA): Pension Programs
Federal or State law.
Under Title 38, Section 5313B, of the U.S. Code and Title
CRS Report R44837, Benefits for Service-Disabled
38, Sections 3.665-3.666, of the Code of Federal
Veterans
Regulations, VA is to suspend all payments to VA benefits
recipients who are fugitive felons. In addition, a fugitive
CRS Legal Sidebar LSB10564, Federal Criminal Law:
felon’s dependents are not entitled to benefits or
January 6, 2021, Unrest at the Capitol
apportionment while the fugitive’s benefits are suspended.
CRS Insight IN11573, Domestic Terrorism and the Attack
Veteran Eligibility for DOD Benefits
on the U.S. Capitol
Military retirees who are entitled to retired pay, their
dependents, service-disabled veterans, veteran caregivers,
CRS Legal Sidebar LSB10570, Unrest at the Capitol:
former prisoners of war, and others with certain military
Potential Violations of the Uniform Code of Military Justice
honors are eligible for in-person government-subsidized
shopping for groceries and household goods at military
Heather M. Salazar, Analyst in Veterans Policy
commissaries as well as access to military exchanges and
morale, welfare, and recreation services on military
IF11762
installations (10 U.S.C. §§1065 and 2481). Honorably
discharged veterans are eligible for limited tax-free online

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Veteran Involvement in the U.S. Capitol Breach: Possible Effects on VA Benefits

Disclaimer
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