I was receiving VA benefits before I got arrested. What happens to them while I’m incarcerated?

It depends. Until you’re convicted, there’s no problem: if you’re in jail awaiting trial, you’re presumed innocent, and still entitled to VA benefits.[1804] Once convicted, your ability to get VA benefits depends on your conviction and the length of your incarceration.[1805]

For non-service-related pensions:

    If you’re incarcerated for a felony or misdemeanor, you should keep getting regular pension payments for the first 60 days of incarceration. If you’re released on or before the 60th day, your payments should continue without interruption. But starting on the 61st day of incarceration, payments get cut off. After release, you may be able to restart your payments if you’re eligible at that time (details on PG. 498).[1806]

For health care benefits:

    If you’re incarcerated for any conviction, you don’t lose eligibility for VA health care; but the VA won’t provide this care while you’re incarcerated, since the correctional facility has the duty to provide care to you.[1807] After release, you should be able to apply for and receive VA health care benefits again (details on PG. 498).[1808]

For service-related disability compensation:

    If you’re incarcerated for a misdemeanor, you should keep getting your regular disability payments.
    If you’re incarcerated for a felony, you should keep getting regular disability payments for the first 60 days of incarceration. If you’re released on or before the 60th day, your payments should continue without interruption. But starting on the 61st day of incarceration, payments get reduced: if your disability rating was 20% or higher before incarceration, it should drop to 10%; if it was 10% before, it should be cut in half. After release, you may be able to restore your payments based on how severe your disability is at that time (see details on PG. 498).[1809]

Apportionment of benefits while incarcerated:

Even though you only receive a portion of your service-related benefit while incarcerated, the balance, or full amount, of the benefit may be “apportioned” to your family member during the period of incarceration.[1810] For example, if you are 50% service-connected, you would only be entitled to receive 10% while incarcerated. However, your family may be apportioned the remaining 40% of the benefit.

Either you or your family member may apply for apportionment using VA Form 21-0788. The amount apportioned will be determined based on need. In determining need, the VA considers factors such as the appointee’s income, living expenses and any other relevant factors. Apportionment may not be granted retroactively.

IMPORTANT: Notifying the VA about Your Incarceration and Release:

!

    You are required to notify the VA when you go to jail or prison. The VA needs to know whether and when to reduce or stop your benefits. If you receive larger or more VA payments than you’re legally entitled to receive while incarcerated, the VA will require that you eventually repay the total amount that you should not have received—your “overpayment.” Basically, after you’re released from incarceration and once again eligible for benefits, the VA will withhold all your benefits until the overpayment is paid off.[1811]You should notify the VA within a year after your release—in advance, if possible. The VA will assume that you remain incarcerated until you submit proof of your release date. The VA needs this proof before it can restore or restart your benefits.[1812] The VA periodically identifies people receiving VA benefits who are incarcerated or in violation of parole or probation via listings that it receives from the U. S. Bureau of Prisons (BOP), the Social Security Administration (SSA), and other sources. However, these listings may have errors regarding your dates of incarceration, so it is helpful for you to be in direct contact with the VA to correct any inaccurate information.Note, you can use VA Form 21-4193 to notify the VA of your incarceration and release dates. (See copy of form in Appendix M, PG. 547.) If you’re incarcerated, you can get this form from a correctional counselor. If you have Internet access, download the form at www.reginfo.gov/public/do/DownloadDocument?documentID=203887&version=1. You can also call the VA at 1-800-827-1000 and ask that the form be mailed to you. The form must be signed by a correctional official.
  1. 1804

    Information for Incarcerated Veterans, Swords to Plowshares, www.swords-to-plowshares.org/wp-content/uploads/Information-For-Incarcerated-Veterans.pdf ↑

  2. 1805

    Fact Sheet: Incarcerated Veterans (Aug 2012), U.S. Dep’t of Veterans Affairs, www.benefits.va.gov/BENEFITS/factsheets/misc/incarcerated.pdf; Incarcerated Veterans: How Incarceration Affects Eligibility for VA benefits, U.S. Dep’t of Veterans Affairs, www.benefits.va.gov/persona/veteran-incarcerated.asp. ↑

  3. 1806

    Fact Sheet: Incarcerated Veterans (Aug 2012), U.S. Dep’t of Veterans Affairs, www.benefits.va.gov/BENEFITS/factsheets/misc/incarcerated.pdf; Incarcerated Veterans: How Incarceration Affects Eligibility for VA benefits, U.S. Dep’t of Veterans Affairs, www.benefits.va.gov/persona/veteran-incarcerated.asp ↑

  4. 1807

    Fact Sheet: Incarcerated Veterans (Aug 2012), U.S. Dep’t of Veterans Affairs, www.benefits.va.gov/BENEFITS/factsheets/misc/incarcerated.pdf ↑

  5. 1808

    Guidebook for California Incarcerated Veterans, 4th ed. (July 2013), U.S. Dep’t of Veterans Affairs, www.va.gov/HOMELESS/docs/Reentry/09_ca.pdf. ↑

  6. 1809

    Fact Sheet: Incarcerated Veterans (Aug 2012), U.S. Dep’t of Veterans Affairs, www.benefits.va.gov/BENEFITS/factsheets/misc/incarcerated.pdf; Incarcerated Veterans: How Incarceration Affects Eligibility for VA benefits, U.S. Dep’t of Veterans Affairs, www.benefits.va.gov/persona/veteran-incarcerated.asp ↑

  7. 1810

    U.S. Dep’t of Veterans Affairs, Guidebook for California Incarcerated Veterans, 4th ed. (July 2013), http://www.va.gov/HOMELESS/docs/Reentry/09_ca.pdf ↑

  8. 1811

    Information for Incarcerated Veterans, Swords to Plowshares, www.swords-to-plowshares.org/wp-content/uploads/Information-For-Incarcerated-Veterans.pdf; Can the VA Stop or Lower My Disability Benefits If I Go to Jail?, Nolo: Law for All, www.nolo.com/legal-encyclopedia/can-the-va-stop-lower-my-disability-benefits-if-i-go-to-jail.html ↑

  9. 1812

    Information for Incarcerated Veterans, Swords to Plowshares, www.swords-to-plowshares.org/wp-content/uploads/Information-For-Incarcerated-Veterans.pdf. ↑