Incarceration Adjustment questions

V

Vet2040

PEB Forum Regular Member
Registered Member
Sorry to mods if this is in the wrong forum.

In 2014 I had drug/alcohol issues which fortunately I have been clean and sober from for several years. Unfortunately in June 2014 I was arrested and spent 6 months in county jail.

Because my lawyer was fighting for a lesser charge, I ended up pleading guilty to a felony after I had already been in jail for 5 months, and the next month I was released on the day of sentencing due to having served the entirety of my 6 month sentence.

I received a letter today that they want to reduce my benefits (from 100% to 10%) from August to December, the rationale apparently being that since I was arrested in June my "convicted of a felony" starts then and 60 days later is August.

I would like to appeal this, and have a couple avenues I wanted to try, so I'm asking here first. One, I had not actually pled guilty until November, so I did not spend 60 days following conviction in jail, I spent about 30 days following conviction in jail, and then was released.

Another thing is that I have since had the felony reduced to a misdemeanor by the sentencing judge due to completing drug program/probation and not relapsing. I saw in one of the law pages that the adjustment can be avoided if the conviction is overturned on appeal - does this also apply if the felony has been reduced to a misdemeanor? The conviction is still there and has not been expunged.

Thank you for any help you can give.
 
Vet2040 said:
Sorry to mods if this is in the wrong forum.

In 2014 I had drug/alcohol issues which fortunately I have been clean and sober from for several years. Unfortunately in June 2014 I was arrested and spent 6 months in county jail.

Because my lawyer was fighting for a lesser charge, I ended up pleading guilty to a felony after I had already been in jail for 5 months, and the next month I was released on the day of sentencing due to having served the entirety of my 6 month sentence.

I received a letter today that they want to reduce my benefits (from 100% to 10%) from August to December, the rationale apparently being that since I was arrested in June my "convicted of a felony" starts then and 60 days later is August.

I would like to appeal this, and have a couple avenues I wanted to try, so I'm asking here first. One, I had not actually pled guilty until November, so I did not spend 60 days following conviction in jail, I spent about 30 days following conviction in jail, and then was released.

Another thing is that I have since had the felony reduced to a misdemeanor by the sentencing judge due to completing drug program/probation and not relapsing. I saw in one of the law pages that the adjustment can be avoided if the conviction is overturned on appeal - does this also apply if the felony has been reduced to a misdemeanor? The conviction is still there and has not been expunged.

Thank you for any help you can give.
Click to expand...
I am working on an incarcerated veterans case now. From my experience, good info in this area is hard to find. Where are you located? We might be able to help find you some resources.
 
pittpan2005 said:
I am working on an incarcerated veterans case now. From my experience, good info in this area is hard to find. Where are you located? We might be able to help find you some resources.
Click to expand...

Thank you for any help you can provide. I am in central California.
 
Vet2040 said:
Thank you for any help you can provide. I am in central California.
Click to expand...
You might try the California Department of Veterans Affairs, University of San Diego Veterans Legal Clinic, Veterans Legal Institute, University of California Irvine Veterans Clinic, Chapman University Military and Veterans Law Institute, and you can search the VA website for an accredited representative at https://www.va.gov/ogc/apps/accreditation/index.asp.

All the best!
 
pittpan2005 said:
You might try the California Department of Veterans Affairs, University of San Diego Veterans Legal Clinic, Veterans Legal Institute, University of California Irvine Veterans Clinic, Chapman University Military and Veterans Law Institute, and you can search the VA website for an accredited representative at https://www.va.gov/ogc/apps/accreditation/index.asp.

All the best!
Click to expand...

Thank you very much for your assistance.
 
Vet2040 said:
Thank you very much for your assistance.
Click to expand...
No problem. Based on what you wrote it sounds like you were convicted (plead) of a felony, but after satisfying probation/treatment, it was reduced to a misdemeanor. That probably satisfies the VA's felony requirement. The crux of the question is whether you served one month or six months post conviction.

Look up Mulder v. Gibson, 27 Vet. App. 10 (2014) and view this VA general counsel opinion.

"the [61st] day for purposes of 38 U.S.C. § [ ]5313(a) ... cannot occur until [61] days after a judge or jury has found an individual guilty of a crime and the individual has been imprisoned or incarcerated because of the determination of guilt. Thus, although a veteran may have been incarcerated prior to conviction[,] and although the period of incarceration prior to conviction may have been credited against the veteran's sentence, the [61st] day of incarceration should[,] for this purpose[,] be measured from the date all conditions precedent have occurred, including pronouncement of guilt by a judge or jury. However, once a veteran is imprisoned or incarcerated in a penal institution because of pronouncement of guilt for a requisite crime, the period of incarceration for purposes of [section 5313], would include any period of incarceration between the date of conviction and the date of sentencing."
VA Gen. Coun. Prec. 3–2005 (Feb. 23, 2005) (emphasis added).

It sounds like pre-trial or pre-adjudication should not trigger the 60 day period.
 
Update: I received a reply from the Evidence Intake Center saying that based on the new evidence they will not be reducing my benefits because my incarceration did not qualify for reduction. Thank you everyone for your advice and support!
 
Great news!
 
You must log in or register to reply here.
Top