The Accidental Fugitive

Mountford: The Accidental Fugitive

Steve W. Mountford v. Eric K. Shinseki, Opinion Number 09-1759, decided June 21, 2011 involves a veteran who was found to be a fugitive and had received $63,000 in excess benefits.

38 USC 5313B bars veterans and dependents from receiving benefits while they are fugitive felons. The veteran was service connected in 1978 for schizophrenia and pled guilty in 1994 to felony burglary. He was placed on probation and that same year violated his parole resulting in a 1994 arrest warrant that was not served for nearly 10 years. In 2004 the VA notified the veteran that his benefits were being suspended because of his fugitive felon status, as a result the veteran turned himself in and was sentenced to time served. His benefits were terminated in 2004, however a 2004 VA letter erroneously stated his benefits had been reinstated. The VA determined he received $63,000 in excess benefits (his benefits from 1994 until 2004).

The Court considered whether an adjudication of guilt was required to trigger the fugitive felon statute. The statute specifically says a probation violation makes a veteran a fugitive felon, which then turned the case to whether a “commission” of a felony was required. The Court determined a guilty plea was enough. Specifically, the veteran admitted all facts necessary to find him guilty of felony burglary but that in lieu of finding guilt, the judge granted leniency and withheld a guilty judgment pending compliance with probation.

Judge Kasold dissented and essentially argued the veteran was not a fugitive felon because he was not fleeing and actually had no knowledge of the arrest warrant. Additionally, he found nothing in section 5313B permits the Secretary to recover benefits already paid and only prohibits the Secretary from making payments after the Secretary become aware of the fugitive felon status. He also noted that a 2004 VA decision reversed the recoupment action but that such action was later reinstated in 2006 and found that as the 2004 decision was final, a finding of CUE was necessary.

This is a curious case with unusual facts that raise questions that will probably have to be settled by a the whole court or the DC Circuit Court of Appeals. In short, it looks like the law was upheld and the result was an injustice done.

Decided by C.J. Kasold, and Judges Lance and Davis.