38 U.S.C. § 5313

Limitation on payment of compensation and dependency and indemnity compensation to persons incarcerated for conviction of a felony

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(a)(1) To the extent provided in subsection (d) of this section, any person who is entitled to compensation or to dependency and indemnity compensation and who is incarcerated in a Federal, State, local, or other penal institution or correctional facility for a period in excess of sixty days for conviction of a felony shall not be paid such compensation or dependency and indemnity compensation, for the period beginning on the sixty-first day of such incarceration and ending on the day such incarceration ends, in an amount that exceeds—(A) in the case of a veteran with a service-connected disability rated at 20 percent or more, the rate of compensation payable under section 1114(a) of this title; or(B) in the case of a veteran with a service-connected disability not rated at 20 percent or more or in the case of a surviving spouse, parent, or child, one-half of the rate of compensation payable under section 1114(a) of this title.(2) The provisions of paragraph (1) of this subsection shall not apply with respect to any period during which a person is participating in a work-release program or is residing in a halfway house.(b)(1) All or any part of the compensation not paid to a veteran by reason of subsection (a) of this section may, as appropriate in an individual case, be apportioned under the same terms and conditions as are provided under section 5307 of this title.(2) All or any part of the dependency and indemnity compensation not paid to a surviving spouse or child by reason of subsection (a) of this section may, as appropriate in an individual case, be apportioned as follows:(A) In the case of dependency and indemnity compensation not paid to a surviving spouse, any apportionment shall be to the surviving child or children.(B) In the case of dependency and indemnity compensation not paid to a surviving child, any apportionment shall be to the surviving spouse or other surviving children, as applicable.(3) No apportionment may be made under this subsection to or on behalf of any person who is incarcerated in a Federal, State, local, or other penal institution or correctional facility for conviction of a felony.(c) The Secretary shall not assign to any veteran a rating of total disability based on the individual unemployability of the veteran resulting from a service-connected disability during any period during which the veteran is incarcerated in a Federal, State, local, or other penal institution or correctional facility for conviction of a felony.(d) The provisions of subsection (a) of this section shall apply (1) with respect to any period of incarceration of a person for conviction of a felony committed after October 7, 1980, and (2) with respect to any period of incarceration on or after October 1, 1980, for conviction of a felony of a person who on October 1, 1980, is incarcerated for conviction of such felony and with respect to whom the action granting an award of compensation or dependency and indemnity compensation is taken on or after such date.(e) For purposes of this section—(1) The term “compensation” includes disability compensation payable under section 1151 of this title.(2) The term “dependency and indemnity compensation” means death compensation payable under section 1121 or 1141 of this title, death compensation and dependency and indemnity compensation payable under section 1151 of this title, and any benefit payable under chapter 13 of this title.(Added Pub. L. 96–385, title V, § 504(a), Oct. 7, 1980, 94 Stat. 1534, § 3113; amended Pub. L. 98–160, title VII, § 702(17), Nov. 21, 1983, 97 Stat. 1010; renumbered § 5313 and amended Pub. L. 102–40, title IV, § 402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–83, §§ 4(b)(1), (2)(E), 5(c)(1), Aug. 6, 1991, 105 Stat. 404–406; Pub. L. 105–368, title X, § 1005(b)(16), Nov. 11, 1998, 112 Stat. 3365; Pub. L. 109–461, title X, § 1002(f), Dec. 22, 2006, 120 Stat. 3465.)Editorial NotesAmendments

2006—Subsecs. (a)(1), (b)(3), (c). Pub. L. 109–461 substituted “local, or other penal institution or correctional facility” for “or local penal institution”.

1998—Subsec. (d)(1). Pub. L. 105–368 substituted “October 7, 1980,” for “the date of the enactment of this section,”.

1991—Pub. L. 102–40, § 402(b)(1), renumbered section 3113 of this title as this section.

Subsec. (a)(1). Pub. L. 102–83, § 5(c)(1), substituted “1114(a)” for “314(a)” in subpars. (A) and (B).

Subsec. (b)(1). Pub. L. 102–40, § 402(d)(1), substituted “5307” for “3107”.

Subsec. (c). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator”.

Subsec. (e). Pub. L. 102–83, § 5(c)(1), substituted “1151” for “351” in par. (1) and “1121”, “1141”, and “1151” for “321”, “341”, and “351”, respectively, in par. (2).

1983—Subsec. (a)(2). Pub. L. 98–160 substituted “paragraph (1) of this subsection” for “paragraph (1) of this section”.

Statutory Notes and Related SubsidiariesEffective Date

Section effective Oct. 7, 1980, see section 601(d) of Pub. L. 96–385, set out as an Effective Date of 1980 Amendment note under section 1114 of this title.

Limitation on Payment of Compensation for Veterans Remaining Incarcerated Since October 7, 1980

Pub. L. 107–103, title V, § 506, Dec. 27, 2001, 115 Stat. 996, provided that:“(a)Limitation.—Section 5313 of title 38, United States Code, other than subsection (d) of that section, shall apply with respect to the payment of compensation to or with respect to any veteran described in subsection (b).“(b)Covered Veterans.—A veteran described in this subsection is a veteran who is entitled to compensation and who—“(1) on October 7, 1980, was incarcerated in a Federal, State, or local penal institution for a felony committed before that date; and“(2) remains so incarcerated for conviction of that felony as of the date of the enactment of this Act [Dec. 27, 2001].“(c)Effective Date.—This section shall apply with respect to the payment of compensation for months beginning on or after the end of the 90-day period beginning on the date of the enactment of this Act [Dec. 27, 2001].“(d)Compensation Defined.—For purposes of this section, the term ‘compensation’ has the meaning given that term in section 5313 of title 38, United States Code.”

Notes of Decisions

Cited in 44 cases (13 in the last 5 years), 1993–2025 · leading case: William H. Wanless, Jr. v. Anthony J. Principi, 18 Vet. App. 337 (Vet. App. 2004).

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William H. Wanless, Jr. v. Anthony J. Principi, 18 Vet. App. 337 (Vet. App. 2004). · cites it 44× “" 38 U.S.C. § 5313 (a)(1). Specifically, the issue to be addressed is the relationship between the State of Oklahoma and the Davis Correctional Facility (DCF) or the Corrections Corporation of America, i.”

Snyder v. Nicholson, 489 F.3d 1213 (Fed. Cir. 2007). · cites it 8× “Creekmore that, pursuant to 38 U.S.C. § 5313 , the VA would be “withholding all but the 10% rate of compensation” due to his incarceration.”

Gurley v. McDonough, 23 F.4th 1353 (Fed. Cir. 2022). · cites it 8× “Gurley’s full benefits during the period, even though 38 U.S.C. § 5313 prescribes a substantial reduction of payments to the veteran for certain incarceration peri- ods.”

Wanless v. Shinseki, 618 F.3d 1333 (Fed. Cir. 2010). · cites it 3× “The issue before this court is one of statutory construction, specifically the construction of 38 U.S.C. § 5313 (1993). This statute reduces the benefits of veterans who are convicted of felonies and are “incarcerated in a Federal, State, or local penal institution.”

William H. Wanless v. Eric K. Shinseki, 23 Vet. App. 143 (Vet. App. 2009). · cites it 10× “Wanless argues that because he was incarcerated in a private prison under State contract, the Board erred in reducing his benefits under 38 U.S.C. § 5313 . For the reasons stated below, we affirm the Board’s December 2006 decision.”

Mulder v. McDonald, 27 Vet. App. 1342 (Fed. Cir. 2015). · cites it 5× “The Board of Veterans’ Appeals (Board) found that, under 38 U.S.C. § 5313 (a)(1), the VA properly determined the date on which Mr.”

Brown v. Dep't of Vets. Affairs, 451 F. Supp. 2d 273 (D. Mass. 2006). · cites it 5× “Among other things, he seeks a judgment declaring that 38 U.S.C. § 5313 (a)(2), which was enacted as part of the Veterans’ Disability Compensation and Housing Benefits Amendments of 1980, is unconstitutional.”

Hall v. U.S. Dep't Vets.' Affairs, 85 F.3d 532 (11th Cir. 1996). · cites it 3× “DISCUSSION Hall urges that subject matter jurisdiction was present because the complaint raised a constitutional attack on the validity of 38 U.S.C. § 5313 as well as the implementing regulation, 38 C.”

Bolton v. Brown, 8 Vet. App. 185 (Vet. App. 1995). · cites it 5× “38 U.S.C. § 5313 (a)(1); see 38 C.F.R. § 3.”

Donald Mulder v. Sloan D. Gibson, 27 Vet. App. 10 (Vet. App. 2014). · cites it 3× “First, he argues that the Board misinterpreted 38 U.S.C. § 5313 and 38 C.F.R. § 3.665 (a) when it concluded that he was incarcerated “for conviction of a felony” as of May 19, 2006.”

Robert Fountain v. Robert A. McDonald, 27 Vet. App. 258 (Vet. App. 2015). “161 , to the Secretary’s use of a VA General Counsel Opinion to interpret statutory provision in 38 U.S.C. § 5313 ); see Sursely v. Peake, 551 F.”

Wilson v. Gibson, 753 F.3d 1363 (Fed. Cir. 2014). · cites it 7× “for a period in excess of sixty days for conviction of a felony,” 38 U.S.C. § 5313 (a)(1) requires a *1365 reduction in compensation payment to the level of 10% disability, effective “the sixty-first day of such incarceration.”

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