38 U.S.C. § 6105 — Forfeiture for subversive activities

Page 1108 TITLE 38—VETERANS’ BENEFITS § 6105 3298; renumbered § 6104, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–83, § 4(a)(1), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 403–405; Pub. L. 116–283, div. A, title IX, § 926(a)(56), Jan. 1, 2021, 134 Stat. 3830.) Editorial Notes AMENDMENTS 2021—Subsec. (c). Pub. L. 116–283 substituted ‘‘air, or space service’’ for ‘‘or air service’’. 1991—Pub. L. 102–40 renumbered section 3504 of this title as this section. Subsec. (a). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted ‘‘Secretary’’ for ‘‘Administrator’’. Pub. L. 102–83, § 4(a)(1), substituted ‘‘administered by the Secretary’’ for ‘‘administered by the Veterans’ Ad- ministration’’. Subsec. (b). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted ‘‘Secretary’’ for ‘‘Administrator’’ and ‘‘Secretary’s’’ for ‘‘Administrator’s’’. 1986—Subsec. (b). Pub. L. 99–576 substituted ‘‘the Ad- ministrator’s’’ for ‘‘his’’ and ‘‘the dependent’’ for ‘‘he’’. 1982—Subsec. (a). Pub. L. 97–295 inserted ‘‘to’’ before ‘‘be guilty’’. 1969—Subsec. (c). Pub. L. 91–24 substituted ‘‘Sep- tember 1, 1959’’ for ‘‘the date of enactment of this sub- section’’. 1959—Subsec. (c). Pub. L. 86–222 added subsec. (c). § 6105. Forfeiture for subversive activities (a) Any individual who is convicted after Sep- tember 1, 1959, of any offense listed in subsection (b) of this section shall, from and after the date of commission of such offense, have no right to gratuitous benefits (including the right to burial in a national cemetery) under laws administered by the Secretary based on periods of military, naval, air, or space service commencing before the date of the commission of such offense and no other person shall be entitled to such bene- fits on account of such individual. After receipt of notice of the return of an indictment for such an offense the Secretary shall suspend payment of such gratuitous benefits pending disposition of the criminal proceedings. If any individual whose right to benefits has been terminated pur- suant to this section is granted a pardon of the offense by the President of the United States, the right to such benefits shall be restored as of the date of such pardon. (b) The offenses referred to in subsection (a) of this section are those offenses for which punish- ment is prescribed in— (1) sections 894, 904, and 906 of title 10 (arti- cles 94, 104, and 106 of the Uniform Code of Military Justice); (2) sections 175, 229, 792, 793, 794, 798, 831, 1091, 2332a, 2332b, 2381, 2382, 2383, 2384, 2385, 2387, 2388, 2389, 2390, and chapter 105 of title 18; (3) sections 222, 223, 224, 225, and 226 of the Atomic Energy Act of 1954 (42 U.S.C. 2272, 2273, 2274, 2275, and 2276); and (4) section 4 of the Internal Security Act of 1950 (50 U.S.C. 783). (c) The Secretary of Defense or the Secretary of Homeland Security, as appropriate, shall no- tify the Secretary in each case in which an indi- vidual is convicted of an offense listed in para- graph (1) of subsection (b). The Attorney Gen- eral shall notify the Secretary in each case in which an individual is indicted or convicted of an offense listed in paragraph (2), (3), or (4) of subsection (b). (Added Pub. L. 86–222, § 3(a), Sept. 1, 1959, 73 Stat. 453, § 3505; amended Pub. L. 92–128, § 2(c), Sept. 25, 1971, 85 Stat. 348; Pub. L. 93–43, § 8, June 18, 1973, 87 Stat. 88; Pub. L. 97–295, § 4(79), Oct. 12, 1982, 96 Stat. 1311; renumbered § 6105, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–54, § 14(d)(9), June 13, 1991, 105 Stat. 287; Pub. L. 102–83, § 4(a)(1), (2)(A)(xiv), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 403–405; Pub. L. 103–446, title XII, § 1201(e)(19), Nov. 2, 1994, 108 Stat. 4686; Pub. L. 107–296, title XVII, § 1704(d), Nov. 25, 2002, 116 Stat. 2315; Pub. L. 108–183, title VII, § 705(a), Dec. 16, 2003, 117 Stat. 2672; Pub. L. 116–283, div. A, title IX, § 926(a)(57), Jan. 1, 2021, 134 Stat. 3830.) Editorial Notes AMENDMENTS 2021—Subsec. (a). Pub. L. 116–283 substituted ‘‘air, or space service’’ for ‘‘or air service’’. 2003—Subsec. (b)(2). Pub. L. 108–183 inserted ‘‘175, 229,’’ after ‘‘sections’’ and ‘‘831, 1091, 2332a, 2332b,’’ after ‘‘798,’’. 2002—Subsec. (c). Pub. L. 107–296 substituted ‘‘of Homeland Security’’ for ‘‘of Transportation’’. 1994—Subsec. (c). Pub. L. 103–446 substituted ‘‘para- graph (2), (3), or (4) of subsection (b)’’ for ‘‘clauses (2), (3), or (4) of subsection (b) of this section’’ and ‘‘para- graph (1) of subsection (b)’’ for ‘‘clause (1) of that sub- section’’ and transposed the first and second sentences. 1991—Pub. L. 102–40 renumbered section 3505 of this title as this section. Subsec. (a). Pub. L. 102–83, § 4(a)(2)(A)(xiv), sub- stituted ‘‘Secretary’’ for ‘‘Veterans’ Administration’’ in second sentence. Pub. L. 102–83, § 4(a)(1), substituted ‘‘administered by the Secretary’’ for ‘‘administered by the Veterans’ Ad- ministration’’ in first sentence. Subsec. (c). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted ‘‘Secretary’’ for ‘‘Administrator’’ in two places. Pub. L. 102–54 amended subsec. (c) as in effect imme- diately before the enactment of Pub. L. 102–40 by sub- stituting ‘‘clauses (2),’’ for ‘‘clauses (1),’’, ‘‘Secretary of Transportation, as’’ for ‘‘Secretary of the Treasury, as may be’’, and ‘‘clause (1) of that subsection’’ for ‘‘clause (2) of subsection (b) of this section’’. 1982—Subsec. (a). Pub. L. 97–295, § 4(79)(A), substituted ‘‘September 1, 1959,’’ for ‘‘the date of enactment of this section’’. Subsec. (b). Pub. L. 97–295, § 4(79)(B), substituted pars. (1), (2), and (3) for cls. (2), (1), and (3), respectively, and inserted citations to the United States Code. 1973—Subsec. (a). Pub. L. 93–43 inserted ‘‘(including the right to burial in a national cemetery)’’ after ‘‘gra- tuitous benefits’’ in first sentence. 1971—Subsec. (b)(4). Pub. L. 92–128 substituted ‘‘in section 4 of the Internal Security Act of 1950’’ for ‘‘in the following sections of the Internal Security Act of 1950; sections 4, 112, and 113’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2003 AMENDMENT Pub. L. 108–183, title VII, § 705(b), Dec. 16, 2003, 117 Stat. 2672, provided that: ‘‘The amendments made by subsection (a) [amending this section] shall apply to claims filed after the date of the enactment of this Act [Dec. 16, 2003].’’ EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. Page 1109 TITLE 38—VETERANS’ BENEFITS § 6107 107–296, set out as a note under section 101 of Title 10, Armed Forces. EFFECTIVE DATE OF 1973 AMENDMENT Amendment by Pub. L. 93–43 effective June 18, 1973, see section 10(a) of Pub. L. 93–43, set out as an Effective Date note under section 2400 of this title. § 6106. Misuse of benefits by fiduciaries (a) FEE FORFEITURE IN CASE OF BENEFIT MIS- USE BY FIDUCIARIES.—A fiduciary may not col- lect a fee from a beneficiary for any month with respect to which the Secretary or a court of competent jurisdiction has determined that the fiduciary misused all or part of the individual’s benefit, and any amount so collected by the fi- duciary as a fee for such month shall be treated as a misused part of the individual’s benefit. (b) MISUSE OF BENEFITS DEFINED.—For pur- poses of this chapter, misuse of benefits by a fi- duciary occurs in any case in which the fidu- ciary receives payment, under any of laws ad- ministered by the Secretary, for the use and benefit of a beneficiary and uses such payment, or any part thereof, for a use other than for the use and benefit of such beneficiary or that bene- ficiary’s dependents. Retention by a fiduciary of an amount of a benefit payment as a fiduciary fee or commission, or as attorney’s fees (includ- ing expenses) and court costs, if authorized by the Secretary or a court of competent jurisdic- tion, shall be considered to be for the use or ben- efit of such beneficiary. (c) REGULATIONS.—The Secretary may pre- scribe by regulation the meaning of the term ‘‘use and benefit’’ for purposes of this section. (Added Pub. L. 108–454, title V, § 503(a)(1), Dec. 10, 2004, 118 Stat. 3619.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section applicable with respect to any determina- tions by the Secretary of Veterans Affairs made after Dec. 10, 2004, of misuse of funds by a fiduciary, see sec- tion 507(b)(2) of Pub. L. 108–454, set out as an Effective Date of 2004 Amendment note under section 5312 of this title. § 6107. Reissuance of benefits (a) NEGLIGENT FAILURE BY SECRETARY.—(1) In any case in which the negligent failure of the Secretary to investigate or monitor a fiduciary results in misuse of benefits by the fiduciary, the Secretary shall pay to the beneficiary or the beneficiary’s successor fiduciary an amount equal to the amount of benefits that were so misused. (2) There shall be considered to have been a negligent failure by the Secretary to investigate and monitor a fiduciary in the following cases: (A) A case in which the Secretary failed to review a fiduciary’s accounting within 60 days of the date on which that accounting is sched- uled for review. (B) A case in which the Secretary was noti- fied of allegations of misuse, but failed to act within 60 days of the date of such notification to terminate the fiduciary. (C) In any other case in which actual neg- ligence is shown. (b) REISSUANCE OF MISUSED BENEFITS IN OTHER CASES.—(1) In any case not covered by sub- section (a) in which a fiduciary misuses all or part of an individual’s benefit paid to such fidu- ciary, the Secretary shall pay to the beneficiary or the beneficiary’s successor fiduciary an amount equal to the amount of such benefit so misused. (2) In any other case in which the Secretary obtains recoupment from a fiduciary who has misused benefits, the Secretary shall promptly remit payment of the recouped amounts to the beneficiary or the beneficiary’s successor fidu- ciary as the case may be. (c) REISSUANCE OF AMOUNTS IN THE CASE OF A DECEASED BENEFICIARY.—(1) If a beneficiary de- scribed in subsection (a) predeceases a payment under subsection (a) or (b), the Secretary shall pay such benefits, subject to paragraph (2), to an individual or entity in accordance with section 5121 of this title. (2) The Secretary may not make a payment under this subsection to a fiduciary who mis- used benefits of the beneficiary. (d) LIMITATION ON TOTAL AMOUNT PAID.—The total of the amounts paid to a beneficiary (or a beneficiary’s successor fiduciary) under this sec- tion may not exceed the total benefit amount misused by the fiduciary with respect to that beneficiary. (e) RECOUPMENT OF AMOUNTS REISSUED.—In any case in which the Secretary reissues a ben- efit payment (in whole or in part) under this section, the Secretary shall make a good faith effort to obtain recoupment from the fiduciary to whom the payment was originally made. (Added Pub. L. 108–454, title V, § 503(a)(1), Dec. 10, 2004, 118 Stat. 3619; amended Pub. L. 116–315, title VII, § 7005(a), Jan. 5, 2021, 134 Stat. 5059; Pub. L. 118–114, § 2, Nov. 25, 2024, 138 Stat. 1605.) Editorial Notes AMENDMENTS 2024—Subsecs. (c), (d). Pub. L. 118–114, § 2(1), (2), added subsec. (c) and redesignated former subsec. (c) as (d). Former subsec. (d) redesignated (e). Subsec. (e). Pub. L. 118–114, § 2(1), (3), redesignated subsec. (d) as (e) and substituted ‘‘this section’’ for ‘‘subsection (a) or (b)’’. 2021—Subsec. (b)(1). Pub. L. 116–315, § 7005(a)(1), sub- stituted ‘‘In any case not covered by subsection (a) in which a fiduciary’’ for ‘‘In any case in which a fidu- ciary described in paragraph (2)’’. Subsec. (b)(2), (3). Pub. L. 116–315, § 7005(a)(2), (3), re- designated par. (3) as (2) and struck out former par. (2) which read as follows: ‘‘Paragraph (1) applies to a fidu- ciary that— ‘‘(A) is not an individual; or ‘‘(B) is an individual who, for any month during a period when misuse occurs, serves 10 or more individ- uals who are beneficiaries under this title.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Pub. L. 116–315, title VII, § 7005(b), Jan. 5, 2021, 134 Stat. 5059, provided that: ‘‘The amendments made by subsection (a) [amending this section] shall apply with respect to any determination by the Secretary of Vet- erans Affairs made on or after the date of the enact- ment of this Act [Jan. 5, 2021] regarding the misuse of benefits by a fiduciary.’’