38 U.S. Code § 719 - Reduction of benefits of employees convicted of certain crimes

(a) Reduction of Annuity for Removed Employee.—

(1) The Secretary shall order that the covered service of an employee of the Department removed from a position for performance or misconduct under section 713, 714, or 7461 of this title or any other provision of law shall not be taken into account for purposes of calculating an annuity with respect to such individual under chapter 83 or chapter 84 of title 5, if—

(A) the Secretary determines that the individual is convicted of a felony (and the conviction is final) that influenced the individual’s performance while employed in the position; and

(B) before such order is made, the individual is afforded—

(i) notice of the proposed order; and

(ii) an opportunity to respond to the proposed order by not later than ten business days following receipt of such notice; and

(C) the Secretary issues the order—

(i) in the case of a proposed order to which an individual responds under subparagraph (B)(ii), not later than five business days after receiving the response of the individual; or

(ii) in the case of a proposed order to which an individual does not respond, not later than 15 business days after the Secretary provides notice to the individual under subparagraph (B)(i).

(2) Any individual with respect to whom an annuity is reduced under this subsection may appeal the reduction to the Director of the Office of Personnel Management pursuant to such regulations as the Director may prescribe for purposes of this subsection.

(b) Reduction of Annuity for Retired Employee.—

(1) The Secretary may order that the covered service of an individual who the Secretary proposes to remove for performance or misconduct under section 713, 714, or 7461 of this title or any other provision of law but who leaves employment at the Department prior to the issuance of a final decision with respect to such action shall not be taken into account for purposes of calculating an annuity with respect to such individual under chapter 83 or chapter 84 of title 5, if—

(A) the Secretary determines that individual is convicted of a felony (and the conviction is final) that influenced the individual’s performance while employed in the position; and

(B) before such order is made, the individual is afforded—

(i) notice of the proposed order;

(ii) opportunity to respond to the proposed order by not later than ten business days following receipt of such notice; and

(C) the Secretary issues the order—

(i) in the case of a proposed order to which an individual responds under subparagraph (B)(ii), not later than five business days after receiving the response of the individual; or

(ii) in the case of a proposed order to which an individual does not respond, not later than 15 business days after the Secretary provides notice to the individual under subparagraph (B)(i).

(2) Upon the issuance of an order by the Secretary under paragraph (1), the individual shall have an opportunity to appeal the order to the Director of the Office of Personnel Management before the date that is seven business days after the date of such issuance.

(3) The Director of the Office of Personnel Management shall make a final decision with respect to an appeal under paragraph (2) within 30 business days of receiving the appeal.

(c) Administrative Requirements.—

Not later than 37 business days after the Secretary issues a final order under subsection (a) or (b) with respect to an individual, the Director of the Office of Personnel Management shall recalculate the annuity of the individual.

(d) Lump-Sum Annuity Credit.—

Any individual with respect to whom an annuity is reduced under subsection (a) or (b) shall be entitled to be paid so much of such individual’s lump-sum credit as is attributable to the period of covered service.

(e) Spouse or Children Exception.—

(1) The Secretary, in consultation with the Director of the Office of Personnel Management, shall prescribe regulations that may provide for the payment to the spouse or children of any individual referred to in subsection (a) or (b) of any amounts which (but for this subsection) would otherwise have been nonpayable by reason of such subsections.

(2) Regulations prescribed under paragraph (1) shall be consistent with the requirements of section 8332(o)(5) and 8411(l)(5) of title 5, as the case may be.

(f) Definitions.—

In this section:

(1) The term “covered service” means, with respect to an individual subject to a removal for performance or misconduct under section 719 or 7461 of this title or any other provision of law, the period of service beginning on the date that the Secretary determines under such applicable provision that the individual engaged in activity that gave rise to such action and ending on the date that the individual is removed from or leaves a position of employment at the Department prior to the issuance of a final decision with respect to such action.

(2) The term “lump-sum credit” has the meaning given such term in section 8331(8) or section 8401(19) of title 5, as the case may be.

(3) The term “service” has the meaning given such term in section 8331(12) or section 8401(26) of title 5, as the case may be.

(Added Pub. L. 115–41, title II, § 203(a)(1), June 23, 2017, 131 Stat. 873.)

Editorial Notes

Prior Provisions

Prior sections 719 and 720 were renumbered sections 1919 and 1920 of this title, respectively.

Statutory Notes and Related Subsidiaries

Effective Date

Pub. L. 115–41, title II, § 203(b), June 23, 2017, 131 Stat. 875, provided that:

“Section 719 of title 38, United States Code, as added by subsection (a)(1), shall apply to any action of removal of an employee of the Department of Veterans Affairs under section 719 or 7461 of such title or any other provision of law, commencing on or after the date of the enactment of this Act [June 23, 2017].”