concurring:
I write separately in response to the concurring opinion of Judge Ivers. First, I do not want silence to indicate agreement with the call for reexamination of the payment of any amount of disability compensation or dependency and indemnity compensation (DIC) to incarcerated veterans. Second, I wish to include further pertinent legislative history regarding the provision in order to clarify the positions and actions of the House and Senate. I express no view on the issues which Judge Ivers has urged be reexamined.
As to the legislative history, the following is the full excerpt from the Explanatory Statement prepared by the House and Senate Committees on Veterans’ Affairs and explained in detail the compromise agreement that became section 504 of Public Law No. 96-385 in 1980:
Sec. 504. The House bill would amend chapter 55 of title 38, United States Code, to provide that, during a service-connected disabled veteran’s confinement in a Federal, State, or local penal institution as the result of the veteran’s conviction of a felony or misdemeanor, the veteran’s compensation may not exceed $60 per month after the first 60 days. Under this provision, the reduction after 60 days of incarceration would apply only to veterans rated 20 percent or more disabled, as long as the 10-percent rate is less than $60 per month. Amounts not paid to the veteran could be apportioned to the veteran’s dependents. A similar limitation would apply to incarcerated recipients of DIC and death compensation payments. This provision would be effective with regard to payments for months after September 30, 1980. The Senate amendment does not contain a comparable provision.
The compromise agreement provides for a limitation along the lines of the House bill with the following provisions:
(1) The limitation would apply only to persons incarcerated for a felony conviction.
(2) The limitation would apply only to those whose offense is committed after the date of the enactment of this section and to those who are incarcerated on October 1, 1980, and awarded compensation or DIC after that date.
(3) The limitation would not apply to a person while he or she is participating in a work-release program or residing in a halfway house.
(4) Apportionments to dependents of veterans would be provided for under the same terms and conditions as are appor-tionments made pursuant to section 3107 of title 38, which governs apportionments in the cases of non-incarcerated compensation beneficiaries. Apportionments of DIC *195would be provided for in a similar manner. However, no apportionment of the compensation, DIC, or death compensation of a person to whom the limitation applies could be made to a dependent who is incarcerated for conviction of a felony.
(5) With respect to veterans, the compromise agreement would limit the monthly amount of compensation payable to veterans rate[d] 20 percent or more disabled to the 10-percent rate ($54 under the compromise agreement) and, to veterans rated zero or 10 percent disabled, to half of the 10-percent rate ($27). The limitation would thus apply to all veterans rated as 10 percent or more disabled and to those whose rating is zero percent but who receive the rate provided under section 314(k) of title 38. With respect to DIC and death compensation recipients, the monthly amount payable would be limited to half of the 10-percent rate.
(6) No adjudications of total disability based on individual unemployability would be permissible during the period of the veteran’s incarceration.
Under the compromise agreement, this section would be effective on the date of enactment.
The Committees note that it is their intention that the limitations provided for under the compromise agreement apply to persons convicted of felonies and sentenced to imprisonment while they are institutionalized in a hospital facility on transfer from (but not on parole from) a penal institution. In cases of prison-to-hospital transfer, the Committees consider that the hospital is serving as an agent of the penal institution. As has been noted, the limitation would not apply during a period during which the individual is participating in a work-release program even though, under such program, he or she returns to confinement during evenings or weekends. Restoration to the full rate would occur upon the person’s release from incarceration, including release on parole. At such times, of course, any amount apportioned to dependents would be appropriately adjusted.
The Committees intend that, at the time action is taken to reduce an incarcerated veteran’s or survivor’s benefits under this section, the YA provide such veteran or survivor and those to whom apportion-ments may be made with notice of these apportionment provisions.
Explanatory Statement, Pub.L. No. 96-385, 96th Cong., 2d Sess. (1980) (emphasis added), reprinted in 1980 U.S.C.C.A.N. 3323, 3326-27; see also 126 Cong.Rec. S27,014' (Sept. 24, 1980).
The bill which was eventually enacted as Public Law 96-385 was H.R. 7511, which was first passed by the House on July 21, 1980. 126 Cong.Rec. H18,873 (1980). The counterpart Senate-reported bill, S. 2649, did not contain a provision with respect to the limitation of compensation and DIC for incarcerated persons. 126 Cong.Rec. S21,426-30 (Aug. 6,1980). Neither did the legislation (the text of S. 2649 as reported) passed by the Senate on August 6, 1980, as an amendment to H.R. 7511 in lieu of action on S. 2649. 126 Cong. Reo. S21,447 (1980). On September 18,1980, the House concurred in the Senate amendment with amendments, which represented a compromise agreement that had been negotiated and agreed upon by the two Committees on Veterans’ Affairs. 126 Cong.Rec. H26,110 (1980). On September 24, 1980, the Senate concurred in the House amendment to the Senate amendment. 126 Cong.Rec. S27,008 (1980)..
In explaining the Senate Committee’s reluctant agreement to the compromise version negotiated between the two Committees, the Chairman of the Senate Committee stated:
In this connection, I would note that our committee’s effort to sustain the Senate position included a September 17 meeting attended by the distinguished Senator from South Carolina (Mr. ThuRMONd), myself, and the very able chairman (Mr. Montgomery) and ranking minority member (Mr. Wylie) of the House Veterans’ Affairs Committee Subcommittee on Compensation, Pension, Insurance, and Memorial Affairs.
In that meeting, we ... argued strongly against the House provisions in H.R. 7511 limiting the payments of disability compen*196sation and DIC to veterans and survivors during their incarceration for criminal convictions. However, much to our regret, we were unable to convince our House colleagues to accept our position, but I do appreciate their thorough consideration of our arguments on this point. Although they would not yield entirely from the House position, they were willing to make substantial concessions on the provision itself.
Mr. President, the House bill, but not the Senate amendment, would have limited the amount of compensation and DIC benefits payable to persons who are incarcerated in penal institutions for felony or misdemeanor convictions. Under the House bill, compensation or DIC, after the first 60 days of incarceration could not exceed $60 per month.
At the present time, compensation payable to a veteran rated as 10-percent disabled is less than $60 per month; thus, this provision as passed by the House would have applied at the present time only to veterans rated 20 percent or more disabled and those whose rating is zero percent but who receive the rate provided under section 314(k) of title 38. Under the House bill, a similar limitation would apply to incarcerated DIC recipients, and amounts not paid to the veteran or DIC recipient could be apportioned to the veterans’ dependents and survivors.
The compromise agreement provides for a limitation that would apply only to those who are convicted of felonies and only in situations where the offense is committed after the date of the enactment of this section or, if before, to those who are incarcerated on October 1, 1980, and awarded compensation or DIC after that date while incarcerated. The limitation would not apply at all to a person while he or she is participating in a work-release program or residing in a halfway house.
With respect to veterans, the monthly amount of compensation payable to veterans rated 20 percent or more disabled would be limited to the 10-percent rate— $54 under the compromise agreement— and to veterans rated zero or 10-percent disabled, to half of the 10-percent rate— $27. The limitation would apply to all veterans rated as 10 percent or more disabled and to those whose rating is zero percent but who receive the rate provided under section 314(k) of title 38. With respect to DIC and death compensation recipients, the monthly amount payable would be limited to half of the 10-percent rate.
Most importantly, apportionments to dependents of incarcerated veterans would be paid under the same terms and conditions as are apportionments made pursuant to section 3107 of title 38, which governs apportionments in the cases of nonin-carcerated compensation beneficiaries. Apportionments of DIC would be paid in a similar manner. However, no apportionment of the compensation or DIC of a person to whom the limitation applies could be made to a dependent who is incarcerated for conviction of a felony.
Finally, under these provisions, no adjudications of total disability based on individual unemployability would be permissible during the period of the veteran’s incarceration.
Mr. President, in my view and in the view of other committee members, the House-passed provision not only raised questions of fundamental fairness but also threatened basic principles underlying the service-connected compensation programs. However, with the utmost reluctance and recognizing the depth of the feelings in the other body with regard to the issues involved — and, as I previously noted, Senator Thurmond and I personally met with Representatives MONTGOMERY and Wylie — we have reached an accord on the provisions in the compromise agreement, provisions that I believe are consistent with notions of fundamental fairness.
I would like to emphasize that the limitation would apply only prospectively. It would apply generally only to those who commit felonies after the date of enactment, and no person who is currently serving a period of incarceration would, as a result thereof, lose any compensation ben*197efits which he or she has been awarded prior to October 1.
Under the provisions regarding appor-tionments, there would be absolutely no discretion on the part of the Administrator to deny or reduce apportionment — because of the felony conviction — on any factors other than those applicable generally to compensation and DIC apportionments. We believe it is very important to provide for the legitimate needs of the family of an incarcerated compensation or DIC recipient.
I also stress both committees’ intention that the VA notify any affected veteran or DIC recipient of the apportionment provisions and that the VA also notify each prospective apportionee. It is important to note the committees’ intentions in this regard because a dependent or other prospective apportionee may request an apportionment.
In my view, the various modifications of the House provisions reflected in the compromise agreement go far to overcome many of our committee’s objections to this part of the House bill, and I appreciate the cooperation of the House Members in working out these provisions with us.
126 Cong.Rec. S27,011, 27,012 (Sept. 24, 1980) (Statement of Sen. Cranston) (emphasis added).
Senator Thurmond, the senior Republican on the Committee, also expressed his disappointment with the final compromise in the following statement:
Mr. President, the original legislation by the House contained a provision that would deny compensation benefits to a veteran once that veteran became incarcerated, and upon release these benefits would be reinstated. The Senate bill did not address this issue. However, during consideration of this matter by the members of both Veterans’ Committees, to reach a suitable resolution, the very theory and purpose of service-connected compensation was discussed. The compromise agreement, Mr. President, is not what I wanted nor was it the position of the Senate; yet, the House felt strongly on this matter and I believe this compromise is the best that could have been achieved under the circumstances.
Mr. President, VA compensation is paid to a veteran for his service-connected disability. The rate of payment reflects the average impairment of earning capacity as a result of this disability. It is my opinion that the economic or social status of the veteran should not determine his receipt of compensation. If a veteran’s status in life was considered to be a factor in the receipt of compensation, then the argument could be made that a veteran who has a certain income level should have his compensation reduced. Thus, receipt of compensation would be a need-based and not totally related to a disability incurred while in service.
Id. at S27,017 (emphasis added).
I hope that the foregoing will help illuminate the positions of the House and Senate on the provisions that became 38 U.S.C. § 5313(a)(1).