Arlington National Cemetery Burial Eligibility Act

59–006

105

ONGRESS

EPORT

HOUSE OF REPRESENTATIVES

2nd Session 105–458

ARLINGTON NATIONAL CEMETERY BURIAL ELIGIBILITY

ACT

ARCH

24, 1998.—Committed to the Committee of the Whole House on the State

of the Union and ordered to be printed

Mr. S

TUMP

, from the Committee on Veterans’ Affairs,

submitted the following

R E P O R T

[To accompany H.R. 3211]

[Including cost estimate of the Congressional Budget Office]

The Committee on Veterans’ Affairs, to whom was referred the

bill (H.R. 3211) to amend title 38, United States Code, to enact into

law eligibility requirements for burial in Arlington National Ceme-

tery, and for other purposes, having considered the same, reports

favorably thereon with an amendment and recommends that the

bill as amended do pass.

The amendment is as follows:

Strike out all after the enacting clause and insert in lieu thereof

the following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Arlington National Cemetery Burial Eligibility Act’’.

SEC. 2. PERSONS ELIGIBLE FOR BURIAL IN ARLINGTON NATIONAL CEMETERY.

(a) I

ENERAL

.—Chapter 24 of title 38, United States Code, is amended by add-

ing at the end the following new section:

‘‘§ 2412. Arlington National Cemetery: persons eligible for burial

‘‘(a) P

RIMARY

LIGIBILITY

.—The remains of the following individuals may be bur-

ied in Arlington National Cemetery:

‘‘(1) Any member of the Armed Forces who dies while on active duty.

‘‘(2) Any retired member of the Armed Forces and any person who served on

active duty and at the time of death was entitled (or but for age would have

been entitled) to retired pay under chapter 1223 of title 10.

‘‘(3) Any former member of the Armed Forces separated for physical disability

before October 1, 1949, who—

‘‘(A) served on active duty; and

‘‘(B) would have been eligible for retirement under the provisions of sec-

tion 1201 of title 10 (relating to retirement for disability) had that section

been in effect on the date of separation of the member.

‘‘(4) Any former member of the Armed Forces whose last active duty military

service terminated honorably and who has been awarded one of the following

decorations:

‘‘(A) Medal of Honor.

‘‘(B) Distinguished Service Cross, Air Force Cross, or Navy Cross.

‘‘(C) Distinguished Service Medal.

‘‘(D) Silver Star.

‘‘(E) Purple Heart.

‘‘(5) Any former prisoner of war who dies on or after November 30, 1993.

‘‘(6) The President or any former President.

‘‘(b) E

LIGIBILITY OF

AMILY

EMBERS

.—The remains of the following individuals

may be buried in Arlington National Cemetery:

‘‘(1) The spouse, surviving spouse, minor child, and, at the discretion of the

Superintendent, unmarried adult child of a person listed in subsection (a), but

only if buried in the same gravesite as that person.

‘‘(2)(A) The spouse, minor child, and, at the discretion of the Superintendent,

unmarried adult child of a member of the Armed Forces on active duty if such

spouse, minor child, or unmarried adult child dies while such member is on ac-

tive duty.

‘‘(B) The individual whose spouse, minor child, and unmarried adult child is

eligible under subparagraph (A), but only if buried in the same gravesite as the

spouse, minor child, or unmarried adult child.

‘‘(3) The parents of a minor child or unmarried adult child whose remains,

based on the eligibility of a parent, are already buried in Arlington National

Cemetery, but only if buried in the same gravesite as that minor child or un-

married adult child.

‘‘(4)(A) Subject to subparagraph (B), the surviving spouse, minor child, and,

at the discretion of the Superintendent, unmarried adult child of a member of

the Armed Forces who was lost, buried at sea, or officially determined to be per-

manently absent in a status of missing or missing in action.

‘‘(B) A person is not eligible under subparagraph (A) if a memorial to honor

the memory of the member is placed in a cemetery in the national cemetery sys-

tem, unless the memorial is removed. A memorial removed under this subpara-

graph may be placed, at the discretion of the Superintendent, in Arlington Na-

tional Cemetery.

‘‘(5) The surviving spouse, minor child, and, at the discretion of the Super-

intendent, unmarried adult child of a member of the Armed Forces buried in

a cemetery under the jurisdiction of the American Battle Monuments Commis-

sion.

‘‘(c) S

POUSES

.—For purposes of subsection (b)(1), a surviving spouse of a person

whose remains are buried in Arlington National Cemetery by reason of eligibility

under subsection (a), who has remarried is eligible for burial in the same gravesite

of that person. The spouse of the surviving spouse is not eligible for burial in such

gravesite.

‘‘(d) D

ISABLED

DULT

NMARRIED

HILDREN

.—In the case of an unmarried adult

child who is incapable of self-support up to the time of death because of a physical

or mental condition, the child may be buried under subsection (b) without require-

ment for approval by the Superintendent under that subsection if the burial is in

the same gravesite as the gravesite in which the parent, who is eligible for burial

under subsection (a), has been or will be buried.

‘‘(e) F

AMILY

EMBERS OF

ERSONS

URIED IN A

ROUP

RAVESITE

.—In the case

of a person eligible for burial under subsection (a) who is buried in Arlington Na-

tional Cemetery as part of a group burial, the surviving spouse, minor child, or un-

married adult child of the member may not be buried in the group gravesite.

‘‘(f) E

XCLUSIVE

UTHORITY FOR

URIAL IN

RLINGTON

ATIONAL

EMETERY

.—Eli-

gibility for burial of remains in Arlington National Cemetery prescribed under this

section is the exclusive eligibility for such burial.

‘‘(g) A

PPLICATION FOR

URIAL

.—A request for burial of remains of an individual

in Arlington National Cemetery made before the death of the individual may not

be considered by the Secretary of the Army or any other responsible official.

‘‘(h) R

EGISTER OF

URIED

NDIVIDUALS

.—(1) The Secretary of the Army shall

maintain a register of each individual buried in Arlington National Cemetery and

shall make such register available to the public.

‘‘(2) With respect to each such individual buried on or after January 1, 1998, the

for burial in Arlington National Cemetery.

‘‘(i) D

EFINITIONS

.—For purposes of this section:

‘‘(1) The term ‘retired member of the Armed Forces’ means—

‘‘(A) any member of the Armed Forces on a retired list who served on ac-

tive duty and who is entitled to retired pay;

‘‘(B) any member of the Fleet Reserve or Fleet Marine Corps Reserve who

served on active duty and who is entitled to retainer pay; and

‘‘(C) any member of a reserve component of the Armed Forces who has

served on active duty and who has received notice from the Secretary con-

cerned under section 12731(d) of title 10, of eligibility for retired pay under

chapter 1223 of title 10.

‘‘(2) The term ‘former member of the Armed Forces’ includes a person whose

service is considered active duty service pursuant to a determination of the Sec-

retary of Defense under section 401 of Public Law 95-202 (38 U.S.C. 106 note).

‘‘(3) The term ‘Superintendent’ means the Superintendent of Arlington Na-

tional Cemetery.’’.

(b) P

UBLICATION OF

PDATED

AMPHLET

.—Not later than 180 days after the date

of the enactment of this Act, the Secretary of the Army shall publish an updated

pamphlet describing eligibility for burial in Arlington National Cemetery. The pam-

phlet shall reflect the provisions of section 2412 of title 38, United States Code, as

added by subsection (a).

LERICAL

MENDMENT

.—The table of sections at the beginning of chapter 24

of title 38, United States Code, is amended by adding at the end the following new

item:

‘‘2412. Arlington National Cemetery: persons eligible for burial.’’.

(d) T

ECHNICAL

MENDMENTS

.—Section 2402(7) of title 38, United States Code, is

amended—

(1) by inserting ‘‘(or but for age would have been entitled)’’ after ‘‘was enti-

tled’’;

(2) by striking out ‘‘chapter 67’’ and inserting in lieu thereof ‘‘chapter 1223’’;

and

(3) by striking out ‘‘or would have been entitled to’’ and all that follows and

inserting in lieu thereof a period.

(e) E

FFECTIVE

ATE

.—Section 2412 of title 38, United States Code, as added by

subsection (a), shall apply with respect to individuals dying on or after the date of

the enactment of this Act.

SEC. 3. PERSONS ELIGIBLE FOR PLACEMENT IN THE COLUMBARIUM IN ARLINGTON NA-

TIONAL CEMETERY.

(a) I

ENERAL

.—Chapter 24 of title 38, United States Code, is amended by add-

ing after section 2412, as added by section 2(a) of this Act, the following new sec-

tion:

‘‘§ 2413. Arlington National Cemetery: persons eligible for placement in col-

umbarium

‘‘(a) E

LIGIBILITY

.—The cremated remains of the following individuals may be

placed in the columbarium in Arlington National Cemetery:

‘‘(1) A person eligible for burial in Arlington National Cemetery under section

2412 of this title.

‘‘(2)(A) A veteran whose last period of active duty service (other than active

duty for training) ended honorably.

‘‘(B) The spouse, surviving spouse, minor child, and, at the discretion of the

Superintendent of Arlington National Cemetery, unmarried adult child of such

a veteran.

‘‘(b) S

POUSE

.—Section 2412(c) of this title shall apply to a spouse under this sec-

tion in the same manner as it applies to a spouse under section 2412.’’.

(b) C

LERICAL

MENDMENT

.—The table of sections at the beginning of chapter 24

of title 38, United States Code, is amended by adding after section 2412, as added

by section 2(c) of this Act, the following new item:

‘‘2413. Arlington National Cemetery: persons eligible for placement in columbarium.’’.

FFECTIVE

ATE

.—Section 2413 of title 38, United States Code, as added by

subsection (a), shall apply with respect to individuals dying on or after the date of

the enactment of this Act.

SEC. 4. MONUMENTS IN ARLINGTON NATIONAL CEMETERY.

(a) I

ENERAL

.—Chapter 24 of title 38, United States Code, is amended by add-

ing after section 2413, as added by section 3(a) of this Act, the following new sec-

tion:

‘‘§ 2414. Arlington National Cemetery: authorized headstones, markers, and

monuments

‘‘(a) G

RAVESITE

ARKERS

ROVIDED BY THE

ECRETARY

.—A gravesite in Arlington

National Cemetery shall be appropriately marked in accordance with section 2404

of this title.

‘‘(b) G

RAVESITE

ARKERS

ROVIDED AT

RIVATE

XPENSE

.—(1) The Secretary of

the Army shall prescribe regulations for the provision of headstones or markers to

mark a gravesite at private expense in lieu of headstones and markers provided by

the Secretary of Veterans Affairs in Arlington National Cemetery.

‘‘(2) Such regulations shall ensure that—

‘‘(A) such headstones or markers are of simple design, dignified, and appro-

priate to a military cemetery;

‘‘(B) the person providing such headstone or marker provides for the future

maintenance of the headstone or marker in the event repairs are necessary;

‘‘(C) the Secretary of the Army shall not be liable for maintenance of or dam-

age to the headstone or marker;

‘‘(D) such headstones or markers are aesthetically compatible with Arlington

National Cemetery; and

‘‘(E) such headstones or markers are permitted only in sections of Arlington

National Cemetery authorized for such headstones or markers as of January 1,

1947.

‘‘(c) M

ONUMENTS

.—(1) No monument (or similar structure as determined by the

Secretary of the Army in regulations) may be placed in Arlington National Cemetery

except pursuant to the provisions of this subsection.

‘‘(2) A monument may be placed in Arlington National Cemetery if the monument

commemorates—

‘‘(A) the service in the Armed Forces of the individual, or group of individuals,

whose memory is to be honored by the monument; or

‘‘(B) a particular military event.

‘‘(3) No monument may be placed in Arlington National Cemetery until the end

of the 25-year period beginning—

‘‘(A) in the case of commemoration of service under paragraph (1)(A), on the

last day of the period of service so commemorated; and

‘‘(B) in the case of commemoration of a particular military event under para-

graph (1)(B), on the last day of the period of the event.

‘‘(4) A monument may be placed only in those sections of Arlington National Cem-

etery designated by the Secretary of the Army for such placement.’’.

(b) C

LERICAL

MENDMENT

.—The table of sections at the beginning of chapter 24

of title 38, United States Code, is amended by adding after section 2413, as added

by section 3(b) of this Act, the following new item:

‘‘2414. Arlington National Cemetery: authorized headstones, markers, and monuments.’’.

FFECTIVE

ATE

.—The amendment made by subsection (a) shall apply with re-

spect to headstones, markers, or monuments placed in Arlington National Cemetery

on or after the date of the enactment of this Act.

SEC. 5. PUBLICATION OF REGULATIONS.

Not later than one year after the date of the enactment of this Act, the Secretary

of the Army shall publish in the Federal Register any regulation proposed by the

Secretary under this Act.

NTRODUCTION

On February 12, 1998, the Chairman of the Veterans’ Affairs

Committee, the Honorable Bob Stump, along with the Honorable

Lane Evans, the Honorable Terry Everett, the Honorable James

Clyburn, the Honorable Jack Quinn, the Honorable Bob Filner, the

Honorable Mike Bilirakis, the Honorable Luis Gutierrez, the Hon-

orable John Cooksey, the Honorable Corrine Brown, the Honorable

Asa Hutchinson, the Honorable Mike Doyle, the Honorable J.D.

Hayworth, the Honorable Frank Mascara, the Honorable Ray

LaHood, the Honorable Collin Peterson, the Honorable Julia Car-

son, the Honorable Sylvestre Reyes, the Honorable Ciro Rodriguez,

the Honorable Gerald Solomon, the Honorable Richard Baker, and

the Honorable Helen Chenoweth, introduced H.R. 3211, to enact

into law eligibility requirements for burial in Arlington National

Cemetery.

The Subcommittee on Oversight and Investigations met on Janu-

ary 28, 1998, to receive testimony regarding waivers of regulations

governing burial at Arlington National Cemetery. The Subcommit-

tee on Benefits met on February 24, 1998, to receive testimony on

the bill. On March 5, 1998, the Subcommittee on Benefits met and

ordered H.R. 3211 reported favorably with an amendment in the

nature of a substitute to the full Committee by unanimous voice

vote. The full Committee met on March 11, 1998, and ordered H.R.

3211 reported favorably with an amendment in the nature of a sub-

stitute to the House by unanimous voice vote.

UMMARY OF THE

EPORTED

ILL

The bill would codify, with exceptions discussed below, existing

regulatory eligibility criteria for burial at Arlington National Ceme-

tery. Other than the persons specifically enumerated in the pro-

posed legislation, no other person could be buried at Arlington. In

general, eligible persons would include:

a) members of the Armed Forces who die on active duty;

b) retired members of the Armed Forces, including Reservists

who served on active duty;

c) former members of the Armed Forces who have been awarded

the Medal of Honor, Distinguished Service Cross, Air Force

Cross, or Navy Cross, Distinguished Service Medal, Silver

Star, or Purple Heart;

d) former prisoners of war;

e) the President or any former President;

f) members of the Guard/Reserves who served on active duty and

are eligible for retirement, but who have not yet retired;

g) the spouse, surviving spouse, minor child and at the discretion

of the Superintendent of Arlington, unmarried adult children

of a) through f).

The bill would also eliminate the current practice of granting eli-

gibility to Members of Congress and other high-ranking govern-

ment officials who are veterans but who do not meet the distin-

guished military service criteria outlined above. It also provides

that this law would be the exclusive authority for burial eligibility.

Additionally, the bill codifies existing regulatory eligibility stand-

ards for interment of cremated remains in the columbarium at Ar-

lington. Generally, this includes all veterans with honorable service

and their dependents.

Finally, the bill clarifies that only memorials honoring military

service or events may be placed at Arlington and establishes a 25-

year waiting period for such memorials.

ACKGROUND

This background is derived from material provided to the Com-

mittee by the Department of the Army, the General Accounting Of-

fice, and the Congressional Research Service.

Until the Civil War, the nation’s attention to interment of veter-

ans was haphazard. The massive casualties resulting from that

conflict required the government to establish procedures to make

and preserve records of deceased soldiers and provide places for

their burial. Congress’ initial legislation to establish a national

cemetery system, the Act of July 17, 1862, § 18, 12 Stat. 594, 596,

provided that ‘‘the President of the United States shall have the

power, whenever in his opinion it shall be expedient, to purchase

cemetery grounds and cause them to be securely enclosed, to be

used as a national cemetery for the soldiers who shall die in the

service of their country.’’ At the conclusion of the War, Congress di-

rected the Secretary of War to engage in a program to find, collect

and identify the remains of the war dead. The task was completed

in 1870 with the reinterment of nearly 300,000 remains in 73 na-

tional cemeteries.

The grounds of Arlington Mansion, the home of Martha Washing-

ton’s grandson, George Washington Parke Custis, and his son-in-

law, General Robert E. Lee, were appropriated by the federal gov-

ernment in May, 1861, for a fortification to defend Washington,

D.C. Arlington National Cemetery was established on the estate on

May 13, 1864, as one of the first national cemeteries because burial

areas in the other previously designated national cemeteries - the

Soldiers’ Home in Washington, D.C., and at Alexandria, Virginia -

were rapidly filling. On June 15, 1864, Secretary of War Stanton

formally designated Arlington Mansion and the 200 acres sur-

rounding it as a cemetery for the burial of soldiers dying in the vi-

cinity of Washington.

The cemetery only gradually developed its aura as an historic na-

tional shrine with the burials of famous Civil War generals such

as Phillip H. Sheridan in the 1880’s, the burials of General Per-

shing and President William Howard Taft in the 1920’s, and then

with the dedication in 1932 of the Tomb of the Unknown Soldier.

The mystique of the cemetery was heightened substantially after

the assassination of President John F. Kennedy and his emotional

funeral and burial there beside an eternal flame in November 1963.

President Kennedy’s gravesite and the cemetery generally became

major public attractions and pressure increased for interments in

the limited space available. Arlington has a total capacity of

263,639 gravesites, with about 60,700 remaining available in 1998.

From the Civil War until 1973, the primary responsibility for the

‘‘care and maintenance’’ of most national cemeteries, including Ar-

lington, was vested in the Secretary of the Army or the Secretary

of War. Administration of other cemeteries was placed under the

supervision of agency heads, such as the Secretary of the Interior.

In 1948, Congress for the first time codified all previous prece-

dent, practices, and legislation affecting eligibility for burial in na-

tional cemeteries. Under the law, four general classifications of per-

sons were accorded the privilege of burial in a national cemetery:

(1) those who die while serving honorably in the Armed Forces of

the United States (2) former members of the Armed Forces (3) citi-

zens of the United States who have served, or may serve, in the

Armed Forces of a nation allied with the United States during war

and (4) the wife, husband, widow, widower, minor children, and, at

the discretion of the Secretary of the Army, adult, unmarried chil-

dren of those otherwise eligible. Adult, unmarried children gen-

erally have been deemed eligible if at the time of death they were

incapable of self-support by reason of physical or mental condition.

In 1959, Congress expanded burial eligibility to any member of

a reserve component of the Armed Forces, the Army and Air Na-

tional Guards, and the Reserve Officers Training Corps of the

Army, Navy and Air Force, whose death occurred under honorable

conditions while serving on active duty. It also added the require-

ment that the Secretary of the Army seek the approval of the Sec-

retary of Defense prior to issuing or amending regulations pertain-

ing to national cemeteries under his jurisdiction.

Restrictive rules for in-ground burial at Arlington were first im-

posed in 1967. The Secretary of the Army was responding to con-

cerns that the combination of increased interest in Arlington re-

sulting from President Kennedy’s burial and an aging veteran pop-

ulation would result in the rapid depletion of burial spaces. From

1962-1966, Arlington’s interment rate rose from 4,000 to 7,000 per

year. Had the trend continued, the cemetery would have been full

by 1968.

The restrictive rules, now codified in federal regulations at 32

CFR 553.13 (1997), limited eligibility to those members of the

Armed Forces who served the nation in an especially distinguished

manner. These criteria have remained essentially unchanged since

1967 and provide for the in-ground Arlington burial of the following

categories of persons:

• Active duty members of the Armed Forces, except those mem-

bers serving on active duty for training;

• Retired members of the Armed Forces who have served on ac-

tive duty, are on a retired list and are entitled to receive retire-

ment pay;

• Former members of the Armed Forces discharged for disability

before Oct. 1, 1949, who served on active duty and would have

been eligible for retirement under 10 U.S.C. 1202 had the stat-

ute been in effect on the date of separation;

• Honorably discharged members of the Armed Forces awarded

the Medal of Honor, Distinguished Service Cross, Air Force

Cross or Navy Cross, Distinguished Service Medal, Silver Star,

or Purple Heart;

• Former prisoners of war who served honorably and who died

on or after November 30, 1993;

• Provided they were honorably discharged from the Armed

Forces, elected federal officials (the president, vice-president,

and members of Congress), federal cabinet secretaries and dep-

uties, agency directors and certain other high federal officials

(level I and II executives); Supreme Court justices, and chiefs

of certain diplomatic missions;

• The spouse, widow or widower, minor child (under 21 years of

age) and, at the discretion of the Secretary of the Army, an un-

married adult child of any of the above, (a surviving spouse

who has remarried and whose subsequent marriage is void, ter-

minated by death, or dissolved by annulment or divorce by a

court; an unmarried adult child may be interred in the same

grave in which the parent has been or will be interred, pro-

vided that the child was incapable of self-support up to the

time of death because of physical or mental condition);

• Surviving spouses of service members who are interred in the

cemetery as part of a group burial, but not in the same grave

as the deceased spouse;

• The surviving spouse, minor child, and at the discretion of the

Secretary of the Army, the unmarried adult child of any person

already buried at the cemetery;

• The parents of a minor child or unmarried adult child whose

remains are already buried at the cemetery on the basis of the

eligibility of a parent.

Veterans who do not meet these requirements may qualify for

placement in Arlington’s columbarium for cremated remains. Any

honorably discharged veteran, spouse and dependent children may

be inurned in the same family niche at the columbarium. Since

1980, the Army has built four columbaria at the cemetery. Eventu-

ally, 50,000 niches capable of holding two urns each will be avail-

able. Additional columbaria could be built in the future to further

increase the capacity for cremated remains.

After the Army imposed the restrictive eligibility requirements in

1967, the number of burials at Arlington declined sharply and then

remained relatively constant until 1988. Since that time, the num-

ber of burials has gradually increased, with the cemetery averaging

2,887 burials per year. Given the expected burial rates, the Army

projects that all gravesites will be full by 2025 unless the cemetery

is expanded.

In 1973, Congress addressed the need for a coherent national

burial policy and management system for national cemeteries. The

National Cemeteries Act of 1973 (Pub. L. No. 93-43) established

within the Veterans Administration (VA) a National Cemetery Sys-

tem consisting of cemeteries already under the VA’s jurisdiction

and national cemeteries transferred to the VA from the Depart-

ment of the Army. The legislation exempted Arlington National

Cemetery and those cemeteries located at the military service acad-

emies, which were left under the authority of the Department of

the Army.

The 1973 Act adopted nearly identical requirements for the

cemeteries as called for under the 1959 Act, but transferred juris-

diction to the VA. The law also made one significant addition by

authorizing exceptions to the eligibility rules for ‘‘[s]uch other per-

sons or classes of persons as may be designated by the Secretary,’’

(38 U.S.C. 2402(6)). In explaining this addition, the Senate and

House reports stated:

This additional category is consistent with authority cur-

rently based on VA Regulation 6200 (C), as revised June

2, 1966. Similar authority apparently resides in the Sec-

retary of the Army pursuant to 32 C.F.R. 553.18(b)(1)

which authorizes ‘‘burial in National cemeteries under

such regulations as the Secretary may, with the approval

of the Secretary of Defense, provide.’’

The 1973 Act also preserved the previously exercised authorities

of the military department secretaries with respect to cemeteries,

memorials and monuments remaining under their jurisdiction.

Finally, Congress ordered that a joint study be conducted by the

Veterans Administration and the Department of Defense on (1) the

advisability of including Arlington National Cemetery within the

National Cemetery System to be administered by the Veterans Ad-

ministration, and (2) the appropriateness of maintaining the

present eligibility system for burial at Arlington. The study submit-

ted to Congress on January 21, 1974, recommended that Arlington

remain under Department of Army jurisdiction and that the exist-

ing regulatory criteria be maintained. Congress took no further leg-

islative action.

WAIVERS

The Army regulations for Arlington have never contained an ex-

plicit provision allowing for waivers or exceptions to the eligibility

requirements. Since 1967, however, the Secretary of the Army and

the President have granted what the Army has termed ‘‘exceptions’’

to the general eligibility requirements in individual cases. Unfortu-

nately, such a practice has generally not been well known or com-

monly understood.

In May, 1997, the majority staff of the Committee was provided

anonymous information which called the waiver process into ques-

tion. The Subcommittee on Oversight and Investigations held a

public hearing on January 28, 1998, to receive testimony on burial

waivers at Arlington. At the request of the Chairman and Ranking

Member of the Oversight Subcommittee, and the Ranking Demo-

cratic Member of the full Committee, GAO conducted an expedited

review of the waiver process in December, 1997 and January, 1998.

GAO presented its findings at the January 28 hearing, and out-

lined policy options concerning possible improvements to the eligi-

bility process for burial at Arlington. The findings revealed a

flawed waiver process marked by unclear standards and inconsist-

ent application of waiver criteria.

According to GAO, there have been a total of 340 documented

waiver requests since 1967, 196 of which have been granted. GAO

confirmed previous findings of Committee investigators that nu-

merous waivers have been informally sought through the Super-

intendent’s office, but were never documented in cemetery records.

The review also found that the cemetery’s responses to such re-

quests from the general public were varied and inconsistent, add-

ing to the confusion concerning eligibility standards for burial at

Arlington.

GAO reviewed both Presidential and Secretary of the Army waiv-

ers: President Lyndon Johnson granted the first two Arlington

waivers; President Richard Nixon granted three waivers; President

Gerald Ford granted six; President Jimmy Carter individually

granted 16 waivers, while the Army granted two more during his

term of office; the Ronald Reagan Administration granted a total

of 63 waivers, 21 by Presidential action; during the Administration

of President George Bush the Secretary of the Army granted 32

waivers, none were Presidential; and the William Clinton Adminis-

tration has granted 73 waivers, five by Presidential action.

At the Committee’s request, both the American Law Division of

the Congressional Research Service (CRS) and GAO counsel have

conducted a legal analysis of such waiver authority. Although no

express secretarial or presidential waiver authority was found, both

CRS and GAO agreed with the Army’s long-standing position that

it has such authority. Support can be found for this argument in

the legislative history of the National Cemeteries Act of 1973.

In reporting the 1973 bill, the committees addressed the express

waiver authority provided to the VA, and noted that ‘‘similar au-

thority’’ apparently resided with the Secretary of the Army with re-

spect to Arlington National Cemetery (Sen. Report No. 93–55 at 36;

House Report No. 93–131 at 16). The Committee’s Report accom-

panying the 1973 Act appears to have in effect approved the six

waivers granted between 1967 and 1973. But the question of

whether the Army should retain authority over Arlington was left

open for further study since the 1973 Act made clear that all other

national cemeteries fell within the VA’s jurisdiction. As noted pre-

viously, the study submitted to the Congress in January, 1974, rec-

ommended that existing regulations and practices should be main-

tained, and that the Army should retain jurisdiction over Arlington

Cemetery. Congress took no further action on this issue at that

time.

Prior to the January 28, 1998, Subcommittee on Oversight and

Investigations hearing, the Department of Defense, Department of

the Army and Arlington National Cemetery provided extensive in-

formation and documentation regarding secretarial and presi-

dential waivers. Limited cooperation and few available documents

and information from the White House restricted the ability of the

Committee and GAO to review presidential waivers granted since

1993. The White House also did not respond to the Subcommittee’s

invitation to testify at its January 28 hearing regarding waivers

granted during the current Administration. White House counsel

asserted claims of executive privilege and refused to provide the

Committee copies of several documents relating to waivers. Due to

time constraints and limited Committee resources, the Committee

was unable to extensively research the records of presidential li-

braries regarding waivers by previous presidential administrations.

Despite these obstacles, the Subcommittee was able to acquire

extensive information concerning Arlington National Cemetery eli-

gibility criteria and the waiver process since 1967. The Subcommit-

tee’s review found that most of the 196 waivers for burial at Arling-

ton have been granted for family members of veterans (or members

of the Armed Forces) eligible for burial at Arlington. In most cases,

such waivers have not resulted in the displacement of an eligible

veteran because the family members have been buried in the same

plot as the veterans. A total of 59 Army or presidential waivers

have been granted for persons who are veterans but who did not

meet the restrictive eligibility criteria for burial at Arlington. Given

existing space limitations, the effect of such waivers has been to

displace eligible veterans from burial at Arlington. Such waivers

for individuals not meeting the ordinary eligibility criteria have

been largely based on outstanding contributions to the nation or

the military, or deaths under tragic circumstances while serving

the nation in some noteworthy capacity. In all, thirteen waivers

have been granted to persons with no military service, one of whom

is still living. The living waiver recipient subsequently announced

the withdrawal of his request for burial at Arlington.

Some waivers resulting in the displacement of an eligible veteran

have been for essentially ‘‘humanitarian,’’ highly subjective rea-

sons, and some appear to lack any compelling basis. GAO’s testi-

mony on this point highlighted ‘‘seemingly contradictory decisions

and recommendations’’ by Army officials and ‘‘often undocumented’’

rationale for waiver decisions prior to 1991, when the tenure of the

current cemetery Superintendent began. GAO also found that ‘‘the

reasons for presidential waiver decisions are generally not ex-

plained,’’ and that ‘‘presidential decisions are typically made with-

out explicit reference to criteria.’’

ISCUSSION

H.R. 3211, as amended, would provide no express or implied

waiver or exception authority to any person. Thus, it would elimi-

nate the authority to grant exceptions which resides in the Sec-

retary of the Army and would also eliminate the authority of any

other officer in the Executive Branch, including the President, to

authorize the burial of persons who do not meet the statutory cri-

teria. The bill would establish clear-cut criteria for primary eligi-

bility under subsection (a) of section 2412 of title 38, United States

Code, on which the Superintendent of Arlington could make min-

isterial decisions without the need for higher level discretionary de-

cisions.

The Superintendent would also have a limited discretionary au-

thority regarding burial of certain family members under sub-

section (b) of section 2412. The existing Army regulations govern-

ing Arlington place such discretion in the Secretary of the Army.

The Committee believes such discretion is appropriate, albeit better

placed with the Superintendent rather than the Secretary of the

Army. As in the past, the Secretary of the Army would retain over-

all responsibility for the administration and operation of the ceme-

tery.

The bill would prohibit the Secretary and the Superintendent

from considering any request for burial in advance of the death of

the individual. It would also require the Secretary to maintain a

public record of all individuals buried in Arlington. Finally, the bill

would require the Secretary to publish an updated pamphlet de-

scribing eligibility criteria within 180 days of enactment and estab-

lishes the date of enactment as the effective date for changes in eli-

gibility made by the bill.

Section 2 codifies regulations governing placement in the col-

umbarium at Arlington National Cemetery. Generally, any veteran

eligible for burial in a national cemetery operated by the Depart-

ment of Veterans Affairs as defined in section 2412 of title 38 is

eligible for the columbarium, including the spouse, minor child, or

at the discretion of the Superintendent of Arlington National Cem-

etery, the unmarried adult child of an eligible veteran.

Section 3 adds a new section 2414 to codify regulations governing

gravesite markers. It directs that graves be marked in accordance

with section 2404 of title 38, which describes the types of markers

which may be used in national cemeteries. Section 3 also prescribes

the conditions under which a private marker may be placed on a

gravesite in Arlington. In general, private markers are restricted to

areas authorized as of January 1, 1947 for such markers. It also

requires the private party to provide for the maintenance of such

markers, limits the Secretary’s liability in case of damage, and re-

quires the markers to be aesthetically compatible with Arlington

National Cemetery.

Finally, section 3 requires that all monuments commemorate a

military event or the military service of an individual or group of

individuals. Monuments may not be placed in Arlington until 25

years have elapsed after the service or event.

ECTION

-B

-S

ECTION

NALYSIS

Section 1 states the title of the Act is the ‘‘Arlington National

Cemetery Burial Eligibility Act’’.

Section 2 would amend chapter 24 of title 38 United States Code,

by adding a new section 2412.

Proposed section 2412(a) establishes the primary eligibility for

burial at Arlington. Persons eligible are members of the Armed

Forces who die on active duty; veterans who are retired and receiv-

ing retired pay, or would be eligible for retired pay but for their

age, or are eligible for retirement but remain in an active reserve

status; certain former members of the Armed Forces who were sep-

arated for disability prior to October 1, 1949; former members of

the Armed Forces who were awarded any one of the following mili-

tary awards: the Medal of Honor, Distinguished Service Cross,

Navy Cross, Air Force Cross, Silver Star or Purple Heart; any

former POW who dies after November 30, 1993; the President or

any former President.

Proposed section 2412(b) establishes the eligibility criteria for

family members of those eligible for burial under 2412(a) and the

conditions of burial.

Subsection (b)(1) of section 2412 authorizes burial of the spouse,

surviving spouse, minor child or, at the discretion of the Super-

intendent of Arlington National Cemetery, the unmarried adult

child of a veteran described in subsection (a) above.

Subsection (b)(2)(A) of section 2412 authorizes burial of an active

duty member’s dependents.

Subsection (b)(2)(B) of section 2412 authorizes burial of a former

member whose dependents were buried at Arlington National Cem-

etery while the member was on active duty.

Subsection (b)(3) of section 2412 authorizes burial of the parents

of a child buried at Arlington based on the eligibility of a parent.

Subsection (b)(4)(A) of section 2412 authorizes burial of certain

dependents of a member of the Armed Forces whose body was not

recovered or was officially determined to be missing or missing in

action.

Subsection (b)(4)(B) of section 2412 denies burial of dependents

authorized in (A) if a memorial already exists elsewhere in the Na-

tional Cemetery System, but authorizes relocation of any such me-

morial to Arlington National Cemetery, thus making such depend-

ents eligible.

Subsection (b)(5) of section 2412 authorizes the burial of certain

dependents of members of the Armed Forces buried in a cemetery

operated by the American Battle Monuments Commission.

Section 2412(c) sets the conditions for burial of a surviving

spouse who has subsequently remarried. It also denies eligibility to

a spouse of the surviving spouse whose eligibility is based solely on

burial of the surviving spouse.

Section 2412(d) authorizes burial of disabled unmarried adult

children who are incapable of self-support up to the time of death

without approval by the Superintendent.

Section 2412(e) provides that dependents of those listed in sub-

section (a) who are buried in a mass grave may not be buried in

the group gravesite, but may be buried elsewhere in the cemetery.

Section 2412(f) states that the exclusive authority for burial eligi-

bility is section 2412 of title 38, United States Code.

Section 2412(g) prohibits the Secretary of the Army from consid-

ering a request for burial at Arlington National Cemetery prior to

the death of the individual for whom burial is requested. The in-

tent of this provision is to prohibit any advance reservation of bur-

ial sites.

Section 2412(h) would require the Secretary of the Army to es-

tablish and maintain a public register of those buried at Arlington

National Cemetery and the authority under which they were in-

terred. While the Committee understands the difficulties that may

arise in compiling the names and locations of all those previously

interred at Arlington, the Committee intends the register to be as

complete a database as possible.

Section 3(a) would add a new section 2413 to title 38, United

States Code, titled: ‘‘Persons Eligible for Placement in the Col-

umbarium in Arlington National Cemetery.’’

2413(a)(1) states that the cremated remains of anyone eligible for

burial under section 2412 of title 38, United States Code, in Arling-

ton National Cemetery is eligible for placement in the columba-

rium.

2413(a)(2)(A) authorizes placement of any veteran whose last ac-

tive duty ended honorably.

2413(a)(2)(B) authorizes placement of the cremated remains of

the spouse, minor child and (at the discretion of the Superintend-

ent of Arlington National Cemetery) an unmarried adult child of

such a veteran.

2413(b) applies the same eligibility rules for placement of the re-

mains of remarried surviving spouses as are applicable to applica-

tions for in-ground burial at Arlington.

Section 4(a) would add a new section 2414 to title 38, United

States Code, titled: ‘‘Arlington National Cemetery: authorized

headstones, markers and monuments.’’

Section 2414(a) directs that gravesite markers conform to those

issued by the Secretary of Veterans Affairs.

Section 2414(b)(1) directs the Secretary of the Army to prescribe

regulations for privately furnished gravesite markers.

Section 2414(b)(2)(A) specifies general design criteria for pri-

vately furnished headstones or markers.

Section 2414(b)(2)(B) requires that the person furnishing a pri-

vate marker provide for maintenance.

Section 2414(b)(2)(C) stipulates that the Secretary of the Army is

not responsible for any maintenance or damage to privately fur-

nished headstones or markers.

Section 2414(b)(2)(D) requires privately furnished markers to be

aesthetically compatible with Arlington National Cemetery.

Section 2414(b)(2)(E) restricts placement of privately furnished

headstones or markers to areas designated for such headstones or

markers as of January 1, 1947.

Section 2414(c)(1) prohibits placement of monuments at Arling-

ton National Cemetery unless the monument meets provisions in

either subsection (c)(2) or (c)(3) of section 2414.

Section 2414(c)(2) requires that a memorial must honor the mili-

tary service of an individual or group or a military event.

Section 2414(b)(3) requires a 25-year waiting period between the

military service or event and placement of a monument at Arling-

ton National Cemetery.

Section 2414(b)(4) restricts placement of monuments to areas

designated by the Superintendent.

Section 5 directs the Secretary of the Army to publish any regu-

lations related to this Act in the Federal Register within one year

of enactment.

VERSIGHT

INDINGS

No oversight findings have been submitted to the Committee by

the Committee on Government Reform and Oversight.

IEWS OF THE

DMINISTRATION

Statement of The Honorable John P. McLaurin, Deputy Assistant

Secretary of the Army (Military Personnel Management and Equal

Opportunity Policy) and Mr. John C. Metzler, Jr., Superintendent

of Arlington National Cemetery, before the Subcommittee on Bene-

fits on February 24, 1998, pertaining to H.R. 3211.

Thank you, Mr. Chairman, I am glad to be here to discuss the

proposed legislation regarding eligibility criteria for burial at Ar-

lington National Cemetery (ANC). As you are aware, the Secretary

of the Army has designated the Assistant Secretary of the Army for

Manpower and Reserve Affairs (ASA (M&RA)) as the individual re-

sponsible for oversight of burial policy at ANC. Today, I am rep-

resenting the acting ASA (M&RA) who was unexpectedly hospital-

ized over the weekend. In my capacity as the Deputy Assistant Sec-

retary for Military Personnel Management and Equal Opportunity

Policy, I am here to provide the Army’s comments on the proposed

legislation. Seated next to me is Mr. John C. Metzler, Jr., the Su-

perintendent of Arlington National Cemetery, who is also available

to answer any questions you may have.

Arlington National Cemetery is America’s most prominent Na-

tional Cemetery and serves as a shrine honoring the men and

women who have served in the Armed Forceas and those Ameri-

cans who have made extraordinary contributions to the nation. It

is a visible reflection of America’s appreciation for those individuals

whose acts and accomplishments reflect the highest service to the

country.

Since its founding in 1864, the cemetery has functioned primarily

as a military burial ground. Over the years, the symbolic signifi-

cance of Arlington National Cemetery has evolved. The cemetery

has become recognized as the nation’s foremost national memorial

to its military members and is the final resting place of presidents

and other leading public figures. It has also become the site of

major memorial events and ceremonies, as well as a significant at-

traction for visitors to the Washington area.

As an initial matter, we support the Committee’s effort to set

forth in law many of the rules that have governed eligibility cri-

teria for burial in ANC for the past 30 years. As you know, rules

governing burial in ANC are set forth in title 32 of the Code of Fed-

eral Regulations. We also support your effort to make these rules

readily accessible to the American public in the form of enacted

laws. This legislation will continue the practice of allowing active

members of the Armed Forces, retired members of the Armed

Forces, highly-decorated veterans, former prisoners of war, and cer-

tain veterans discharged due to disability, to be buried in ANC.

We also support your effort to identify in law those categories of

persons entitled to burial in the cemetery who were routinely

granted exceptions allowing them to be interred in ANC. These ex-

ceptions took into account humanitarian considerations and, as a

matter of practice, were granted in cases involving the burial of

disabled, adult, unmarried children in the same gravesite as their

parent(s) and, in certain instances, cases allowing the burial of the

former spouse of an individual eligible for ground burial in the

same grave. We approve of the provisions in the bill that provide

burial entitlements to these individuals.

We are troubled, however, with two aspects of this legislation.

First, this bill eliminates an entitlement that presently exists for

former members of the Armed Forces whose superior contributions

to the nation are reflected in the high legislative, judicial and exec-

utive offices they hold. For example, Robert Kennedy served in the

Navy during World War II and later distinguished himself as the

Attorney General of the United States and as a Senator from New

York before he was assassinated. This bill would preclude his bur-

ial in Arlington today. Similarly, Oliver Wendell Holmes is buried

at Arlington. Holmes served in the Army during the Civil War, and

was later confirmed as an Associate Justice of the Supreme Court.

As in the case of Robert Kennedy, the proposed legislation would

preclude Chief Justice Holmes’ burial despite his brilliant combat

and public service records.

Under the current regulations governing burial at ANC, individ-

uals such as Robert Kennedy and Oliver Wendell Holmes would be

allowed to be buried in ANC based on their distinguished service

to the nation. They would not be eligible for burial based on their

military service alone, unless they were highly decorated. Changing

this rule constitutes a radical departure from current burial poli-

cies and fundamentally changes the character of the cemetery.

Under this legislation, war heroes will no longer lie next to our na-

tion’s most revered statesmen and supreme court justices, an at-

tribute of the cemetery which distinguishes it as the nation’s most

revered burial grounds.

Second, the legislation creates a set of immutable rules that limit

any discretion to grant exceptions in those circumstances that

historically have warranted burial in this hallowed cemetery. For

example, former Supreme Court Justice Thurgood Marshall did not

have military service. Yet, due to his extraordinary public service

accomplishments and demonstrated record of supporting this

nation’s highest traditions of freedom and democracy, there was

overwhelming national support for his interment in Arlington.

Under the proposed legislation, Justice Marshall and other extraor-

dinary public servants could not be buried in Arlington National

Cemetery.

In addition, this bill would exclude from burial in Arlington indi-

viduals who, while performing a mission on behalf of the United

States, make the ultimate sacrifice by giving their lives for their

country. For example, Mr. Robert Frasure died in a tragic accident

in an armored vehicle in Bosnia. Mr. Frasure was a Deputy Assist-

ant Secretary of State and a special envoy of the President. He had

no military service and was, therefore, not eligible for burial in Ar-

lington, notwithstanding the fact that he died in an area of hos-

tilities while on an official mission in service of his country. We be-

lieve that individuals like Mr. Frasure, who are dispatched to

strife-ridden areas and make the ultimate sacrifice in service to

their country, should not be excluded from burial in ANC.

Arlington should be preserved as a national shrine honoring the

men and women who have served in the Armed Forces and those

Americans who have made extraordinary public contributions, the

vast majority of which are veterans of our Armed Forces. If there

is one thing we know, it is that life is uncertain. We believe that

there must be a mechanism under the legislation to deal with facts

and events that are impossible to predict with certainty today.

We recommend that language be included in the bill that would

provide the President, through his designee, the Secretary of the

Army the discretion to grant exceptions for burial in ANC to indi-

viduals whose acts, services, or contributions on behalf of the

Armed Forces or the nation are extraordinary and substantially

similar to the acts, services, or contributions made by the individ-

uals who would be entitled to burial under the legislation that you

enact. We note that Congress has conferred similar discretion upon

the Secretary of Veterans’ Affairs in connection with the adminis-

tration of cemeteries within the National Cemetery System. The

authority granted could include a proviso that the appropriate

oversight committees be notified of each exception. We note that

decisions concerning burials are time-sensitive and extremely emo-

tional, requiring prompt action.

The draft legislation also includes a provision that addresses the

placement of memorials and monuments, other than private mark-

ers at individual gravesites. We support your legislative efforts to

limit these memorials and monuments to those that commemorate

service in the Armed Forces by an individual or group, and those

that commemorate particular military events. We also approve of

the legislative language that restricts the placement of memorials

or monuments commemorating military events until twenty-five

years after the event. This time period will ensure that the event

being commemorated is of fitting historical significance.

In closing, I would like to emphasize that the Army takes very

seriously its responsibility to administer and to uphold the sanctity

of Arlington National Cemetery as we pay final tribute to men and

women who have served our country with distinction. In this re-

gard, the Army has recently completed a strategic plan, which is

designed to ensure that Arlington will remain active as the nation’s

foremost military cemetery. This plan identifies fourteen parcels of

land that are located in close proximity to the cemetery and that

could be used for future burials. We intend to examine those par-

cels that are readily available so that the future needs of the ceme-

tery are met. These parcels include contiguous land sites that will

be vacated by the Army, Navy, and Marine Corps, including a por-

tion of Ft. Myer and the Navy annex. We solicit your support for

this initiative. Funds are included in the President’s budget for fis-

cal years 1999–2003 to prepare concept plans to develop those par-

cels of land owned by the federal government when they become

excess to government needs in the near future. Acquisition of this

property will allow for continued operation of the cemetery through

the twenty-first century.

I appreciate very much the opportunity to be here, Mr. Chair-

man. Mr. Metzler and I would be pleased to answer any questions

you may have.

ONGRESSIONAL

UDGET

FFICE

OST

STIMATE

The following letter was received from the Congressional Budget

Office concerning the cost of the reported bill:

U.S. C

ONGRESS

ONGRESSIONAL

UDGET

FFICE

Washington, DC, March 12, 1998.

Hon. B

TUMP

Chairman, Committee on Veterans’ Affairs,

House of Representatives, Washington, DC.

EAR

. C

HAIRMAN

: The Congressional Budget Office has pre-

pared the enclosed cost estimate for H.R. 3211, the Arlington Na-

tional Cemetery Burial Eligibility Act.

If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contact is Charles Riemann, who

can be reached at 226–2840.

Sincerely,

UNE

E. O’N

EILL

Director

Enclosure

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

H.R. 3211—Arlington National Cemetery Burial Eligibility

Act

As ordered reported by the House Committee on Veterans’ Affairs

on March 11, 1998

H.R. 3211 would codify many current regulations governing eligi-

bility for burial in Arlington National Cemetery and interment in

its columbarium. The bill would allow certain close family members

of eligible veterans to be buried in the same grave without the need

for a waiver, and it would prohibit burial in other special cases.

Under the bill, future memorials or markers must commemorate

service in the Armed Forces. H.R. 3211 would require the Secretary

of the Army to maintain a public register that would describe the

eligibility of each individual buried in Arlington National Cemetery

after January 1, 1998. The Secretary would also be required to

publish a pamphlet describing eligibility requirements for burial.

CBO estimates that the costs of implementing H.R. 3211 would

not be significant. Most categories of veterans and family members

covered under the bill’s eligibility criteria are already eligible under

current regulations. The bill would grant eligibility to family mem-

bers who are presently ineligible for burial at Arlington National

Cemetery, but because these individuals are small in number and

have tended to receive waivers, the bill would not lead to a signifi-

cant increase in the number of burials at the cemetery. CBO esti-

mates that the costs of producing the register and pamphlet would

be negligible. Because the legislation would not affect direct spend-

ing or receipts, pay-as-you-go procedures would not apply.

The bill contains no intergovernmental or private-sector man-

dates as defined in the Unfunded Mandates Reform Act of 1995,

and would not affect the budgets of state, local, or tribal govern-

ments.

The estimate was prepared by Charles Riemann, who can be

reached at 226–2840. This estimate was approved by Robert A.

Sunshine, Deputy Assistant Director for Budget Analysis.

NFLATIONARY

MPACT

TATEMENT

The enactment of the reported bill would have no inflationary

impact.

PPLICABILITY TO

EGISLATIVE

RANCH

The reported bill would not be applicable to the legislative

branch under the Congressional Accountability Act, Public Law

104–1, because the bill would only affect certain Department of

Veterans Affairs and Department of Defense programs and benefits

recipients.

TATEMENT OF

EDERAL

ANDATES

The reported bill would not establish a federal mandate under

the Unfunded Mandates Reform Act, Public Law 104–4.

TATEMENT OF

ONSTITUTIONAL

UTHORITY

Pursuant to Article I, section 8 of the United States Constitution,

the reported bill is authorized by Congress’ power to ‘‘provide for

the common Defence and general Welfare of the United States.’’

HANGES IN

XISTING

ADE BY THE

ILL

EPORTED

In compliance with clause 3 of rule XIII of the Rules of the House

of Representatives, changes in existing law made by the bill, as re-

ported, are shown as follows (existing law proposed to be omitted

is enclosed in black brackets, new matter is printed in italics, exist-

ing law in which no change is proposed is shown in roman):

CHAPTER 24 OF TITLE 38, UNITED STATES CODE

CHAPTER 24—NATIONAL CEMETERIES AND MEMORIALS

Sec.

2400. Establishment of National Cemetery System; composition of such system;

appointment of director.

* * * * * * *

2412. Arlington National Cemetery: persons eligible for burial.

2413. Arlington National Cemetery: persons eligible for placement in columba-

rium.

2414. Arlington National Cemetery: authorized headstones, markers, and monu-

ments.

* * * * * * *

§ 2402. Persons eligible for interment in national cemeteries

Under such regulations as the Secretary may prescribe and sub-

ject to the provisions of section 6105 of this title, the remains of

the following persons may be buried in any open national cemetery

in the National Cemetery System:

(1)***

* * * * * * *

(7) Any person who at the time of death was entitled (or but

for age would have been entitled) to retired pay under øchapter

67¿ chapter 1223 of title 10 øor would have been entitled to re-

tired pay under that chapter but for the fact that the person

was under 60 years of age¿.

* * * * * * *

§ 2412. Arlington National Cemetery: persons eligible for bur-

ial

(a) P

RIMARY

LIGIBILITY

.—The remains of the following individ-

uals may be buried in Arlington National Cemetery:

(1) Any member of the Armed Forces who dies while on active

duty.

(2) Any retired member of the Armed Forces and any person

who served on active duty and at the time of death was entitled

(or but for age would have been entitled) to retired pay under

chapter 1223 of title 10.

(3) Any former member of the Armed Forces separated for

physical disability before October 1, 1949, who—

(A) served on active duty; and

(B) would have been eligible for retirement under the pro-

visions of section 1201 of title 10 (relating to retirement for

disability) had that section been in effect on the date of sep-

aration of the member.

(4) Any former member of the Armed Forces whose last active

duty military service terminated honorably and who has been

awarded one of the following decorations:

(A) Medal of Honor.

(B) Distinguished Service Cross, Air Force Cross, or Navy

Cross.

(D) Silver Star.

(E) Purple Heart.

(5) Any former prisoner of war who dies on or after November

30, 1993.

(6) The President or any former President.

(b) E

LIGIBILITY OF

AMILY

EMBERS

.—The remains of the follow-

ing individuals may be buried in Arlington National Cemetery:

(1) The spouse, surviving spouse, minor child, and, at the dis-

cretion of the Superintendent, unmarried adult child of a per-

son listed in subsection (a), but only if buried in the same

gravesite as that person.

(2)(A) The spouse, minor child, and, at the discretion of the

Superintendent, unmarried adult child of a member of the

Armed Forces on active duty if such spouse, minor child, or un-

married adult child dies while such member is on active duty.

(B) The individual whose spouse, minor child, and unmar-

ried adult child is eligible under subparagraph (A), but only if

buried in the same gravesite as the spouse, minor child, or un-

married adult child.

(3) The parents of a minor child or unmarried adult child

whose remains, based on the eligibility of a parent, are already

buried in Arlington National Cemetery, but only if buried in the

same gravesite as that minor child or unmarried adult child.

(4)(A) Subject to subparagraph (B), the surviving spouse,

minor child, and, at the discretion of the Superintendent, un-

married adult child of a member of the Armed Forces who was

lost, buried at sea, or officially determined to be permanently

absent in a status of missing or missing in action.

(B) A person is not eligible under subparagraph (A) if a me-

morial to honor the memory of the member is placed in a ceme-

tery in the national cemetery system, unless the memorial is re-

moved. A memorial removed under this subparagraph may be

placed, at the discretion of the Superintendent, in Arlington Na-

tional Cemetery.

(5) The surviving spouse, minor child, and, at the discretion

of the Superintendent, unmarried adult child of a member of

the Armed Forces buried in a cemetery under the jurisdiction

of the American Battle Monuments Commission.

POUSES

.—For purposes of subsection (b)(1), a surviving

spouse of a person whose remains are buried in Arlington National

Cemetery by reason of eligibility under subsection (a), who has re-

married is eligible for burial in the same gravesite of that person.

The spouse of the surviving spouse is not eligible for burial in such

gravesite.

(d) D

ISABLED

DULT

NMARRIED

HILDREN

.—In the case of an

unmarried adult child who is incapable of self-support up to the

time of death because of a physical or mental condition, the child

may be buried under subsection (b) without requirement for ap-

proval by the Superintendent under that subsection if the burial is

in the same gravesite as the gravesite in which the parent, who is

eligible for burial under subsection (a), has been or will be buried.

(e) F

AMILY

EMBERS OF

ERSONS

URIED IN A

ROUP

RAVESITE

.—In the case of a person eligible for burial under sub-

section (a) who is buried in Arlington National Cemetery as part of

a group burial, the surviving spouse, minor child, or unmarried

adult child of the member may not be buried in the group gravesite.

(f) E

XCLUSIVE

UTHORITY FOR

URIAL IN

RLINGTON

ATIONAL

EMETERY

.—Eligibility for burial of remains in Arlington National

Cemetery prescribed under this section is the exclusive eligibility for

such burial.

(g) A

PPLICATION FOR

URIAL

.—A request for burial of remains of

an individual in Arlington National Cemetery made before the

death of the individual may not be considered by the Secretary of

the Army or any other responsible official.

(h) R

EGISTER OF

URIED

NDIVIDUALS

.—(1) The Secretary of the

Army shall maintain a register of each individual buried in Arling-

ton National Cemetery and shall make such register available to the

public.

(2) With respect to each such individual buried on or after Janu-

ary 1, 1998, the register shall include a brief description of the basis

of eligibility of the individual for burial in Arlington National Cem-

etery.

(i) D

EFINITIONS

.—For purposes of this section:

(1) The term ‘‘retired member of the Armed Forces’’ means—

(A) any member of the Armed Forces on a retired list who

served on active duty and who is entitled to retired pay;

(B) any member of the Fleet Reserve or Fleet Marine

Corps Reserve who served on active duty and who is enti-

tled to retainer pay; and

Forces who has served on active duty and who has received

notice from the Secretary concerned under section 12731(d)

of title 10, of eligibility for retired pay under chapter 1223

of title 10.

(2) The term ‘‘former member of the Armed Forces’’ includes

a person whose service is considered active duty service pursu-

ant to a determination of the Secretary of Defense under section

401 of Public Law 95-202 (38 U.S.C. 106 note).

(3) The term ‘‘Superintendent’’ means the Superintendent of

Arlington National Cemetery.

§ 2413. Arlington National Cemetery: persons eligible for

placement in columbarium

(a) E

LIGIBILITY

.—The cremated remains of the following individ-

uals may be placed in the columbarium in Arlington National Cem-

etery:

(1) A person eligible for burial in Arlington National Ceme-

tery under section 2412 of this title.

(2)(A) A veteran whose last period of active duty service (other

than active duty for training) ended honorably.

(B) The spouse, surviving spouse, minor child, and, at the

discretion of the Superintendent of Arlington National Ceme-

tery, unmarried adult child of such a veteran.

(b) S

POUSE

.—Section 2412(c) of this title shall apply to a spouse

under this section in the same manner as it applies to a spouse

under section 2412.

§ 2414. Arlington National Cemetery: authorized headstones,

markers, and monuments

(a) G

RAVESITE

ARKERS

ROVIDED BY THE

ECRETARY

.—A

gravesite in Arlington National Cemetery shall be appropriately

marked in accordance with section 2404 of this title.

(b) G

RAVESITE

ARKERS

ROVIDED AT

RIVATE

XPENSE

.—(1)

The Secretary of the Army shall prescribe regulations for the provi-

sion of headstones or markers to mark a gravesite at private expense

in lieu of headstones and markers provided by the Secretary of Vet-

erans Affairs in Arlington National Cemetery.

(2) Such regulations shall ensure that—

(A) such headstones or markers are of simple design, dig-

nified, and appropriate to a military cemetery;

(B) the person providing such headstone or marker provides

for the future maintenance of the headstone or marker in the

event repairs are necessary;

nance of or damage to the headstone or marker;

(D) such headstones or markers are aesthetically compatible

with Arlington National Cemetery; and

(E) such headstones or markers are permitted only in sections

of Arlington National Cemetery authorized for such headstones

or markers as of January 1, 1947.

ONUMENTS

.—(1) No monument (or similar structure as de-

termined by the Secretary of the Army in regulations) may be placed

in Arlington National Cemetery except pursuant to the provisions of

this subsection.

(2) A monument may be placed in Arlington National Cemetery

if the monument commemorates—

(A) the service in the Armed Forces of the individual, or

group of individuals, whose memory is to be honored by the

monument; or

(B) a particular military event.

(3) No monument may be placed in Arlington National Cemetery

until the end of the 25-year period beginning—

(A) in the case of commemoration of service under paragraph

(1)(A), on the last day of the period of service so commemorated;

and

(B) in the case of commemoration of a particular military

event under paragraph (1)(B), on the last day of the period of

the event.

(4) A monument may be placed only in those sections of Arlington

National Cemetery designated by the Secretary of the Army for such

placement.