**§38.617 Prohibition of interment or memorialization of persons who
have been convicted**

> **of Federal or State capital crimes.**

\(a\) *Persons Prohibited*. The interment in a national cemetery under
control of the National Cemetery Administration of the remains of any
person, or memorialization in such a cemetery of such person, shall not
take place absent a good faith effort by the affected cemetery director,
or the Under Secretary for Memorial Affairs, or his or her designee, to
determine whether such person is barred from receipt of such benefits
because the individual for whom interment or memoralization is sought
is:

\(1\) A person identified to the Secretary of Veterans Affairs by the
United States Attorney General, prior to approval of interment or
memorialization, as an individual who has been convicted of a Federal
capital crime, and whose conviction is final, other than a person whose
sentence was commuted by the President.

\(2\) A person identified to the Secretary of Veterans Affairs by an
appropriate State official, prior to approval of interment or
memorialization, as an individual who has been convicted of a State
capital crime, and whose conviction is final, other than a person whose
sentence was commuted by the Governor of a State.

\(3\) A person found under procedures specified in §38.618 to have
committed a Federal or State capital crime but avoided conviction of
such crime by reason of unavailability for trial due to death or flight
to avoid prosecution.

\(b\) *Notice*. The prohibition referred to in paragraph (a)(3) of this
section is not contingent on receipt by the Secretary of Veterans
Affairs or any other VA official of notice from any Federal or State
official.

\(c\) *Receipt of notification*. The Under Secretary for Memorial
Affairs is delegated authority to receive from the United States
Attorney General and appropriate State officials on behalf of the
Secretary of Veterans Affairs the notification of conviction of capital
crimes referred to in paragraphs (a)(1) and (2) of this section.

\(d\) *Decision where notification previously received*. Upon receipt of
a request for interment or memorialization, where the Secretary of
Veterans Affairs has received the notification referred to in paragraph
(a)(1) or (2) of this section with regard to the deceased, the cemetery
director will make a decision on the request for interment or
memorialization pursuant to 38 U.S.C. 2411.

\(e\) *Inquiry*.

\(1\) Upon receipt of a request for interment or memorialization, where
the Secretary of Veterans Affairs has not received the notification
referred to in paragraph (a)(1) or (a)(2) of this section with regard to
the deceased, but the cemetery director has reason to believe that the
deceased may have been convicted of a Federal or State capital crime,
the cemetery director will initiate an inquiry to either:

\(i\) The United States Attorney General, in the case of a Federal
capital crime, requesting notification of whether the deceased has been
convicted of a Federal capital crime; or

\(ii\) An appropriate State official, in the case of a State capital
crime, requesting notification of whether the deceased has been
convicted of a State capital crime.

\(2\) The cemetery director will defer decision on whether to approve
interment or memorialization until after a response is received from the
Attorney General or appropriate State official.

\(f\) *Decision after inquiry*. Where an inquiry has been initiated
under paragraph (e) of this section, the cemetery director will make a
decision on the request for interment or memorialization pursuant to 38
U.S.C. 2411 upon receipt of the notification requested under that
paragraph, unless the cemetery director initiates an inquiry pursuant to
§38.618(a).

\(g\) *Notice of decision*. Written notice of a decision under paragraph
(d) or (f) of this section will be provided by the cemetery director to
the personal representative of the deceased, along with written notice
of appellate rights in accordance with §19.25 of this title. This notice
of appellate rights will include notice of the opportunity to file a
notice of disagreement with the decision of the cemetery director.
Action following receipt of a notice of disagreement with a denial of
eligibility for interment or memorialization under this section will be
in accordance with §§19.26 through 19.38 of this title. (Authority: 38
U.S.C. 512, 2411, 7105)

\[70 FR 4769, Jan. 31, 2005, as amended at 73 FR 35352, June 23, 2008\]

**Supplement *Highlights* reference**: 84(1)