**§38.618 Findings concerning commission of a capital crime where a
person has not been**

> **convicted due to death or flight to avoid prosecution.**

\(a\) *Inquiry*. With respect to a request for interment or
memorialization, if a cemetery director has reason to believe that a
deceased individual who is otherwise eligible for interment or
memorialization may 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, the cemetery director, with
the assistance of the VA regional counsel, as necessary, will initiate
an inquiry seeking information from Federal, State, or local law
enforcement officials, or other sources of potentially relevant
information. After completion of this inquiry and any further measures
required under paragraphs (c), (d), (e), and (f) of this section, the
cemetery director will make a decision on the request for interment or
memorialization in accordance with paragraph (b), (e), or (g) of this
section.

\(b\) *Decision approving request without a proceeding or termination of
a claim by personal representative without a proceeding*.

\(1\) If, after conducting the inquiry described in paragraph (a) of
this section, the cemetery director determines that there is no clear
and convincing evidence that the deceased committed a Federal or State
capital crime of which he or she was not convicted due to death or
flight to avoid prosecution, and the deceased remains otherwise
eligible, the cemetery director will make a decision approving the
interment or memorialization.

\(2\) If the personal representative elects for burial at a location
other than a VA national cemetery, or makes alternate arrangements for
burial at a location other than a VA national cemetery, the request for
interment or memorialization will be considered withdrawn and action on
the request will be terminated.

\(c\) *Initiation of a proceeding*.

\(1\) If, after conducting the inquiry described in paragraph (a) of
this section, the cemetery director determines that there appears to be
clear and convincing evidence that the deceased has committed a Federal
or State capital crime of which he or she was not convicted by reason of
unavailability for trial due to death or flight to avoid prosecution,
the cemetery director will provide the personal representative of the
deceased with a written summary of the evidence of record and a written
notice of procedural options.

\(2\) The notice of procedural options will inform the personal
representative that he or she may, within 15 days of receipt of the
notice:

\(i\) Request a hearing on the matter;

\(ii\) Submit a written statement, with or without supporting
documentation, for inclusion in the record;

\(iii\) Waive a hearing and submission of a written statement and have
the matter forwarded immediately to the Under Secretary for Memorial
Affairs for a finding; or

\(iv\) Notify the cemetery director that the personal representative is
withdrawing the request for interment or memorialization, thereby,
closing the claim.

\(3\) The notice of procedural options will also inform the personal
representative that, if he or she does not exercise one or more of the
stated options within the prescribed period, the matter will be
forwarded to the Under Secretary for Memorial Affairs for a finding
based on the existing record.

\(d\) *Hearing*. If a hearing is requested, the Director, Memorial
Services Network will conduct the hearing. The purpose of the hearing is
to permit the personal representative of the deceased to present
evidence concerning whether the deceased committed a crime which would
render the deceased ineligible for interment or memorialization in a
national cemetery. Testimony at the hearing will be presented under
oath, and the personal representative will have the right to
representation by counsel and the right to call witnesses. The VA
official conducting the hearing will have the authority to administer
oaths. The hearing will be conducted in an informal manner and court
rules of evidence will not apply. The hearing will be recorded on
audiotape and, unless the personal representative waives transcription,
a transcript of the hearing will be produced and included in the record.

\(e\) *Decision of approval or referral for a finding after a
proceeding*. Following a hearing or the timely submission of a written
statement, or in the event a hearing is waived or no hearing is
requested and no written statement is submitted within the time
specified:

\(1\) If the cemetery director determines that it has not been
established by clear and convincing evidence that the deceased committed
a Federal or State capital crime of which he or she was not convicted
due to death or flight to avoid prosecution, and the deceased remains
otherwise eligible, the cemetery director will make a decision approving
interment or memorialization; or

\(2\) If the cemetery director believes that there is clear and
convincing evidence that the deceased committed a Federal or State
capital crime of which he or she was not convicted due to death or
flight to avoid prosecution, the cemetery director will forward a
request for a finding on that issue, together with the cemetery
director's recommendation and a copy of the record to the Under
Secretary for Memorial Affairs.

\(f\) *Finding by the Under Secretary for Memorial Affairs*. Upon
receipt of a request from the cemetery director under paragraph (e) of
this section, the Under Secretary for Memorial Affairs will make a
finding concerning whether the deceased committed a Federal or State
capital crime of which he or she was not convicted by reason of
unavailability for trial due to death or flight to avoid prosecution.
The finding will be based on consideration of the cemetery director's
recommendation and the record supplied by the cemetery director.

\(1\) A finding that the deceased committed a crime referred to in
paragraph (f) of this section must be based on clear and convincing
evidence.

\(2\) The cemetery director will be provided with written notification
of the finding of the Under Secretary for Memorial Affairs.

\(g\) *Decision after finding*. Upon receipt of notification of the
finding of the Under Secretary for Memorial Affairs, the cemetery
director will make a decision on the request for interment or
memorialization pursuant to 38 U.S.C. 2411. In making that decision, the
cemetery director will be bound by the finding of the Under Secretary
for Memorial Affairs.

\(h\) *Notice of decision*. The cemetery director will provide written
notice of the finding of the Under Secretary for Memorial Affairs and of
a decision under paragraph (b), (e)(1), or (g) of this section. With
notice of any decision denying a request for interment or
memorialization, the cemetery director will provide written notice of
appellate rights to the personal representative of the deceased, in
accordance with §19.25 of this title. This will include notice of the
opportunity to file a notice of disagreement with the decision of the
cemetery director and the finding of the Under Secretary for Memorial
Affairs. 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)

*Next Section is §38.620*