§ 39.10 Cemetery requirements and prohibitions and recapture provisions. ( a ) In order to qualify for a grant, a State or Tribal veterans cemetery must be operated solely for the interment of veterans, their spouses, surviving spouses, minor children, unmarried adult children who were physically or mentally disabled and incapable of self-support, and eligible parents of certain deceased service members.
( b ) Any grant under this part made on or after November 21, 1997, is made on the condition that, after the date of receipt of the grant, the State or Tribal Organization receiving the grant, subject to requirements for receipt of notice in 38 U.S.C. 2408 and 2411, will prohibit in the cemetery for which the grant is awarded the interment of the remains or the memorialization of any person: ( 1 ) Who has been convicted of a Federal capital crime, as defined in 38 CFR 38.600(a), and whose conviction is final, other than a person whose sentence was commuted by the President;
( 2 ) Who has been convicted of a State capital crime, as defined in 38 CFR 38.600(a), and whose conviction is final, other than a person whose sentence was commuted by the Governor of a State.
( 3 ) Who has been found by an appropriate State official, as defined in 38 CFR 38.600(a), under procedures to be established by the State, to have committed a Federal or State capital crime, as defined in 38 CFR 38.600(a), but to have not been convicted of such crime by reason of unavailability for trial due to death or flight to avoid prosecution.
( 4 ) Who has been convicted of a Federal or State crime causing the person to be a tier III sex offender for purposes of the Sex Offender Registration and Notification Act (34 U.S.C. 20901, *et seq.*); who, for such crime, is sentenced to a minimum of life imprisonment or to a period of 99 years or more; and whose conviction is final (other than a person whose sentence was commuted by the President or Governor of a State).
( 5 ) Who has been found by an appropriate State official, as defined in § 38.600(a) of this part, under procedures to be established by the State, to have committed a Federal or State crime that would cause the person to be a tier III sex offender for purposes of the Sex Offender Registration and Notification Act (34 U.S.C. 20901 *et seq.*) but avoided conviction of such crime by reason of unavailability for trial due to death or flight to avoid prosecution.
( c ) If a State or Tribal Organization which has received a grant under this part ceases to own the cemetery for which the grant was made, ceases to operate such cemetery as a veterans cemetery in accordance with paragraph (a) of this section, violates the prohibition in paragraph (b) of this section, or uses any part of the funds provided through such grant for a purpose other than that for which the grant was made, the United States shall be entitled to recover from the State or Tribal Organization the total of all grants made to the State or Tribal Organization under this part in connection with such cemetery.
( d ) If, within 3 years after VA has certified to the Department of the Treasury an approved grant application, not all funds from the grant have been used by the State or Tribal Organization for the purpose for which the grant was made, the United States shall be entitled to recover any unused grant funds from the State or Tribal Organization.
(Authority: 38 U.S.C. 501, 2408, 2411)
[75 FR 34005, June 16, 2010, as amended at 77 FR 4473, Jan. 30, 2012; 84 FR 5955, Feb. 25, 2019; 86 FR 43102, Aug. 6, 2021; 89 FR 31638, Apr. 25, 2024]