69–006

106TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 106–70

ARLINGTON NATIONAL CEMETERY BURIAL ELIGIBILITY

ACT

MARCH 18, 1999.—Committed to the Committee of the Whole House on the State

of the Union and ordered to be printed

Mr. STUMP, from the Committee on Veterans’ Affairs, submitted

the following

REPORT

[To accompany H.R. 70]

[Including cost estimate of the Congressional Budget Office]

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

bill (H.R. 70) to amend title 38, United States Code, to enact into

law eligibility requirements for burial in Arlington National Cemetery, and for other purposes, having considered the same, reports

favorably thereon without amendment and recommends that the

bill do pass.

INTRODUCTION

On January 6, 1999, the Chairman of the Veterans’ Affairs Committee, the Honorable Bob Stump, along with the Honorable Lane

Evans and the Honorable Michael Bilirakis, introduced H.R. 70, to

enact into law eligibility requirements for burial in Arlington National Cemetery.

The full Committee met on March 18, 1999 and ordered H.R. 70

reported favorably to the House by voice vote.
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SUMMARY OF THE REPORTED BILL

The bill would codify, with exceptions discussed below, existing

regulatory eligibility criteria for burial at Arlington National Cemetery. Other than the persons specifically enumerated in the proposed 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);

h) the surviving spouse of certain individuals buried in Arlington

before the date of enactment.

The bill would also eliminate the current practice of granting eligibility to Members of Congress and other high-ranking Government officials who are veterans but who do not meet the distinguished military service criteria outlined above. It also provides

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

Congress could, however, on a case-by-case basis, enact a resolution

on behalf of an individual whose accomplishments are deemed worthy of the honor of being buried at Arlington.

Additionally, the bill codifies existing regulatory eligibility standards for interment of cremated remains in the columbarium at Arlington. 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.

BACKGROUND

This background is derived from material provided to the Committee by the Department of the Army, the General Accounting Office, and the Congressional Research Service.

Until the Civil War, the nation’s attention to interment of veterans 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
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service of their country’’. At the conclusion of the War, Congress directed 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 national cemeteries.

The grounds of Arlington Mansion, the home of Martha Washington’s grandson, George Washington Parke Custis, and his son-inlaw, General Robert E. Lee, were appropriated by the federal government 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 surrounding it as a cemetery for the burial of soldiers dying in the vicinity of Washington.

The cemetery only gradually developed its aura as an historic national shrine with the burials of famous Civil War generals such

as Phillip H. Sheridan in the 1880’s, the burials of General Pershing 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 grave sites, with about 59,206 remaining available as of

the end of December, 1998.

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

‘‘care and maintenance’’ of most national cemeteries, including Arlington, 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 precedent, practices, and legislation affecting eligibility for burial in national cemeteries. Under the law, four general classifications of persons 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) citizens 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 children of those otherwise eligible. Adult, unmarried children generally 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 National 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 requirement that the Secretary of the Army seek the approval of the Sec-
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retary of Defense prior to issuing or amending regulations pertaining to national cemeteries under his jurisdiction.

Restrictive rules for in-ground burial at Arlington were first imposed in 1967. The Secretary of the Army was responding to concerns that the combination of increased interest in Arlington resulting from President Kennedy’s burial and an aging veteran population 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 for the following categories of persons:

• Active duty members of the Armed Forces, except those

members serving on active duty for training;

• Retired members of the Armed Forces who have served

on active duty, are on a retired list and are entitled to

receive retirement pay;

• Former members of the Armed Forces discharged for disability before October 1, 1949, who served on active duty

and would have been eligible for retirement under 10

U.S.C. 1202 had the statute 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 deputies, 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 unmarried adult child of any of the above,

(a surviving spouse who has remarried and whose subsequent marriage is void, terminated by death, or dissolved by annulment or divorce by a court regains eligibility; an unmarried adult child may be interred in the

same grave in which the parent has been or will be interred, provided that the child was incapable of self-support up to the time of death because of physical or mental condition);
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• 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 interred in the same family niche at the columbarium. Since

1980, the Army has built four columbaria at the cemetery. Eventually, 50,000 niches capable of holding two urns each will be available. 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 number 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 System consisting of cemeteries already under the Department of Veterans Affairs’ (VA) jurisdiction and national cemeteries transferred

to the VA from the Department of the Army. The legislation exempted Arlington National Cemetery and those cemeteries located

at the military service academies, 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 jurisdiction to the Secretary of Veterans Affairs. The law also made one

significant addition by authorizing exceptions to the eligibility rules

for ‘‘[s]uch other persons 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 currently based on VA Regulation 6200 (C), as revised June

2, 1966. Similar authority apparently resides in the Secretary 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
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advisability of including Arlington National Cemetery within the

National Cemetery System to be administered by the Veterans Administration, and (2) the appropriateness of maintaining the

present eligibility system for burial at Arlington. The study submitted to Congress on January 21, 1974, recommended that Arlington

remain under Department of Army jurisdiction and that the existing regulatory criteria be maintained. Congress took no further legislative action.

WAIVERS

The Army regulations for Arlington have never contained an explicit 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. Unfortunately, such a practice has generally not been well known or commonly understood.

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

anonymous information which called the waiver process into question. 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 Democratic 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

outlined policy options concerning possible improvements to the eligibility process for burial at Arlington. The findings revealed a

flawed waiver process marked by unclear standards and inconsistent application of waiver criteria.

In 1998, according to GAO, there had been a total of 340 documented waiver requests since 1967, 196 of which had been granted.

GAO confirmed previous findings of Committee investigators that

numerous waivers have been informally sought through the Superintendent’s office, but were never documented in cemetery records.

The review also found that the cemetery’s responses to such requests from the general public were varied and inconsistent, adding to the confusion concerning eligibility standards for burial at

Arlington.

GAO reviewed both Presidential and Secretary of the Army waivers: 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 administration had granted 73 waivers (to date, a total of 91), five by Presidential action.

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

the Congressional Research Service (CRS) and GAO counsel had

conducted a legal analysis of such waiver authority. Although no

express secretarial or presidential waiver authority was found, both
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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 authority’’ apparently resided with the Secretary of the Army with respect to Arlington National Cemetery (Sen. Report No. 93–55 at 36;

House Report No. 93–131 at 16). The Committee’s Report accompanying 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 previously, the study submitted to the Congress in January, 1974, recommended that existing regulations and practices should be maintained, 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 information and documentation regarding secretarial and presidential 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 libraries regarding waivers by previous presidential administrations.

Despite these obstacles, the Subcommittee was able to acquire

extensive information concerning Arlington National Cemetery eligibility criteria and the waiver process since 1967. The Subcommittee’s review found that most of the 196 waivers for burial at Arlington had 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 veteran.

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, fourteen

waivers have been granted to persons with no military service, one

of whom—still living—has since withdrawn his request for burial

at Arlington. Given existing space limitations, the effect of such

waivers has been to displace eligible veterans from burial at Arlington.

Some waivers resulting in the displacement of an eligible veteran

had been for essentially ‘‘humanitarian,’’ highly subjective reasons,

and some appeared to lack any compelling basis. GAO’s testimony
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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 explained,’’ and that ‘‘presidential decisions are typically made without explicit reference to criteria.’’

DISCUSSION

H.R. 70 would provide no express or implied waiver or exception

authority to any person. Thus, it would eliminate the authority to

grant exceptions which resides in the Secretary 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 criteria. Under section 2,

the bill would establish clear-cut criteria for primary eligibility

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

on which the Superintendent of Arlington could make ministerial

decisions without the need for higher level discretionary decisions.

The Superintendent would also have a limited discretionary authority regarding burial of certain family members under subsection (b) of section 2412. The existing Army regulations governing 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 overall responsibility for the administration and operation of the cemetery.

The bill would prohibit the Secretary 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 describing eligibility criteria

within 180 days of enactment and establishes the date of enactment as the effective date for all individuals seeking burial in Arlington.

Section 3 codifies regulations governing placement in the columbarium at Arlington National Cemetery. Generally, any veteran

eligible for burial in a national cemetery operated by the Department 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 Cemetery, 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 requires the markers to be aesthetically compatible with Arlington

National Cemetery.
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Finally, section 4 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.

SECTION-BY-SECTION ANALYSIS

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

the Armed forces who were awarded any one of the following military 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 of certain family members of those eligible for burial under 2412(a) and the conditions of burial.

Subsection (b)(1) authorizes burial of the spouse, surviving

spouse, minor child or at the discretion of the Superintendent of

Arlington National Cemetery, the unmarried adult child.

Subsection (b)(2)(A) authorizes burial of an active duty member’s

dependent in the same gravesite if such dependent dies while the

member is on active duty.

Subsection (b)(2)(B) authorizes burial of a former member whose

dependents were buried at Arlington National Cemetery while the

member was on active duty.

Subsection (b)(3) authorizes burial of the parents of a child buried at Arlington based on the eligibility of a parent.

Subsection (b)(4)(A) authorizes burial of certain dependents of a

member of the Armed Forces whose body was not recovered or permanently listed as missing or missing in action.

Subsection (b)(4)(B) denies burial of dependents authorized in

(4)(A) if a memorial already exists elsewhere in the National Cemetery System, but authorizes relocation of any such memorial to Arlington National Cemetery, thus reinstating eligibility of the dependent.

Subsection (b)(5) 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) authorizes, without approval by the Superintendent, burial of a disabled unmarried adult child who is incapable of

self-support up to the time of death.

Section 2412(d) provides that dependents of those listed in subsection (a) who are buried in a mass grave may not be buried in

the group gravesite, but may not be buried elsewhere in the cemetery.
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Section 2412(e) states that the exclusive authority for burial eligibility is section 2412 of title 38 United States Code. The intent

of this provision is to deny all waiver authority.

Section 2412(f) prohibits the Secretary of the Army from considering a request for burial at Arlington National Cemetery prior to

the death of the individual for whom burial is requested. The intent of this provision is to prohibit any advance reservation of burial sites.

Section 2412(g) would require the Secretary of the Army to establish and maintain a public register of those buried at Arlington

National Cemetery.

Section 2412(g)(2) would require the Secretary to provide a brief

description of the basis of the individual’s eligibility for interment.

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 ‘‘Arlington National Cemetery: persons eligible

for placement in the columbarium’’.

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

burial under section 2412 of title 38, United States Code in Arlington National Cemetery is eligible for placement in the columbarium.

2413(a)(2)(A) authorizes placement of any veteran whose last active duty ended honorably.

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

the spouse, minor child and (at the discretion of the Superintendent of Arlington National Cemetery) an unmarried adult child of

such a veteran.

Section 3(b) and (c) provides clerical and conforming amendments

to the table of sections for chapter 24 of title 38 United States

Code.

Section 3(d) sets the effective date of section 2413 as the date of

enactment of the Act.

Section 4(a) adds 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 section

2404 of title 38 Untied States Code.

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 privately furnished headstones or markers.

Section 2414(b)(2)(B) requires that the person furnishing a private marker provide for maintenance.

Section 2414(b)(2)(C) stipulates the Secretary of the Army is not

responsible for any maintenance or damage to privately furnished

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.
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Section 2414(c)(1) prohibits placement of monuments at Arlington National Cemetery unless the monument meets restrictions in

either subsection (c)(2) or (c)(3).

Section 2414(c)(2) requires that a memorial must honor the military service of an individual or group, or a military event.

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

military service or event and placement of a monument at Arlington National Cemetery.

Section 2414(c)(4) restricts placement of monuments to areas designated by the Superintendent.

Section 4(b) makes a conforming amendment to the table of section of chapter 24 United States Code.

Section 4(c) establishes the effective date of section 2414 as the

date of enactment.

Section 5 directs the Secretary of the Army to publish any regulations related to this Act in the Federal Register within one year

of enactment.

OVERSIGHT FINDINGS

No oversight findings have been submitted to the Committee by

the Committee on Government Reform and Oversight.

VIEWS OF THE ADMINISTRATION

STATEMENT BY MR. PATRICK T. HENRY, ASSISTANT SECRETARY OF THE ARMY (MANPOWER AND RESERVE AFFAIRS) AND MR. JOHN C. METZLER, JR. SUPERINTENDENT,

ARLINGTON NATIONAL CEMETERY FOR THE HOUSE VETERANS’ AFFAIRS BENEFITS SUBCOMMITTEE, FIRST SESSION,

106TH CONGRESS, REGARDING H.R. 70, PROVIDED ON

MARCH 16, 1999

We appreciate the opportunity to provide comment on

the pending legislation regarding eligibility criteria for

burial at Arlington National Cemetery (ANC).

Arlington National Cemetery is America’s most prominent National Cemetery and serves as a shrine honoring

the men and women who have served in the armed forces

and those Americans 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 significance 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 attraction for visitors to the Washington area.

Our intent is to outline for the committee our effort to

enhance the regulations that govern eligibility criteria for

burial in Arlington, and to provide our views on pending
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legislation pertaining to the same. rules governing burial

in Arlington are included in Title 32 of the Code of Federal

Regulations. As a result of last year’s hearing on this matter, we are in the process of revising the regulations that

govern burial policy. The revised regulations, like H.R. 70,

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

certain veterans discharged due to disability, to be buried

in Arlington.

In addition, the revised regulations are similar to H.R.

70 in that the regulations identify those categories of persons who may be considered for burial in the cemetery

based on their relationship to an eligible veteran. In the

past, exceptions were required to allow close relatives and

former spouses burial in the same gravesite as an eligible

veteran. In the past 10 years, these types of exceptions

have constituted 76 percent of those granted. We agree

that these individuals should be provided burial consideration, and not be viewed as an exception.

Our revised regulations would differ from H.R. 70 in two

major respects. first, H.R. 70 would eliminate the possibility of burial in Arlington that presently exists for former

members of the armed forces who choose to continue their

service to the country and attain high legislative, judicial

and executive offices. This would include those in an elective office of the United States Government such as the

Vice President, United States Senators, and Members of

the United States House of Representatives; appointed officials which include the Chief Justice and Associate Justices of the Supreme Court of the United States; Ambassadors at our largest and most important overseas missions; cabinet members; and government officials at a level

I and level II position.

Under the revised army regulations governing burial at

Arlington, certain veterans who have served their country

in these specific high government offices would continue to

be allowed to be buried in Arlington based on their distinguished service to the nation. Changing this rule would

constitute a significant departure from current burial policies and would fundamentally change the character of the

cemetery. under the pending legislation, our military heroes will no longer lie next to our nation’s most revered

statesmen and supreme court justices, an attribute of the

cemetery which distinguishes it as the nation’s most revered burial grounds.

Second, the pending legislation precludes any discretion

to grant exceptions under any circumstances. we believe

that there should always be the opportunity for individuals

who have made extraordinary public contributions to be

considered for burial at Arlington, and for an exception to

be granted, if appropriate.

Arlington should be preserved as a national shrine honoring the men and women who have served in the armed
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forces and a limited number of exceptional americans who

have made or will make 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 to deal with

facts and events that are impossible to predict with certainty today. we believe that the President, through his

designee, the Secretary of the Army, should have the discretion to grant exceptions to allow for burial in Arlington

of individuals 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 individuals who are entitled to burial.

To keep the public and the Congress informed of exceptions that are granted, we require a public disclosure form

be signed by each requestor and, with each approval, we

notify the appropriate Congressional Oversight Committees. We believe that current procedures for handling exception requests are highly-effective, due to the fact that

decisions concerning burials are time-sensitive, extremely

emotional, and require prompt action.

Finally, the pending legislation includes a provision that

addresses the placement of memorials and monuments,

other than private markers at individual gravesites. we

support 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 restricting the

placement of memorials or monuments commemorating

military events until twenty-five years after the event. this

time period ensures that the event being commemorated is

of fitting historical significance.

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 regard,

the Army has recently completed a master plan, which is

designed to ensure that Arlington will remain active as the

nation’s foremost military cemetery. this plan requires a

review of the eligibility standards every five years to determine what standards are appropriate given land availability. The plan also 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 parcels that would be made available so that the future needs of the cemetery are met. these parcels include

contiguous land sites that will be vacated by the Army,

Navy, and Marine Corps, including the Navy Annex and a

portion of Fort Myer. We solicit your support for this initiative. funds are included in the President’s Budget for

Fiscal Years 1999–2003 to prepare concept plans to develop those parcels of land owned by the Federal government when they become excess to government needs in the
14

near future. Acquisition of this property will allow for continued operation of the cemetery through the twenty-first

century.

Thank you for the opportunity to comment on this important issue.

ROLL CALL VOTES

During Committee consideration of H.R. 70, there was a recorded

vote on an amendment offered by Mr. Filner to provide the Secretary of the Army with the authority to allow burial of a person

who does not meet the statutory criteria set forth in H.R. 70. The

amendment was rejected on a roll call vote of 16–7. The vote of

Committee Members is as follows:

Date: Thursday, March 18, 1999

Call to Order: 2:30 p.m.

Adjourn: 3:12 p.m.

Subject: Markup of H.R. 70, the Arlington National Cemetery

Burial Eligibility Act

NAME YEA NAY NOT VOTING

Bob Stump, AZ, Chairman ......................... x

Chris Smith, NJ, Vice Chairman ................. x

Michael Bilirakis, FL ................................... x

Floyd Spence, SC ........................................ x

Terry Everett, AL ......................................... x

Steve Buyer, IN ........................................... x

Jack Quinn, NY ........................................... x

Cliff Stearns, FL ......................................... x

Jerry Moran, KS ........................................... x

J.D. Hayworth, AZ ........................................ x

Helen Chenoweth, ID .................................. x

Ray LaHood, IL ............................................ x

Jim Hansen, UT ........................................... x

Howard (Buck) MCKeon, CA ....................... x

Jim Gibbons, NV ......................................... x

Mike Simpson, ID ........................................ x

Richard Baker, LA ....................................... x

Lane Evans, IL, Ranking ............................ x

Bob Filner, CA ............................................. x

Luis Gutierrez, IL ........................................ x

Corrine Brown, FL ....................................... x

Mike Doyle, PA ............................................ x

Collin Peterson, MN .................................... x

Julia Carson, IN .......................................... x

Silvestre Reyes, TX ..................................... x

Vic Snyder, AR ............................................ x

Ciro Rodriguez, TX ...................................... x

Ronnie Shows, MS ...................................... x

Shelley Berkley, NV ..................................... x

TOTAL .................................... 7 16
15

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, February 24, 1999

Hon. BOB STUMP,

Chairman, Committee on Veterans’ Affairs,

House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: At your request, the Congressional Budget

Office (CBO) has prepared the enclosed cost estimate for H.R. 70,

the Arlington National 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,

DAN L. CRIPPEN,

Director.

Attachment

H.R. 70. Arlington National Cemetery Burial Eligibility Act. As

introduced on January 6, 1999

H.R. 70 would codify many current regulations governing eligibility 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. 70 would require the Secretary

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

basis for 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. 70 would not

be significant. Most categories of veterans and family members covered by the bill’s eligibility criteria are already eligible under current regulations. The bill would grant eligibility to family members

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 significant

increase in the number of burials at the cemetery. CBO estimates

that the costs of producing the register and pamphlet would be

negligible. Because the legislation would not affect direct spending

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

The bill contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act, end would

not effect the budgets of state, local or tribal governments.

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.
16

INFLATIONARY IMPACT STATEMENT

The enactment of the reported bill would have no inflationary

impact.

APPLICABILITY TO LEGISLATIVE BRANCH

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.

STATEMENT OF FEDERAL MANDATES

The reported bill would not establish a federal mandate under

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

STATEMENT OF CONSTITUTIONAL AUTHORITY

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.’’

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the

House of Representatives, changes in existing law made by the bill,

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics,

existing 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 Administration; composition of Administration.

* * * * * * *

2412. Arlington National Cemetery: persons eligible for burial.

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

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

* * * * * * *

§ 2402. Persons eligible for interment in national cemeteries

Under such regulations as the Secretary may prescribe and subject to the provisions of section 6105 of this title, the remains of

the following persons may be buried in any open national cemetery

under the control of the National Cemetery Administration:

(1) * * *

* * * * * * *

(5) The spouse, surviving spouse (which for purposes of this

chapter includes an unremarried surviving spouse who had a

subsequent remarriage which was terminated by death or di-
17

vorce), minor child (which for purposes of this chapter, except

section 2412(b)(1) of this title, includes a child under 21 years

of age, or under 23 years of age if pursuing a course of instruction at an approved educational institution), and, in the discretion of the Secretary, unmarried adult child of any of the persons listed in paragraphs (1) through (4) and paragraph (7).

* * * * * * *

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

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

ø67¿ 1223 of title 10 øor would have been entitled to retired

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

under 60 years of age¿.

* * * * * * *

§ 2412. Arlington National Cemetery: persons eligible for

burial

(a) PRIMARY ELIGIBILITY.—The remains of the following individuals 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, United States Code.

(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 section 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) ELIGIBILITY OF FAMILY MEMBERS.—The remains of the following individuals may be buried in Arlington National Cemetery:

(1) The spouse, surviving spouse (which for purposes of this

paragraph includes any remarried surviving spouse, section

2402(5) of this title notwithstanding), 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
18

Armed Forces on active duty if such spouse, minor child, or unmarried adult child dies while such member is on active 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 unmarried 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 permanently

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 system, unless the memorial is removed. A memorial removed under this subparagraph may be

placed, at the discretion of the Superintendent, in Arlington

National 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.

(c) DISABLED ADULT UNMARRIED CHILDREN.—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 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.

(d) FAMILY MEMBERS OF PERSONS BURIED IN A GROUP

GRAVESITE.—In the case of a person eligible for burial under subsection (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.

(e) EXCLUSIVE AUTHORITY FOR BURIAL IN ARLINGTON NATIONAL

CEMETERY.—Eligibility for burial of remains in Arlington National

Cemetery prescribed under this section is the exclusive eligibility for

such burial.

(f) APPLICATION FOR BURIAL.—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.

(g) REGISTER OF BURIED INDIVIDUALS.—(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 register shall include a brief description of the basis

of eligibility of the individual for burial in Arlington National Cemetery.

(h) DEFINITIONS.—For purposes of this section:
19

(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 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 concerned under section 12731(d)

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

of title 10, United States Code.

(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 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

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.

§ 2414. Arlington National Cemetery: authorized headstones,

markers, and monuments

(a) GRAVESITE MARKERS PROVIDED BY THE SECRETARY.—A

gravesite in Arlington National Cemetery shall be appropriately

marked in accordance with section 2404 of this title.

(b) GRAVESITE MARKERS PROVIDED AT PRIVATE EXPENSE.—(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 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;

(C) the Secretary of the Army shall not be liable for maintenance 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.
20

(c) MONUMENTS.—(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 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.

SECTION 11201 OF TITLE 46, UNITED STATES CODE

§ 11201. Eligibility for veterans’ burial and cemetery benefits

(a) ELIGIBILITY.— (1) IN GENERAL.—The qualified service of a person referred

to in paragraph (2) shall be considered to be active duty in the

Armed Forces during a period of war for purposes of eligibility

for benefits under the following provisions of title 38:

(A) * * *

* * * * * * *

(C) Section 2413 (relating to placement in the columbarium in Arlington National Cemetery).

* * * * * * *

Æ