I

103D CONGRESS

2D SESSION H. R. 5043

To amend title 10, United States Code, to establish procedures for determining that status of certain missing members of the Armed Forces and

certain civilians, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

SEPTEMBER 13, 1994

Mr. MURPHY introduced the following bill; which was referred to the

Committee on Armed Services

A BILL

To amend title 10, United States Code, to establish procedures for determining that status of certain missing

members of the Armed Forces and certain civilians, and

for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Missing Service Per5 sonnel Act of 1994’’.

6 SEC. 2. PURPOSE.

7 The purpose of this Act is to ensure that any member

8 of the Armed Forces and any civilian employee of the Fed-
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1 eral Government or contractor of the Federal Government

2 who serves with or accompanies an Armed Force in the

3 field under orders is fully accounted for by the Federal

4 Government and, as a general rule, is not declared dead

5 solely because of the passage of time.

6 SEC. 3. DETERMINATION OF WHEREABOUTS AND STATUS

7 OF CERTAIN MISSING PERSONS.

8 (a) IN GENERAL.—Chapter 53 of title 10, United

9 States Code, is amended by adding at the end of the fol10 lowing new section:

11 ‘‘§ 1060a. Missing persons: informal investigations; in12 quiries; determinations of death; person13 nel files

14 ‘‘(a) INFORMAL INVESTIGATIONS.—

15 ‘‘(1) IN GENERAL.—After receiving factual in16 formation that the whereabouts or status of a person

17 described in paragraph (2) is uncertain and that the

18 absence of the person may be involuntary, the mili19 tary commander of the unit, facility, or area to or

20 in which the person is assigned shall conduct an in21 vestigation into the whereabouts and status of the

22 person.

23 ‘‘(2) COVERED PERSONS.—Paragraph (1) ap24 plies to the following individuals:
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1 ‘‘(A) Any member of the armed forces who

2 disappears during a time or war or national

3 emergency, or during a period of such other

4 hostilities as the Secretary of Defense may pre5 scribe.

6 ‘‘(B) Any civilian employee of the Federal

7 Government (including an employee of a con8 tractor of the Federal Government) who—

9 ‘‘(i) serves with or accompanies an

10 armed force in the field during such a time

11 or period; and

12 ‘‘(ii) disappears during such service or

13 accompaniment.

14 ‘‘(3) FURTHER ACTIVITIES.—As a result of an

15 investigation into the whereabouts and status of a

16 person under paragraph (1), a commander shall—

17 ‘‘(A) place the person in a missing status;

18 ‘‘(B) submit a notice that the person has

19 been placed in a missing status to—

20 ‘‘(i) in the case of a person who is a

21 member of the armed forces, the officer

22 having general court-martial authority over

23 the person;

24 ‘‘(ii) in the case of a person who is a

25 civilian employee of the Federal Govern-
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1 ment or contractor of the Federal Govern2 ment, the Secretary of the department em3 ploying the person or contracting with the

4 contractor;

5 ‘‘(C) retain and safeguard for official use

6 any information, documents, records, state7 ments, or other evidence relating to the where8 abouts or status of the person that result from

9 the investigation or from actions taken to locate

10 the person; and

11 ‘‘(D) submit to the officer having general

12 court-martial authority over the person, in the

13 case of a member of the armed forces, or to the

14 Secretary of the department employing the per15 son or contracting with the contractor, in the

16 case of a civilian employee of the Federal Gov17 ernment or contractor of the Federal Govern18 ment, as the case may be—

19 ‘‘(i) not later than 48 hours after the

20 date on which the absence of the person is

21 officially noted, a report that—

22 ‘‘(I) contains information on the

23 absence or disappearance of the per24 son;
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1 ‘‘(II) describes the actions taken

2 to locate the person; and

3 ‘‘(III) sets forth any information

4 relating to the whereabouts or status

5 of the person not contained in any

6 previous report;

7 ‘‘(ii) not later than 7 days after such

8 date, a report that—

9 ‘‘(I) summarizes the actions

10 taken to locate the person; and

11 ‘‘(II) sets forth any information

12 relating to the whereabouts or status

13 of the person not contained in any

14 previous report;

15 ‘‘(iii) not later than 30 days after

16 such date, a report that—

17 ‘‘(I) summarizes the continuing

18 actions to locate the person; and

19 ‘‘(II) sets forth any information

20 on the whereabouts or status of the

21 person that results from such actions;

22 and

23 ‘‘(iv) at any other time, a report that

24 sets forth any other information that may
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1 be relevant to the whereabouts or status of

2 the person.

3 ‘‘(b) INITIAL INQUIRY.—

4 ‘‘(1) IN GENERAL.—Not later than 7 days after

5 receiving notification under subsection (a)(3)(B)

6 that a person has been placed in missing status, the

7 officer having general court-martial authority over

8 the person, in the case of a person who is a member

9 of the armed forces, or the Secretary of the depart10 ment employing the person or contracting with the

11 contractor, in the case of a person who is a civilian

12 employee of the Federal Government or contractor

13 of the Federal Government, shall appoint a board to

14 conduct an inquiry into the whereabouts and status

15 of the person.

16 ‘‘(2) SCOPE OF CERTAIN INQUIRIES.—If it ap17 pears to the official who appoints a board under this

18 subsection that the absence or missing status of two

19 or more persons is factually related, the official may

20 appoint one board under this subsection to conduct

21 the inquiry into the whereabouts or status of the

22 persons.

23 ‘‘(3) COMPOSITION.—

24 ‘‘(A) IN GENERAL.—A board appointed

25 under this subsection shall consist of at least
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1 one individual described in subparagraph (B)

2 who has experience with and understanding of

3 military operations or activities similar to the

4 operation or activity in which the person or per5 sons disappeared.

6 ‘‘(B) REQUIRED MEMBER.—An individual

7 referred to in subparagraph (A) is the follow8 ing:

9 ‘‘(i) A military officer, in the case of

10 an inquiry with respect to a member of the

11 armed forces.

12 ‘‘(ii) A civilian, in the case of an in13 quiry with respect to a civilian employee of

14 the Federal Government or contractor of

15 the Federal Government.

16 ‘‘(C) ACCESS TO CLASSIFIED INFORMA17 TION.—Each member of a board appointed for

18 an inquiry under this subsection shall have a

19 security clearance that affords the member ac20 cess to all information relating to the where21 abouts and status of the missing person or per22 sons covered by the inquiry.

23 ‘‘(4) ACTIVITIES.—A board appointed to con24 duct an inquiry into the whereabouts or status of a
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1 missing person or persons under this subsection

2 shall—

3 ‘‘(A) collect, develop, and investigate all

4 facts and evidence relating to the disappear5 ance, whereabouts, or status of the person or

6 persons;

7 ‘‘(B) collect appropriate documentation of

8 the facts and evidence covered by the investiga9 tion;

10 ‘‘(C) analyze the facts and evidence, make

11 findings based on the analysis, and draw con12 clusions as to the current whereabouts and sta13 tus of the person or persons; and

14 ‘‘(D) recommend to the officer having gen15 eral court-martial authority over the person, in

16 the case of a person who is a member of the

17 armed forces, or the Secretary of the depart18 ment employing the person or contracting with

19 the contractor, in the case of a person who is

20 a civilian employee of the Federal Government

21 or contractor of the Federal Government,

22 that—

23 ‘‘(i) the person or persons continue to

24 have a missing status; or
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1 ‘‘(ii) the person or persons be declared

2 (I) to have deserted, (II) to be absent with3 out leave, or (III) to be dead.

4 ‘‘(5) INQUIRY PROCEEDINGS.—During the pro5 ceedings of an inquiry under this subsection, a board

6 shall—

7 ‘‘(A) collect, record, and safeguard all clas8 sified and unclassified facts, documents, state9 ments, photographs, tapes, messages, maps,

10 sketches, reports, and other information relat11 ing to the whereabouts or status of the person

12 or persons covered by the inquiry;

13 ‘‘(B) gather facts and information relating

14 to actions taken to find the person or persons,

15 including any evidence of the whereabouts or

16 status of the person or persons that arises from

17 such actions; and

18 ‘‘(C) maintain a record of the proceedings.

19 ‘‘(6) COUNSEL FOR MISSING PERSON.—

20 ‘‘(A) IN GENERAL.—The official who ap21 points a board to conduct an inquiry under this

22 subsection shall appoint counsel to represent

23 the person or persons covered by the inquiry.

24 ‘‘(B) QUALIFICATIONS.—An individual ap25 pointed as counsel under this paragraph shall—
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1 ‘‘(i) meet the qualifications set forth

2 in section 827(b) of this title (article 27(b)

3 of the Uniform Code of Military Justice);

4 and

5 ‘‘(ii) have a security clearance that af6 fords the individual access to all informa7 tion relating to the whereabouts or status

8 of the person or persons covered by the in9 quiry.

10 ‘‘(C) RESPONSIBILITIES AND DUTIES.—An

11 individual appointed as counsel under this para12 graph—

13 ‘‘(i) shall have access to all facts and

14 evidence considered by the board during

15 the proceedings under the inquiry for

16 which the counsel is appointed;

17 ‘‘(ii) shall observe all official activities

18 of the board during such proceedings;

19 ‘‘(iii) may question witnesses before

20 the board;

21 ‘‘(iv) shall monitor the deliberations of

22 the board;

23 ‘‘(v) shall review the report of the

24 board under paragraph (9); and
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1 ‘‘(vi) shall submit to the official who

2 appointed the board an independent review

3 of such report.

4 ‘‘(D) TREATMENT OF REVIEW.—A review

5 of the report of a board on an inquiry that is

6 submitted under subparagraph (C)(vi) shall be

7 made an official part of the record of the board

8 with respect to the inquiry.

9 ‘‘(7) ACCESS TO MEETINGS.—The proceedings

10 of a board during an inquiry under this subsection

11 shall be closed to the public, including to any mem12 ber of the immediate family, dependent, primary

13 next of kin, or previously designated person of the

14 person or persons covered by the inquiry.

15 ‘‘(8) RECOMMENDATION ON STATUS.—

16 ‘‘(A) IN GENERAL.—Upon completion of

17 an inquiry into the whereabouts or status of a

18 person or persons under this subsection, a

19 board shall make a recommendation to the offi20 cial who appointed the board as to the current

21 whereabouts or status of the person or persons.

22 ‘‘(B) RECOMMENDATION OF STATUS AS

23 DEAD.—

24 ‘‘(i) IN GENERAL.—A board may not

25 recommend under subparagraph (A) that a
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1 person or persons be declared dead unless

2 conclusive proof of the death of the person

3 or persons is established by the board.

4 ‘‘(ii) DEFINITION.—In this subpara5 graph, the term ‘conclusive proof of death’,

6 in the case of a person or persons, means

7 evidence establishing that death is the only

8 plausible explanation for the absence of the

9 person or persons.

10 ‘‘(9) REPORT.—

11 ‘‘(A) REQUIREMENT.—A board appointed

12 under this subsection shall submit to the official

13 who appointed the board a report on the in14 quiry carried out by the board. Such report

15 shall include—

16 ‘‘(i) a discussion of the facts and evi17 dence considered by the board in the in18 quiry; and

19 ‘‘(ii) the recommendation of the board

20 under paragraph (8).

21 ‘‘(B) SUBMITTAL DATE.—A board shall

22 submit a report under this paragraph not later

23 than 45 days after the date of the first official

24 notice of the disappearance of the person or
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1 persons covered by the inquiry described in the

2 report.

3 ‘‘(C) PUBLIC AVAILABILITY.—A report

4 submitted under this paragraph may not be

5 made public until 1 year after the date referred

6 to in subparagraph (B).

7 ‘‘(10) ACTIONS BY APPOINTING OFFICIAL.—

8 ‘‘(A) REVIEW.—Not later than 15 days

9 after the date of the receipt of a report from a

10 board under paragraph (9), the official who ap11 pointed the board shall review—

12 ‘‘(i) the report; and

13 ‘‘(ii) the review submitted under para14 graph (6)(C)(vi) by the counsel for the per15 son or persons covered by the inquiry de16 scribed in the report.

17 ‘‘(B) SCOPE OF REVIEW.—In conducting a

18 review of a report under subparagraph (A), the

19 official receiving the report shall determine

20 whether or not the report is complete and free

21 of administrative error.

22 ‘‘(C) RETURN.—If an official determines

23 under subparagraph (B) that a report is incom24 plete, or that a report is not free of administra25 tive error, the official may return the report to
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1 the board for further action on the report by

2 the board.

3 ‘‘(D) DETERMINATION OF STATUS.—Upon

4 a determination by the official concerned that a

5 report reviewed by the official under this para6 graph is complete and free of administrative

7 error, the official shall make a determination of

8 the status of the person or persons covered by

9 the report.

10 ‘‘(11) REPORT TO INTERESTED PERSONS.—Not

11 later than 90 days after the first official notice of

12 the disappearance of a person or persons, the official

13 who appoints a board of inquiry into the where14 abouts or status of the person or person under this

15 subsection shall—

16 ‘‘(A) provide an unclassified summary of

17 the report of the board to the members of the

18 immediate family, dependents, primary next of

19 kin, and previously designated persons of the

20 person or persons; and

21 ‘‘(B) inform the individuals referred to in

22 subparagraph (A) that the Federal Government

23 will conduct a subsequent inquiry into the

24 whereabouts or status of the person or persons

25 not earlier than 1 year after the date of the
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1 first official notice of the disappearance of the

2 person or persons, unless information becomes

3 available sooner that would result in a substan4 tial change in the official status of the person

5 or persons.

6 ‘‘(12) ADDITIONAL INVESTIGATION.—

7 ‘‘(A) IN GENERAL.—If information on the

8 whereabouts or status of a person or persons

9 covered by an inquiry under this subsection be10 comes available within 1 year after the date of

11 the first official notice of the disappearance of

12 the person or persons, the official who ap13 pointed the board to inquire into the where14 abouts or status of the person or persons under

15 this subsection shall appoint an additional

16 board to conduct an inquiry into the informa17 tion

18 ‘‘(B) CONDUCT OF INQUIRY.—The ap19 pointment and activities of a board under this

20 paragraph shall be subject to the provisions of

21 this subsection.

22 ‘‘(c) SUBSEQUENT INQUIRY.—

23 ‘‘(1) REQUIREMENT.—

24 ‘‘(A) IN GENERAL.—If as a result of an in25 quiry under subsection (b) an official deter-
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1 mines under paragraph (10)(D) of that sub2 section that a person or persons retain or be

3 placed in a missing status, the Secretary con4 cerned shall appoint a board under this sub5 section to conduct an inquiry into the where6 abouts and status of the person or persons.

7 ‘‘(B) DEFINITION.—For purposes of this

8 subsection, the term ‘Secretary concerned’

9 means the following:

10 ‘‘(i) In the case of a member of the

11 armed forces, the Secretary of the military

12 department having jurisdiction over the

13 armed force of the member.

14 ‘‘(ii) In the case of a civilian employee

15 of the Federal Government or contractor

16 of the Government, the Secretary of the

17 department employing the employee or

18 contracting with the contractor, as the case

19 may be.

20 ‘‘(2) DATE OF APPOINTMENT.—The Secretary

21 concerned shall appoint a board under this sub22 section to conduct an inquiry into the whereabouts

23 and status of a person or persons on or about 1 year

24 after the date of the first official notice of the dis25 appearance of the person or persons.
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1 ‘‘(3) SCOPE OF CERTAIN INQUIRIES.—If it ap2 pears to the Secretary concerned that the absence or

3 status of two or more persons is factually related,

4 the Secretary may appoint one board under this sub5 section to conduct the inquiry into the whereabouts

6 or status of the persons.

7 ‘‘(4) COMPOSITION.—

8 ‘‘(A) IN GENERAL.—Subject to subpara9 graphs (B) and (C), a board appointed under

10 this subsection shall consist of the following:

11 ‘‘(i) In the case of a board appointed

12 to inquire into the whereabouts or status

13 of a member or members of the armed

14 forces, not less than three officers having

15 a grade O–4 or higher.

16 ‘‘(ii) In the case of a board appointed

17 to inquire into the whereabouts or status

18 of a civilian employee or employees of the

19 Federal Government or contractor of the

20 Government—

21 ‘‘(I) not less than three civilian

22 employees of the Federal Government

23 whose rate of annual pay is equal to

24 or greater than the rate of annual pay

25 payable for grade GS–13 of the Gen-
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1 eral Schedule under section 5332 of

2 title 5; and

3 ‘‘(II) such members of the armed

4 forces as the Secretary concerned and

5 the Secretary of Defense jointly deter6 mine advisable.

7 ‘‘(B) PRESIDENT OF BOARD.—The Sec8 retary concerned shall designate one member of

9 each board appointed under this subsection as

10 President of the board. The President shall

11 have a security clearance that affords the Presi12 dent access to all information relating to the

13 whereabouts and status of the person or per14 sons covered by the inquiry.

15 ‘‘(C) REQUIREMENTS FOR OTHER MEM16 BERS.—

17 ‘‘(i) ATTORNEY.—One member of

18 each board appointed under this subsection

19 shall be an attorney, or judge advocate,

20 who has expertise in the public law relating

21 to missing persons, the determination of

22 death of such persons, and the rights of

23 family members and dependents of such

24 persons.
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1 ‘‘(ii) OCCUPATIONAL SPECIALIST.—

2 One member of each board appointed

3 under this subsection shall be an individual

4 who has—

5 ‘‘(I) an occupational specialty

6 similar to that of one or more of the

7 persons covered by the inquiry; and

8 ‘‘(II) an understanding of and

9 expertise in the official activities of

10 one or more such persons at the time

11 such person or persons disappeared.

12 ‘‘(iii) EXPERT IN TRANSPORTATION.—

13 If the person or persons covered by an in14 quiry disappeared in transit, one member

15 of the board appointed for the inquiry shall

16 be an individual whose occupational spe17 cialty relates to the piloting, navigation, or

18 operation of the mode of transportation in

19 which the person or persons were travelling

20 at the time such person or persons dis21 appeared.

22 ‘‘(5) ACTIVITIES.—A board appointed under

23 this subsection to conduct an inquiry into the where24 abouts or status of a person or persons shall—
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1 ‘‘(A) review the report under paragraph

2 (9) of subsection (b) of the board appointed to

3 conduct the inquiry into the status or where4 abouts of the person or persons under sub5 section (b) and the determination under para6 graph (10)(D) of that subsection of the official

7 who appointed the board under that subsection

8 as to the status of the person or persons;

9 ‘‘(B) collect and evaluate any documents,

10 facts, or other evidence with respect to the

11 whereabouts or status of the person or persons

12 that have become available since the completion

13 of the inquiry under subsection (b);

14 ‘‘(C) draw conclusions as to the where15 abouts or status of the person or persons;

16 ‘‘(D) determine on the basis of the activi17 ties under subparagraphs (A) and (B) whether

18 the status of the person or persons should be

19 continued or changed; and

20 ‘‘(E) issue a report to the Secretary con21 cerned describing the findings and conclusions

22 of the board, together with a recommendation

23 on the whereabouts or status of the person or

24 persons.
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1 ‘‘(6) COUNSEL FOR MISSING PERSON OR PER2 SONS.—

3 ‘‘(A) IN GENERAL.—The Secretary who

4 appoints a board to conduct an inquiry under

5 this subsection shall appoint counsel to rep6 resent the person or persons covered by the in7 quiry.

8 ‘‘(B) QUALIFICATIONS.—An individual ap9 pointed as counsel under this paragraph shall—

10 ‘‘(i) meet the qualifications set forth

11 in section 827(b) of this title (article 27(b)

12 of the Uniform Code of Military Justice);

13 and

14 ‘‘(ii) have a security clearance that af15 fords the individual access to all informa16 tion relating to the whereabouts or status

17 of the person or persons.

18 ‘‘(C) RESPONSIBILITIES AND DUTIES.—An

19 individual appointed as counsel under this para20 graph—

21 ‘‘(i) shall have access to all facts and

22 evidence considered by the board during

23 the proceedings under the inquiry for

24 which the counsel is appointed;
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1 ‘‘(ii) shall observe all official activities

2 of the board during such proceedings;

3 ‘‘(iii) may question witnesses before

4 the board;

5 ‘‘(iv) shall monitor the deliberations of

6 the board;

7 ‘‘(v) shall review the report of the

8 board under paragraph (11); and

9 ‘‘(vi) shall submit to the Secretary

10 concerned an independent review of the

11 recommendation of the board under para12 graph (10).

13 ‘‘(D) TREATMENT OF REVIEW.—The re14 view of the report of a board on an inquiry that

15 is submitted under subparagraph (C)(vi) shall

16 be made an official part of the record of the

17 board with respect to the inquiry.

18 ‘‘(7) PARTICIPATION OF CERTAIN INTERESTED

19 PERSONS IN PROCEEDINGS.—

20 ‘‘(A) IN GENERAL.—Notwithstanding any

21 other provision of law, the members of the im22 mediate family, dependents, primary next of

23 kin, and previously designated persons of the

24 person or persons covered by an inquiry under
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1 this subsection may participate at the proceed2 ings of the board during the inquiry.

3 ‘‘(B) NOTIFICATION OF PERSONS.—The

4 Secretary concerned shall notify the individuals

5 referred to in subparagraph (A) of the oppor6 tunity to participate at the proceedings of a

7 board not later than 60 days before the first

8 meeting of the board.

9 ‘‘(C) RESPONSE.—An individual who re10 ceives notice under subparagraph (B) shall no11 tify the Secretary of the intent, if any, of the

12 individual to participate at the proceedings of a

13 board not later than 21 days after the date of

14 the individual’s receipt of the notice.

15 ‘‘(D) SCHEDULE AND LOCATION OF PRO16 CEEDINGS.—The Secretary shall, to the maxi17 mum extent practicable, provide that the sched18 ule and location of the proceedings of a board

19 under this subsection be established so as to be

20 convenient to the individuals who notify the

21 Secretary under subparagraph (C) of their in22 tent to participate at such proceedings.

23 ‘‘(E) MANNER OF PARTICIPATION.—Indi24 viduals who notify the Secretary under subpara-
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1 graph (C) of their intent to participate at the

2 proceedings of a board—

3 ‘‘(i) in the case of individuals whose

4 entitlement to the pay or allowances (in5 cluding allotments) of a missing person

6 could be reduced or terminated as a result

7 of a revision in the status of the missing

8 person, may attend the proceedings of the

9 board with private counsel;

10 ‘‘(ii) shall have access to the personnel

11 file of the missing person, to unclassified

12 reports (if any) of the board appointed

13 under subsection (b) to conduct the inquiry

14 into the whereabouts and status of the per15 son, and to any other unclassified informa16 tion or documents relating to the where17 abouts and status of the person;

18 ‘‘(iii) shall be afforded the opportunity

19 to present information at the proceedings

20 that such individuals consider to be rel21 evant to the proceedings; and

22 ‘‘(iv) subject to subparagraph (F),

23 shall be afforded the opportunity to submit

24 in writing objections to the recommenda-
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1 tions of the board under paragraph (10) as

2 to the status of the missing person.

3 ‘‘(F) OBJECTIONS.—Objections to the rec4 ommendations of the board under subparagraph

5 (E)(iv) shall be submitted to the President of

6 the board not later than 24 hours after the date

7 on which such recommendations are made. The

8 President shall include the objections in the re9 port of the board to the Secretary concerned

10 under paragraph (12).

11 ‘‘(G) PROHIBITION ON REIMBURSE12 MENT.—Individuals referred to in subparagraph

13 (A) who participate in the proceedings of a

14 board under this paragraph shall not be entitled

15 to reimbursement by the Federal Government

16 for any costs incurred by such individuals in at17 tending such proceedings, including travel, lodg18 ing, meals, local transportation, legal fees, tran19 scription costs, witness expenses, and other ex20 penses.

21 ‘‘(8) AVAILABILITY OF INFORMATION TO

22 BOARDS.—

23 ‘‘(A) IN GENERAL.—In conducting pro24 ceedings in an inquiry under this subsection, a

25 board may secure directly from any department
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1 or agency of the Federal Government any infor2 mation that the members of the board consider

3 necessary in order to conduct the proceedings.

4 ‘‘(B) AUTHORITY TO RELEASE.—Upon

5 written request from the President of a board,

6 the head of a department or agency of the Fed7 eral Government shall release information cov8 ered by the request to the board. In releasing

9 such information, the head of the department

10 or agency shall—

11 ‘‘(i) declassify to an appropriate de12 gree classified information; or

13 ‘‘(ii) release the information in a man14 ner not requiring the removal of markings

15 indicating the classified nature of the in16 formation.

17 ‘‘(C) TREATMENT OF CLASSIFIED INFOR18 MATION.—

19 ‘‘(i) RELEASE.—If a request for infor20 mation under subparagraph (B) covers

21 classified information that cannot be de22 classified, cannot be removed before release

23 from the information covered by the re24 quest, or cannot be summarized in a man25 ner that prevents the release of classified
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1 information, the classified information

2 shall be made available only to the Presi3 dent of the board making the request and

4 the counsel for the missing person ap5 pointed under paragraph (6).

6 ‘‘(ii) USE IN PROCEEDINGS.—The

7 President of a board shall close to persons

8 who do not have appropriate security clear9 ances the proceeding of the board at which

10 classified information is discussed. Partici11 pants at a proceeding of a board at which

12 classified information is discussed shall

13 comply with all applicable laws and regula14 tions relating to the disclosure of classified

15 information. The Secretary concerned shall

16 assist the President of a board in ensuring

17 that classified information is not com18 promised through board proceedings.

19 ‘‘(9) BOARD MEETINGS.—

20 ‘‘(A) IN GENERAL.—Subject to subpara21 graph (B), the proceedings of a board under

22 this subsection shall be open to the public.

23 ‘‘(B) EXCEPTIONS.—A proceeding of a

24 board shall be closed to the public at the re25 quest of the following:
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1 ‘‘(i) The counsel appointed under

2 paragraph (6) for the person or persons

3 covered by the proceeding.

4 ‘‘(ii) Any member of the immediate

5 family, dependent, primary next of kin, or

6 previously designated person of the person

7 or persons.

8 ‘‘(iii) The Secretary who appointed

9 the board, but only if such Secretary deter10 mines that a proceeding open to the public

11 could jeopardize the health and well-being

12 of other missing persons or impair the ac13 tivities of the Federal Government to re14 cover missing persons in the theater of op15 erations or the area in which the missing

16 person or persons are thought to have dis17 appeared.

18 ‘‘(iv) The President of the board, but

19 only for discussion of classified informa20 tion.

21 ‘‘(10) RECOMMENDATION ON STATUS.—

22 ‘‘(A) IN GENERAL.—Upon completion of

23 proceedings in an inquiry under this subsection,

24 a board shall make a recommendation as to the
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1 current whereabouts or status of the missing

2 person or persons covered by the inquiry.

3 ‘‘(B) RECOMMENDATION OF DEAD STA4 TUS.—

5 ‘‘(i) IN GENERAL.—A board may not

6 recommend under subparagraph (A) that a

7 person or persons be declared dead un8 less—

9 ‘‘(I) conclusive proof of death is

10 established by the board; and

11 ‘‘(II) in making the declaration,

12 the board complies with subsection

13 (f).

14 ‘‘(ii) DEFINITION.—In this subpara15 graph, the term ‘conclusive proof of death’,

16 in the case of a person or persons, means

17 evidence establishing that death is the only

18 plausible explanation for the absence of the

19 person or persons.

20 ‘‘(11) REPORT.—

21 ‘‘(A) REQUIREMENT.—A board appointed

22 under this subsection shall submit to the Sec23 retary concerned a report on the inquiry carried

24 out by the board, together with the evidence

25 considered by the board during the inquiry.
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1 ‘‘(B) CLASSIFIED ANNEX.—The report

2 may include a classified annex.

3 ‘‘(12) ACTIONS BY SECRETARY.—

4 ‘‘(A) REVIEW.—Not later than 30 days

5 after the receipt of a report from a board under

6 paragraph (11), the Secretary concerned shall

7 review—

8 ‘‘(i) the report;

9 ‘‘(ii) the review submitted to the Sec10 retary under paragraph (6)(C)(vi) by the

11 counsel for the person or persons covered

12 by the report; and

13 ‘‘(iii) the objections, if any, to the re14 port submitted to the President of the

15 board under paragraph (7)(F).

16 ‘‘(B) SCOPE OF REVIEW.—In reviewing the

17 report, review, and objections under subpara18 graph (A), the Secretary shall determine wheth19 er or not the report is complete and free of ad20 ministrative error.

21 ‘‘(C) FURTHER ACTION.—If the Secretary

22 determines under subparagraph (B) that a re23 port is incomplete, or that a report is not free

24 of administrative error, the Secretary may re-
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1 turn the report to the board for further action

2 on the report by the board.

3 ‘‘(D) DETERMINATION OF STATUS.—Upon

4 a determination by the Secretary that a report

5 reviewed by the Secretary under this paragraph

6 is complete and free of administrative error, the

7 Secretary shall make a determination of the

8 status of the person or persons covered by the

9 report.

10 ‘‘(13) REPORT TO INTERESTED PERSONS.—Not

11 later than 90 days after a board submits a report

12 on a person or persons under paragraph (11), the

13 Secretary concerned shall—

14 ‘‘(A) provide an unclassified summary of

15 the report to the members of the immediate

16 family, the dependents, the primary next of kin,

17 and the previously designated persons of the

18 person or persons covered by the report; and

19 ‘‘(B) in the case of a person or persons

20 who continue to be in missing status, inform

21 the members, dependents, kin, and persons of

22 the person or persons that the Federal Govern23 ment will conduct a further investigation into

24 the whereabouts or status of the person or per25 sons not later than 3 years after the date of the
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1 official notice of the disappearance of the per2 son or persons, unless information becomes

3 available within that time that would result in

4 a substantial change in the official status of the

5 person or persons.

6 ‘‘(14) RECONVENING OF BOARD.—

7 ‘‘(A) IN GENERAL.—If the Secretary con8 cerned recommends that a person or persons

9 continue in missing status, or that a missing

10 person previously declared dead be given a

11 missing status, the Secretary shall reconvene

12 the board when information becomes available

13 that would directly lead to a determination of

14 status of the missing person or persons.

15 ‘‘(B) CONDUCT OF PROCEEDINGS.—The

16 provisions of this subsection shall apply to the

17 activities of a board convened under this para18 graph.

19 ‘‘(d) FURTHER REVIEW.—

20 ‘‘(1) SUBSEQUENT REVIEW.—

21 ‘‘(A) IN GENERAL.—The Secretary con22 cerned shall appoint a board to conduct an in23 quiry into the whereabouts or status of any per24 son or persons determined by the Secretary
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1 under subsection (c)(12)(D) to be a person or

2 persons in missing status.

3 ‘‘(B) FREQUENCY OF APPOINTMENT.—

4 Subject to subparagraph (C), the Secretary

5 shall appoint a board to conduct an inquiry

6 with respect to a person or persons under this

7 paragraph—

8 ‘‘(i) on or about 3 years after the date

9 of the official notice of the disappearance

10 of the person or persons; and

11 ‘‘(ii) not later than every 3 years

12 thereafter.

13 ‘‘(C) DELIMITING DATE.—The Secretary

14 shall not be required to appoint a board under

15 this paragraph more than 12 years after the

16 end of the time of war or emergency or period

17 of hostilities in which the missing person or

18 persons disappeared.

19 ‘‘(2) REVIEW OF PROBATIVE INFORMATION.—

20 Upon receipt of information that could result in a

21 change or revision of status of a missing person or

22 persons, the Secretary concerned shall appoint a

23 board to evaluate the information and make a rec24 ommendation as to the status of the person or per25 sons to which the information relates.
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1 ‘‘(3) CONDUCT OF PROCEEDINGS.—The ap2 pointment of and activities before a board appointed

3 under this subsection shall be governed by the provi4 sions of subsection (c).

5 ‘‘(e) PERSONNEL FILES.—

6 ‘‘(1) INFORMATION IN FILES.—Except as pro7 vided in paragraph (2), the Secretary of the depart8 ment having jurisdiction over a missing person at

9 the time of the person’s disappearance shall, to the

10 maximum extent practicable, ensure that the person11 nel file of the person contains all information in the

12 possession of the Federal Government relating to the

13 disappearance and whereabouts or status of the per14 son.

15 ‘‘(2) CLASSIFIED INFORMATION.—

16 ‘‘(A) AUTHORITY TO WITHHOLD.—The

17 Secretary concerned may withhold classified in18 formation from a personnel file under this sub19 section.

20 ‘‘(B) NOTICE OF WITHHOLDING.—If the

21 Secretary concerned withholds classified infor22 mation from the personnel file of a person, the

23 Secretary shall ensure that the file contains the

24 following:
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1 ‘‘(i) A notice that the withheld infor2 mation exists.

3 ‘‘(ii) A notice of the date of the most

4 recent review of the classification of the

5 withheld information.

6 ‘‘(3) WRONGFUL WITHHOLDING.—Any person

7 who knowingly and willfully withholds from the per8 sonnel file of a missing person any information

9 (other than classified information) relating to the

10 disappearance or whereabouts or status of a missing

11 person shall be fined as provided in title 18, or im12 prisoned not more than 1 year, or both.

13 ‘‘(4) AVAILABILITY OF INFORMATION.—The

14 Secretary concerned shall, upon request, make avail15 able the contents of the personnel file of a missing

16 person to members of the immediate family, depend17 ents, primary next of kin, or previously designated

18 person of the person.

19 ‘‘(f) RECOMMENDATION OF STATUS OF DEATH.—

20 ‘‘(1) REQUIREMENTS RELATING TO REC21 OMMENDATION.—A board appointed under sub22 section (c) or (d) may not recommend that a person

23 be declared dead unless—
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1 ‘‘(A) evidence (other than the passage of a

2 period of time of less than 50 years) exists to

3 suggest that the person is dead;

4 ‘‘(B) the Federal Government possesses no

5 evidence that reasonably suggests that the per6 son is alive;

7 ‘‘(C) representatives of the Federal Gov8 ernment have made a complete search of the

9 area where the person was last seen (unless,

10 after making every good faith effort to obtain

11 access to such area, such representatives are

12 not granted such access); and

13 ‘‘(D) representatives of the Federal Gov14 ernment have examined the records of the gov15 ernment or entity having control over the area

16 where the person was last seen (unless, after

17 making every good faith effort to obtain access

18 to such records, such representatives are not

19 granted such access).

20 ‘‘(2) SUBMITTAL OF INFORMATION ON

21 DEATH.—If a board appointed under subsection (c)

22 or (d) makes a recommendation that a missing per23 son be declared dead, the board shall include in the

24 report of the board with respect to the person under

25 such subsection (c) or (d) the following:
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1 ‘‘(A) A detailed description of the location

2 where the death occurred.

3 ‘‘(B) A statement of the date on which the

4 death occurred.

5 ‘‘(C) A description of the location of the

6 body, if recovered.

7 ‘‘(D) If the body has been recovered, a cer8 tification by a licensed practitioner of forensic

9 medicine that the body recovered is that of the

10 missing person.

11 ‘‘(g) JUDICIAL REVIEW.—

12 ‘‘(1) IN GENERAL.—

13 ‘‘(A) JUDICIAL REVIEW.—A person re14 ferred to in subparagraph (B) may obtain re15 view of a finding described in subparagraph (C)

16 by the court of appeals of the United States for

17 the circuit in which the person resides or in

18 which the finding was made.

19 ‘‘(B) AVAILABILITY OF REVIEW.—Sub20 paragraph (A) applies to any of the following

21 persons with respect to a missing person sub22 ject to a finding described in subparagraph (C):

23 ‘‘(i) A member of the immediate fam24 ily of the person.

25 ‘‘(ii) A dependent of the person.
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1 ‘‘(iii) The primary next of kin of the

2 person.

3 ‘‘(iv) A person previously designated

4 by the person.

5 ‘‘(C) COVERED FINDINGS.—Subparagraph

6 (A) applies to the following findings:

7 ‘‘(i) A finding by a board appointed

8 under subsection (c) or (d) that a missing

9 person is dead.

10 ‘‘(ii) A finding by a board appointed

11 under subsection (h) that confirms that a

12 missing person formerly declared dead is in

13 fact dead.

14 ‘‘(D) COMMENCEMENT OF REVIEW.—A

15 person referred to in subparagraph (B) shall re16 quest review of a finding under this paragraph

17 by filing with the appropriate court a written

18 petition requesting that the finding be set aside.

19 ‘‘(2) APPEAL AND FINALITY OF REVIEW.—The

20 decision of the court of appeals on a petition for re21 view under paragraph (1) shall be final, except that

22 it shall be subject to review by the Supreme Court

23 upon certiorari, as provided in section 1254 of title

24 28.

25 ‘‘(3) ADDITIONAL REVIEW.—
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1 ‘‘(A) IN GENERAL.—Subject to subpara2 graph (B), upon request by a person referred to

3 in paragraph (1)(B), the Secretary concerned

4 shall appoint a board to review the status of a

5 person covered by a finding described in para6 graph (1)(C) if the court of appeals sets aside

7 the finding and—

8 ‘‘(i) the time allowed for filing a peti9 tion for certiorari has expired and no such

10 petition has been duly filed;

11 ‘‘(ii) the petition for certiorari has

12 been denied; or

13 ‘‘(iii) the decision of the court of ap14 peals has been affirmed by the Supreme

15 Court.

16 ‘‘(B) DELIMITING DATE.—A person re17 ferred to in subparagraph (A) shall make a re18 quest referred to in that subparagraph not later

19 than 3 years after the date of the event under

20 that subparagraph that entitles the person to

21 request the appointment of a board.

22 ‘‘(h) PERSONS PREVIOUSLY DECLARED DEAD.—

23 ‘‘(1) REVIEW OF STATUS.—

24 ‘‘(A) IN GENERAL.—Not later than 2 years

25 after the date of the enactment of the Missing
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1 Service Personnel Act of 1994, a person re2 ferred to in subparagraph (B) may submit to

3 the appropriate Secretary a request for appoint4 ment by the Secretary of a board to review the

5 status of a person previously declared dead.

6 ‘‘(B) AVAILABILITY.—A board shall be ap7 pointed under this paragraph based on the re8 quest of any of the following persons:

9 ‘‘(i) An adult member of the imme10 diate family of a person previously declared

11 dead.

12 ‘‘(ii) An adult dependent of such per13 son.

14 ‘‘(iii) The primary next of kin of such

15 person.

16 ‘‘(iv) A person previously designated

17 by such person.

18 ‘‘(C) APPROPRIATE SECRETARY.—A re19 quest under this paragraph shall be submitted

20 to the Secretary of the department of the Fed21 eral Government that had jurisdiction over the

22 person covered by the request at the time of the

23 person’s disappearance.

24 ‘‘(2) APPOINTMENT OF BOARD.—Upon request

25 of a person under paragraph (1), the Secretary con-
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1 cerned shall appoint a board to review the status of

2 the person covered by the request.

3 ‘‘(3) ACTIVITIES OF BOARD.—A board ap4 pointed under paragraph (2) to review the status of

5 a person shall—

6 ‘‘(A) conduct an investigation to determine

7 the status of the person; and

8 ‘‘(B) issue a report describing the findings

9 of the board under the investigation and the

10 recommendations of the board as to the status

11 of the person.

12 ‘‘(4) SUBSEQUENT REVIEW.—If the Secretary

13 concerned is apprised of any information which

14 would directly lead to a determination of the status

15 of a missing person, the Secretary shall reconvene a

16 board to consider the information.

17 ‘‘(5) EFFECT OF CHANGE IN STATUS.—If a

18 board appointed under this subsection recommends

19 placing a person previously declared dead in a miss20 ing status such person shall accrue no pay or allow21 ances as a result of the placement of the person in

22 such status.

23 ‘‘(i) RETURN ALIVE OF PERSON DECLARED MISSING

24 OR DEAD.—
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1 ‘‘(1) PAY AND ALLOWANCES.—Any person in a

2 missing status or declared dead under the Missing

3 Persons Act of 1942 (56 Stat. 143) or by a board

4 appointed under this section who is found alive and

5 returned to the control of the United States shall be

6 paid for the full time of the absence of the person

7 while given that status or declared dead under the

8 law and regulations relating to the pay and allow9 ances of persons returning from a missing status.

10 ‘‘(2) EFFECT ON GRATUITIES PAID AS A RE11 SULT OF STATUS.—Paragraph (1) shall not be inter12 preted to invalidate or otherwise affect the receipt by

13 any person of a death gratuity or other payment

14 from the United States on behalf of a person re15 ferred to in paragraph (1) before the date of the en16 actment of the Missing Service Personnel Act of

17 1994.

18 ‘‘(j) EFFECT ON STATE LAW.—Nothing in this sec19 tion shall be construed to invalidate or limit the power

20 of any State court or administrative entity, or the power

21 of any court or administrative entity of any political sub22 division thereof, to find or declare a person dead for pur23 poses of the such State or political subdivision.

24 ‘‘(k) DEFINITIONS.—In this section:
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1 ‘‘(1) The term ‘classified information’ means

2 any information the unauthorized disclosure of

3 which (as determined under applicable law and regu4 lations) could reasonably be expected to damage the

5 national security.

6 ‘‘(2) The term ‘dependent’, in the case of a

7 missing person, mean any individual who would, but

8 for the status of the person, be entitled to receive

9 the pay and allowances (including allotments) of the

10 person.

11 ‘‘(3) The term ‘member of the immediate fam12 ily’, in the case of a missing person, means the

13 spouse, adopted or natural child, parent, and sibling

14 of the missing person.

15 ‘‘(4) The term ‘missing person’ means—

16 ‘‘(A) a member of the armed forces on ac17 tive duty who is missing; or

18 ‘‘(B) a civilian employee serving with or

19 accompanying an armed force under orders who

20 is missing.

21 ‘‘(5) The term ‘missing status’ means the sta22 tus of a missing person who is determined to be ab23 sent in a status of—

24 ‘‘(A) missing;

25 ‘‘(B) missing in action;
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1 ‘‘(C) interned in a foreign country;

2 ‘‘(D) captured, beleaguered, or besieged by

3 a hostile force; or

4 ‘‘(E) detained in a foreign country against

5 his or her will.

6 ‘‘(6) The term ‘primary next of kin’, in the case

7 of a missing person, means—

8 ‘‘(A) the principal individual who, but for

9 the status of the person, would receive financial

10 support from the person; or

11 ‘‘(B) in the case of a missing person for

12 whom there is no individual meeting the re13 quirement of subparagraph (A), the family

14 member or other individual designated by the

15 missing person to receive death gratuities.

16 ‘‘(7) The term ‘previously designated person’, in

17 the case of a missing person, means an individual

18 (other than an individual who is a member of the

19 immediate family of the missing person) designated

20 by the missing person as the individual to be notified

21 of all matters relating to the status of the missing

22 person.

23 ‘‘(8) The term ‘State’ means any State, the

24 District of Columbia, the Commonwealth of Puerto
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1 Rico, and any territory or possession of the United

2 States.’’.

3 (b) CLERICAL AMENDMENT.—The table of sections

4 at the beginning of chapter 53 of title 10, United States

5 Code, is amended by adding the end the following:

‘‘1060a. Missing persons: informal investigations; inquiries; determinations of

death; personnel files.’’.

6 (c) CONFORMING AMENDMENTS.—(1)(A) Section

7 555 of title 37, United States Code, is repealed.

8 (B) The table of sections at the beginning of chapter

9 10 of such title is amended by striking out the item relat10 ing to section 555.

11 (2) Section 552 of such title is amended—

12 (A) in the second sentence of the flush matter

13 following paragraph (2) in subsection (a), by strik14 ing out ‘‘for all purposes,’’ and all that follows

15 through the end of the sentence and inserting in lieu

16 thereof ‘‘for all purposes.’’;

17 (B) in striking out paragraph (2) of subsection

18 (b) and inserting in lieu thereof the following:

19 ‘‘(2) that his death is determined under section

20 1060a of title 10.’’; and

21 (C) in subsection (e), by striking ‘‘section 555

22 of this title’’ and inserting ‘‘section 1060a of title

23 10’’.

24 (3) Section 553 of such title is amended—
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1 (A) in subsection (f), by inserting ‘‘under sec2 tion 1060a of title 10’’ after ‘‘When the Secretary

3 concerned’’;

4 (B) by striking out ‘‘the Secretary concerned

5 receives evidence’’ and inserting in lieu thereof ‘‘a

6 board convened under section 1060a of title 10 re7 ports’’; and

8 (C) in subsection (g), by striking out ‘‘section

9 555 of this title’’ and inserting ‘‘section 1060a of

10 title 10’’.

11 (4) Section 556 of such title is amended—

12 (A) in subsection (a)—

13 (i) by inserting ‘‘and’’ at the end of para14 graph (3);

15 (ii) by striking out the semicolon at the

16 end of paragraph (4) and inserting in lieu

17 thereof a period; and

18 (iii) by striking paragraphs (1), (5), (6),

19 and (7) and redesignating paragraphs (2), (3),

20 and (4) as paragraphs (1), (2), and (3), respec21 tively;

22 (B) by striking out subsection (b) and redesig23 nating subsections (c), (d), (e), (f), (g), and (h) as

24 subsections (b), (c), (d), (e), (f), and (g), respec25 tively; and
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1 (C) in subsection (g), as so redesignated—

2 (i) by striking out the second sentence; and

3 (ii) by striking ‘‘status’’ and inserting

4 ‘‘pay’’.

5 (5) Section 557(a)(1) of such title is amended by

6 striking out ‘‘, 553, and 555’’ and inserting in lieu thereof

7 ‘‘and 553’’.

8 (6) Section 559(b)(4)(B) of such title is amended by

9 striking out ‘‘section 556(f)’’ and inserting in lieu thereof

10 ‘‘section 556(e)’’.

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