I

103D CONGRESS

1ST SESSION H. R. 291

To amend title 10, United States Code, to establish procedures for determining whether members of the Armed Forces in a missing status or certain

civilian officers and employees are deceased, to require certain information to be kept in the personnel files of such persons, and for other

purposes.

IN THE HOUSE OF REPRESENTATIVES

JANUARY 5, 1993

Mr. MURPHY (for himself and Mr. SWIFT) 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 whether members of the Armed

Forces in a missing status or certain civilian officers

and employees are deceased, to require certain information to be kept in the personnel files of such persons,

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 1993’’.
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1 SEC. 2. PURPOSE.

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

3 of the Armed Forces or any civilian officer or employee

4 serving with or accompanying an Armed Force in the field

5 under orders is fully accounted for by the Federal Govern6 ment and, as a general rule, may not be declared dead

7 solely because of the passage of time.

8 SEC. 3. REQUIREMENTS WITH RESPECT TO MISSING PER9 SONS.

10 Chapter 53 of title 10, United States Code, is amend11 ed by adding at the end the following new section:

12 ‘‘§1058. Missing persons: informal investigations;

13 boards of inquiry; determinations of

14 death; personnel files

15 ‘‘(a) INFORMAL INVESTIGATIONS.—After receiving

16 notice that a person under the command of an element

17 of the armed forces is missing, the responsible commander

18 shall conduct an informal investigation to determine that

19 person’s whereabouts and, if appropriate, shall place the

20 missing person in a missing status.

21 ‘‘(b) BOARDS OF INITIAL INQUIRY; DUTIES.—(1) If

22 a missing person placed in a missing status under sub23 section (a) is a member of the armed forces on active duty,

24 the responsible commander who places that person in a

25 missing status shall, as soon as feasible after placing that

26 person in a missing status, notify the officer holding gen-
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1 eral court-martial authority over that person that the per2 son has been placed in a missing status, and such officer

3 shall convene a board of initial inquiry not later than 45

4 days after receiving such notice.

5 ‘‘(2) If a missing person placed in a missing status

6 under subsection (a) is a civilian, the responsible com7 mander who places that person in a missing status shall,

8 as soon as feasible after placing that person in a missing

9 status, notify the Secretary concerned that that person

10 has been placed in a missing status, and the Secretary

11 concerned shall convene a board of initial inquiry not later

12 than 45 days after receiving such notice.

13 ‘‘(3) A board of initial inquiry convened under this

14 subsection shall—

15 ‘‘(A) investigate and analyze evidence relating

16 to the disappearance of the missing person;

17 ‘‘(B) based upon such evidence, recommend

18 whether to continue such person in a missing status

19 or make a finding that such person has deserted, is

20 absent without leave, or is dead; and

21 ‘‘(C) issue a report describing its recommenda22 tions and findings.

23 ‘‘(c) BOARDS OF FURTHER INQUIRY; DUTIES.—(1)

24 If a board of initial inquiry convened under subsection (b)

25 recommends that a missing person be continued in a miss-
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1 ing status, the Secretary concerned shall convene a board

2 of further inquiry not later than one year after the date

3 on which the board of initial inquiry issues its rec4 ommendation. The board of further inquiry shall—

5 ‘‘(A) analyze any information which has become

6 available since the board of initial inquiry issued its

7 report;

8 ‘‘(B) based upon such information and a review

9 of evidence presented during the board of initial in10 quiry, determine whether such person should be con11 tinued in a missing status or should be declared

12 dead; and

13 ‘‘(C) issue a report describing its recommenda14 tions and findings.

15 ‘‘(2) Upon the written request of a member of the

16 immediate family of a missing person who, before the date

17 of the enactment of this section, was determined by the

18 Secretary concerned to be dead, the Secretary concerned

19 shall convene a board of further inquiry which shall—

20 ‘‘(A) conduct an investigation to determine

21 whether such finding of death should be upheld or

22 such person should be placed in a missing status;

23 and

24 ‘‘(B) issue a report describing its recommenda25 tions and findings.
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1 ‘‘(3) If a board of further inquiry convened under this

2 subsection recommends continuing the missing status of

3 a missing person or placing a missing person previously

4 found to be dead in a missing status, the Secretary con5 cerned shall reconvene such board to review the missing

6 status of such person not later than three years after such

7 recommendation is made.

8 ‘‘(d) COMPOSITION AND MEETINGS OF BOARDS.—(1)

9 Each board convened under subsection (b) or (c) shall be

10 composed of members of the armed forces on active duty

11 (except as provided in subparagraph (C)) and shall in12 clude—

13 ‘‘(A) one attorney;

14 ‘‘(B) one person who is a member of the armed

15 forces whose primary military occupational specialty

16 is the same occupational specialty as that of the

17 missing person at the time of such missing person’s

18 disappearance;

19 ‘‘(C) if the missing person being investigated is

20 a civilian, one person whose occupational specialty is

21 similar to the occupational specialty of such missing

22 person at the time of such missing person’s dis23 appearance; and

24 ‘‘(D) if the missing person being investigated

25 disappeared while in transit, one person who is a
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1 member of the armed forces whose military occupa2 tional specialty pertains to the piloting, navigating,

3 or operating of the mode of transportation used by

4 such missing person at the time of his disappear5 ance.

6 ‘‘(2) The Secretary concerned shall invite each mem7 ber of the immediate family of the missing person being

8 investigated to attend any meeting of a board of initial

9 inquiry convened under subsection (b) unless he deter10 mines, in consultation with the commander of the military

11 installation at which such meeting is convened, that at12 tendance at such a meeting would place such family mem13 bers in physical danger. In the case of the meetings of

14 a board of further inquiry convened or reconvened under

15 subsection (c), the Secretary concerned shall—

16 ‘‘(A) invite each member of the immediate fam17 ily of such missing person to attend such meetings;

18 ‘‘(B) attempt to schedule such meetings at loca19 tions and times convenient for the members of the

20 immediate family of such missing person;

21 ‘‘(C) provide members of the immediate family

22 of such missing person with reasonable notice of the

23 time and location of such meetings; and

24 ‘‘(D) open such meetings to the general public.
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1 ‘‘(3) Each board convened under subsection (b) or (c)

2 may hold such meetings, take such testimony, and receive

3 such evidence as it considers appropriate, and may secure

4 directly from any department or agency of the United

5 States any information necessary to carry out its duties

6 under this section.

7 ‘‘(e) APPOINTMENT OF COUNSEL.—The officer or

8 Secretary concerned who convenes a board under sub9 section (b) or (c) shall appoint counsel to represent the

10 missing person. Counsel appointed under this subsection

11 shall have the qualifications prescribed under section

12 827(b) of this title (article 27(b) of the Uniform Code of

13 Military Justice).

14 ‘‘(f) DETERMINATIONS OF DEATH.—If a board con15 vened under subsection (b) or (c) determines that a miss16 ing person is dead, it shall include in its report a detailed

17 description of the location where the death occurred, the

18 date on which the death occurred, whether the body has

19 been recovered, and, if the body has been recovered,

20 whether a licensed practitioner of forensic medicine deter21 mined that the body recovered is that of the missing per22 son. No missing person may be declared dead by a board

23 convened under subsection (a) unless—
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1 ‘‘(1) evidence other than the passage of a pe2 riod of time of less than 50 years exists which sug3 gests that the person is dead;

4 ‘‘(2) no evidence which reasonably suggests that

5 such person is alive is in the possession of the Fed6 eral Government;

7 ‘‘(3) representatives of the Federal Government

8 have made a complete search of the area where such

9 person was last seen (unless, after making every

10 good faith effort to obtain access to such area, the

11 United States is not granted such access); and

12 ‘‘(4) representatives of the Federal Government

13 have examined the records of the government or en14 tity having control over the area where such person

15 was last seen (unless, after making every good faith

16 effort to obtain access to such records, the United

17 States is not granted such access).

18 ‘‘(g) JUDICIAL REVIEW.—(1) Any member of the im19 mediate family of a missing person who was found by a

20 board convened under subsection (b) or (c)(1) to be dead,

21 or the finding of whose death was upheld by a board con22 vened under subsection (c)(2), may obtain a review of such

23 finding in the court of appeals of the United States within

24 the circuit where such member resides or where the find25 ing of death was made or upheld. Such family member
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1 may obtain such review if, at any time after receiving no2 tice of such finding, the family member files in the court

3 a written petition requesting that the finding be set aside.

4 ‘‘(2) The decision of the court of appeals shall be

5 final, except that it shall be subject to review by the Su6 preme Court upon certiorari, as provided in section 1254

7 of title 28.

8 ‘‘(3) If the court of appeals sets aside the finding of

9 death and if—

10 ‘‘(A) the time allowed for filing a petition for

11 certiorari has expired and no such petition has been

12 duly filed;

13 ‘‘(B) the petition for certiorari has been denied;

14 or

15 ‘‘(C) the decision of the court of appeals has

16 been affirmed by the Supreme Court;

17 the Secretary concerned shall convene a board of further

18 inquiry under subsection (c)(2) to review the missing per19 son’s status not later than three years after the date on

20 which the finding is set aside, the petition for certiorari

21 is denied, or the Supreme Court affirms the decision of

22 the court of appeals.

23 ‘‘(h) PERSONNEL FILES.—(1) Except as provided in

24 paragraph (2), the Secretary concerned shall ensure that

25 a missing person’s personnel file contains all information
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1 in the possession of Federal departments and agencies

2 pertaining to the disappearance or whereabouts of such

3 person.

4 ‘‘(2) If classified information is withheld from the

5 personnel file of a missing person, the Secretary concerned

6 shall ensure that the file—

7 ‘‘(A) contains a notice that the information ex8 ists; and

9 ‘‘(B) contains a notice of the date of the most

10 recent review of the classification status of the infor11 mation.

12 ‘‘(3) Any person who knowingly and willfully with13 holds information pertaining to the disappearance or

14 whereabouts of a missing person from that person’s per15 sonnel file shall be fined as provided in title 18 or impris16 oned not more than one year, or both.

17 ‘‘(4) The Secretary concerned shall make the con18 tents of the personnel file of a missing person available

19 to a member of the immediate family of such person upon

20 the written request of such family member.

21 ‘‘(i) EFFECT ON STATE LAW.—Nothing in this sec22 tion shall be construed to invalidate or limit the power

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

24 of any court or administrative entity of any political sub-
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1 division thereof, to find or declare a person dead for pur2 poses of the law of such State or political subdivision.

3 ‘‘(j) DEFINITIONS.—In this section:

4 ‘‘(1) The term ‘member of the immediate fam5 ily’ means the spouse, each adopted or natural child,

6 each parent, and each sibling.

7 ‘‘(2) The term ‘military installation’ means a

8 base, camp, post, station, yard, center, or other ac9 tivity under the jurisdiction of the Secretary of a

10 military department.

11 ‘‘(3) The term ‘missing person’ means—

12 ‘‘(A) a member of the armed forces on ac13 tive duty who is missing; or

14 ‘‘(B) a civilian officer or employee serving

15 with or accompanying an armed force under or16 ders who is missing.

17 ‘‘(4) The term ‘missing status’ means the sta18 tus of a missing person who is determined to be ab19 sent in a status of—

20 ‘‘(A) missing;

21 ‘‘(B) missing in action;

22 ‘‘(C) interned in a foreign country;

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

24 a hostile force; or
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1 ‘‘(E) detained in a foreign country against

2 his will.

3 ‘‘(5) The term ‘State’ means any State, the

4 District of Columbia, the Commonwealth of Puerto

5 Rico, and any territory or possession of the United

6 States.’’.

7 SEC. 4. CONFORMING AND CLERICAL AMENDMENTS.

8 (a) CONFORMING AMENDMENTS.—(1) Section 555 of

9 title 37, United States Code, is repealed.

10 (2) Chapter 10 of title 37, United States Code, is

11 amended—

12 (A) in the last sentence of section 552(a), by

13 striking the second comma and all that follows and

14 inserting a period;

15 (B) in the second sentence of section 552(b)(2),

16 by striking the hyphen and all that follows and in17 serting ‘‘that his death is determined under section

18 1057 of title 10’’;

19 (C) in section 552(e), by striking ‘‘section 555

20 of this title’’ and inserting ‘‘section 1057 of title

21 10’’;

22 (D) in section 553(f)—

23 (i) by striking ‘‘When the Secretary con24 cerned’’ and inserting ‘‘When a board convened

25 under section 1057 of title 10’’; and
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1 (ii) by striking ‘‘the Secretary concerned

2 receives evidence’’ and inserting ‘‘a board con3 vened under section 1057 of title 10 reports’’;

4 (E) in section 553(g) by striking ‘‘section 555

5 of this title’’ and inserting ‘‘section 1057 of title

6 10’’;

7 (F) in section 556(a)—

8 (i) by inserting ‘‘and’’ at the end of para9 graph (3);

10 (ii) by striking the semicolon at the end of

11 paragraph (4) and inserting a period; and

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

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

14 and (4) as paragraphs (1), (2), and (3), respec15 tively;

16 (G) in section 556(h)—

17 (i) by striking ‘‘status’’ and inserting

18 ‘‘pay’’; and

19 (ii) by striking the second sentence;

20 (H) in section 556, by striking subsection (b)

21 and redesignating subsections (c), (d), (e), (f), (g),

22 and (h) as subsections (b), (c), (d), (e), (f), and (g),

23 respectively;

24 (I) in paragraph (1) of section 557(a), by strik25 ing ‘‘, 553, and 555’’ and inserting ‘‘and 553’’; and
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1 (J) in paragraph (4)(B) of section 559(a), by

2 striking ‘‘556(f)’’ and inserting ‘‘556(e)’’.

3 (b) CLERICAL AMENDMENTS.—(1) The table of sec4 tions at the beginning of chapter 53 of title 10, United

5 States Code, is amended by adding at the end the follow6 ing new item:

‘‘1058. Missing persons: informal investigations; boards of inquiry; determinations of death; personnel files.’’.

7 (2) The table of sections at the beginning of chapter

8 10 of title 37, United States Code, is amended by striking

9 the item relating to section 555.

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