II

103D CONGRESS

2D SESSION S. 2411

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 SENATE OF THE UNITED STATES

AUGUST 19 (legislative day, AUGUST 18), 1994

Mr. DOLE (for himself, Mr. LAUTENBERG, Mr. SIMPSON, Mr. LIEBERMAN,

and Mr. WOFFORD) introduced the following bill; which was read twice

and 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 court12 martial authority over the person, in the case of a

13 member of the armed forces, or to the Secretary of

14 the department employing the person or contracting

15 with the contractor, in the case of a civilian em16 ployee of the Federal Government or contractor of

17 the Federal Government, as the case may be—

18 ‘‘(i) not later than 48 hours after the date

19 on which the absence of the person is officially

20 noted, a report that—

21 ‘‘(I) contains information on the ab22 sence or disappearance of the person;

23 ‘‘(II) describes the actions taken to lo24 cate the person; and
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1 ‘‘(III) sets forth any information re2 lating to the whereabouts or status of the

3 person not contained in any previous re4 port;

5 ‘‘(ii) not later than 7 days after such date,

6 a report that—

7 ‘‘(I) summarizes the actions taken to

8 locate the person; and

9 ‘‘(II) sets forth any information relat10 ing to the whereabouts or status of the

11 person not contained in any previous re12 port;

13 ‘‘(iii) not later than 30 days after such

14 date, a report that—

15 ‘‘(I) summarizes the continuing ac16 tions to locate the person; and

17 ‘‘(II) sets forth any information on

18 the whereabouts or status of the person

19 that results from such actions; and

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

21 forth any other information that may be rel22 evant to the whereabouts or status of the per23 son.

24 ‘‘(b) INITIAL INQUIRY.—
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1 ‘‘(1) IN GENERAL.—Not later than 7 days after

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

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

4 officer having general court-martial authority over

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

6 of the armed forces, or the Secretary of the depart7 ment employing the person or contracting with the

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

9 employee of the Federal Government or contractor

10 of the Federal Government, shall appoint a board to

11 conduct an inquiry into the whereabouts and status

12 of the person.

13 ‘‘(2) SCOPE OF CERTAIN INQUIRIES.—If it ap14 pears to the official who appoints a board under this

15 subsection that the absence or missing status of two

16 or more persons is factually related, the official may

17 appoint one board under this subsection to conduct

18 the inquiry into the whereabouts or status of the

19 persons.

20 ‘‘(3) COMPOSITION.—

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

22 under this subsection shall consist of at least

23 one individual described in subparagraph (B)

24 who has experience with and understanding of

25 military operations or activities similar to the
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1 operation or activity in which the person or per2 sons disappeared.

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

4 referred to in subparagraph (A) is the follow5 ing:

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

7 an inquiry with respect to a member of the

8 armed forces.

9 ‘‘(ii) A civilian, in the case of an in10 quiry with respect to a civilian employee of

11 the Federal Government or contractor of

12 the Federal Government.

13 ‘‘(C) ACCESS TO CLASSIFIED INFORMA14 TION.—Each member of a board appointed for

15 an inquiry under this subsection shall have a

16 security clearance that affords the member ac17 cess to all information relating to the where18 abouts and status of the missing person or per19 sons covered by the inquiry.

20 ‘‘(4) ACTIVITIES.—A board appointed to con21 duct an inquiry into the whereabouts or status of a

22 missing person or persons under this subsection

23 shall—

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

25 facts and evidence relating to the disappear-
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1 ance, whereabouts, or status of the person or

2 persons;

3 ‘‘(B) collect appropriate documentation of

4 the facts and evidence covered by the investiga5 tion;

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

7 findings based on the analysis, and draw con8 clusions as to the current whereabouts and sta9 tus of the person or persons; and

10 ‘‘(D) recommend to the officer having gen11 eral court-martial authority over the person, in

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

13 armed forces, or the Secretary of the depart14 ment employing the person or contracting with

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

16 a civilian employee of the Federal Government

17 or contractor of the Federal Government,

18 that—

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

20 have a missing status; or

21 ‘‘(ii) the person or persons be declared

22 (I) to have deserted, (II) to be absent with23 out leave, or (III) to be dead.
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1 ‘‘(5) INQUIRY PROCEEDINGS.—During the pro2 ceedings of an inquiry under this subsection, a board

3 shall—

4 ‘‘(A) collect, record, and safeguard all clas5 sified and unclassified facts, documents, state6 ments, photographs, tapes, messages, maps,

7 sketches, reports, and other information relat8 ing to the whereabouts or status of the person

9 or persons covered by the inquiry;

10 ‘‘(B) gather facts and information relating

11 to actions taken to find the person or persons,

12 including any evidence of the whereabouts or

13 status of the person or persons that arises from

14 such actions; and

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

16 ‘‘(6) COUNSEL FOR MISSING PERSON.—

17 ‘‘(A) IN GENERAL.—The official who ap18 points a board to conduct an inquiry under this

19 subsection shall appoint counsel to represent

20 the person or persons covered by the inquiry.

21 ‘‘(B) QUALIFICATIONS.—An individual ap22 pointed as counsel under this paragraph shall—

23 ‘‘(i) meet the qualifications set forth

24 in section 827(b) of this title (article 27(b)
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1 of the Uniform Code of Military Justice);

2 and

3 ‘‘(ii) have a security clearance that af4 fords the individual access to all informa5 tion relating to the whereabouts or status

6 of the person or persons covered by the in7 quiry.

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

9 individual appointed as counsel under this para10 graph—

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

12 evidence considered by the board during

13 the proceedings under the inquiry for

14 which the counsel is appointed;

15 ‘‘(ii) shall observe all official activities

16 of the board during such proceedings;

17 ‘‘(iii) may question witnesses before

18 the board;

19 ‘‘(iv) shall monitor the deliberations of

20 the board; and

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

22 board under paragraph (9); and

23 ‘‘(vi) shall submit to the official who

24 appointed the board an independent review

25 of such report.
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1 ‘‘(D) TREATMENT OF REVIEW.—A review

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

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

4 made an official part of the record of the board

5 with respect to the inquiry.

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

7 of a board during an inquiry under this subsection

8 shall be closed to the public, including to any mem9 ber of the immediate family, dependent, primary

10 next of kin, or previously designated person of the

11 person or persons covered by the inquiry.

12 ‘‘(8) RECOMMENDATION ON STATUS.—

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

14 an inquiry into the whereabouts or status of a

15 person or persons under this subsection, a

16 board shall make a recommendation to the offi17 cial who appointed the board as to the current

18 whereabouts or status of the person or persons.

19 ‘‘(B) RECOMMENDATION OF STATUS AS

20 DEAD.—

21 ‘‘(i) IN GENERAL.—A board may not

22 recommend under subparagraph (A) that a

23 person or persons be declared dead unless

24 conclusive proof of the death of the person

25 or persons is established by the board.
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1 ‘‘(ii) DEFINITION.—In this subpara2 graph, the term ‘conclusive proof of death’,

3 in the case of a person or persons, means

4 evidence establishing that death is the only

5 plausible explanation for the absence of the

6 person or persons.

7 ‘‘(9) REPORT.—

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

9 under this subsection shall submit to the official

10 who appointed the board a report on the in11 quiry carried out by the board. Such report

12 shall include—

13 ‘‘(i) a discussion of the facts and evi14 dence considered by the board in the in15 quiry; and

16 ‘‘(ii) the recommendation of the board

17 under paragraph (8).

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

19 submit a report under this paragraph not later

20 than 45 days after the date of the first official

21 notice of the disappearance of the person or

22 persons covered by the inquiry described in the

23 report.

24 ‘‘(C) PUBLIC AVAILABILITY.—A report

25 submitted under this paragraph may not be
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1 made public until 1 year after the date referred

2 to in subparagraph (B).

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

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

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

6 board under paragraph (9), the official who ap7 pointed the board shall review—

8 ‘‘(i) the report; and

9 ‘‘(ii) the review submitted under para10 graph (6)(C)(vi) by the counsel for the per11 son or persons covered by the inquiry de12 scribed in the report.

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

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

15 official receiving the report shall determine

16 whether or not the report is complete and free

17 of administrative error.

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

19 under subparagraph (B) that a report is incom20 plete, or that a report is not free of administra21 tive error, the official may return the report to

22 the board for further action on the report by

23 the board.

24 ‘‘(D) DETERMINATION OF STATUS.—Upon

25 a determination by the official concerned that a
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1 report reviewed by the official under this para2 graph is complete and free of administrative

3 error, the official shall make a determination of

4 the status of the person or persons covered by

5 the report.

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

7 later than 90 days after the first official notice of

8 the disappearance of a person or persons, the official

9 who appoints a board of inquiry into the where10 abouts or status of the person or person under this

11 subsection shall—

12 ‘‘(A) provide an unclassified summary of

13 the report of the board to the members of the

14 immediate family, dependents, primary next of

15 kin, and previously designated persons of the

16 person or persons; and

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

18 subparagraph (A) that the Federal Government

19 will conduct a subsequent inquiry into the

20 whereabouts or status of the person or persons

21 not earlier than 1 year after the date of the

22 first official notice of the disappearance of the

23 person or persons, unless information becomes

24 available sooner that would result in a substan-
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1 tial change in the official status of the person

2 or persons.

3 ‘‘(12) ADDITIONAL INVESTIGATION.—

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

5 whereabouts or status of a person or persons

6 covered by an inquiry under this subsection be7 comes available within 1 year after the date of

8 the first official notice of the disappearance of

9 the person or persons, the official who ap10 pointed the board to inquire into the where11 abouts or status of the person or persons under

12 this subsection shall appoint an additional

13 board to conduct an inquiry into the informa14 tion

15 ‘‘(B) CONDUCT OF INQUIRY.—The ap16 pointment and activities of a board under this

17 paragraph shall be subject to the provisions of

18 this subsection.

19 ‘‘(c) SUBSEQUENT INQUIRY.—

20 ‘‘(1) REQUIREMENT.—

21 ‘‘(A) IN GENERAL.—If as a result of an in22 quiry under subsection (b) an official deter23 mines under paragraph (10)(D) of that sub24 section that a person or persons retain or be

25 placed in a missing status, the Secretary con-
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1 cerned shall appoint a board under this sub2 section to conduct an inquiry into the where3 abouts and status of the person or persons.

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

5 subsection, the term ‘Secretary concerned’

6 means the following:

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

8 armed forces, the Secretary of the military

9 department having jurisdiction over the

10 armed force of the member.

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

12 of the Federal Government or contractor

13 of the Government, the Secretary of the

14 department employing the employee or

15 contracting with the contractor, as the case

16 may be.

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

18 concerned shall appoint a board under this sub19 section to conduct an inquiry into the whereabouts

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

21 after the date of the first official notice of the dis22 appearance of the person or persons.

23 ‘‘(3) SCOPE OF CERTAIN INQUIRIES.—If it ap24 pears to the Secretary concerned that the absence or

25 status of two or more persons is factually related,
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1 the Secretary may appoint one board under this sub2 section to conduct the inquiry into the whereabouts

3 or status of the persons.

4 ‘‘(4) COMPOSITION.—

5 ‘‘(A) IN GENERAL.—Subject to subpara6 graphs (B) and (C), a board appointed under

7 this subsection shall consist of the following:

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

9 to inquire into the whereabouts or status

10 of a member or members of the armed

11 forces, not less than three officers having

12 a grade O–4 or higher.

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

14 to inquire into the whereabouts or status

15 of a civilian employee or employees of the

16 Federal Government or contractor of the

17 Government—

18 ‘‘(I) not less than three civilian

19 employees of the Federal Government

20 whose rate of annual pay is equal to

21 or greater than the rate of annual pay

22 payable for grade GS–13 of the Gen23 eral Schedule under section 5332 of

24 title 5; and
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1 ‘‘(II) such members of the armed

2 forces as the Secretary concerned and

3 the Secretary of Defense jointly deter4 mine advisable.

5 ‘‘(B) PRESIDENT OF BOARD.—The Sec6 retary concerned shall designate one member of

7 each board appointed under this subsection as

8 President of the board. The President shall

9 have a security clearance that affords the Presi10 dent access to all information relating to the

11 whereabouts and status of the person or per12 sons covered by the inquiry.

13 ‘‘(C) REQUIREMENTS FOR OTHER MEM14 BERS.—

15 ‘‘(i) ATTORNEY.—One member of

16 each board appointed under this subsection

17 shall be an attorney, or judge advocate,

18 who has expertise in the public law relating

19 to missing persons, the determination of

20 death of such persons, and the rights of

21 family members and dependents of such

22 persons.

23 ‘‘(ii) OCCUPATIONAL SPECIALIST.—

24 One member of each board appointed
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1 under this subsection shall be an individual

2 who has—

3 ‘‘(I) an occupational specialty

4 similar to that of one or more of the

5 persons covered by the inquiry; and

6 ‘‘(II) an understanding of and

7 expertise in the official activities of

8 one or more such persons at the time

9 such person or persons disappeared.

10 ‘‘(iii) EXPERT IN TRANSPORTATION.—

11 If the person or persons covered by an in12 quiry disappeared in transit, one member

13 of the board appointed for the inquiry shall

14 be an individual whose occupational spe15 cialty relates to the piloting, navigation, or

16 operation of the mode of transportation in

17 which the person or persons were travelling

18 at the time such person or persons dis19 appeared.

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

21 this subsection to conduct an inquiry into the where22 abouts or status of a person or persons shall—

23 ‘‘(A) review the report under paragraph

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

25 conduct the inquiry into the status or where-
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1 abouts of the person or persons under sub2 section (b) and the determination under para3 graph (10)(D) of that subsection of the official

4 who appointed the board under that subsection

5 as to the status of the person or persons;

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

7 facts, or other evidence with respect to the

8 whereabouts or status of the person or persons

9 that have become available since the completion

10 of the inquiry under subsection (b);

11 ‘‘(C) draw conclusions as to the where12 abouts or status of the person or persons;

13 ‘‘(D) determine on the basis of the activi14 ties under subparagraphs (A) and (B) whether

15 the status of the person or persons should be

16 continued or changed; and

17 ‘‘(E) issue a report to the Secretary con18 cerned describing the findings and conclusions

19 of the board, together with a recommendation

20 on the whereabouts or status of the person or

21 persons.

22 ‘‘(6) COUNSEL FOR MISSING PERSON OR PER23 SONS.—

24 ‘‘(A) IN GENERAL.—The Secretary who

25 appoints a board to conduct an inquiry under
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1 this subsection shall appoint counsel to rep2 resent the person or persons covered by the in3 quiry.

4 ‘‘(B) QUALIFICATIONS.—An individual ap5 pointed as counsel under this paragraph shall—

6 ‘‘(i) meet the qualifications set forth

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

8 of the Uniform Code of Military Justice);

9 and

10 ‘‘(ii) have a security clearance that af11 fords the individual access to all informa12 tion relating to the whereabouts or status

13 of the person or persons.

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

15 individual appointed as counsel under this para16 graph—

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

18 evidence considered by the board during

19 the proceedings under the inquiry for

20 which the counsel is appointed;

21 ‘‘(ii) shall observe all official activities

22 of the board during such proceedings;

23 ‘‘(iii) may question witnesses before

24 the board;
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1 ‘‘(iv) shall monitor the deliberations of

2 the board; and

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

4 board under paragraph (11); and

5 ‘‘(vi) shall submit to the Secretary

6 concerned an independent review of the

7 recommendation of the board under para8 graph (10).

9 ‘‘(D) TREATMENT OF REVIEW.—The re10 view of the report of a board on an inquiry that

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

12 be made an official part of the record of the

13 board with respect to the inquiry.

14 ‘‘(7) PARTICIPATION OF CERTAIN INTERESTED

15 PERSONS IN PROCEEDINGS.—

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

17 other provision of law, the members of the im18 mediate family, dependents, primary next of

19 kin, and previously designated persons of the

20 person or persons covered by an inquiry under

21 this subsection may participate at the proceed22 ings of the board during the inquiry.

23 ‘‘(B) NOTIFICATION OF PERSONS.—The

24 Secretary concerned shall notify the individuals

25 referred to in subparagraph (A) of the oppor-
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1 tunity to participate at the proceedings of a

2 board not later than 60 days before the first

3 meeting of the board.

4 ‘‘(C) RESPONSE.—An individual who re5 ceives notice under subparagraph (B) shall no6 tify the Secretary of the intent, if any, of the

7 individual to participate at the proceedings of a

8 board not later than 21 days after the date of

9 the individual’s receipt of the notice.

10 ‘‘(D) SCHEDULE AND LOCATION OF PRO11 CEEDINGS.—The Secretary shall, to the maxi12 mum extent practicable, provide that the sched13 ule and location of the proceedings of a board

14 under this subsection be established so as to be

15 convenient to the individuals who notify the

16 Secretary under subparagraph (C) of their in17 tent to participate at such proceedings.

18 ‘‘(E) MANNER OF PARTICIPATION.—Indi19 viduals who notify the Secretary under subpara20 graph (C) of their intent to participate at the

21 proceedings of a board—

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

23 entitlement to the pay or allowances (in24 cluding allotments) of a missing person

25 could be reduced or terminated as a result
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1 of a revision in the status of the missing

2 person, may attend the proceedings of the

3 board with private counsel;

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

5 file of the missing person, to unclassified

6 reports (if any) of the board appointed

7 under subsection (b) to conduct the inquiry

8 into the whereabouts and status of the per9 son, and to any other unclassified informa10 tion or documents relating to the where11 abouts and status of the person;

12 ‘‘(iii) shall be afforded the opportunity

13 to present information at the proceedings

14 that such individuals consider to be rel15 evant to the proceedings; and

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

17 shall be afforded the opportunity to submit

18 in writing objections to the recommenda19 tions of the board under paragraph (10) as

20 to the status of the missing person.

21 ‘‘(F) OBJECTIONS.—Objections to the rec22 ommendations of the board under subparagraph

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

24 the board not later than 24 hours after the date

25 on which such recommendations are made. The
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1 President shall include the objections in the re2 port of the board to the Secretary concerned

3 under paragraph (12).

4 ‘‘(G) PROHIBITION ON REIMBURSE5 MENT.—Individuals referred to in subparagraph

6 (A) who participate in the proceedings of a

7 board under this paragraph shall not be entitled

8 to reimbursement by the Federal Government

9 for any costs incurred by such individuals in at10 tending such proceedings, including travel, lodg11 ing, meals, local transportation, legal fees, tran12 scription costs, witness expenses, and other ex13 penses.

14 ‘‘(8) AVAILABILITY OF INFORMATION TO

15 BOARDS.—

16 ‘‘(A) IN GENERAL.—In conducting pro17 ceedings in an inquiry under this subsection, a

18 board may secure directly from any department

19 or agency of the Federal Government any infor20 mation that the members of the board consider

21 necessary in order to conduct the proceedings.

22 ‘‘(B) AUTHORITY TO RELEASE.—Upon

23 written request from the President of a board,

24 the head of a department or agency of the Fed25 eral Government shall release information cov-
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1 ered by the request to the board. In releasing

2 such information, the head of the department

3 or agency shall—

4 ‘‘(i) declassify to an appropriate de5 gree classified information; or

6 ‘‘(ii) release the information in a man7 ner not requiring the removal of markings

8 indicating the classified nature of the in9 formation.

10 ‘‘(C) TREATMENT OF CLASSIFIED INFOR11 MATION.—

12 ‘‘(i) RELEASE.—If a request for infor13 mation under subparagraph (B) covers

14 classified information that cannot be de15 classified, cannot be removed before release

16 from the information covered by the re17 quest, or cannot be summarized in a man18 ner that prevents the release of classified

19 information, the classified information

20 shall be made available only to the Presi21 dent of the board making the request and

22 the counsel for the missing person ap23 pointed under paragraph (6).

24 ‘‘(ii) USE IN PROCEEDINGS.—The

25 President of a board shall close to persons
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1 who do not have appropriate security clear2 ances the proceeding of the board at which

3 classified information is discussed. Partici4 pants at a proceeding of a board at which

5 classified information is discussed shall

6 comply with all applicable laws and regula7 tions relating to the disclosure of classified

8 information. The Secretary concerned shall

9 assist the President of a board in ensuring

10 that classified information is not com11 promised through board proceedings.

12 ‘‘(9) BOARD MEETINGS.—

13 ‘‘(A) IN GENERAL.—Subject to subpara14 graph (B), the proceedings of a board under

15 this subsection shall be open to the public.

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

17 board shall be closed to the public at the re18 quest of the following:

19 ‘‘(i) The counsel appointed under

20 paragraph (6) for the person or persons

21 covered by the proceeding.

22 ‘‘(ii) Any member of the immediate

23 family, dependent, primary next of kin, or

24 previously designated person of the person

25 or persons.
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1 ‘‘(iii) The Secretary who appointed

2 the board, but only if such Secretary deter3 mines that a proceeding open to the public

4 could jeopardize the health and well-being

5 of other missing persons or impair the ac6 tivities of the Federal Government to re7 cover missing persons in the theater of op8 erations or the area in which the missing

9 person or persons are thought to have dis10 appeared.

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

12 only for discussion of classified informa13 tion.

14 ‘‘(10) RECOMMENDATION ON STATUS.—

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

16 proceedings in an inquiry under this subsection,

17 a board shall make a recommendation as to the

18 current whereabouts or status of the missing

19 person or persons covered by the inquiry.

20 ‘‘(B) RECOMMENDATION OF DEAD STA21 TUS.—

22 ‘‘(i) IN GENERAL.—A board may not

23 recommend under subparagraph (A) that a

24 person or persons be declared dead un25 less—
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1 ‘‘(I) conclusive proof of death is

2 established by the board; and

3 ‘‘(II) in making the declaration,

4 the board complies with subsection

5 (f).

6 ‘‘(ii) DEFINITION.—In this subpara7 graph, the term ‘conclusive proof of death’,

8 in the case of a person or persons, means

9 evidence establishing that death is the only

10 plausible explanation for the absence of the

11 person or persons.

12 ‘‘(11) REPORT.—

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

14 under this subsection shall submit to the Sec15 retary concerned a report on the inquiry carried

16 out by the board, together with the evidence

17 considered by the board during the inquiry.

18 ‘‘(B) CLASSIFIED ANNEX.—The report

19 may include a classified annex.

20 ‘‘(12) ACTIONS BY SECRETARY.—

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

22 after the receipt of a report from a board under

23 paragraph (11), the Secretary concerned shall

24 review—

25 ‘‘(i) the report;
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1 ‘‘(ii) the review submitted to the Sec2 retary under paragraph (6)(C)(vi) by the

3 counsel for the person or persons covered

4 by the report; and

5 ‘‘(iii) the objections, if any, to the re6 port submitted to the President of the

7 board under paragraph (7)(F).

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

9 report, review, and objections under subpara10 graph (A), the Secretary shall determine wheth11 er or not the report is complete and free of ad12 ministrative error.

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

14 determines under subparagraph (B) that a re15 port is incomplete, or that a report is not free

16 of administrative error, the Secretary may re17 turn the report to the board for further action

18 on the report by the board.

19 ‘‘(D) DETERMINATION OF STATUS.—Upon

20 a determination by the Secretary that a report

21 reviewed by the Secretary under this paragraph

22 is complete and free of administrative error, the

23 Secretary shall make a determination of the

24 status of the person or persons covered by the

25 report.
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1 ‘‘(13) REPORT TO INTERESTED PERSONS.—Not

2 later than 90 days after a board submits a report

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

4 Secretary concerned shall—

5 ‘‘(A) provide an unclassified summary of

6 the report to the members of the immediate

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

8 and the previously designated persons of the

9 person or persons covered by the report; and

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

11 who continue to be in missing status, inform

12 the members, dependents, kin, and persons of

13 the person or persons that the Federal Govern14 ment will conduct a further investigation into

15 the whereabouts or status of the person or per16 sons not later than 3 years after the date of the

17 official notice of the disappearance of the per18 son or persons, unless information becomes

19 available within that time that would result in

20 a substantial change in the official status of the

21 person or persons.

22 ‘‘(14) RECONVENING OF BOARD.—

23 ‘‘(A) IN GENERAL.—If the Secretary con24 cerned recommends that a person or persons

25 continue in missing status, or that a missing
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1 person previously declared dead be given a

2 missing status, the Secretary shall reconvene

3 the board when information becomes available

4 that would directly lead to a determination of

5 status of the missing person or persons.

6 ‘‘(B) CONDUCT OF PROCEEDINGS.—The

7 provisions of this subsection shall apply to the

8 activities of a board convened under this para9 graph.

10 ‘‘(d) FURTHER REVIEW.—

11 ‘‘(1) SUBSEQUENT REVIEW.—

12 ‘‘(A) IN GENERAL.—The Secretary con13 cerned shall appoint a board to conduct an in14 quiry into the whereabouts or status of any per15 son or persons determined by the Secretary

16 under subsection (c)(12)(D) to be a person or

17 persons in missing status.

18 ‘‘(B) FREQUENCY OF APPOINTMENT.—

19 Subject to subparagraph (C), the Secretary

20 shall appoint a board to conduct an inquiry

21 with respect to a person or persons under this

22 paragraph—

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

24 of the official notice of the disappearance

25 of the person or persons; and
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1 ‘‘(ii) not later than every 3 years

2 thereafter.

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

4 shall not be required to appoint a board under

5 this paragraph more than 12 years after the

6 end of the time of war or emergency or period

7 of hostilities in which the missing person or

8 persons disappeared.

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

10 Upon receipt of information that could result in a

11 change or revision of status of a missing person or

12 persons, the Secretary concerned shall appoint a

13 board to evaluate the information and make a rec14 ommendation as to the status of the person or per15 sons to which the information relates.

16 ‘‘(3) CONDUCT OF PROCEEDINGS.—The ap17 pointment of and activities before a board appointed

18 under this subsection shall be governed by the provi19 sions of subsection (c).

20 ‘‘(e) PERSONNEL FILES.—

21 ‘‘(1) INFORMATION IN FILES.—Except as pro22 vided in paragraph (2), the Secretary of the depart23 ment having jurisdiction over a missing person at

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

25 maximum extent practicable, ensure that the person-
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1 nel file of the person contains all information in the

2 possession of the Federal Government relating to the

3 disappearance and whereabouts or status of the per4 son.

5 ‘‘(2) CLASSIFIED INFORMATION.—

6 ‘‘(A) AUTHORITY TO WITHHOLD.—The

7 Secretary concerned may withhold classified in8 formation from a personnel file under this sub9 section.

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

11 Secretary concerned withholds classified infor12 mation from the personnel file of a person, the

13 Secretary shall ensure that the file contains the

14 following:

15 ‘‘(i) A notice that the withheld infor16 mation exists.

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

18 recent review of the classification of the

19 withheld information.

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

21 who knowingly and willfully withholds from the per22 sonnel file of a missing person any information

23 (other than classified information) relating to the

24 disappearance or whereabouts or status of a missing
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1 person shall be fined as provided in title 18, or im2 prisoned not more than 1 year, or both.

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

4 Secretary concerned shall, upon request, make avail5 able the contents of the personnel file of a missing

6 person to members of the immediate family, depend7 ents, primary next of kin, or previously designated

8 person of the person.

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

10 ‘‘(1) REQUIREMENTS RELATING TO REC11 OMMENDATION.—A board appointed under sub12 section (c) or (d) may not recommend that a person

13 be declared dead unless—

14 ‘‘(A) evidence (other than the passage of a

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

16 suggest that the person is dead;

17 ‘‘(B) the Federal Government possesses no

18 evidence that reasonably suggests that the per19 son is alive;

20 ‘‘(C) representatives of the Federal Gov21 ernment have made a complete search of the

22 area where the person was last seen (unless,

23 after making every good faith effort to obtain

24 access to such area, such representatives are

25 not granted such access); and
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1 ‘‘(D) representatives of the Federal Gov2 ernment have examined the records of the gov3 ernment or entity having control over the area

4 where the person was last seen (unless, after

5 making every good faith effort to obtain access

6 to such records, such representatives are not

7 granted such access).

8 ‘‘(2) SUBMITTAL OF INFORMATION ON

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

10 or (d) makes a recommendation that a missing per11 son be declared dead, the board shall include in the

12 report of the board with respect to the person under

13 such subsection (c) or (d) the following:

14 ‘‘(A) A detailed description of the location

15 where the death occurred.

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

17 death occurred.

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

19 body, if recovered.

20 ‘‘(D) If the body has been recovered, a cer21 tification by a licensed practitioner of forensic

22 medicine that the body recovered is that of the

23 missing person.

24 ‘‘(g) JUDICIAL REVIEW.—

25 ‘‘(1) IN GENERAL.—
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1 ‘‘(A) JUDICIAL REVIEW.—A person re2 ferred to in subparagraph (B) may obtain re3 view of a finding described in subparagraph (C)

4 by the court of appeals of the United States for

5 the circuit in which the person resides or in

6 which the finding was made.

7 ‘‘(B) AVAILABILITY OF REVIEW.—Sub8 paragraph (A) applies to any of the following

9 persons with respect to a missing person sub10 ject to a finding described in subparagraph (C):

11 ‘‘(i) A member of the immediate fam12 ily of the person.

13 ‘‘(ii) A dependent of the person.

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

15 person.

16 ‘‘(iv) A person previously designated

17 by the person.

18 ‘‘(C) COVERED FINDINGS.—Subparagraph

19 (A) applies to the following findings:

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

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

22 person is dead.

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

24 under subsection (h) that confirms that a
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•S 2411 IS

1 missing person formerly declared dead is in

2 fact dead.

3 ‘‘(D) COMMENCEMENT OF REVIEW.—A

4 person referred to in subparagraph (B) shall re5 quest review of a finding under this paragraph

6 by filing with the appropriate court a written

7 petition requesting that the finding be set aside.

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

9 decision of the court of appeals on a petition for re10 view under paragraph (1) shall be final, except that

11 it shall be subject to review by the Supreme Court

12 upon certiorari, as provided in section 1254 of title

13 28.

14 ‘‘(3) ADDITIONAL REVIEW.—

15 ‘‘(A) IN GENERAL.—Subject to subpara16 graph (B), upon request by a person referred to

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

18 shall appoint a board to review the status of a

19 person covered by a finding described in para20 graph (1)(C) if the court of appeals sets aside

21 the finding and—

22 ‘‘(i) the time allowed for filing a peti23 tion for certiorari has expired and no such

24 petition has been duly filed;
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1 ‘‘(ii) the petition for certiorari has

2 been denied; or

3 ‘‘(iii) the decision of the court of ap4 peals has been affirmed by the Supreme

5 Court.

6 ‘‘(B) DELIMITING DATE.—A person re7 ferred to in subparagraph (A) shall make a re8 quest referred to in that subparagraph not later

9 than 3 years after the date of the event under

10 that subparagraph that entitles the person to

11 request the appointment of a board.

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

13 ‘‘(1) REVIEW OF STATUS.—

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

15 after the date of the enactment of the Missing

16 Service Personnel Act of 1994, a person re17 ferred to in subparagraph (B) may submit to

18 the appropriate Secretary a request for appoint19 ment by the Secretary of a board to review the

20 status of a person previously declared dead.

21 ‘‘(B) AVAILABILITY.—A board shall be ap22 pointed under this paragraph based on the re23 quest of any of the following persons:
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1 ‘‘(i) An adult member of the imme2 diate family of a person previously declared

3 dead.

4 ‘‘(ii) An adult dependent of such per5 son.

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

7 person.

8 ‘‘(iv) A person previously designated

9 by such person.

10 ‘‘(C) APPROPRIATE SECRETARY.—A re11 quest under this paragraph shall be submitted

12 to the Secretary of the department of the Fed13 eral Government that had jurisdiction over the

14 person covered by the request at the time of the

15 person’s disappearance.

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

17 of a person under paragraph (1), the Secretary con18 cerned shall appoint a board to review the status of

19 the person covered by the request.

20 ‘‘(3) ACTIVITIES OF BOARD.—A board ap21 pointed under paragraph (2) to review the status of

22 a person shall—

23 ‘‘(A) conduct an investigation to determine

24 the status of the person; and
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1 ‘‘(B) issue a report describing the findings

2 of the board under the investigation and the

3 recommendations of the board as to the status

4 of the person.

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

6 concerned is apprised of any information which

7 would directly lead to a determination of the status

8 of a missing person, the Secretary shall reconvene a

9 board to consider the information.

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

11 board appointed under this subsection recommends

12 placing a person previously declared dead in a miss13 ing status such person shall accrue no pay or allow14 ances as a result of the placement of the person in

15 such status.

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

17 OR DEAD.—

18 ‘‘(1) PAY AND ALLOWANCES.—Any person in a

19 missing status or declared dead under the Missing

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

21 appointed under this section who is found alive and

22 returned to the control of the United States shall be

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

24 while given that status or declared dead under the
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1 law and regulations relating to the pay and allow2 ances of persons returning from a missing status.

3 ‘‘(2) EFFECT ON GRATUITIES PAID AS A RE4 SULT OF STATUS.—Paragraph (1) shall not be inter5 preted to invalidate or otherwise affect the receipt by

6 any person of a death gratuity or other payment

7 from the United States on behalf of a person re8 ferred to in paragraph (1) before the date of the en9 actment of the Missing Service Personnel Act of

10 1994.

11 ‘‘(j) EFFECT ON STATE LAW.—Nothing in this sec12 tion shall be construed to invalidate or limit the power

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

14 of any court or administrative entity of any political sub15 division thereof, to find or declare a person dead for pur16 poses of the such State or political subdivision.

17 ‘‘(k) DEFINITIONS.—In this section:

18 ‘‘(1) The term ‘classified information’ means

19 any information the unauthorized disclosure of

20 which (as determined under applicable law and regu21 lations) could reasonably be expected to damage the

22 national security.

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

24 missing person, mean any individual who would, but

25 for the status of the person, be entitled to receive
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1 the pay and allowances (including allotments) of the

2 person.

3 ‘‘(3) The term ‘member of the immediate fam4 ily’, in the case of a missing person, means the

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

6 of the missing person.

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

8 ‘‘(A) a member of the armed forces on ac9 tive duty who is missing; or

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

11 accompanying an armed force under orders who

12 is missing.

13 ‘‘(6) The term ‘missing status’ means the sta14 tus of a missing person who is determined to be ab15 sent in a status of—

16 ‘‘(A) missing;

17 ‘‘(B) missing in action;

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

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

20 a hostile force; or

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

22 his or her will.

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

24 of a missing person, means—
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1 ‘‘(A) the principal individual who, but for

2 the status of the person, would receive financial

3 support from the person; or

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

5 whom there is no individual meeting the re6 quirement of subparagraph (A), the family

7 member or other individual designated by the

8 missing person to receive death gratuities.

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

10 the case of a missing person, means an individual

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

12 immediate family of the missing person) designated

13 by the missing person as the individual to be notified

14 of all matters relating to the status of the missing

15 person.

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

17 District of Columbia, the Commonwealth of Puerto

18 Rico, and any territory or possession of the United

19 States.’’.

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

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

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

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

death; personnel files.’’.

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

24 555 of title 37, United States Code, is repealed.
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1 (B) The table of sections at the beginning of chapter

2 10 of such title is amended by striking out the item relat3 ing to section 555.

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

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

6 following paragraph (2) in subsection (a), by strik7 ing out ‘‘for all purposes,’’ and all that follows

8 through the end of the sentence and inserting in lieu

9 thereof ‘‘for all purposes.’’;

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

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

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

13 1060a of title 10.’’; and

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

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

16 10’’.

17 (3) Section 553 of such title is amended—

18 (A) in subsection (f), by inserting ‘‘under sec19 tion 1060a of title 10’’ after ‘‘When the Secretary

20 concerned’’;

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

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

23 board convened under section 1060a of title 10 re24 ports’’; and
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1 (C) in subsection (g), by striking out ‘‘section

2 555 of this title’’ and inserting ‘‘section 1060a of

3 title 10’’.

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

5 (A) in subsection (a)—

6 (i) by inserting ‘‘and’’ at the end of para7 graph (3);

8 (ii) by striking out the semicolon at the

9 end of paragraph (4) and inserting in lieu

10 thereof a period; and

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

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

13 and (4) as paragraphs (1), (2), and (3), respec14 tively;

15 (B) by striking out subsection (b) and redesig16 nating subsections (c), (d), (e), (f), (g), and (h) as

17 subsections (b), (c), (d), (e), (f), and (g), respec18 tively; and

19 (C) in subsection (g), as so redesignated—

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

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

22 ‘‘pay’’.

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

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

25 ‘‘and 553’’.
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1 (6) Section 559(b)(4)(B) of such title is amended by

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

3 ‘‘section 556(e)’’.

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