II 

114TH CONGRESS 

2D SESSION S. 3448 

To provide for the creation of the Missing Armed Forces Personnel Records 

Collection at the National Archives, to require the expeditious public 

transmission to the Archivist and public disclosure of Missing Armed 

Forces Personnel records, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 28, 2016 

Ms. AYOTTE introduced the following bill; which was read twice and referred 

to the Committee on Homeland Security and Governmental Affairs 

A BILL 

To provide for the creation of the Missing Armed Forces 

Personnel Records Collection at the National Archives, 

to require the expeditious public transmission to the Archivist and public disclosure of Missing Armed Forces 

Personnel records, 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 ‘‘Bring Our Heroes 

5 Home Act of 2016’’. 


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1 SEC. 2. FINDINGS, DECLARATIONS, AND PURPOSES. 

2 (a) FINDINGS AND DECLARATIONS.—Congress finds 

3 and declares the following: 

4 (1) A vast number of records relating to Miss5 ing Armed Forces Personnel have not been identi6 fied, located, or transferred to the National Archives 

7 for review and declassification. Only in the rarest 

8 cases is there any legitimate need for continued pro9 tection of records pertaining to Missing Armed 

10 Forces Personnel who have been missing for dec11 ades. 

12 (2) There has been insufficient priority placed 

13 on identifying, locating, transferring, reviewing, or 

14 declassifying records relating to Missing Armed 

15 Forces Personnel. 

16 (3) Mandates for declassification set forth in 

17 multiple Executive orders have been broadly written, 

18 loosely interpreted, and often ignored by Federal 

19 Government officials in possession and control of 

20 records related to Missing Armed Forces Personnel. 

21 (4) No individual or entity has been tasked with 

22 oversight of the identification, collection, review, and 

23 declassification of records related to Missing Armed 

24 Forces Personnel. 

25 (5) The interest, desire, workforce, and funding 

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1 sify records relating to Missing Armed Forces Per2 sonnel have been lacking. 

3 (6) All records of the Federal Government re4 lating to Missing Armed Forces Personnel should be 

5 preserved for historical and governmental purposes. 

6 (7) All records of the Federal Government re7 lating Missing Armed Forces Personnel should carry 

8 a presumption of immediate disclosure, and all such 

9 records should be disclosed under this Act to enable 

10 the fullest possible accounting for Missing Armed 

11 Forces Personnel. 

12 (8) Legislation is necessary to create an en13 forceable, independent, and accountable process for 

14 the public disclosure of records relating to Missing 

15 Armed Forces Personnel. 

16 (9) Legislation is necessary because section 552 

17 of title 5, United States Code (commonly known as 

18 the Freedom of Information Act), as implemented by 

19 the executive branch of the Federal Government, has 

20 prevented the timely public disclosure of records re21 lating to Missing Armed Forces Personnel. 

22 (b) PURPOSES.—The purposes of this Act are— 

23 (1) to provide for the creation of the Missing 

24 Armed Forces Personnel Records Collection at the 

25 National Archives; and 


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1 (2) to require the expeditious public trans2 mission to the Archivist and public disclosure of 

3 Missing Armed Forces Personnel records. 

4 SEC. 3. DEFINITIONS. 

5 In this Act: 

6 (1) ARCHIVIST.—The term ‘‘Archivist’’ means 

7 Archivist of the United States. 

8 (2) COLLECTION.—The term ‘‘Collection’’ 

9 means the Missing Armed Forces Personnel Records 

10 Collection established under section 4(a). 

11 (3) EXECUTIVE AGENCY.—The term ‘‘Executive 

12 agency’’— 

13 (A) means an agency, as defined in section 

14 552(f) of title 5, United States Code; and 

15 (B) includes any Executive department, 

16 military department, Government corporation, 

17 Government controlled corporation, or other es18 tablishment in the executive branch of the Fed19 eral Government, including the Executive Office 

20 of the President, any branch of the Armed 

21 Forces, and any independent regulatory agency. 

22 (4) EXECUTIVE BRANCH MISSING ARMED

23 FORCES PERSONNEL RECORD.—The term ‘‘executive 

24 branch Missing Armed Forces Personnel record’’ 

25 means a Missing Armed Forces Personnel record of 


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1 an Executive agency, or information contained in 

2 such a Missing Armed Forces Personnel record ob3 tained or developed solely within the executive 

4 branch of the Federal Government. 

5 (5) GOVERNMENT OFFICE.—The term ‘‘Govern6 ment office’’ means a department or agency within 

7 the executive branch of the Federal Government, the 

8 Library of Congress, and the National Archives. 

9 (6) IDENTIFICATION AID.—The term ‘‘identi10 fication aid’’ means the standard form prepared 

11 under section 5(d)(1)(A). 

12 (7) MISSING ARMED FORCES PERSONNEL.—The 

13 term ‘‘Missing Armed Forces Personnel’’ means one 

14 or more ‘‘missing persons’’ as defined in section 

15 1513 of title 10, United States Code. 

16 (8) MISSING ARMED FORCES PERSONNEL

17 RECORD.—The term ‘‘Missing Armed Forces Per18 sonnel record’’ means a record that relates, directly 

19 or indirectly, to the loss, fate, or status of Missing 

20 Armed Forces Personnel that was created or made 

21 available for use by, obtained by, or otherwise came 

22 into the custody, possession, or control of— 

23 (A) any Government office; 

24 (B) any Presidential library; or 

25 (C) any of the Armed Forces. 


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1 (9) NATIONAL ARCHIVES.—The term ‘‘National 

2 Archives’’— 

3 (A) means the National Archives and 

4 Records Administration; and 

5 (B) includes— 

6 (i) any component of the National Ar7 chives and Records Administration; and 

8 (ii) a Presidential archival depository 

9 established under section 2112 of title 44, 

10 United States Code. 

11 (10) OFFICIAL INVESTIGATION.—The term ‘‘of12 ficial investigation’’ means a review, briefing, or 

13 hearing relating to Missing Armed Forces Personnel 

14 conducted by a Presidential commission, committee 

15 of Congress, or agency, regardless of whether it is 

16 conducted independently, at the request of any Pres17 idential commission or committee of Congress, or at 

18 the request of any official of the Federal Govern19 ment. 

20 (11) ORIGINATING BODY.—The term ‘‘origi21 nating body’’ means the Government office that cre22 ated a record or particular information within a 

23 record. 

24 (12) PUBLIC INTEREST.—The term ‘‘public in25 terest’’ means the compelling interest in the prompt 


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1 public disclosure of Missing Armed Forces Personnel 

2 records for historical and governmental purposes 

3 and for the purpose of fully informing the people of 

4 the United States, most importantly families of 

5 Missing Armed Forces Personnel, about the fate of 

6 the Missing Armed Forces Personnel and the proc7 ess by which the Federal Government has sought to 

8 account for them. 

9 (13) RECORD.—The term ‘‘record’’ includes a 

10 book, paper, map, photograph, sound or video re11 cording, machine readable material, computerized, 

12 digitized, or electronic information, regardless of the 

13 medium on which it is stored, and other documen14 tary material, regardless of its physical form or 

15 characteristics. 

16 (14) REVIEW BOARD.—The term ‘‘Review 

17 Board’’ means the Missing Armed Forces Personnel 

18 Records Review Board established under section 7. 

19 (15) THIRD AGENCY.—The term ‘‘third agen20 cy’’ means a Government office that originated a 

21 Missing Armed Forces Personnel record that is in 

22 the custody, possession, or control of another Gov23 ernment office whose review and authorization is re24 quired before a record can be designated for disclo25 sure. 


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1 SEC. 4. MISSING ARMED FORCES PERSONNEL RECORDS 

2 COLLECTION AT THE NATIONAL ARCHIVES. 

3 (a) ESTABLISHMENT OF COLLECTION.—Not later 

4 than 60 days after the date of enactment of this Act, the 

5 National Archives shall commence establishment of a col6 lection of records to be known as the Missing Armed 

7 Forces Personnel Records Collection. 

8 (b) REGULATIONS.— 

9 (1) IN GENERAL.—Not later than 180 days 

10 after the date of enactment of this Act, the Review 

11 Board shall promulgate rules to establish guidelines 

12 and processes for the maintenance of the Collection. 

13 (2) REQUIREMENTS.—The rules required to be 

14 promulgated under paragraph (1) shall include 

15 guidelines and processes for— 

16 (A) transmission of records for inclusion in 

17 the Collection; 

18 (B) disclosure of records contained in the 

19 Collection; 

20 (C) fees for copying of records contained in 

21 the Collection; and 

22 (D) availability and security of records 

23 contained in the Collection. 


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1 SEC. 5. REVIEW, IDENTIFICATION, TRANSMISSION TO THE 

2 NATIONAL ARCHIVES, AND PUBLIC DISCLO3 SURE OF MISSING ARMED FORCES PER4 SONNEL RECORDS BY GOVERNMENT OF5 FICES. 

6 (a) IN GENERAL.— 

7 (1) PREPARATION.—As soon as practicable 

8 after the date of enactment of this Act, and suffi9 ciently in advance of the deadlines established under 

10 this Act, each Government office shall— 

11 (A) identify, locate, and organize any Miss12 ing Armed Forces Personnel records in the cus13 tody, possession, or control of the Government 

14 office; and 

15 (B) prepare for transmission to the Archi16 vist any Missing Armed Forces Personnel 

17 records that have not previously been trans18 mitted to the Archivist by the Government of19 fice. 

20 (2) CERTIFICATION.—Each Government office 

21 shall submit to the Archivist, under penalty of per22 jury, a certification indicating— 

23 (A) whether the Government office has 

24 conducted a thorough search for all Missing 

25 Armed Forces Personnel records in the custody, 


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1 possession, or control of the Government office; 

2 and 

3 (B) whether any Missing Armed Forces 

4 Personnel record has been withheld by the of5 fice, other than in accordance with this Act. 

6 (3) PRESERVATION.—No Missing Armed 

7 Forces Personnel record shall be destroyed, altered, 

8 or mutilated in any way. 

9 (4) EFFECT OF PREVIOUS DISCLOSURE.—A 

10 Missing Armed Forces Personnel record made avail11 able or disclosed to the public before the date of en12 actment of this Act may not be withheld, redacted, 

13 postponed for public disclosure, or reclassified. 

14 (5) NON-FEDERAL RECORDS.—Except for the 

15 exclusion of names or identities in accordance with 

16 section 6, a Missing Armed Forces Personnel record 

17 created by an individual or entity that is not part of 

18 the Federal Government may not be withheld, re19 dacted, postponed for public disclosure, or reclassi20 fied. 

21 (6) WITHHELD RECORDS.—For any Missing 

22 Armed Forces Personnel record that is withheld by 

23 a Government office from the Archivist or the Re24 view Board, the head of the Government office shall 

25 submit an unclassified report to the Review Board 


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1 and each appropriate committee of the Senate and 

2 the House of Representatives explaining the decision 

3 to withhold the record. 

4 (b) CUSTODY OF MISSING ARMED FORCES PER5 SONNEL RECORDS PENDING REVIEW.—During the period 

6 during which a Missing Armed Forces Personnel record 

7 is being reviewed by a Government office and any review 

8 activity by the Review Board relating to the Missing 

9 Armed Forces Personnel record is pending, the Govern10 ment office shall retain custody of the Missing Armed 

11 Forces Personnel record for purposes of preservation, se12 curity, and efficiency, unless— 

13 (1) the Review Board requires the physical 

14 transfer of the Missing Armed Forces Personnel 

15 record for purposes of conducting an independent 

16 and impartial review; or 

17 (2) transfer is necessary for an administrative 

18 hearing or other Review Board function. 

19 (c) REVIEW.— 

20 (1) IN GENERAL.—Not later than 180 days 

21 after the date of enactment of this Act, each Gov22 ernment office shall, in accordance with the rules 

23 promulgated under paragraph (2)— 

24 (A) identify, locate, review, and organize 

25 each Missing Armed Forces Personnel record in 


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1 the custody, possession, or control of the Gov2 ernment office for transmission to the Archivist 

3 and disclosure to the public or, if needed, re4 view by the Review Board; and 

5 (B) identify and review for public disclo6 sure each Missing Armed Services Personnel 

7 record previously transferred to the National 

8 Archives that remains classified in whole or in 

9 part. 

10 (2) REQUIREMENT.—The Review Board shall 

11 promulgate rules for the disclosure of relevant 

12 records by Government offices under paragraph (1). 

13 (3) PRESIDENTIAL ARCHIVAL DEPOSITORIES.— 

14 The Director of each Presidential archival depository 

15 established under section 2112 of title 44, United 

16 States Code, shall— 

17 (A) have as a priority the expedited review 

18 for public disclosure of Missing Armed Forces 

19 Personnel records in the custody, possession, or 

20 control of the depository; and 

21 (B) make Missing Armed Forces Personnel 

22 records available to the Review Board as re23 quired under this Act. 


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1 (4) NATIONAL ARCHIVES RECORDS.—Not later 

2 than 60 days after the date of enactment of this 

3 Act, the Archivist shall— 

4 (A) locate and identify all Missing Armed 

5 Forces Personnel records in the custody, pos6 session, or control of the National Archives that 

7 remain classified, in whole or in part; 

8 (B) notify a Government office if the Ar9 chivist locates and identifies a record of the 

10 Government office under subparagraph (A); and 

11 (C) make each Missing Armed Forces Per12 sonnel record located and identified under sub13 paragraph (A) available for review by the origi14 nating body. 

15 (d) IDENTIFICATION AIDS.— 

16 (1) PREPARATION.— 

17 (A) IN GENERAL.—Not later than 45 days 

18 after the date of enactment of this Act, the Ar19 chivist, in consultation with the appropriate 

20 Government offices, shall prepare and make 

21 available to all Government offices a standard 

22 form for collecting information relating to each 

23 Missing Armed Forces Personnel record subject 

24 to review under this Act. 


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1 (B) COMPATIBILITY.—The Archivist shall 

2 prepare and make available identification aids 

3 in a manner that results in a uniform and com4 patible system of electronic records for use by 

5 Government offices. 

6 (2) USE.—Upon completion of an identification 

7 aid, a Government office shall— 

8 (A) attach a printed copy to the record to 

9 which the identification aid relates; 

10 (B) transmit to the Review Board a print11 ed copy of the identification aid; and 

12 (C) attach a printed copy to each Missing 

13 Armed Forces Personnel record described in the 

14 identification aid when the Missing Armed 

15 Forces Personnel record is transmitted to the 

16 Archivist. 

17 (3) RECORDS ALREADY PUBLIC.—A Missing 

18 Armed Forces Personnel record that is in the cus19 tody, possession, or control of the National Archives 

20 on the date of enactment of this Act, and that has 

21 been publicly available in its entirety without redac22 tion— 

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1 view Board or another Government office under 

2 this Act; and 

3 (B) shall not be required to have an identi4 fication aid, unless required by the Archivist. 

5 (e) TRANSMISSION TO THE NATIONAL ARCHIVES.— 

6 Each Government office shall— 

7 (1) not later than 180 days after the date of 

8 enactment of this Act, transmit to the Archivist, and 

9 make available to the public, all Missing Armed 

10 Forces Personnel records in the custody, possession 

11 or control of the Government office that may be 

12 publicly disclosed under the standards under this 

13 Act, including those that are publicly available on 

14 the date of enactment of this Act, without any re15 daction, adjustment, or withholding; and 

16 (2) transmit to the Archivist upon approval for 

17 postponement by the Review Board or upon comple18 tion of other action authorized by this Act, all Miss19 ing Armed Forces Personnel records the public dis20 closure of which has been postponed, in whole or in 

21 part, under the standards under this Act, to become 

22 part of the protected Collection. 

23 (f) CUSTODY OF POSTPONED MISSING ARMED SERV24 ICES PERSONNEL RECORDS.—A Missing Armed Forces 

25 Personnel record the public disclosure of which has been 


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1 postponed under the standards under this Act shall, pend2 ing transmission to the Archivist, be held for reasons of 

3 security and preservation by the originating body until 

4 such time as an information security program has been 

5 established at the National Archives. 

6 (g) PERIODIC REVIEW OF POSTPONED MISSING

7 ARMED SERVICES PERSONNEL RECORDS.— 

8 (1) IN GENERAL.—All Missing Armed Forces 

9 Personnel records, or information within a Missing 

10 Armed Forces Personnel record, the public disclo11 sure of which has been postponed under the stand12 ards under this Act shall be reviewed periodically by 

13 the originating body and by the Archivist consistent 

14 with the recommendations of the Review Board 

15 under section 9(c)(3)(B). 

16 (2) CONTENTS.— 

17 (A) IN GENERAL.—A periodic review of a 

18 Missing Armed Forces Personnel record, or in19 formation within a Missing Armed Forces Per20 sonnel record, by the originating body shall ad21 dress the public disclosure of the Missing 

22 Armed Forces Personnel record under the 

23 standards under this Act. 

24 (B) CONTINUED POSTPONEMENT.—If an 

25 originating body conducting a periodic review of 


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1 a Missing Armed Forces Personnel record, or 

2 information within a Missing Armed Forces 

3 Personnel record, the public disclosure of which 

4 has been postponed under the standards under 

5 this Act determines that continued postpone6 ment is required, the originating body shall pro7 vide to the Archivist and publish in the Federal 

8 Register an unclassified written description of 

9 the reason for the continued postponement. 

10 (C) SCOPE.—The periodic review of post11 poned Missing Armed Forces Personnel records, 

12 or information within a Missing Armed Forces 

13 Personnel record, shall serve the purpose stated 

14 in section 2(b)(2), to provide expeditious public 

15 disclosure of Missing Armed Forces Personnel 

16 records, to the fullest extent possible, subject 

17 only to the grounds for postponement of disclo18 sure under section 6. 

19 (D) DISCLOSURE ABSENT CERTIFICATION

20 BY PRESIDENT.—Not later than 5 years after 

21 the date of enactment of this Act, all Missing 

22 Armed Forces Personnel records, and informa23 tion within a Missing Armed Forces Personnel 

24 record, shall be publicly disclosed in full, and 


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1 available in the Collection, unless the President 

2 submits to the Archivist a certification that— 

3 (i) continued postponement is nec4 essary because of an identifiable harm to 

5 the military defense, intelligence oper6 ations, or conduct of foreign relations; and 

7 (ii) the identifiable harm is of such 

8 gravity that it outweighs the public inter9 est in disclosure. 

10 (h) FEES FOR COPYING.—An Executive agency— 

11 (1) shall charge a fee for copying Missing 

12 Armed Forces Personnel records; and 

13 (2) may grant a waiver of such a fee in a man14 ner in accordance with the standards established by 

15 the head of the Executive agency for purposes of 

16 section 552(a)(4) of title 5, United States Code. 

17 SEC. 6. GROUNDS FOR POSTPONEMENT OF PUBLIC DISCLO18 SURE OF RECORDS. 

19 Disclosure to the public of a Missing Armed Forces 

20 Personnel record or particular information in a Missing 

21 Armed Forces Personnel record may be postponed subject 

22 to the limitations under this Act if there is clear and con23 vincing evidence that— 

24 (1) the threat to the military defense, intel25 ligence operations, or conduct of foreign relations of 


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1 the United States posed by the public disclosure of 

2 the Missing Armed Forces Personnel record or infor3 mation is of such gravity that it outweighs the pub4 lic interest, and such public disclosure would re5 veal— 

6 (A) an intelligence agent whose identity re7 quires continued protection; 

8 (B) an intelligence source or method— 

9 (i) which is in use, or reasonably ex10 pected to be used, by the Federal Govern11 ment; 

12 (ii) which has not been officially dis13 closed; and 

14 (iii) the disclosure of which would 

15 interfere with the conduct of intelligence 

16 activities; or 

17 (C) any other matter relating to the cur18 rent military defense, intelligence operations, or 

19 conduct of foreign relations of the United 

20 States, the disclosure of which would demon21 strably impair the national security of the 

22 United States; 

23 (2) the public disclosure of the Missing Armed 

24 Forces Personnel record would reveal the name or 

25 identity of a living person who provided confidential 


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1 information to the United States and would pose a 

2 substantial risk of harm to that person; or 

3 (3) the public disclosure of the Missing Armed 

4 Forces Personnel record could reasonably be ex5 pected to constitute an unwarranted invasion of per6 sonal privacy, and that invasion of privacy is so sub7 stantial that it outweighs the public interest. 

8 SEC. 7. ESTABLISHMENT AND POWERS OF THE MISSING 

9 ARMED FORCES PERSONNEL RECORDS RE10 VIEW BOARD. 

11 (a) ESTABLISHMENT.—There is established as an 

12 independent establishment in the executive branch a board 

13 to be known as the Missing Armed Forces Personnel 

14 Records Review Board. 

15 (b) MEMBERSHIP.— 

16 (1) APPOINTMENTS.—The President shall ap17 point, by and with the advice and consent of the 

18 Senate, 5 individuals to serve as a member of the 

19 Review Board to ensure and facilitate the review, 

20 transmission to the Archivist, and public disclosure 

21 of Missing Armed Forces Personnel records. 

22 (2) QUALIFICATIONS.—The President shall ap23 point individuals to serve as members of the Review 

24 Board— 

25 (A) without regard to political affiliation; 


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1 (B) who are citizens of the United States 

2 of integrity and impartiality; 

3 (C) who have high national professional 

4 reputation in their fields who are capable of ex5 ercising the independent and objective judgment 

6 necessary to the fulfillment of their role in en7 suring and facilitating the identification, loca8 tion, review, transmission to the Archivist, and 

9 public disclosure of Missing Armed Forces Per10 sonnel records; 

11 (D) who possess an appreciation of the 

12 value of Missing Armed Forces Personnel 

13 records to scholars, the Federal Government, 

14 and the public, particularly families of Missing 

15 Armed Forces Personnel; 

16 (E) not less than one professional histo17 rian; and 

18 (F) not less than one attorney. 

19 (3) DEADLINES.— 

20 (A) IN GENERAL.—Not later than 30 days 

21 after the date of enactment of this Act, the 

22 President shall submit nominations for all 

23 members of the Review Board. 

24 (B) CONFIRMATION REJECTED.—If the 

25 Senate votes not to confirm a nomination to 


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1 serve as a member of the Review Board, not 

2 later than 90 days after the date of the vote the 

3 President shall submit the nomination of an ad4 ditional individual to serve as a member of the 

5 Review Board. 

6 (4) CONSULTATION.—The President shall make 

7 nominations to the Review Board after considering 

8 individuals recommended by the American Historical 

9 Association, the Organization of American Histo10 rians, the Society of American Archivists, the Amer11 ican Bar Association, veterans’ organizations, and 

12 organizations representing families of Missing 

13 Armed Forces Personnel. 

14 (c) SECURITY CLEARANCES.—The appropriate de15 partments, agencies, and elements of the executive branch 

16 of the Federal Government shall cooperate to ensure that 

17 an application by an individual nominated to be a member 

18 of the Review Board, seeking security clearances necessary 

19 to carry out the duties of the Review Board, is expedi20 tiously reviewed and granted or denied. 

21 (d) CONFIRMATION.— 

22 (1) HEARINGS.—Not later 30 days on which 

23 the Senate is in session after the date on which not 

24 less than 3 individuals have been nominated to serve 

25 as members of the Review Board, the Committee on 


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1 Homeland Security and Governmental Affairs of the 

2 Senate shall hold confirmation hearings on the nomi3 nations. 

4 (2) COMMITTEE VOTE.—Not later than 14 days 

5 on which the Senate is in session after the date on 

6 which the Committee on Homeland Security and 

7 Governmental Affairs holds a confirmation hearing 

8 on the nomination of an individual to serve as a 

9 member of the Review Board, the committee shall 

10 vote on the nomination and report the results to the 

11 full Senate immediately. 

12 (3) SENATE VOTE.—Not later than 14 days on 

13 which the Senate is in session after the date on 

14 which the Committee on Homeland Security and 

15 Governmental Affairs reports the results of a vote on 

16 a nomination of an individual to serve as a member 

17 of the Review Board, the Senate shall vote on the 

18 confirmation of the nominee. 

19 (e) VACANCY.—Not later than 60 days after the date 

20 on which a vacancy on the Review Board occurs, the va21 cancy shall be filled in the same manner as specified for 

22 original appointment. 

23 (f) CHAIRPERSON.—The members of the Review 

24 Board shall elect a member as Chairperson at the initial 

25 meeting of the Review Board. 


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1 (g) REMOVAL OF REVIEW BOARD MEMBER.— 

2 (1) IN GENERAL.—A member of the Review 

3 Board shall not be removed from office, other 

4 than— 

5 (A) by impeachment by Congress; or 

6 (B) by the action of the President for inef7 ficiency, neglect of duty, malfeasance in office, 

8 physical disability, mental incapacity, or any 

9 other condition that substantially impairs the 

10 performance of the member’s duties. 

11 (2) JUDICIAL REVIEW.— 

12 (A) IN GENERAL.—A member of the Re13 view Board removed from office may obtain ju14 dicial review of the removal in a civil action 

15 commenced in the United States District Court 

16 for the District of Columbia. 

17 (B) RELIEF.—The member may be rein18 stated or granted other appropriate relief by 

19 order of the court. 

20 (h) COMPENSATION OF MEMBERS.— 

21 (1) BASIC PAY.—A member of the Review 

22 Board shall be compensated at a rate equal to the 

23 daily equivalent of the annual rate of basic pay pre24 scribed for level IV of the Executive Schedule under 

25 section 5315 of title 5, United States Code, for each 


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1 day (including travel time) during which the member 

2 is engaged in the performance of the duties of the 

3 Review Board. 

4 (2) TRAVEL EXPENSES.—A member of the Re5 view Board shall be allowed reasonable travel ex6 penses, including per diem in lieu of subsistence, at 

7 rates for employees of agencies under subchapter I 

8 of chapter 57 of title 5, United States Code, while 

9 away from the member’s home or regular place of 

10 business in the performance of services for the Re11 view Board. 

12 (i) DUTIES OF THE REVIEW BOARD.— 

13 (1) IN GENERAL.—The Review Board shall con14 sider and render a decision on a determination by a 

15 Government office to seek to postpone the disclosure 

16 of a Missing Armed Forces Personnel record, in 

17 whole or in part. 

18 (2) RECORDS.—In carrying out paragraph (1), 

19 the Review Board shall consider and render a deci20 sion regarding— 

21 (A) whether a record constitutes a Missing 

22 Armed Forces Personnel record; and 

23 (B) whether a Missing Armed Forces Per24 sonnel record, or particular information in a 

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1 fies for postponement of disclosure under this 

2 Act. 

3 (j) POWERS.—The Review Board shall have the au4 thority to act in a manner prescribed under this Act, in5 cluding authority to— 

6 (1) direct Government offices to create identi7 fication aids and organize Missing Armed Forces 

8 Personnel records; 

9 (2) direct Government offices to transmit to the 

10 Archivist Missing Armed Forces Personnel records 

11 as required under this Act, including segregable por12 tions of Missing Armed Forces Personnel records 

13 and substitutes and summaries of Missing Armed 

14 Forces Personnel records that can be publicly dis15 closed to the fullest extent; 

16 (3) obtain access to Missing Armed Forces Per17 sonnel records that have been identified and orga18 nized by a Government office; 

19 (4) direct a Government office to make avail20 able to the Review Board, and if necessary inves21 tigate the facts surrounding, additional information, 

22 records, or testimony from individuals, which the 

23 Review Board has reason to believe is required to 

24 fulfill its functions and responsibilities under this 

25 Act; 


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1 (5) hold such hearings, sit and act at such 

2 times and places, take such testimony, receive such 

3 evidence, and administer such oaths as the Review 

4 Board considers advisable to carry out its respon5 sibilities under this Act; 

6 (6) hold individuals in contempt for failure to 

7 comply with directives and mandates issued by the 

8 Review Board under this Act, which shall not in9 clude the authority to imprison or fine any indi10 vidual; 

11 (7) require any Government office to account in 

12 writing for the destruction of any records relating to 

13 the loss, fate, or status of Missing Armed Forces 

14 Personnel; and 

15 (8) receive information from the public regard16 ing the identification and public disclosure of Miss17 ing Armed Forces Personnel records. 

18 (k) WITNESS IMMUNITY.—The Review Board shall 

19 be considered to be an agency of the United States for 

20 purposes of section 6001 of title 18, United States Code. 

21 (l) OVERSIGHT.— 

22 (1) IN GENERAL.—The Committee on Home23 land Security and Governmental Affairs of the Sen24 ate and the Committee on Oversight and GovernVerDate Sep 11 2014 02:50 Oct 05, 2016 Jkt 069200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 E:\BILLS\S3448.IS S3448

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1 ment Reform of the House of Representatives shall 

2 have— 

3 (A) continuing oversight jurisdiction with 

4 respect to the official conduct of the Review 

5 Board and the disposition of postponed records 

6 after termination of the Review Board; and 

7 (B) upon request, access to any records 

8 held or created by the Review Board. 

9 (2) DUTY OF REVIEW BOARD.—The Review 

10 Board shall have the duty to cooperate with the ex11 ercise of oversight jurisdiction under paragraph (1). 

12 (m) SUPPORT SERVICES.—The Administrator of the 

13 General Services Administration shall provide administra14 tive services for the Review Board on a reimbursable basis. 

15 (n) INTERPRETIVE REGULATIONS.—The Review 

16 Board may issue interpretive regulations. 

17 (o) TERMINATION AND WINDING UP.— 

18 (1) IN GENERAL.—Two years after the date of 

19 enactment of this Act, the Review Board shall, by 

20 majority vote, determine whether all Government of21 fices have complied with the obligations, mandates, 

22 and directives under this Act. 

23 (2) TERMINATION DATE.—The Review Board 

24 shall terminate on the date that is 4 years after the 

25 date of enactment of this Act. 


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1 (3) REPORT.—Before the termination of the 

2 Review Board under paragraph (2), the Review 

3 Board shall submit to Congress reports, including a 

4 complete and accurate accounting of expenditures 

5 during its existence, and shall complete all other re6 porting requirements under this Act. 

7 (4) RECORDS.—Upon termination of the Re8 view Board, the Review Board shall transfer all 

9 records of the Review Board to the Archivist for in10 clusion in the Collection, and no record of the Re11 view Board shall be destroyed. 

12 SEC. 8. MISSING ARMED FORCES PERSONNEL RECORDS 

13 REVIEW BOARD PERSONNEL. 

14 (a) EXECUTIVE DIRECTOR.— 

15 (1) IN GENERAL.—Not later than 45 days after 

16 the initial meeting of the Review Board, the Review 

17 Board shall appoint an individual to the position of 

18 Executive Director. 

19 (2) QUALIFICATIONS.—The individual ap20 pointed as Executive Director of the Review 

21 Board— 

22 (A) shall be a citizen of the United States 

23 of integrity and impartiality; 

24 (B) shall be appointed without regard to 

25 political affiliation; and 


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1 (C) shall not have any conflict of interest 

2 with the mission of the Review Board. 

3 (3) SECURITY CLEARANCE.— 

4 (A) LIMIT ON APPOINTMENT.—The Review 

5 Board shall not appoint an individual as Execu6 tive Director until after the date on which the 

7 individual qualifies for the necessary security 

8 clearance. 

9 (B) EXPEDITED PROVISION.—The appro10 priate departments, agencies, and elements of 

11 the executive branch of the Federal Government 

12 shall cooperate to ensure that an application by 

13 an individual nominated to be Executive Direc14 tor, seeking security clearances necessary to 

15 carry out the duties of the Executive Director, 

16 is expeditiously reviewed and granted or denied. 

17 (4) DUTIES.—The Executive Director shall— 

18 (A) serve as principal liaison to Govern19 ment offices; 

20 (B) be responsible for the administration 

21 and coordination of the review of records by the 

22 Review Board; 

23 (C) be responsible for the administration 

24 of all official activities conducted by the Review 

25 Board; and 


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1 (D) not have the authority to decide or de2 termine whether any record should be disclosed 

3 to the public or postponed for disclosure. 

4 (5) REMOVAL.—The Executive Director may be 

5 removed by a majority vote of the Review Board. 

6 (b) STAFF.— 

7 (1) IN GENERAL.—The Review Board may, in 

8 accordance with the civil service laws, but without 

9 regard to civil service law and regulation for com10 petitive service as defined in subchapter 1, chapter 

11 33 of title 5, United States Code, appoint and termi12 nate additional employees as are necessary to enable 

13 the Review Board and the Executive Director to per14 form their duties under this Act. 

15 (2) QUALIFICATIONS.—An individual appointed 

16 to a position as an employee of the Review Board— 

17 (A) shall be a citizen of the United States 

18 of integrity and impartiality; and 

19 (B) shall not have had any previous in20 volvement with any official investigation or in21 quiry relating to the loss, fate, or status of 

22 Missing Armed Forces Personnel. 

23 (3) SECURITY CLEARANCE.— 

24 (A) LIMIT ON APPOINTMENT.—The Review 

25 Board shall not appoint an individual as an emVerDate Sep 11 2014 02:50 Oct 05, 2016 Jkt 069200 PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 E:\BILLS\S3448.IS S3448

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1 ployee of the Review Board until after the date 

2 on which the individual qualifies for the nec3 essary security clearance. 

4 (B) EXPEDITED PROVISION.—The appro5 priate departments, agencies, and elements of 

6 the executive branch of the Federal Government 

7 shall cooperate to ensure that an application by 

8 an individual who is a candidate for a position 

9 with the Review Board, seeking security clear10 ances necessary to carry out the duties of the 

11 position, is expeditiously reviewed and granted 

12 or denied. 

13 (c) COMPENSATION.—The Review Board shall fix the 

14 compensation of the Executive Director and other employ15 ees of the Review Board without regard to chapter 51 and 

16 subchapter III of chapter 53 of title 5, United States 

17 Code, relating to classification of positions and General 

18 Schedule pay rates, except that the rate of pay for the 

19 Executive Director and other employees may not exceed 

20 the rate payable for level V of the Executive Schedule 

21 under section 5316 of title 5, United States Code. 

22 (d) ADVISORY COMMITTEES.— 

23 (1) IN GENERAL.—The Review Board may cre24 ate one or more advisory committees to assist in fulVerDate Sep 11 2014 02:50 Oct 05, 2016 Jkt 069200 PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 E:\BILLS\S3448.IS S3448

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1 filling the responsibilities of the Review Board under 

2 this Act. 

3 (2) APPLICABILITY OF FACA.—Any advisory 

4 committee created by the Review Board shall be sub5 ject to the Federal Advisory Committee Act (5 

6 U.S.C. App.). 

7 SEC. 9. REVIEW OF RECORDS BY THE MISSING ARMED 

8 FORCES PERSONNEL RECORDS REVIEW 

9 BOARD. 

10 (a) CUSTODY OF RECORDS REVIEWED BY REVIEW

11 BOARD.—Pending the outcome of the review activity of 

12 the Review Board, a Government office shall retain a 

13 Missing Armed Forces Personnel record in the custody, 

14 possession or control of the Government office for pur15 poses of preservation, security, and efficiency, unless— 

16 (1) the Review Board requires the physical 

17 transfer of records for reasons of conducting an 

18 independent and impartial review; or 

19 (2) such transfer is necessary for an adminis20 trative hearing or other official function of the Re21 view Board. 

22 (b) STARTUP REQUIREMENTS.—The Review Board 

23 shall— 

24 (1) not later than 90 days after the date on 

25 which all members are appointed, publish a schedule 


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1 for review of all Missing Armed Forces Personnel 

2 records in the Federal Register; and 

3 (2) not later than 180 days after the date of 

4 enactment of this Act, begin reviewing of Missing 

5 Armed Forces Personnel records under this Act. 

6 (c) DETERMINATION OF THE REVIEW BOARD.— 

7 (1) IN GENERAL.—The Review Board shall di8 rect that all records that relate, directly or indi9 rectly, to the loss, fate, or status of Missing Armed 

10 Forces Personnel be transmitted to the Archivist 

11 and disclosed to the public in the Collection in the 

12 absence of clear and convincing evidence that— 

13 (A) the record is not a Missing Armed 

14 Forces Personnel record; or 

15 (B) the Missing Armed Forces Personnel 

16 record, or particular information within the 

17 Missing Armed Forces Personnel record, quali18 fies for postponement of public disclosure under 

19 this Act. 

20 (2) POSTPONEMENT.—In approving postpone21 ment of public disclosure of a Missing Armed Forces 

22 Personnel record, or information within a Missing 

23 Armed Forces Personnel record, the Review Board 

24 shall seek to— 


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1 (A) provide for the disclosure of segregable 

2 parts, substitutes, or summaries of the Missing 

3 Armed Forces Personnel record; and 

4 (B) determine, in consultation with the 

5 originating body and consistent with the stand6 ards for postponement under this Act, which of 

7 the following alternative forms of disclosure 

8 shall be made by the originating body: 

9 (i) Any reasonably segregable par10 ticular information in a Missing Armed 

11 Forces Personnel record. 

12 (ii) A substitute record for that infor13 mation which is postponed. 

14 (iii) A summary of a Missing Armed 

15 Forces Personnel record. 

16 (3) REPORTING.—With respect to a Missing 

17 Armed Forces Personnel record, or information 

18 within a Missing Armed Forces Personnel record, 

19 the public disclosure of which is postponed under 

20 this Act, or for which only substitutions or sum21 maries have been disclosed to the public, the Review 

22 Board shall create and transmit to the Archivist a 

23 report containing— 

24 (A) a description of actions by the Review 

25 Board, the originating body, or any Government 


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1 office (including a justification of any such ac2 tion to postpone disclosure of any record or 

3 part of any record) and of any official pro4 ceedings conducted by the Review Board; and 

5 (B) a statement, based on a review of the 

6 proceedings and in conformity with the deci7 sions reflected therein, designating a rec8 ommended specified time at which, or a speci9 fied occurrence following which, the material 

10 may be appropriately disclosed to the public 

11 under this Act, which the Review Board shall 

12 disclose to the public with notice thereof, rea13 sonably calculated to make interested members 

14 of the public aware of the existence of the state15 ment. 

16 (4) ACTIONS AFTER DETERMINATION.— 

17 (A) IN GENERAL.—Not later than 14 days 

18 after the date of a determination by the Review 

19 Board that a Missing Armed Forces Personnel 

20 record shall be publicly disclosed in the Collec21 tion or postponed for disclosure and held in the 

22 protected Collection, the Review Board shall no23 tify the head of the originating body of the de24 termination and publish a copy of the deter25 mination in the Federal Register. 


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1 (B) OVERSIGHT NOTICE.—Simultaneous 

2 with notice under subparagraph (A), the Review 

3 Board shall provide notice of a determination 

4 concerning the public disclosure or postpone5 ment of disclosure of a Missing Armed Forces 

6 Personnel record, or information contained 

7 within a Missing Armed Forces Personnel 

8 record, which shall include a written unclassi9 fied justification for public disclosure or post10 ponement of disclosure, including an expla11 nation of the application of any standards in 

12 section 6 to the President, the Committee on 

13 Homeland Security and Governmental Affairs 

14 of the Senate, and the Committee on Oversight 

15 and Government Reform of the House of Rep16 resentatives 

17 (5) REFERRAL AFTER TERMINATION.—A Miss18 ing Armed Forces Personnel record that is identi19 fied, located, or otherwise discovered after the date 

20 on which the Review Board terminates shall be re21 ferred to the Committee on Armed Services of the 

22 Senate and the Committee on Armed Services of the 

23 House of Representatives for review, ongoing over24 sight and, as warranted, referral for possible en25 forcement action relating to a violation of this Act. 


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1 (d) NOTICE TO PUBLIC.—Every 30 days, beginning 

2 on the date that is 60 days after the date on which the 

3 Review Board first approves the postponement of disclo4 sure of a Missing Armed Forces Personnel record, the Re5 view Board shall publish in the Federal Register a notice 

6 that summarizes the postponements approved by the Re7 view Board, including a description of the subject, origi8 nating body, length or other physical description, and each 

9 ground for postponement that is relied upon. 

10 (e) REPORTS BY THE REVIEW BOARD.— 

11 (1) IN GENERAL.—Not later than 1 year after 

12 the date of enactment of this Act, and every year 

13 thereafter until the Review Board terminates, the 

14 Review Board shall submit a report regarding the 

15 activities of the Review Board to— 

16 (A) the Committee on Oversight and Gov17 ernment Reform of the House of Representa18 tives; 

19 (B) the Committee on Homeland Security 

20 and Governmental Affairs of the Senate; 

21 (C) the President; 

22 (D) the Archivist; and 

23 (E) the head of any Government office the 

24 records of which have been the subject of Re25 view Board activity. 


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1 (2) CONTENTS.—Each report under paragraph 

2 (1) shall include the following information: 

3 (A) A financial report of the expenses for 

4 all official activities and requirements of the 

5 Review Board and its employees. 

6 (B) The progress made on review, trans7 mission to the Archivist, and public disclosure 

8 of Missing Armed Forces Personnel records. 

9 (C) The estimated time and volume of 

10 Missing Armed Forces Personnel records in11 volved in the completion of the duties of the Re12 view Board under this Act. 

13 (D) Any special problems, including re14 quests and the level of cooperation of Govern15 ment offices, with regard to the ability of the 

16 Review Board to carry out its duties under this 

17 Act. 

18 (E) A record of review activities, including 

19 a record of postponement decisions by the Re20 view Board or other related actions authorized 

21 under this Act, and a record of the volume of 

22 records reviewed and postponed. 

23 (F) Suggestions and requests to Congress 

24 for additional legislative authority needs. 


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1 (G) An appendix containing copies of re2 ports relating to postponed records submitted to 

3 the Archivist under subsection (c)(3) since the 

4 end of the period covered by the most recent re5 port under paragraph (1). 

6 (3) TERMINATION NOTICE.—Not later than 90 

7 days before the Review Board expects to complete 

8 the work of the Review Board under this Act, the 

9 Review Board shall provide written notice to Con10 gress of the intent of the Review Board to terminate 

11 operations at a specified date. 

12 SEC. 10. DISCLOSURE OF OTHER MATERIALS AND ADDI13 TIONAL STUDY. 

14 (a) MATERIALS UNDER SEAL OF COURT.— 

15 (1) IN GENERAL.—The Review Board may re16 quest the Attorney General to petition any court of 

17 the United States or of a foreign country to release 

18 any information relevant to the loss, fate, or status 

19 of Missing Armed Forces Personnel that is held 

20 under seal of the court. 

21 (2) GRAND JURY INFORMATION.— 

22 (A) IN GENERAL.—The Review Board may 

23 request the Attorney General to petition any 

24 court of the United States to release any infor25 mation relevant to loss, fate, or status of MissVerDate Sep 11 2014 02:50 Oct 05, 2016 Jkt 069200 PO 00000 Frm 00040 Fmt 6652 Sfmt 6201 E:\BILLS\S3448.IS S3448

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1 ing Armed Forces Personnel that is held under 

2 the injunction of secrecy of a grand jury. 

3 (B) TREATMENT.—A request for disclo4 sure of Missing Armed Forces Personnel mate5 rials under this Act shall be deemed to con6 stitute a showing of particularized need under 

7 rule 6 of the Federal Rules of Criminal Proce8 dure. 

9 (b) SENSE OF CONGRESS.—It is the sense of Con10 gress that— 

11 (1) the Attorney General should assist the Re12 view Board in good faith to unseal any records that 

13 the Review Board determines to be relevant and held 

14 under seal by a court or under the injunction of se15 crecy of a grand jury; 

16 (2) the Secretary of State should— 

17 (A) contact the governments of the Rus18 sian Federation, the People’s Republic of 

19 China, and the Democratic People’s Republic of 

20 Korea to seek the disclosure of all records in 

21 their respective custody, possession, or control 

22 relevant to the loss, fate, or status of Missing 

23 Armed Forces Personnel; and 

24 (B) contact any other foreign government 

25 that may hold information relevant to the loss, 


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1 fate, or status of Missing Armed Forces Per2 sonnel, and seek disclosure of such information; 

3 and 

4 (3) all agencies should cooperate in full with the 

5 Review Board to seek the disclosure of all informa6 tion relevant to the loss, fate, or status of Missing 

7 Armed Forces Personnel consistent with the public 

8 interest. 

9 SEC. 11. RULES OF CONSTRUCTION. 

10 (a) PRECEDENCE OVER OTHER LAW.—When this 

11 Act requires transmission of a record to the Archivist or 

12 public disclosure, it shall take precedence over any other 

13 law (except section 6103 of the Internal Revenue Code of 

14 1986), judicial decision construing such law, or common 

15 law doctrine that would otherwise prohibit such trans16 mission or disclosure, with the exception of deeds gov17 erning access to or transfer or release of gifts and dona18 tions of records to the United States Government. 

19 (b) FREEDOM OF INFORMATION ACT.—Nothing in 

20 this Act shall be construed to eliminate or limit any right 

21 to file requests with any Executive agency or seek judicial 

22 review of the decisions under section 552 of title 5, United 

23 States Code. 

24 (c) JUDICIAL REVIEW.—Nothing in this Act shall be 

25 construed to preclude judicial review under chapter 7 of 


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1 title 5, United States Code, of final actions taken or re2 quired to be taken under this Act. 

3 (d) EXISTING AUTHORITY.—Nothing in this Act re4 vokes or limits the existing authority of the President, any 

5 Executive agency, the Senate, or the House of Representa6 tives, or any other entity of the Government to publicly 

7 disclose records in its custody, possession, or control. 

8 (e) RULES OF THE SENATE AND HOUSE OF REP9 RESENTATIVES.—To the extent that any provision of this 

10 Act establishes a procedure to be followed in the Senate 

11 or the House of Representatives, such provision is adopt12 ed— 

13 (1) as an exercise of the rulemaking power of 

14 the Senate and House of Representatives, respec15 tively, and is deemed to be part of the rules of each 

16 House, respectively, but applicable only with respect 

17 to the procedure to be followed in that House, and 

18 it supersedes other rules only to the extent that it 

19 is inconsistent with such rules; and 

20 (2) with full recognition of the constitutional 

21 right of either House to change the rules (so far as 

22 they relate to the procedure of that House) at any 

23 time, in the same manner, and to the same extent 

24 as in the case of any other rule of that House. 


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1 SEC. 12. TERMINATION OF EFFECT OF ACT. 

2 (a) PROVISIONS PERTAINING TO THE REVIEW

3 BOARD.—The provisions of this Act that pertain to the 

4 appointment and operation of the Review Board shall 

5 cease to be effective when the Review Board and the terms 

6 of its members have terminated under section 7(o). 

7 (b) OTHER PROVISIONS.—The remaining provisions 

8 of this Act shall continue in effect until such time as the 

9 Archivist certifies to the President and Congress that all 

10 Missing Armed Forces Personnel records have been made 

11 available to the public in accordance with this Act. 

12 SEC. 13. AUTHORIZATION OF APPROPRIATIONS. 

13 (a) IN GENERAL.—There are authorized to be appro14 priated such sums as are necessary to carry out this Act, 

15 to remain available until expended. 

16 (b) INTERIM FUNDING.—Until such time as funds 

17 are appropriated pursuant to subsection (a), the President 

18 may use such sums as are available for discretionary use 

19 to carry out this Act. 

20 SEC. 14. SEVERABILITY. 

21 If any provision of this Act, or the application thereof 

22 to any person or circumstance, is held invalid, the remain23 der of this Act and the application of that provision to 

24 other persons not similarly situated or to other cir25 cumstances shall not be affected by the invalidation. 

Æ 


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