I
103D CONGRESS
2D SESSION
H. R. 5043
To amend title 10, United States Code, to establish procedures for determin-
ing that status of certain missing members of the Armed Forces and
certain civilians, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
SEPTEMBER 13, 1994
Mr. MURPHY introduced the following bill; which was referred to the
Committee on Armed Services
A BILL
To amend title 10, United States Code, to establish proce-
dures for determining that status of certain missing
members of the Armed Forces and certain civilians, and
for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Missing Service Per-
sonnel Act of 1994’’.
SEC. 2. PURPOSE.
The purpose of this Act is to ensure that any member
of the Armed Forces and any civilian employee of the Fed-
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eral Government or contractor of the Federal Government
who serves with or accompanies an Armed Force in the
field under orders is fully accounted for by the Federal
Government and, as a general rule, is not declared dead
solely because of the passage of time.
SEC. 3. DETERMINATION OF WHEREABOUTS AND STATUS
OF CERTAIN MISSING PERSONS.
(a) IN GENERAL.—Chapter 53 of title 10, United
States Code, is amended by adding at the end of the fol-
lowing new section:
‘‘§ 1060a. Missing persons: informal investigations; in-
quiries; determinations of death; person-
nel files
‘‘(a) INFORMAL INVESTIGATIONS.—
‘‘(1) IN GENERAL.—After receiving factual in-
formation that the whereabouts or status of a person
described in paragraph (2) is uncertain and that the
absence of the person may be involuntary, the mili-
tary commander of the unit, facility, or area to or
in which the person is assigned shall conduct an in-
vestigation into the whereabouts and status of the
person.
‘‘(2) COVERED PERSONS.—Paragraph (1) ap-
plies to the following individuals:
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‘‘(A) Any member of the armed forces who
disappears during a time or war or national
emergency, or during a period of such other
hostilities as the Secretary of Defense may pre-
scribe.
‘‘(B) Any civilian employee of the Federal
Government (including an employee of a con-
tractor of the Federal Government) who—
‘‘(i) serves with or accompanies an
armed force in the field during such a time
or period; and
‘‘(ii) disappears during such service or
accompaniment.
‘‘(3) FURTHER ACTIVITIES.—As a result of an
investigation into the whereabouts and status of a
person under paragraph (1), a commander shall—
‘‘(A) place the person in a missing status;
‘‘(B) submit a notice that the person has
been placed in a missing status to—
‘‘(i) in the case of a person who is a
member of the armed forces, the officer
having general court-martial authority over
the person;
‘‘(ii) in the case of a person who is a
civilian employee of the Federal Govern-
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ment or contractor of the Federal Govern-
ment, the Secretary of the department em-
ploying the person or contracting with the
contractor;
‘‘(C) retain and safeguard for official use
any information, documents, records, state-
ments, or other evidence relating to the where-
abouts or status of the person that result from
the investigation or from actions taken to locate
the person; and
‘‘(D) submit to the officer having general
court-martial authority over the person, in the
case of a member of the armed forces, or to the
Secretary of the department employing the per-
son or contracting with the contractor, in the
case of a civilian employee of the Federal Gov-
ernment or contractor of the Federal Govern-
ment, as the case may be—
‘‘(i) not later than 48 hours after the
date on which the absence of the person is
officially noted, a report that—
‘‘(I) contains information on the
absence or disappearance of the per-
son;
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‘‘(II) describes the actions taken
to locate the person; and
‘‘(III) sets forth any information
relating to the whereabouts or status
of the person not contained in any
previous report;
‘‘(ii) not later than 7 days after such
date, a report that—
‘‘(I) 
summarizes 
the 
actions
taken to locate the person; and
‘‘(II) sets forth any information
relating to the whereabouts or status
of the person not contained in any
previous report;
‘‘(iii) not later than 30 days after
such date, a report that—
‘‘(I) summarizes the continuing
actions to locate the person; and
‘‘(II) sets forth any information
on the whereabouts or status of the
person that results from such actions;
and
‘‘(iv) at any other time, a report that
sets forth any other information that may
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be relevant to the whereabouts or status of
the person.
‘‘(b) INITIAL INQUIRY.—
‘‘(1) IN GENERAL.—Not later than 7 days after
receiving notification under subsection (a)(3)(B)
that a person has been placed in missing status, the
officer having general court-martial authority over
the person, in the case of a person who is a member
of the armed forces, or the Secretary of the depart-
ment employing the person or contracting with the
contractor, in the case of a person who is a civilian
employee of the Federal Government or contractor
of the Federal Government, shall appoint a board to
conduct an inquiry into the whereabouts and status
of the person.
‘‘(2) SCOPE OF CERTAIN INQUIRIES.—If it ap-
pears to the official who appoints a board under this
subsection that the absence or missing status of two
or more persons is factually related, the official may
appoint one board under this subsection to conduct
the inquiry into the whereabouts or status of the
persons.
‘‘(3) COMPOSITION.—
‘‘(A) IN
GENERAL.—A board appointed
under this subsection shall consist of at least
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one individual described in subparagraph (B)
who has experience with and understanding of
military operations or activities similar to the
operation or activity in which the person or per-
sons disappeared.
‘‘(B) REQUIRED MEMBER.—An individual
referred to in subparagraph (A) is the follow-
ing:
‘‘(i) A military officer, in the case of
an inquiry with respect to a member of the
armed forces.
‘‘(ii) A civilian, in the case of an in-
quiry with respect to a civilian employee of
the Federal Government or contractor of
the Federal Government.
‘‘(C) ACCESS
TO
CLASSIFIED
INFORMA-
TION.—Each member of a board appointed for
an inquiry under this subsection shall have a
security clearance that affords the member ac-
cess to all information relating to the where-
abouts and status of the missing person or per-
sons covered by the inquiry.
‘‘(4) ACTIVITIES.—A board appointed to con-
duct an inquiry into the whereabouts or status of a
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missing person or persons under this subsection
shall—
‘‘(A) collect, develop, and investigate all
facts and evidence relating to the disappear-
ance, whereabouts, or status of the person or
persons;
‘‘(B) collect appropriate documentation of
the facts and evidence covered by the investiga-
tion;
‘‘(C) analyze the facts and evidence, make
findings based on the analysis, and draw con-
clusions as to the current whereabouts and sta-
tus of the person or persons; and
‘‘(D) recommend to the officer having gen-
eral court-martial authority over the person, in
the case of a person who is a member of the
armed forces, or the Secretary of the depart-
ment employing the person or contracting with
the contractor, in the case of a person who is
a civilian employee of the Federal Government
or contractor of the Federal Government,
that—
‘‘(i) the person or persons continue to
have a missing status; or
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‘‘(ii) the person or persons be declared
(I) to have deserted, (II) to be absent with-
out leave, or (III) to be dead.
‘‘(5) INQUIRY PROCEEDINGS.—During the pro-
ceedings of an inquiry under this subsection, a board
shall—
‘‘(A) collect, record, and safeguard all clas-
sified and unclassified facts, documents, state-
ments, photographs, tapes, messages, maps,
sketches, reports, and other information relat-
ing to the whereabouts or status of the person
or persons covered by the inquiry;
‘‘(B) gather facts and information relating
to actions taken to find the person or persons,
including any evidence of the whereabouts or
status of the person or persons that arises from
such actions; and
‘‘(C) maintain a record of the proceedings.
‘‘(6) COUNSEL FOR MISSING PERSON.—
‘‘(A) IN GENERAL.—The official who ap-
points a board to conduct an inquiry under this
subsection shall appoint counsel to represent
the person or persons covered by the inquiry.
‘‘(B) QUALIFICATIONS.—An individual ap-
pointed as counsel under this paragraph shall—
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‘‘(i) meet the qualifications set forth
in section 827(b) of this title (article 27(b)
of the Uniform Code of Military Justice);
and
‘‘(ii) have a security clearance that af-
fords the individual access to all informa-
tion relating to the whereabouts or status
of the person or persons covered by the in-
quiry.
‘‘(C) RESPONSIBILITIES AND DUTIES.—An
individual appointed as counsel under this para-
graph—
‘‘(i) shall have access to all facts and
evidence considered by the board during
the proceedings under the inquiry for
which the counsel is appointed;
‘‘(ii) shall observe all official activities
of the board during such proceedings;
‘‘(iii) may question witnesses before
the board;
‘‘(iv) shall monitor the deliberations of
the board;
‘‘(v) shall review the report of the
board under paragraph (9); and
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‘‘(vi) shall submit to the official who
appointed the board an independent review
of such report.
‘‘(D) TREATMENT OF REVIEW.—A review
of the report of a board on an inquiry that is
submitted under subparagraph (C)(vi) shall be
made an official part of the record of the board
with respect to the inquiry.
‘‘(7) ACCESS TO MEETINGS.—The proceedings
of a board during an inquiry under this subsection
shall be closed to the public, including to any mem-
ber of the immediate family, dependent, primary
next of kin, or previously designated person of the
person or persons covered by the inquiry.
‘‘(8) RECOMMENDATION ON STATUS.—
‘‘(A) IN
GENERAL.—Upon completion of
an inquiry into the whereabouts or status of a
person or persons under this subsection, a
board shall make a recommendation to the offi-
cial who appointed the board as to the current
whereabouts or status of the person or persons.
‘‘(B) RECOMMENDATION
OF
STATUS
AS
DEAD.—
‘‘(i) IN GENERAL.—A board may not
recommend under subparagraph (A) that a
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person or persons be declared dead unless
conclusive proof of the death of the person
or persons is established by the board.
‘‘(ii) DEFINITION.—In this subpara-
graph, the term ‘conclusive proof of death’,
in the case of a person or persons, means
evidence establishing that death is the only
plausible explanation for the absence of the
person or persons.
‘‘(9) REPORT.—
‘‘(A) REQUIREMENT.—A board appointed
under this subsection shall submit to the official
who appointed the board a report on the in-
quiry carried out by the board. Such report
shall include—
‘‘(i) a discussion of the facts and evi-
dence considered by the board in the in-
quiry; and
‘‘(ii) the recommendation of the board
under paragraph (8).
‘‘(B) SUBMITTAL
DATE.—A board shall
submit a report under this paragraph not later
than 45 days after the date of the first official
notice of the disappearance of the person or
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persons covered by the inquiry described in the
report.
‘‘(C) PUBLIC
AVAILABILITY.—A report
submitted under this paragraph may not be
made public until 1 year after the date referred
to in subparagraph (B).
‘‘(10) ACTIONS BY APPOINTING OFFICIAL.—
‘‘(A) REVIEW.—Not later than 15 days
after the date of the receipt of a report from a
board under paragraph (9), the official who ap-
pointed the board shall review—
‘‘(i) the report; and
‘‘(ii) the review submitted under para-
graph (6)(C)(vi) by the counsel for the per-
son or persons covered by the inquiry de-
scribed in the report.
‘‘(B) SCOPE OF REVIEW.—In conducting a
review of a report under subparagraph (A), the
official receiving the report shall determine
whether or not the report is complete and free
of administrative error.
‘‘(C) RETURN.—If an official determines
under subparagraph (B) that a report is incom-
plete, or that a report is not free of administra-
tive error, the official may return the report to
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the board for further action on the report by
the board.
‘‘(D) DETERMINATION OF STATUS.—Upon
a determination by the official concerned that a
report reviewed by the official under this para-
graph is complete and free of administrative
error, the official shall make a determination of
the status of the person or persons covered by
the report.
‘‘(11) REPORT TO INTERESTED PERSONS.—Not
later than 90 days after the first official notice of
the disappearance of a person or persons, the official
who appoints a board of inquiry into the where-
abouts or status of the person or person under this
subsection shall—
‘‘(A) provide an unclassified summary of
the report of the board to the members of the
immediate family, dependents, primary next of
kin, and previously designated persons of the
person or persons; and
‘‘(B) inform the individuals referred to in
subparagraph (A) that the Federal Government
will conduct a subsequent inquiry into the
whereabouts or status of the person or persons
not earlier than 1 year after the date of the
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first official notice of the disappearance of the
person or persons, unless information becomes
available sooner that would result in a substan-
tial change in the official status of the person
or persons.
‘‘(12) ADDITIONAL INVESTIGATION.—
‘‘(A) IN GENERAL.—If information on the
whereabouts or status of a person or persons
covered by an inquiry under this subsection be-
comes available within 1 year after the date of
the first official notice of the disappearance of
the person or persons, the official who ap-
pointed the board to inquire into the where-
abouts or status of the person or persons under
this subsection shall appoint an additional
board to conduct an inquiry into the informa-
tion
‘‘(B) CONDUCT
OF
INQUIRY.—The ap-
pointment and activities of a board under this
paragraph shall be subject to the provisions of
this subsection.
‘‘(c) SUBSEQUENT INQUIRY.—
‘‘(1) REQUIREMENT.—
‘‘(A) IN GENERAL.—If as a result of an in-
quiry under subsection (b) an official deter-
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mines under paragraph (10)(D) of that sub-
section that a person or persons retain or be
placed in a missing status, the Secretary con-
cerned shall appoint a board under this sub-
section to conduct an inquiry into the where-
abouts and status of the person or persons.
‘‘(B) DEFINITION.—For purposes of this
subsection, the term ‘Secretary concerned’
means the following:
‘‘(i) In the case of a member of the
armed forces, the Secretary of the military
department having jurisdiction over the
armed force of the member.
‘‘(ii) In the case of a civilian employee
of the Federal Government or contractor
of the Government, the Secretary of the
department employing the employee or
contracting with the contractor, as the case
may be.
‘‘(2) DATE OF APPOINTMENT.—The Secretary
concerned shall appoint a board under this sub-
section to conduct an inquiry into the whereabouts
and status of a person or persons on or about 1 year
after the date of the first official notice of the dis-
appearance of the person or persons.
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‘‘(3) SCOPE OF CERTAIN INQUIRIES.—If it ap-
pears to the Secretary concerned that the absence or
status of two or more persons is factually related,
the Secretary may appoint one board under this sub-
section to conduct the inquiry into the whereabouts
or status of the persons.
‘‘(4) COMPOSITION.—
‘‘(A) IN
GENERAL.—Subject to subpara-
graphs (B) and (C), a board appointed under
this subsection shall consist of the following:
‘‘(i) In the case of a board appointed
to inquire into the whereabouts or status
of a member or members of the armed
forces, not less than three officers having
a grade O–4 or higher.
‘‘(ii) In the case of a board appointed
to inquire into the whereabouts or status
of a civilian employee or employees of the
Federal Government or contractor of the
Government—
‘‘(I) not less than three civilian
employees of the Federal Government
whose rate of annual pay is equal to
or greater than the rate of annual pay
payable for grade GS–13 of the Gen-
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eral Schedule under section 5332 of
title 5; and
‘‘(II) such members of the armed
forces as the Secretary concerned and
the Secretary of Defense jointly deter-
mine advisable.
‘‘(B) PRESIDENT
OF
BOARD.—The Sec-
retary concerned shall designate one member of
each board appointed under this subsection as
President of the board. The President shall
have a security clearance that affords the Presi-
dent access to all information relating to the
whereabouts and status of the person or per-
sons covered by the inquiry.
‘‘(C) REQUIREMENTS
FOR
OTHER
MEM-
BERS.—
‘‘(i) ATTORNEY.—One member of
each board appointed under this subsection
shall be an attorney, or judge advocate,
who has expertise in the public law relating
to missing persons, the determination of
death of such persons, and the rights of
family members and dependents of such
persons.
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‘‘(ii) OCCUPATIONAL
SPECIALIST.—
One member of each board appointed
under this subsection shall be an individual
who has—
‘‘(I) an occupational specialty
similar to that of one or more of the
persons covered by the inquiry; and
‘‘(II) an understanding of and
expertise in the official activities of
one or more such persons at the time
such person or persons disappeared.
‘‘(iii) EXPERT IN TRANSPORTATION.—
If the person or persons covered by an in-
quiry disappeared in transit, one member
of the board appointed for the inquiry shall
be an individual whose occupational spe-
cialty relates to the piloting, navigation, or
operation of the mode of transportation in
which the person or persons were travelling
at the time such person or persons dis-
appeared.
‘‘(5) ACTIVITIES.—A board appointed under
this subsection to conduct an inquiry into the where-
abouts or status of a person or persons shall—
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‘‘(i) A notice that the withheld infor-
mation exists.
‘‘(ii) A notice of the date of the most
recent review of the classification of the
withheld information.
‘‘(3) WRONGFUL
WITHHOLDING.—Any person
who knowingly and willfully withholds from the per-
sonnel file of a missing person any information
(other than classified information) relating to the
disappearance or whereabouts or status of a missing
person shall be fined as provided in title 18, or im-
prisoned not more than 1 year, or both.
‘‘(4) AVAILABILITY
OF
INFORMATION.—The
Secretary concerned shall, upon request, make avail-
able the contents of the personnel file of a missing
person to members of the immediate family, depend-
ents, primary next of kin, or previously designated
person of the person.
‘‘(f) RECOMMENDATION OF STATUS OF DEATH.—
‘‘(1) 
REQUIREMENTS
RELATING
TO
REC-
OMMENDATION.—A board appointed under sub-
section (c) or (d) may not recommend that a person
be declared dead unless—
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‘‘(A) evidence (other than the passage of a
period of time of less than 50 years) exists to
suggest that the person is dead;
‘‘(B) the Federal Government possesses no
evidence that reasonably suggests that the per-
son is alive;
‘‘(C) representatives of the Federal Gov-
ernment have made a complete search of the
area where the person was last seen (unless,
after making every good faith effort to obtain
access to such area, such representatives are
not granted such access); and
‘‘(D) representatives of the Federal Gov-
ernment have examined the records of the gov-
ernment or entity having control over the area
where the person was last seen (unless, after
making every good faith effort to obtain access
to such records, such representatives are not
granted such access).
‘‘(2) 
SUBMITTAL
OF
INFORMATION
ON
DEATH.—If a board appointed under subsection (c)
or (d) makes a recommendation that a missing per-
son be declared dead, the board shall include in the
report of the board with respect to the person under
such subsection (c) or (d) the following:
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‘‘(1) PAY AND ALLOWANCES.—Any person in a
missing status or declared dead under the Missing
Persons Act of 1942 (56 Stat. 143) or by a board
appointed under this section who is found alive and
returned to the control of the United States shall be
paid for the full time of the absence of the person
while given that status or declared dead under the
law and regulations relating to the pay and allow-
ances of persons returning from a missing status.
‘‘(2) EFFECT ON GRATUITIES PAID AS A RE-
SULT OF STATUS.—Paragraph (1) shall not be inter-
preted to invalidate or otherwise affect the receipt by
any person of a death gratuity or other payment
from the United States on behalf of a person re-
ferred to in paragraph (1) before the date of the en-
actment of the Missing Service Personnel Act of
1994.
‘‘(j) EFFECT ON STATE LAW.—Nothing in this sec-
tion shall be construed to invalidate or limit the power
of any State court or administrative entity, or the power
of any court or administrative entity of any political sub-
division thereof, to find or declare a person dead for pur-
poses of the such State or political subdivision.
‘‘(k) DEFINITIONS.—In this section: