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106th Congress Report
1st Session HOUSE OF REPRESENTATIVES 106-70
ARLINGTON NATIONAL CEMETERY BURIAL ELIGIBILITY ACT
March 18, 1999.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
Mr. Stump, from the Committee on Veterans' Affairs, submitted the
R E P O R T
[To accompany H.R. 70]
[Including cost estimate of the Congressional Budget Office]
The Committee on Veterans' Affairs, to whom was referred the
bill (H.R. 70) to amend title 38, United States Code, to enact
into law eligibility requirements for burial in Arlington
National Cemetery, and for other purposes, having considered
the same, reports favorably thereon without amendment and
recommends that the bill do pass.
On January 6, 1999, the Chairman of the Veterans' Affairs
Committee, the Honorable Bob Stump, along with the Honorable
Lane Evans and the Honorable Michael Bilirakis, introduced H.R.
70, to enact into law eligibility requirements for burial in
Arlington National Cemetery.
The full Committee met on March 18, 1999 and ordered H.R.
70 reported favorably to the House by voice vote.
Summary of the Reported Bill
The bill would codify, with exceptions discussed below,
existing regulatory eligibility criteria for burial at
Arlington National Cemetery. Other than the persons
specifically enumerated in the proposed legislation, no other
person could be buried at Arlington. In general, eligible
persons would include:
a) Lmembers of the Armed Forces who die on active duty;
b) Lretired members of the Armed Forces, including
Reservists who served on active duty;
c) Lformer members of the Armed Forces who have been
awarded the Medal of Honor, Distinguished Service Cross, Air
Force Cross, or Navy Cross, Distinguished Service Medal, Silver
Star, or Purple Heart;
d) Lformer prisoners of war;
e) Lthe President or any former President;
f) Lmembers of the Guard/Reserves who served on active duty
and are eligible for retirement, but who have not yet retired;
g) Lthe spouse, surviving spouse, minor child and at the
discretion of the Superintendent of Arlington, unmarried adult
children of a) through f);
h) Lthe surviving spouse of certain individuals buried in
Arlington before the date of enactment.
The bill would also eliminate the current practice of
granting eligibility to Members of Congress and other high-
ranking Government officials who are veterans but who do not
meet the distinguished military service criteria outlined
above. It also provides that this law would be the exclusive
authority for burial eligibility. Congress could, however, on a
case-by-case basis, enact a resolution on behalf of an
individual whose accomplishments are deemed worthy of the honor
of being buried at Arlington.
Additionally, the bill codifies existing regulatory
eligibility standards for interment of cremated remains in the
columbarium at Arlington. Generally, this includes all veterans
with honorable service and their dependents.
Finally, the bill clarifies that only memorials honoring
military service or events may be placed at Arlington and
establishes a 25-year waiting period for such memorials.
This background is derived from material provided to the
Committee by the Department of the Army, the General Accounting
Office, and the Congressional Research Service.
Until the Civil War, the nation's attention to interment of
veterans was haphazard. The massive casualties resulting from
that conflict required the government to establish procedures
to make and preserve records of deceased soldiers and provide
places for their burial. Congress' initial legislation to
establish a national cemetery system, the Act of July 17, 1862,
Sec. 18, 12 Stat. 594, 596, provided that ``the President of
the United States shall have the power, whenever in his opinion
it shall be expedient, to purchase cemetery grounds and cause
them to be securely enclosed, to be used as a national cemetery
for the soldiers who shall die in the service of their
country''. At the conclusion of the War, Congress directed the
Secretary of War to engage in a program to find, collect and
identify the remains of the war dead. The task was completed in
1870 with the reinterment of nearly 300,000 remains in 73
The grounds of Arlington Mansion, the home of Martha
Washington's grandson, George Washington Parke Custis, and his
son-in-law, General Robert E. Lee, were appropriated by the
federal government in May, 1861, for a fortification to defend
Washington, D.C. Arlington National Cemetery was established on
the estate on May 13, 1864, as one of the first national
cemeteries because burial areas in the other previously
designated national cemeteries--the Soldiers' Home in
Washington, D.C., and at Alexandria, Virginia--were rapidly
filling. On June 15, 1864, Secretary of War Stanton formally
designated Arlington Mansion and the 200 acres surrounding it
as a cemetery for the burial of soldiers dying in the vicinity
The cemetery only gradually developed its aura as an
historic national shrine with the burials of famous Civil War
generals such as Phillip H. Sheridan in the 1880's, the burials
of General Pershing and President William Howard Taft in the
1920's, and then with the dedication in 1932 of the Tomb of the
Unknown Soldier. The mystique of the cemetery was heightened
substantially after the assassination of President John F.
Kennedy and his emotional funeral and burial there beside an
eternal flame in November 1963. President Kennedy's gravesite
and the cemetery generally became major public attractions and
pressure increased for interments in the limited space
available. Arlington has a total capacity of 263,639 grave
sites, with about 59,206 remaining available as of the end of
From the Civil War until 1973, the primary responsibility
for the ``care and maintenance'' of most national cemeteries,
including Arlington, was vested in the Secretary of the Army or
the Secretary of War. Administration of other cemeteries was
placed under the supervision of agency heads, such as the
Secretary of the Interior.
In 1948, Congress for the first time codified all previous
precedent, practices, and legislation affecting eligibility for
burial in national cemeteries. Under the law, four general
classifications of persons were accorded the privilege of
burial in a national cemetery: (1) those who die while serving
honorably in the Armed Forces of the United States (2) former
members of the Armed Forces (3) citizens of the United States
who have served, or may serve, in the armed forces of a nation
allied with the United States during war and (4) the wife,
husband, widow, widower, minor children, and, at the discretion
of the Secretary of the Army, adult, unmarried children of
those otherwise eligible. Adult, unmarried children generally
have been deemed eligible if at the time of death they were
incapable of self-support by reason of physical or mental
In 1959, Congress expanded burial eligibility to any member
of a reserve component of the Armed Forces, the Army and Air
National Guards, and the Reserve Officers Training Corps of the
Army, Navy and Air Force, whose death occurred under honorable
conditions while serving on active duty. It also added the
requirement that the Secretary of the Army seek the approval of
the Secretary of Defense prior to issuing or amending
regulations pertaining to national cemeteries under his
Restrictive rules for in-ground burial at Arlington were
first imposed in 1967. The Secretary of the Army was responding
to concerns that the combination of increased interest in
Arlington resulting from President Kennedy's burial and an
aging veteran population would result in the rapid depletion of
burial spaces. From 1962-1966, Arlington's interment rate rose
from 4,000 to 7,000 per year. Had the trend continued, the
cemetery would have been full by 1968.
The restrictive rules, now codified in federal regulations
at 32 CFR 553.13 (1997), limited eligibility to those members
of the Armed Forces who served the nation in an especially
distinguished manner. These criteria have remained essentially
unchanged since 1967 and provide for the in-ground Arlington
burial for the following categories of persons:
LActive duty members of the Armed Forces,
except those members serving on active duty for
LRetired members of the Armed Forces who have
served on active duty, are on a retired list and are
entitled to receive retirement pay;
LFormer members of the Armed Forces discharged
for disability before October 1, 1949, who served on
active duty and would have been eligible for retirement
under 10 U.S.C. 1202 had the statute been in effect on
the date of separation;
LHonorably discharged members of the Armed
Forces awarded the Medal of Honor, Distinguished
Service Cross, Air Force Cross or Navy Cross,
Distinguished Service Medal, Silver Star, or Purple
LFormer prisoners of war who served honorably
and who died on or after November 30, 1993;
LProvided they were honorably discharged from
the Armed Forces, elected federal officials (the
president, vice-president, and members of Congress),
federal cabinet secretaries and deputies, agency
directors and certain other high federal officials
(level I and II executives); Supreme Court justices,
and chiefs of certain diplomatic missions;
LThe spouse, widow or widower, minor child
(under 21 years of age) and, at the discretion of the
Secretary of the Army, an unmarried adult child of any
of the above, (a surviving spouse who has remarried and
whose subsequent marriage is void, terminated by death,
or dissolved by annulment or divorce by a court regains
eligibility; an unmarried adult child may be interred
in the same grave in which the parent has been or will
be interred, provided that the child was incapable of
self-support up to the time of death because of
physical or mental condition);
LSurviving spouses of service members who are
interred in the cemetery as part of a group burial, but
not in the same grave as the deceased spouse;
LThe surviving spouse, minor child, and at the
discretion of the Secretary of the Army, the unmarried
adult child of any person already buried at the
LThe parents of a minor child or unmarried
adult child whose remains are already buried at the
cemetery on the basis of the eligibility of a parent;
Veterans who do not meet these requirements may qualify for
placement in Arlington's columbarium for cremated remains. Any
honorably discharged veteran, spouse and dependent children may
be interred in the same family niche at the columbarium. Since
1980, the Army has built four columbaria at the cemetery.
Eventually, 50,000 niches capable of holding two urns each will
be available. Additional columbaria could be built in the
future to further increase the capacity for cremated remains.
After the Army imposed the restrictive eligibility
requirements in 1967, the number of burials at Arlington
declined sharply and then remained relatively constant until
1988. Since that time, the number of burials has gradually
increased, with the cemetery averaging 2,887 burials per year.
Given the expected burial rates, the Army projects that all
gravesites will be full by 2025 unless the cemetery is
In 1973, Congress addressed the need for a coherent
national burial policy and management system for national
cemeteries. The National Cemeteries Act of 1973 (Pub. L. No.
93-43) established within the Veterans Administration (VA) a
National Cemetery System consisting of cemeteries already under
the Department of Veterans Affairs' (VA) jurisdiction and
national cemeteries transferred to the VA from the Department
of the Army. The legislation exempted Arlington National
Cemetery and those cemeteries located at the military service
academies, which were left under the authority of the
Department of the Army.
The 1973 Act adopted nearly identical requirements for the
cemeteries as called for under the 1959 Act, but transferred
jurisdiction to the Secretary of Veterans Affairs. The law also
made one significant addition by authorizing exceptions to the
eligibility rules for ``[s]uch other persons or classes of
persons as may be designated by the Secretary,'' (38 U.S.C.
2402(6)). In explaining this addition, the Senate and House
This additional category is consistent with authority
currently based on VA Regulation 6200 (C), as revised
June 2, 1966. Similar authority apparently resides in
the Secretary of the Army pursuant to 32 C.F.R.
553.18(b)(1) which authorizes `burial in National
cemeteries under such regulations as the Secretary may,
with the approval of the Secretary of Defense, provide.
The 1973 Act also preserved the previously exercised
authorities of the military department secretaries with respect
to cemeteries, memorials and monuments remaining under their
Finally, Congress ordered that a joint study be conducted
by the Veterans Administration and the Department of Defense on
(1) the advisability of including Arlington National Cemetery
within the National Cemetery System to be administered by the
Veterans Administration, and (2) the appropriateness of
maintaining the present eligibility system for burial at
Arlington. The study submitted to Congress on January 21, 1974,
recommended that Arlington remain under Department of Army
jurisdiction and that the existing regulatory criteria be
maintained. Congress took no further legislative action.
The Army regulations for Arlington have never contained an
explicit provision allowing for waivers or exceptions to the
eligibility requirements. Since 1967, however, the Secretary of
the Army and the President have granted what the Army has
termed ``exceptions'' to the general eligibility requirements
in individual cases. Unfortunately, such a practice has
generally not been well known or commonly understood.
In May, 1997, the majority staff of the Committee was
provided anonymous information which called the waiver process
into question. The Subcommittee on Oversight and Investigations
held a public hearing on January 28, 1998, to receive testimony
on burial waivers at Arlington. At the request of the Chairman
and Ranking Member of the Oversight Subcommittee, and the
Ranking Democratic Member of the full Committee, GAO conducted
an expedited review of the waiver process in December, 1997,
and January, 1998. GAO presented its findings at the January 28
hearing, and outlined policy options concerning possible
improvements to the eligibility process for burial at
Arlington. The findings revealed a flawed waiver process marked
by unclear standards and inconsistent application of waiver
In 1998, according to GAO, there had been a total of 340
documented waiver requests since 1967, 196 of which had been
granted. GAO confirmed previous findings of Committee
investigators that numerous waivers have been informally sought
through the Superintendent's office, but were never documented
in cemetery records. The review also found that the cemetery's
responses to such requests from the general public were varied
and inconsistent, adding to the confusion concerning
eligibility standards for burial at Arlington.
GAO reviewed both Presidential and Secretary of the Army
waivers: President Lyndon Johnson granted the first two
Arlington waivers; President Richard Nixon granted three
waivers; President Gerald Ford granted six; President Jimmy
Carter individually granted 16 waivers, while the Army granted
two more during his term of office; the Ronald Reagan
administration granted a total of 63 waivers, 21 by
Presidential action; during the Administration of President
George Bush, the Secretary of the Army granted 32 waivers, none
were Presidential; and the William Clinton administration had
granted 73 waivers (to date, a total of 91), five by
At the Committee's request, both the American Law Division
of the Congressional Research Service (CRS) and GAO counsel had
conducted a legal analysis of such waiver authority. Although
no express secretarial or presidential waiver authority was
found, both CRS and GAO agreed with the Army's long-standing
position that it has such authority. Support can be found for
this argument in the legislative history of the National
Cemeteries Act of 1973.
In reporting the 1973 bill, the committees addressed the
express waiver authority provided to the VA, and noted that
``similar authority'' apparently resided with the Secretary of
the Army with respect to Arlington National Cemetery (Sen.
Report No. 93-55 at 36; House Report No. 93-131 at 16). The
Committee's Report accompanying the 1973 Act appears to have in
effect approved the six waivers granted between 1967 and 1973.
But the question of whether the Army should retain authority
over Arlington was left open for further study since the 1973
Act made clear that all other national cemeteries fell within
the VA's jurisdiction. As noted previously, the study submitted
to the Congress in January, 1974, recommended that existing
regulations and practices should be maintained, and that the
Army should retain jurisdiction over Arlington Cemetery.
Congress took no further action on this issue at that time.
Prior to the January 28, 1998, Subcommittee on Oversight
and Investigations hearing, the Department of Defense,
Department of the Army, and Arlington National Cemetery
provided extensive information and documentation regarding
secretarial and presidential waivers. Limited cooperation and
few available documents and information from the White House
restricted the ability of the Committee and GAO to review
presidential waivers granted since 1993. The White House also
did not respond to the Subcommittee's invitation to testify at
its January 28 hearing regarding waivers granted during the
current Administration. White House counsel asserted claims of
executive privilege and refused to provide the Committee copies
of several documents relating to waivers. Due to time
constraints and limited Committee resources, the Committee was
unable to extensively research the records of presidential
libraries regarding waivers by previous presidential
Despite these obstacles, the Subcommittee was able to
acquire extensive information concerning Arlington National
Cemetery eligibility criteria and the waiver process since
1967. The Subcommittee's review found that most of the 196
waivers for burial at Arlington had been granted for family
members of veterans (or members of the Armed Forces) eligible
for burial at Arlington. In most cases, such waivers have not
resulted in the displacement of an eligible veteran because the
family members have been buried in the same plot as the
Waivers for individuals not meeting the ordinary
eligibility criteria have been largely based on outstanding
contributions to the nation or the military, or deaths under
tragic circumstances while serving the nation in some
noteworthy capacity. In all, fourteen waivers have been granted
to persons with no military service, one of whom--still
living--has since withdrawn his request for burial at
Arlington. Given existing space limitations, the effect of such
waivers has been to displace eligible veterans from burial at
Some waivers resulting in the displacement of an eligible
veteran had been for essentially ``humanitarian,'' highly
subjective reasons, and some appeared to lack any compelling
basis. GAO's testimony on this point highlighted ``seemingly
contradictory decisions and recommendations'' by Army officials
and ``often undocumented'' rationale for waiver decisions prior
to 1991, when the tenure of the current cemetery Superintendent
began. GAO also found that ``the reasons for presidential
waiver decisions are generally not explained,'' and that
``presidential decisions are typically made without explicit
reference to criteria.''
H.R. 70 would provide no express or implied waiver or
exception authority to any person. Thus, it would eliminate the
authority to grant exceptions which resides in the Secretary of
the Army and would also eliminate the authority of any other
officer in the Executive Branch, including the President, to
authorize the burial of persons who do not meet the statutory
criteria. Under section 2, the bill would establish clear-cut
criteria for primary eligibility under subsection (a) of
section 2412 of title 38, United States Code, on which the
Superintendent of Arlington could make ministerial decisions
without the need for higher level discretionary decisions.
The Superintendent would also have a limited discretionary
authority regarding burial of certain family members under
subsection (b) of section 2412. The existing Army regulations
governing Arlington place such discretion in the Secretary of
the Army. The Committee believes such discretion is
appropriate, albeit better placed with the Superintendent
rather than the Secretary of the Army. As in the past, the
Secretary of the Army would retain overall responsibility for
the administration and operation of the cemetery.
The bill would prohibit the Secretary from considering any
request for burial in advance of the death of the individual.
It would also require the Secretary to maintain a public record
of all individuals buried in Arlington. Finally, the bill would
require the Secretary to publish an updated pamphlet describing
eligibility criteria within 180 days of enactment and
establishes the date of enactment as the effective date for all
individuals seeking burial in Arlington.
Section 3 codifies regulations governing placement in the
columbarium at Arlington National Cemetery. Generally, any
veteran eligible for burial in a national cemetery operated by
the Department of Veterans Affairs as defined in section 2412
of title 38 is eligible for the columbarium, including the
spouse, minor child, or at the discretion of the Superintendent
of Arlington National Cemetery, the unmarried adult child of an
Section 3 adds a new section 2414 to codify regulations
governing gravesite markers. It directs that graves be marked
in accordance with section 2404 of title 38, which describes
the types of markers which may be used in national cemeteries.
Section 3 also prescribes the conditions under which a private
marker may be placed on a gravesite in Arlington. In general,
private markers are restricted to areas authorized as of
January 1, 1947, for such markers. It also requires the private
party to provide for the maintenance of such markers, limits
the Secretary's liability in case of damage, and requires the
markers to be aesthetically compatible with Arlington National
Finally, section 4 requires that all monuments commemorate
a military event or the military service of an individual or
group of individuals. Monuments may not be placed in Arlington
until 25 years have elapsed after the service or event.
Section 1 states the title of the Act is the ``Arlington
National Cemetery Burial Eligibility Act''.
Section 2 would amend chapter 24 of title 38 United States
Code, by adding a new section 2412.
Proposed section 2412(a) establishes the primary
eligibility for burial at Arlington. Persons eligible are
members of the Armed Forces who die on active duty; veterans
who are retired and receiving retired pay, or would be eligible
for retired pay but for their age, or are eligible for
retirement but remain in an active reserve status; certain
former members of the Armed Forces who were separated for
disability prior to October 1, 1949; former members of the
Armed forces who were awarded any one of the following military
awards: the Medal of Honor, Distinguished Service Cross, Navy
Cross, Air Force Cross, Silver Star or Purple Heart; any former
POW who dies after November 30, 1993; the President or any
Proposed section 2412(b) establishes the eligibility of
certain family members of those eligible for burial under
2412(a) and the conditions of burial.
Subsection (b)(1) authorizes burial of the spouse,
surviving spouse, minor child or at the discretion of the
Superintendent of Arlington National Cemetery, the unmarried
Subsection (b)(2)(A) authorizes burial of an active duty
member's dependent in the same gravesite if such dependent dies
while the member is on active duty.
Subsection (b)(2)(B) authorizes burial of a former member
whose dependents were buried at Arlington National Cemetery
while the member was on active duty.
Subsection (b)(3) authorizes burial of the parents of a
child buried at Arlington based on the eligibility of a parent.
Subsection (b)(4)(A) authorizes burial of certain
dependents of a member of the Armed Forces whose body was not
recovered or permanently listed as missing or missing in
Subsection (b)(4)(B) denies burial of dependents authorized
in (4)(A) if a memorial already exists elsewhere in the
National Cemetery System, but authorizes relocation of any such
memorial to Arlington National Cemetery, thus reinstating
eligibility of the dependent.
Subsection (b)(5) authorizes the burial of certain
dependents of members of the Armed Forces buried in a cemetery
operated by the American Battle Monuments Commission.
Section 2412(c) authorizes, without approval by the
Superintendent, burial of a disabled unmarried adult child who
is incapable of self-support up to the time of death.
Section 2412(d) provides that dependents of those listed in
subsection (a) who are buried in a mass grave may not be buried
in the group gravesite, but may not be buried elsewhere in the
Section 2412(e) states that the exclusive authority for
burial eligibility is section 2412 of title 38 United States
Code. The intent of this provision is to deny all waiver
Section 2412(f) prohibits the Secretary of the Army from
considering a request for burial at Arlington National Cemetery
prior to the death of the individual for whom burial is
requested. The intent of this provision is to prohibit any
advance reservation of burial sites.
Section 2412(g) would require the Secretary of the Army to
establish and maintain a public register of those buried at
Arlington National Cemetery.
Section 2412(g)(2) would require the Secretary to provide a
brief description of the basis of the individual's eligibility
for interment. While the Committee understands the difficulties
that may arise in compiling the names and locations of all
those previously interred at Arlington, the Committee intends
the register to be as complete a database as possible.
Section 3(a) would add a new section 2413 to title 38
United States Code titled ``Arlington National Cemetery:
persons eligible for placement in the columbarium''.
2413(a)(1) states that the cremated remains of anyone
eligible for burial under section 2412 of title 38, United
States Code in Arlington National Cemetery is eligible for
placement in the columbarium.
2413(a)(2)(A) authorizes placement of any veteran whose
last active duty ended honorably.
2413(a)(2)(B) authorizes placement of the cremated remains
of the spouse, minor child and (at the discretion of the
Superintendent of Arlington National Cemetery) an unmarried
adult child of such a veteran.
Section 3(b) and (c) provides clerical and conforming
amendments to the table of sections for chapter 24 of title 38
United States Code.
Section 3(d) sets the effective date of section 2413 as the
date of enactment of the Act.
Section 4(a) adds a new section 2414 to title 38 United
States Code titled Arlington National Cemetery: authorized
headstones, markers and monuments.
Section 2414(a) directs that gravesite markers conform to
section 2404 of title 38 Untied States Code.
Section 2414(b)(1) directs the Secretary of the Army to
prescribe regulations for privately furnished gravesite
Section 2414(b)(2)(A) specifies general design criteria for
privately furnished headstones or markers.
Section 2414(b)(2)(B) requires that the person furnishing a
private marker provide for maintenance.
Section 2414(b)(2)(C) stipulates the Secretary of the Army
is not responsible for any maintenance or damage to privately
furnished headstones or markers.
Section 2414(b)(2)(D) requires privately furnished markers
to be aesthetically compatible with Arlington National
Section 2414(b)(2)(E) restricts placement of privately
furnished headstones or markers to areas designated for such
headstones or markers as of January 1, 1947.
Section 2414(c)(1) prohibits placement of monuments at
Arlington National Cemetery unless the monument meets
restrictions in either subsection (c)(2) or (c)(3).
Section 2414(c)(2) requires that a memorial must honor the
military service of an individual or group, or a military
Section 2414(c)(3) requires a 25-year waiting period
between the military service or event and placement of a
monument at Arlington National Cemetery.
Section 2414(c)(4) restricts placement of monuments to
areas designated by the Superintendent.
Section 4(b) makes a conforming amendment to the table of
section of chapter 24 United States Code.
Section 4(c) establishes the effective date of section 2414
as the date of enactment.
Section 5 directs the Secretary of the Army to publish any
regulations related to this Act in the Federal Register within
one year of enactment.
No oversight findings have been submitted to the Committee
by the Committee on Government Reform and Oversight.
Views of the Administration
Statement by Mr. Patrick T. Henry, Assistant Secretary of the Army
(Manpower and Reserve Affairs) and Mr. John C. Metzler, Jr.
Superintendent, Arlington National Cemetery for the House Veterans'
Affairs Benefits Subcommittee, First Session, 106th Congress, Regarding
H.R. 70, Provided on March 16, 1999
We appreciate the opportunity to provide comment on the
pending legislation regarding eligibility criteria for burial
at Arlington National Cemetery (ANC).
Arlington National Cemetery is America's most prominent
National Cemetery and serves as a shrine honoring the men and
women who have served in the armed forces and those Americans
who have made extraordinary contributions to the nation. It is
a visible reflection of America's appreciation for those
individuals whose acts and accomplishments reflect the highest
service to the country.
Since its founding in 1864, the cemetery has functioned
primarily as a military burial ground. Over the years, the
symbolic significance of Arlington National Cemetery has
evolved. The cemetery has become recognized as the nation's
foremost national memorial to its military members and is the
final resting place of Presidents and other leading public
figures. It has also become the site of major memorial events
and ceremonies, as well as a significant attraction for
visitors to the Washington area.
Our intent is to outline for the committee our effort to
enhance the regulations that govern eligibility criteria for
burial in Arlington, and to provide our views on pending
legislation pertaining to the same. rules governing burial in
Arlington are included in Title 32 of the Code of Federal
Regulations. As a result of last year's hearing on this matter,
we are in the process of revising the regulations that govern
burial policy. The revised regulations, like H.R. 70, will
continue the practice of allowing active members of the armed
forces, retired members of the armed forces, highly-decorated
veterans, former prisoners of war, and certain veterans
discharged due to disability, to be buried in Arlington.
In addition, the revised regulations are similar to H.R. 70
in that the regulations identify those categories of persons
who may be considered for burial in the cemetery based on their
relationship to an eligible veteran. In the past, exceptions
were required to allow close relatives and former spouses
burial in the same gravesite as an eligible veteran. In the
past 10 years, these types of exceptions have constituted 76
percent of those granted. We agree that these individuals
should be provided burial consideration, and not be viewed as
Our revised regulations would differ from H.R. 70 in two
major respects. first, H.R. 70 would eliminate the possibility
of burial in Arlington that presently exists for former members
of the armed forces who choose to continue their service to the
country and attain high legislative, judicial and executive
offices. This would include those in an elective office of the
United States Government such as the Vice President, United
States Senators, and Members of the United States House of
Representatives; appointed officials which include the Chief
Justice and Associate Justices of the Supreme Court of the
United States; Ambassadors at our largest and most important
overseas missions; cabinet members; and government officials at
a level I and level II position.
Under the revised army regulations governing burial at
Arlington, certain veterans who have served their country in
these specific high government offices would continue to be
allowed to be buried in Arlington based on their distinguished
service to the nation. Changing this rule would constitute a
significant departure from current burial policies and would
fundamentally change the character of the cemetery. under the
pending legislation, our military heroes will no longer lie
next to our nation's most revered statesmen and supreme court
justices, an attribute of the cemetery which distinguishes it
as the nation's most revered burial grounds.
Second, the pending legislation precludes any discretion to
grant exceptions under any circumstances. we believe that there
should always be the opportunity for individuals who have made
extraordinary public contributions to be considered for burial
at Arlington, and for an exception to be granted, if
Arlington should be preserved as a national shrine honoring
the men and women who have served in the armed forces and a
limited number of exceptional americans who have made or will
make extraordinary public contributions, the vast majority of
which are veterans of our armed forces.
If there is one thing we know, it is that life is
uncertain. we believe that there must be a mechanism to deal
with facts and events that are impossible to predict with
certainty today. we believe that the President, through his
designee, the Secretary of the Army, should have the discretion
to grant exceptions to allow for burial in Arlington of
individuals whose acts, services, or contributions, on behalf
of the armed forces or the nation, are extraordinary and
substantially similar to the acts, services, or contributions
made by the individuals who are entitled to burial.
To keep the public and the Congress informed of exceptions
that are granted, we require a public disclosure form be signed
by each requestor and, with each approval, we notify the
appropriate Congressional Oversight Committees. We believe that
current procedures for handling exception requests are highly-
effective, due to the fact that decisions concerning burials
are time-sensitive, extremely emotional, and require prompt
Finally, the pending legislation includes a provision that
addresses the placement of memorials and monuments, other than
private markers at individual gravesites. we support efforts to
limit these memorials and monuments to those that commemorate
service in the armed forces by an individual or group, and
those that commemorate particular military events. we also
approve of restricting the placement of memorials or monuments
commemorating military events until twenty-five years after the
event. this time period ensures that the event being
commemorated is of fitting historical significance.
The Army takes very seriously its responsibility to
administer and to uphold the sanctity of Arlington National
Cemetery as we pay final tribute to men and women who have
served our country with distinction. in this regard, the Army
has recently completed a master plan, which is designed to
ensure that Arlington will remain active as the nation's
foremost military cemetery. this plan requires a review of the
eligibility standards every five years to determine what
standards are appropriate given land availability. The plan
also identifies fourteen parcels of land that are located in
close proximity to the cemetery and that could be used for
future burials. We intend to examine those parcels that would
be made available so that the future needs of the cemetery are
met. these parcels include contiguous land sites that will be
vacated by the Army, Navy, and Marine Corps, including the Navy
Annex and a portion of Fort Myer. We solicit your support for
this initiative. funds are included in the President's Budget
for Fiscal Years 1999-2003 to prepare concept plans to develop
those parcels of land owned by the Federal government when they
become excess to government needs in the near future.
Acquisition of this property will allow for continued operation
of the cemetery through the twenty-first century.
Thank you for the opportunity to comment on this important
Roll Call Votes
During Committee consideration of H.R. 70, there was a
recorded vote on an amendment offered by Mr. Filner to provide
the Secretary of the Army with the authority to allow burial of
a person who does not meet the statutory criteria set forth in
H.R. 70. The amendment was rejected on a roll call vote of 16-
7. The vote of Committee Members is as follows:
Date: Thursday, March 18, 1999
Call to Order: 2:30 p.m.
Adjourn: 3:12 p.m.
Subject: Markup of H.R. 70, the Arlington National
Burial Eligibility Act
NAME YEA NAY NOT VOTING
Bob Stump, AZ, Chairman.............. ..................... x......................
Chris Smith, NJ, Vice Chairman....... ..................... x......................
Michael Bilirakis, FL................ ..................... x......................
Floyd Spence, SC..................... ..................... ..................... x
Terry Everett, AL.................... ..................... x......................
Steve Buyer, IN...................... ..................... ..................... x
Jack Quinn, NY....................... ..................... x......................
Cliff Stearns, FL.................... ..................... x......................
Jerry Moran, KS...................... ..................... x......................
J.D. Hayworth, AZ.................... ..................... x......................
Helen Chenoweth, ID.................. ..................... ..................... x
Ray LaHood, IL....................... ..................... x......................
Jim Hansen, UT....................... ..................... x......................
Howard (Buck) McKeon, CA............. ..................... x......................
Jim Gibbons, NV...................... ..................... x......................
Mike Simpson, ID..................... ..................... x......................
Richard Baker, LA.................... ..................... x......................
Lane Evans, IL, Ranking.............. x...................... .....................
Bob Filner, CA....................... x...................... .....................
Luis Gutierrez, IL................... x...................... .....................
Corrine Brown, FL.................... ..................... ..................... x
Mike Doyle, PA....................... ..................... x......................
Collin Peterson, MN.................. ..................... x......................
Julia Carson, IN..................... x...................... .....................
Silvestre Reyes, TX.................. ..................... ..................... x
Vic Snyder, AR....................... x...................... .....................
Ciro Rodriguez, TX................... ..................... ..................... x
Ronnie Shows, MS..................... x...................... .....................
Shelley Berkley, NV.................. x...................... .....................
TOTAL...................... 7...................... 16.....................
Congressional Budget Office Cost Estimate
Congressional Budget Office,
Washington, DC, February 24, 1999
Hon. Bob Stump,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, DC.
Dear Mr. Chairman: At your request, the Congressional
Budget Office (CBO) has prepared the enclosed cost estimate for
H.R. 70, the Arlington National Cemetery Burial Eligibility
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Charles
Riemann, who can be reached at 226-2840.
Dan L. Crippen,
H.R. 70. Arlington National Cemetery Burial Eligibility Act. As
introduced on January 6, 1999
H.R. 70 would codify many current regulations governing
eligibility for burial in Arlington National Cemetery and
interment in its columbarium. The bill would allow certain
close family members of eligible veterans to be buried in the
same grave without the need for a waiver, and it would prohibit
burial in other special cases. Under the bill, future memorials
or markers must commemorate service in the armed forces. H.R.
70 would require the Secretary of the Army to maintain a public
register that would describe the basis for the eligibility of
each individual buried in Arlington National Cemetery after
January 1, 1998. The Secretary would also be required to
publish a pamphlet describing eligibility requirements for
CBO estimates that the costs of implementing H.R. 70 would
not be significant. Most categories of veterans and family
members covered by the bill's eligibility criteria are already
eligible under current regulations. The bill would grant
eligibility to family members who are presently ineligible for
burial at Arlington National Cemetery, but because these
individuals are small in number and have tended to receive
waivers, the bill would not lead to a significant increase in
the number of burials at the cemetery. CBO estimates that the
costs of producing the register and pamphlet would be
negligible. Because the legislation would not affect direct
spending or receipts, pay-as-you-go procedures would not apply.
The bill contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act, end
would not effect the budgets of state, local or tribal
The estimate was prepared by Charles Riemann, who can be
reached at 226-2840. This estimate was approved by Robert A.
Sunshine, Deputy Assistant Director for Budget Analysis.
Inflationary Impact Statement
The enactment of the reported bill would have no
Applicability to Legislative Branch
The reported bill would not be applicable to the
legislative branch under the Congressional Accountability Act,
Public Law 104-1, because the bill would only affect certain
Department of Veterans Affairs and Department of Defense
programs and benefits recipients.
Statement of Federal Mandates
The reported bill would not establish a federal mandate
under the Unfunded Mandates Reform Act, Public Law 104-4.
Statement of Constitutional Authority
Pursuant to Article I, section 8 of the United States
Constitution, the reported bill is authorized by Congress'
power to ``provide for the common Defence and general Welfare
of the United States.''
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
CHAPTER 24 OF TITLE 38, UNITED STATES CODE
CHAPTER 24--NATIONAL CEMETERIES AND MEMORIALS
2400. Establishment of National Cemetery Administration; composition of
* * * * * * *
2412. Arlington National Cemetery: persons eligible for burial.
2413. Arlington National Cemetery: persons eligible for placement in
2414. Arlington National Cemetery: authorized headstones, markers, and
* * * * * * *
Sec. 2402. Persons eligible for interment in national cemeteries
Under such regulations as the Secretary may prescribe and
subject to the provisions of section 6105 of this title, the
remains of the following persons may be buried in any open
national cemetery under the control of the National Cemetery
(1) * * *
* * * * * * *
(5) The spouse, surviving spouse (which for purposes
of this chapter includes an unremarried surviving
spouse who had a subsequent remarriage which was
terminated by death or divorce), minor child (which for
purposes of this chapter, except section 2412(b)(1) of
this title, includes a child under 21 years of age, or
under 23 years of age if pursuing a course of
instruction at an approved educational institution),
and, in the discretion of the Secretary, unmarried
adult child of any of the persons listed in paragraphs
(1) through (4) and paragraph (7).
* * * * * * *
(7) Any person who at the time of death was entitled
(or but for age would have been entitled) to retired
pay under chapter  1223 of title 10 [or would have
been entitled to retired pay under that chapter but for
the fact that the person was under 60 years of age].
* * * * * * *
Sec. 2412. Arlington National Cemetery: persons eligible for burial
(a) Primary Eligibility.--The remains of the following
individuals may be buried in Arlington National Cemetery:
(1) Any member of the Armed Forces who dies while on
(2) Any retired member of the Armed Forces and any
person who served on active duty and at the time of
death was entitled (or but for age would have been
entitled) to retired pay under chapter 1223 of title
10, United States Code.
(3) Any former member of the Armed Forces separated
for physical disability before October 1, 1949, who--
(A) served on active duty; and
(B) would have been eligible for retirement
under the provisions of section 1201 of title
10 (relating to retirement for disability) had
that section been in effect on the date of
separation of the member.
(4) Any former member of the Armed Forces whose last
active duty military service terminated honorably and
who has been awarded one of the following decorations:
(A) Medal of Honor.
(B) Distinguished Service Cross, Air Force
Cross, or Navy Cross.
(C) Distinguished Service Medal.
(D) Silver Star.
(E) Purple Heart.
(5) Any former prisoner of war who dies on or after
November 30, 1993.
(6) The President or any former President.
(b) Eligibility of Family Members.--The remains of the
following individuals may be buried in Arlington National
(1) The spouse, surviving spouse (which for purposes
of this paragraph includes any remarried surviving
spouse, section 2402(5) of this title notwithstanding),
minor child, and, at the discretion of the
Superintendent, unmarried adult child of a person
listed in subsection (a), but only if buried in the
same gravesite as that person.
(2)(A) The spouse, minor child, and, at the
discretion of the Superintendent, unmarried adult child
of a member of the Armed Forces on active duty if such
spouse, minor child, or unmarried adult child dies
while such member is on active duty.
(B) The individual whose spouse, minor child, and
unmarried adult child is eligible under subparagraph
(A), but only if buried in the same gravesite as the
spouse, minor child, or unmarried adult child.
(3) The parents of a minor child or unmarried adult
child whose remains, based on the eligibility of a
parent, are already buried in Arlington National
Cemetery, but only if buried in the same gravesite as
that minor child or unmarried adult child.
(4)(A) Subject to subparagraph (B), the surviving
spouse, minor child, and, at the discretion of the
Superintendent, unmarried adult child of a member of
the Armed Forces who was lost, buried at sea, or
officially determined to be permanently absent in a
status of missing or missing in action.
(B) A person is not eligible under subparagraph (A)
if a memorial to honor the memory of the member is
placed in a cemetery in the national cemetery system,
unless the memorial is removed. A memorial removed
under this subparagraph may be placed, at the
discretion of the Superintendent, in Arlington National
(5) The surviving spouse, minor child, and, at the
discretion of the Superintendent, unmarried adult child
of a member of the Armed Forces buried in a cemetery
under the jurisdiction of the American Battle Monuments
(c) Disabled Adult Unmarried Children.--In the case of an
unmarried adult child who is incapable of self-support up to
the time of death because of a physical or mental condition,
the child may be buried under subsection (b) without
requirement for approval by the Superintendent under that
subsection if the burial is in the same gravesite as the
gravesite in which the parent, who is eligible for burial under
subsection (a), has been or will be buried.
(d) Family Members of Persons Buried in a Group Gravesite.--
In the case of a person eligible for burial under subsection
(a) who is buried in Arlington National Cemetery as part of a
group burial, the surviving spouse, minor child, or unmarried
adult child of the member may not be buried in the group
(e) Exclusive Authority for Burial in Arlington National
Cemetery.--Eligibility for burial of remains in Arlington
National Cemetery prescribed under this section is the
exclusive eligibility for such burial.
(f) Application for Burial.--A request for burial of remains
of an individual in Arlington National Cemetery made before the
death of the individual may not be considered by the Secretary
of the Army or any other responsible official.
(g) Register of Buried Individuals.--(1) The Secretary of the
Army shall maintain a register of each individual buried in
Arlington National Cemetery and shall make such register
available to the public.
(2) With respect to each such individual buried on or after
January 1, 1998, the register shall include a brief description
of the basis of eligibility of the individual for burial in
Arlington National Cemetery.
(h) Definitions.--For purposes of this section:
(1) The term ``retired member of the Armed Forces''
(A) any member of the Armed Forces on a
retired list who served on active duty and who
is entitled to retired pay;
(B) any member of the Fleet Reserve or Fleet
Marine Corps Reserve who served on active duty
and who is entitled to retainer pay; and
(C) any member of a reserve component of the
Armed Forces who has served on active duty and
who has received notice from the Secretary
concerned under section 12731(d) of title 10,
of eligibility for retired pay under chapter
1223 of title 10, United States Code.
(2) The term ``former member of the Armed Forces''
includes a person whose service is considered active
duty service pursuant to a determination of the
Secretary of Defense under section 401 of Public Law
95-202 (38 U.S.C. 106 note).
(3) The term ``Superintendent'' means the
Superintendent of Arlington National Cemetery.
Sec. 2413. Arlington National Cemetery: persons eligible for placement
The cremated remains of the following individuals may be
placed in the columbarium in Arlington National Cemetery:
(1) A person eligible for burial in Arlington
National Cemetery under section 2412 of this title.
(2)(A) A veteran whose last period of active duty
service (other than active duty for training) ended
(B) The spouse, surviving spouse, minor child, and,
at the discretion of the Superintendent of Arlington
National Cemetery, unmarried adult child of such a
Sec. 2414. Arlington National Cemetery: authorized headstones, markers,
(a) Gravesite Markers Provided by the Secretary.--A gravesite
in Arlington National Cemetery shall be appropriately marked in
accordance with section 2404 of this title.
(b) Gravesite Markers Provided at Private Expense.--(1) The
Secretary of the Army shall prescribe regulations for the
provision of headstones or markers to mark a gravesite at
private expense in lieu of headstones and markers provided by
the Secretary of Veterans Affairs in Arlington National
(2) Such regulations shall ensure that--
(A) such headstones or markers are of simple design,
dignified, and appropriate to a military cemetery;
(B) the person providing such headstone or marker
provides for the future maintenance of the headstone or
marker in the event repairs are necessary;
(C) the Secretary of the Army shall not be liable for
maintenance of or damage to the headstone or marker;
(D) such headstones or markers are aesthetically
compatible with Arlington National Cemetery; and
(E) such headstones or markers are permitted only in
sections of Arlington National Cemetery authorized for
such headstones or markers as of January 1, 1947.
(c) Monuments.--(1) No monument (or similar structure as
determined by the Secretary of the Army in regulations) may be
placed in Arlington National Cemetery except pursuant to the
provisions of this subsection.
(2) A monument may be placed in Arlington National Cemetery
if the monument commemorates--
(A) the service in the Armed Forces of the
individual, or group of individuals, whose memory is to
be honored by the monument; or
(B) a particular military event.
(3) No monument may be placed in Arlington National Cemetery
until the end of the 25-year period beginning--
(A) in the case of commemoration of service under
paragraph (1)(A), on the last day of the period of
service so commemorated; and
(B) in the case of commemoration of a particular
military event under paragraph (1)(B), on the last day
of the period of the event.
(4) A monument may be placed only in those sections of
Arlington National Cemetery designated by the Secretary of the
Army for such placement.
SECTION 11201 OF TITLE 46, UNITED STATES CODE
Sec. 11201. Eligibility for veterans' burial and cemetery benefits
(1) In general.--The qualified service of a person
referred to in paragraph (2) shall be considered to be
active duty in the Armed Forces during a period of war
for purposes of eligibility for benefits under the
following provisions of title 38:
(A) * * *
* * * * * * *
(C) Section 2413 (relating to placement in
the columbarium in Arlington National
* * * * * * *