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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 
                               following

                              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.

                              Introduction

    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.

                               Background

    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 
national cemeteries.
    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 
of Washington.
    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 
December, 1998.
    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 
condition.
    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 
jurisdiction.
    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 
        training;

         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 
        Heart;

         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 
        cemetery;

         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 
expanded.
    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 
reports stated:

        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 
jurisdiction.
    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.

                                Waivers

    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 
criteria.
    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 
Presidential action.
    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 
administrations.
    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 
veteran.
    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 
Arlington.
    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.''

                               Discussion

    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 
eligible veteran.
    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 
Cemetery.
    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-By-Section Analysis

    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 
former President.
    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 
adult child.
    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 
action.
    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 
cemetery.
    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 
authority.
    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 
markers.
    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 
Cemetery.
    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 
event.
    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.

                           Oversight Findings

    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 
an exception.
    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 
appropriate.
    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 
action.
    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 
issue.

                            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 
            Cemetery
             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

                                     U.S. Congress,
                               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 
Act.
    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.
            Sincerely,
                                            Dan L. Crippen,
                                                          Director.
    Attachment

    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 
burial.
    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 
governments.
    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 
inflationary impact.

                  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

Sec.
2400.  Establishment of National Cemetery Administration; composition of 
          Administration.
     * * * * * * *
2412.  Arlington National Cemetery: persons eligible for burial.
2413.  Arlington National Cemetery: persons eligible for placement in 
          columbarium.
2414.  Arlington National Cemetery: authorized headstones, markers, and 
          monuments.

           *       *       *       *       *       *       *


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 
Administration:
          (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 [67] 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 
        active duty.
          (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 
Cemetery:
          (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 
        Cemetery.
          (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 
        Commission.
  (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 
gravesite.
  (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'' 
        means--
                  (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 
                    in columbarium

  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 
        honorably.
          (B) The spouse, surviving spouse, minor child, and, 
        at the discretion of the Superintendent of Arlington 
        National Cemetery, unmarried adult child of such a 
        veteran.

Sec. 2414. Arlington National Cemetery: authorized headstones, markers, 
                    and monuments

  (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 
Cemetery.
  (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

  (a) Eligibility.--
          (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 
                Cemetery).

           *       *       *       *       *       *       *