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107th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    107-346

======================================================================



 
TO AMEND TITLE 38, UNITED STATES CODE, TO ENACT INTO LAW ELIGIBILITY OF 
  CERTAIN VETERANS AND THEIR DEPENDENTS FOR BURIAL IN ARLINGTON NATIONAL 
  CEMETERY

                                _______
                                

 December 19, 2001.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

   Mr. Smith of New Jersey, from the Committee on Veterans' Affairs, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 3423]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Veterans' Affairs, to whom was referred the 
bill (H.R. 3423) to amend title 38, United States Code, to 
enact into law eligibility of certain veterans and their 
dependents for burial in Arlington National Cemetery, having 
considered the same, reports favorably thereon with amendments 
and recommends that the bill as amended do pass.

  The amendments (stated in terms of the page and line number 
of the introduced bill) are as follows:

  Page 3, after line 9, add the following new section:

SEC. 2. PLACEMENT OF MEMORIAL IN ARLINGTON NATIONAL CEMETERY HONORING 
                    THE VICTIMS OF THE ACTS OF TERRORISM PERPETRATED 
                    AGAINST THE UNITED STATES ON SEPTEMBER 11, 2001.

  (a) Authorization To Place Memorial.--The Secretary of the Army is 
authorized to construct and place in Arlington National Cemetery a 
memorial marker honoring the victims of the acts of terrorism 
perpetrated against the United States on September 11, 2001.
  (b) Consultation with Families of Victims Before Use of Authority.--
The Secretary of the Army shall consult with the families of victims of 
such acts of terrorism prior to the exercise of the authority provided 
for under subsection (a).

  Amend the title so as to read:

  A bill to amend title 38, United States Code, to enact into law 
eligibility of certain Reservists and their dependents for burial in 
Arlington National Cemetery, and for other purposes.

                              Introduction

    The reported bill reflects the Committee's consideration of 
H.R. 3423, as amended.

    On December 6, 2001, the Chairman of the Veterans' Affairs 
Committee, the Honorable Chris Smith, along with Honorable 
Michael Bilirakis, Honorable Steve Buyer, Honorable Mike 
Simpson, Honorable Richard Baker, Honorable Rob Simmons, 
Honorable Frank Wolf, and Honorable Tom Davis of Virginia, 
introduced H.R. 3423 to amend title 38, United States Code, to 
enact into law eligibility of certain veterans and their 
dependents for burial at Arlington National Cemetery.
    On December 13, 2001, the Committee on Veterans' Affairs 
held a hearing on H.R. 3423. The Committee received testimony 
from Mr. John C. Metzler, Superintendent, Arlington National 
Cemetery; Mr. Bob Manhan, Assistant Director, National 
Legislative Service, Veterans of Foreign Wars of the United 
States; Mr. Steven Garrett, Deputy Legislative Director, The 
Retired Enlisted Association; Mr. Richard C. Schneider, 
Director of State/Veterans Affairs, Non Commissioned Officers 
Association; Mr. Bob Norton, Director of Government Relations, 
The Retired Officers Association; and Mr. Patrick Eddington, 
Associate Director, Vietnam Veterans of America.
    On December 13, 2001, the full Committee met and ordered 
H.R. 3423 reported favorably, as amended, to the House by 
unanimous voice vote.

                      Summary of the Reported Bill

    H.R. 3423, as amended, would:

    1. Make eligible for in-ground burial at Arlington 
National Cemetery a member or former member of a reserve 
component of the Armed Forces who at the time of death was 
under 60 years of age and but for age, would have been eligible 
for military retired pay under title 10, United States Code. 
The bill would also extend eligibility to the member's 
dependents.

    2. Make eligible for in-ground burial at Arlington 
National Cemetery a member of a reserve component of the Armed 
Forces who dies in the line of duty while on active duty for 
training or inactive duty training. The bill would also extend 
eligibility to the member's dependents.

    3. Authorize the Secretary of the Army to construct and 
place a memorial at Arlington National Cemetery honoring the 
victims of the acts of terrorism perpetrated against the United 
States on September 11, 2001. The Secretary of the Army would 
be required to consult with the families of the victims of such 
acts of terrorism prior to the exercise of such authority.

                               Background

    Under Army regulations, 32 CFR 553.15, the persons 
specified below, whose last period of active duty in the Armed 
Forces ended honorably, are eligible for in-ground burial at 
Arlington National Cemetery:

    1.  Any active duty member of the Armed Forces, except 
those serving on active duty for training purposes only.

    2.  Any veteran retired from active military service with 
the Armed Forces.

    3.  Any veteran who is retired from the Reserves is 
eligible upon reaching the age of 60 and who is drawing retired 
pay, and who served a period of active duty (other than for 
training).

    4.  Any former member of the Armed Forces separated 
honorably prior to October 1, 1949, for medical reasons with a 
30 percent or greater disability rating effective on the day of 
discharge.

    5.  Any former member of the Armed Forces awarded one of 
the following decorations:

             Medal of Honor;
             Distinguished Service Cross (Air Force 
        Cross or Navy Cross);
             Distinguished Service Medal;
             Silver Star; or
             Purple Heart.

    6.  The current and any former President of the United 
States.

    7.  Any former member of the Armed Forces who served on 
active duty (other than for training purposes) and held any of 
the following positions:

             An elective office of the U.S. 
        Government;
             Office of the Chief Justice of the United 
        States or an Associate Justice of the Supreme Court of 
        the United States;
             An office listed, at the time the 
        individual held the position, in 5 USC 5312 or 5313 
        (Levels I and II of the Executive Schedule); or
             The chief of a mission who at the time 
        during his/her tenure was classified in Class I under 
        the provisions of Section 411, Act of 13 August 1946, 
        60 Stat. 1002, as amended (22 USC 866) or as listed in 
        State Department memorandum dated March 21, 1988.

    8.  Any former prisoner of war (POW) who, while a POW, 
served honorably in the active military, naval or air service, 
whose last period of service terminated honorably and who died 
on or after November 30, 1993.

    9.  The spouse, widow or widower, minor children, 
permanently dependent children, and certain unmarried adult 
children of any above eligible veterans.

    10. The widow or widower of:

             A member of the Armed Forces lost or 
        buried at sea, or officially determined missing in 
        action;
             A member of the Armed Forces buried in a 
        U.S. military cemetery overseas maintained by the 
        American Battle Monuments Commission; or,
             A member of the Armed Forces interred in 
        Arlington National Cemetery as part of a group burial.

    11. The parents of a minor child, or permanently dependent 
child whose remains, based on the eligibility of a parent, are 
buried in Arlington National Cemetery. A spouse divorced from 
the primary eligible, or widowed and remarried, is not eligible 
for interment.

    12. The surviving spouse, minor children, and permanently 
dependent children of any eligible veteran buried in Arlington 
National Cemetery.

    13. Provided certain conditions are met, a former member 
of the Armed Forces may be buried in the same grave with a 
close relative who is buried in Arlington National Cemetery and 
who is the primary eligible.

    Army regulations governing Arlington National Cemetery have 
never contained an explicit provision providing for waivers to 
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 extraordinary individual cases.
    Waivers for individuals not meeting the ordinary 
eligibility criteria have largely been based on outstanding 
contributions to the military or the Nation itself, or death 
under tragic circumstances while serving the Nation in some 
noteworthy capacity. A small number of these waivers have 
allowed in-ground burial at Arlington for retired reserve 
members who died before age 60 or who died while in training 
status.
    Under the Army regulations, Captain Charles Burlingame III, 
the pilot of the airliner that crashed into the Pentagon on 
September 11, 2001, was ineligible for a burial plot at 
Arlington because, although he had retired from the Navy 
Reserve after a distinguished career as a fighter pilot, he was 
51 years old at the time of his death. The Secretary of the 
Army granted a waiver and on December 12, 2001, Captain 
Burlingame was interred at Arlington.
    Veterans and their dependents who are eligible for in-
ground burial in national cemeteries other than Arlington are 
also currently eligible for inurnment of their cremated remains 
at the Arlington columbarium.

                    Discussion of the Reported Bill

    H.R. 3423, as amended, would revise existing law by 
eliminating the requirement that retired reservists be in 
receipt of their retirement pay under title 10, United States 
Code, to be eligible for in-ground burial at Arlington National 
Cemetery. Retired reservists must be 60 years old in order to 
receive retirement pay. Retirees from reserve service who are 
not yet 60 years old are often referred to as being in the 
``gray zone.'' The bill would also make eligible for in-ground 
burial members of reserve components who die in the line of 
duty during active duty for training or inactive duty training.
    Burial space is limited at Arlington and the Committee 
appreciates the Army's interest in maintaining its strict 
eligibility rules. Over the years, Congress has extended 
veterans' benefits to members of the reserve components (the 
Reserve and National Guard) that were previously available only 
to veterans who had served on active duty. For example, section 
301 of Public Law 106-419 expanded the definition of active 
military service so that a reservist or National Guard member 
who suffers a heart attack or stroke during inactive duty 
training now qualifies for certain veterans' benefits.
    Reservists play an essential role in the total force 
concept of today's military. The reserve components are 
responsible for providing many critical skills and mission 
capabilities. During the Persian Gulf War, 106,047 members of 
reserve components were mobilized, and in the war against 
terrorism, 75,229 members of reserve components (as of December 
18, 2001) have been mobilized. The Committee believes it is 
inequitable that a reservist who serves our Nation for a 
minimum of 20 years should be ineligible for in-ground burial 
at Arlington because he or she had the misfortune to die prior 
to age 60.
    Similarly, this legislation would also extend burial 
eligibility to members of a reserve component who die in the 
line of duty while performing training duty. The Committee sees 
no reason why a reservist's eligibility for burial at Arlington 
should be based on whether that person was--or was not--in 
training status when he or she died in the line of duty. In 
today's military, there is no practical difference, and members 
of the reserve components make a direct contribution to the 
defense of the Nation when technically in ``training'' status.
    H.R. 3423, as amended, would also authorize the Secretary 
of the Army to construct and place at Arlington a memorial 
honoring the victims of the acts of terrorism perpetrated 
against the United States on September 11, 2001. Before taking 
action under this discretionary authority, the Secretary of the 
Army would be required to consult with the families of the 
victims of these terrorist acts.

                      Section-By-Section Analysis

    Section 1 would create a new section 2412 of title 38, 
United States Code, entitled ``Arlington National Cemetery: 
eligibility of certain persons for burial''.

    Section 1(a) would make eligible for in-ground burial at 
Arlington the remains of a member or former member of a reserve 
component of the Armed Forces who was under 60 years of age and 
who, but for age, would have been eligible at the time of death 
for retirement pay under chapter 1223 of title 10, United 
States Code, on the same basis as the remains of members of the 
Armed Forces entitled to retired pay under that chapter; it 
would also accord eligibility to the member's dependents.

    Section 1(b) would make eligible for in-ground burial at 
Arlington the remains of a member of a reserve component of the 
Armed Forces who dies in the line of duty while on active duty 
for training or inactive duty training on the same basis as the 
remains of a member of the Armed Forces who dies while on 
active duty; it would also accord eligibility to the member's 
dependents.

    Section 2 would make the effective date of this provision 
applicable to interments occurring on or after the date of 
enactment of this Act.

    Section 3 would authorize the Secretary of the Army to 
construct and place in Arlington National Cemetery a memorial 
marker honoring the victims of the acts of terrorism 
perpetrated against the United States on September 11, 2001. 
The section would also require the Secretary of the Army to 
consult with the families of victims of such acts of terrorism 
prior to the exercise of such authority.

                    Performance Goals and Objectives

    The reported bill changes burial eligibility for Arlington 
National Cemetery and provides the Secretary of the Army 
discretionary authority to place a memorial there. The 
Committee conducts regular oversight of Arlington National 
Cemetery.

                   STATEMENT OF ADMINISTRATIONS VIEWS

                         Department of the Army

                          [December 13, 2001]

    Complete Statement of John C. Metzler, Superintendent Arlington 
  National Cemetery before the Committee on Veterans Affairs, United 
     States House of Representatives on Proposed Changes in Burial 
                              Eligibility

    Mr. Chairman and Distinguished Members of the Committee:

                              Introduction

    I appreciate the opportunity to appear before this committee to 
discuss proposed legislation regarding eligibility criteria for burial 
at Arlington National Cemetery. The Secretary of the Army is 
responsible for burial policy at Arlington National Cemetery. I am here 
to provide the Army's comments on the proposed legislation and answer 
any questions you may have.
    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. It is a visible reflection of America's 
appreciation for those individuals whose acts and accomplishments 
reflect the highest service to the country.

                                Funerals

    In Fiscal Year 2001, there were 3,727 interments and 2,212 
inurnments. In Fiscal Year 2002, we estimate there will be 3,800 
interments and 2,500 inurnments. Looking ahead to Fiscal Year 2003, we 
estimate there will be 3,925 interments and 2,700 inurnments.

                       Ceremonies and Visitation

    Thousands of visitors visit Arlington National Cemetery to 
participate in ceremonial events and pay their respects to our fallen 
heroes. During Fiscal Year 2001, about 3,000 ceremonies were conducted 
at this treasured National Cemetery. The President of the United States 
attended ceremonies we conducted commemorating Veterans Day and 
Memorial Day.

                          Proposed Legislation

    As you know, the space that we have available in Arlington Cemetery 
is limited and has required the establishment of rules to regulate 
burial eligibility. The rules governing burial eligibility in Arlington 
National Cemetery are set forth in Title 32 of the Code of Federal 
Regulations. The Army, as the executive agent for the Cemetery, strives 
to implement these regulations fairly and consistent with the space 
limitations we face.
    The Army is troubled with the proposed legislation contained in 
H.R. 3423, regarding the extension of burial privileges in Arlington 
National Cemetery to certain current and former reserve component 
members of the Armed Forces and their dependents. The legislation 
expands eligibility for burial in Arlington National Cemetery beyond 
that which can be supported by current space constraints and will 
likely cause the denial of this privilege to other eligible persons.
    Under current projections, the group of newly eligible reservists 
under the proposed legislation would exceed 188,000, not to mention 
their dependents, whose number I do not know. While the long-term 
effect of such an expansion is not now known, clearly the number of 
eligible veterans will be greatly expanded at a time when we are 
already projecting that Arlington National Cemetery will exhaust its 
current space by 2025.
    The Army leadership was aware that Senators Warner and Stevens had 
introduced legislation (Section 3135 of H. R. 3338) that narrowly 
tailors expansion of the eligibility criteria to authorize individual 
interment in Arlington National Cemetery for those retired members of 
the Armed Forces reserves, not otherwise eligible, who died in the 
September 11th terrorist attacks. The Secretary was also sensitive to 
the fact that any legislative proposal would likely not be enacted in 
time to accommodate a request for burial on December 12th as an 
exception to the burial policy. Thus, to honor the intent of the 
proposed legislation and to spare the family any further grief, the 
Secretary of the Army granted an exception to allow the burial of 
retired Naval Reserve Captain Charles F. Burlingame, III, in a separate 
grave in Arlington National Cemetery.

                               Conclusion

    Mr. Chairman, this concludes my remarks. I will be pleased to 
respond to questions from the committee.

               Congressional Budget Office Cost Estimate

    The following letter was received from the Congressional 
Budget Office concerning the cost of the reported bill:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 18, 2001.
Hon. Christopher H. Smith
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, DC.

    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3423, a bill to 
amend title 38, United States Code, to enact into law 
eligibility of certain veterans and their dependents for burial 
in Arlington National Cemetery.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Michelle S. 
Patterson, who can reached at 226-2840.

            Sincerely,
                                            Dan L. Crippen,
                                                          Director.

    Enclosure.

H.R. 3423, A bill to amend title 38, United States Code, to enact into 
law eligibility of certain veterans and their dependents for burial in 
Arlington National Cemetery, As ordered reported by the House Committee 
               on Veterans' Affairs on December 13, 2001

    H.R. 3423 would amend the eligibility requirements for 
burial in Arlington National Cemetery to allow more reservists 
and their spouses to be buried there. CBO estimates that 
implementing this bill would cost less than $500,000 a year, 
subject to the availability of appropriated funds. Because this 
bill would not affect direct spending or receipts, pay-as-you-
go procedures would not apply.
    Under current law, only reservists who are eligible for 
retirement pay and have reached age 60 or who were killed while 
on active duty may be buried in Arlington National Cemetery. 
This bill would eliminate the requirement that current and 
retired reservists be at least 60 years old. It also would 
allow those killed while on active duty for training or 
inactive-duty training to be eligible for burial in Arlington 
National Cemetery. Spouses of these reservists would also be 
eligible.
    Based on data from the Department of Defense, CBO estimates 
that about 800 reservists die each year who would be eligible 
for burial in Arlington National Cemetery under is bill. 
Because Arlington is not centrally located in the United States 
and many families would likely choose to have their loved one 
buried close to home, CBO assumes that less than 10 percent of 
those eligible would actually be buried in Arlington National 
Cemetery. This percentage is consistent with a recent survey 
conducted by the Department of Veterans Affairs which found 
that about 12 percent of veterans are buried in a state or 
national veterans cemetery. Of those surveyed who expressed no 
desire to be buried in a veterans cemetery, almost half cited 
distance or an existing family plot as the reason. With burial 
costs of about $1,000 per grave, CBO estimates that this bill 
would increase spending by less than $500,000 a year, assuming 
appropriation of the necessary amounts.
    This bill would also give the Secretary of the Army the 
authority to build a memorial to the victims of the September 
11 terrorist attacks in Arlington National Cemetery after 
consulting with the victims' families. Assuming that a memorial 
would be built in this location, CBO cannot estimate the 
eventual cost since the design and scope of the memorial are 
unknown at this time. A smaller monument, such as the one in 
Arlington National Cemetery memorializing the astronauts of the 
Space Shuttle Challenger, could cost about $15,000 to design 
and build. A larger monument, such as the obelisk commemorating 
the Third Infantry Division on Memorial Drive in the cemetery, 
could cost about $125,000. In recent years, monuments to other 
victims of terrorism and disaster have been largely funded by 
private groups.
    H.R. 3423 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact is Michelle S. Patterson, who can be 
reached at 226-2840. This estimate was approved by Peter H. 
Fontaine, Deputy Assistant Director for Budget Analysis.

                  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 burial 
eligibility for Arlington National Cemetery.

                     Statement of Federal Mandates

    The reported bill would not establish a federal mandate 
under the Unfunded 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 Defense 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 (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

                      TITLE 38, UNITED STATES CODE



           *       *       *       *       *       *       *
                       PART II--GENERAL BENEFITS

           *       *       *       *       *       *       *


             CHAPTER 24--NATIONAL CEMETERIES AND MEMORIALS

Sec.
2400.    Establishment of National Cemetery Administration; composition 
          of Administration.
     * * * * * * *
2412.    Arlington National Cemetery: eligibility of certain persons for 
          burial.
     * * * * * * *

Sec. 2412. Arlington National Cemetery: eligibility of certain persons 
                    for burial

  (a)(1) The remains of a member or former member of a reserve 
component of the Armed Forces who at the time of death was 
under 60 years of age and who, but for age, would have been 
eligible at the time of death for retired pay under chapter 
1223 of title 10 may be buried in Arlington National Cemetery 
on the same basis as the remains of members of the Armed Forces 
entitled to retired pay under that chapter.
  (2) The remains of the dependents of a member whose remains 
are permitted under paragraph (1) to be buried in Arlington 
National Cemetery may be buried in that cemetery on the same 
basis as dependents of members of the Armed Forces entitled to 
retired pay under such chapter 1223.
  (b)(1) The remains of a member of a reserve component of the 
Armed Forces who dies in the line of duty while on active duty 
for training or inactive duty training may be buried in 
Arlington National Cemetery on the same basis as the remains of 
a member of the Armed Forces who dies while on active duty.
  (2) The remains of the dependents of a member whose remains 
are permitted under paragraph (1) to be buried in Arlington 
National Cemetery may be buried in that cemetery on the same 
basis as dependents of members on active duty.

           *       *       *       *       *       *       *