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107th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     107-588

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



 
           ARLINGTON NATIONAL CEMETERY BURIAL ELIGIBILITY ACT

                                _______
                                

 July 18, 2002.--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. 4940]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Veterans' Affairs, to whom was referred the 
bill (H.R. 4940) 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 June 13, 2002, the Honorable Bob Stump, along with the 
Chairman and Ranking Member of the Veterans' Affairs Committee, 
the Honorable Chris Smith and the Honorable Lane Evans, 
respectively, and the Chairman and Ranking Member of the 
Subcommittee on Benefits, the Honorable Mike Simpson and the 
Honorable Silvestre Reyes, respectively, introduced H.R. 4940, 
to enact into law eligibility requirements for burial in 
Arlington National Cemetery.
    On June 11, 2002, the Subcommittee on Benefits held a 
hearing that included testimony on a discussion draft of H.R. 
4940. On July 9, 2002, the Subcommittee on Benefits met and 
unanimously ordered H.R. 4940 reported favorably to the full 
Committee.
    On July 16, 2002, the full Committee met and ordered H.R. 
4940 reported favorably to the House by a roll call vote of 22-
3.

                      Summary of the Reported Bill

    H.R. 4940 would:

    1. Codify eligibility criteria for in-ground burial at 
Arlington National Cemetery. Eligible persons would be:

          a) members of the Armed Forces who die on active 
        duty;
          b) retired members of the Armed Forces, including 
        reservists who served on active duty;
          c) members or former members of a reserve component 
        who, but for age, would have been eligible for retired 
        pay;
          d) members of a reserve component who die in the 
        performance of duty while on active duty training or 
        inactive duty training;
          e) former 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;
          f) former prisoners of war who die on or after 
        November 30, 1993;
          g) the President or any former President;
          h) members of the Guard or Reserves who served on 
        active duty, who are eligible for retirement, but who 
        have not yet retired;
          i) the spouse, surviving spouse, minor child and at 
        the discretion of the Superintendent of Arlington, 
        subject to certain requirements, unmarried adult 
        children of a) through h).

    2. Provide the President the authority to grant a waiver 
for burial at Arlington in the case of an individual not 
otherwise eligible for burial under the military service 
criteria outlined above but whose acts, service, or 
contributions to the Armed Forces are so extraordinary as to 
justify burial at Arlington; would allow the President to 
delegate the waiver authority only to the Secretary of the 
Army.

    3. Codify existing regulatory eligibility for interment of 
cremated remains in the columbarium at Arlington. Generally, 
this includes all veterans with honorable service and their 
dependents.

    4. Clarify that only memorials honoring military service 
may be placed at Arlington and set a 25-year waiting period.

    5. Clarify that in the case of individuals buried in 
Arlington before the date of enactment, the surviving spouse is 
deemed to be eligible if buried in the same gravesite.

                       Background and Discussion

    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 led 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, as 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 1880s, the burials 
of General Pershing and President William Howard Taft in the 
1920s, 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. At the end of December 2001, Arlington had a total 
capacity of 243,373 gravesites, with about 32,312 remaining 
available as of the end of March 2002.
    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, unmarried children generally have 
been deemed 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 Guard, 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, currently published in federal 
regulations at 32 CFR 553.15, 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 in-ground 
Arlington burial of the following categories of persons:

         Active duty members of the Armed Forces, 
        except those members serving on active duty for 
        training;
         Retired members of the Armed Forces who have 
        served on active duty, are on a retired list and are 
        entitled to receive retirement pay;
         Former 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;
         Honorably 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;
         Former prisoners of war who served honorably 
        and who died on or after November 30, 1993;
         Provided 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;
         The 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);
         Surviving spouses of servicemembers who are 
        interred in the cemetery as part of a group burial, but 
        not in the same grave as the deceased spouse;
         The 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;
         The 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; 
50,000 niches capable of holding two urns each are available.
    After the Army imposed 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. It is 
projected that there will be 3,800 interments and 2,500 
inurnments in fiscal year 2002, and 3,925 interments and 2,700 
inurnments in fiscal year 2003. Given the expected burial 
rates, the Army projects that all gravesites will be occupied 
by 2025.
    In 1973, Congress addressed the need for a coherent 
national burial policy and management system for national 
cemeteries. The National Cemeteries Act of 1973 (Public Law 93-
43) established within the Veterans Administration (VA), now 
the Department of Veterans Affairs, a National Cemetery System 
consisting of cemeteries already under 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 
burial in the cemeteries as called for under the 1959 Act, but 
transferred jurisdiction to the then-Administrator 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 VA and the Department of Defense on (1) the advisability of 
including Arlington National Cemetery within the National 
Cemetery System to be administered by VA, 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 the 
jurisdiction of the Department of the Army and that the 
existing regulatory criteria be maintained. Congress took no 
further legislative action.
    Section 2 of the bill would codify, with the exceptions 
discussed below, existing regulatory eligibility criteria for 
burial at Arlington National Cemetery. The bill would 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 discussed in the bill summary. The bill would 
eliminate the current regulatory requirement that retired 
reservists be in receipt of their retirement pay under title 
10, United States Code, to be eligible for in-ground burial. 
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 ``grey 
zone.'' 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.
    Burial space is limited at Arlington and the Committee 
appreciates the Army's interest in maintaining its strict 
eligibility rules. However, over the years Congress has 
extended veterans' benefits to members of the reserve 
components (the Selected Reserve and National Guard) that were 
previously available only to veterans who had served on active 
duty. 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.
    Similarly, section 2 of this legislation would extend 
burial eligibility to members of a reserve component who die in 
the performance 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 
performance 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.
    The bill would also extend to the President, or the 
Secretary of the Army at the President's discretion, the 
authority to grant a burial waiver to an individual who does 
not otherwise meet the military service criteria for burial. 
Such a waiver would only be appropriate in the case of an 
individual whose acts, service, or contributions to the Armed 
Forces are so extraordinary as to justify burial at Arlington 
National Cemetery.
    The bill would prohibit the Secretary and the 
Superintendent 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.
    Section 3 of the bill would codify 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.
    Section 4 of the bill would add a new section 2414 to 
codify regulations governing gravesite markers. It directs that 
graves be marked in accordance with section 2404 of title 38, 
United States Code, which describes the types of markers which 
may be used in national cemeteries. Section 4 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 at the cemetery authorized as of January 1, 
1947, for such markers. This section 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 of the bill would require that all 
monuments commemorate a military event or the military service 
of an individual or group of individuals. Placement of 
monuments in Arlington would be prohibited until 25 years have 
elapsed after the service or event being commemorated.

                      Section-By-Section Analysis

    Section 1 of the bill would provide that this Act may be 
cited as the ``Arlington National Cemetery Burial Eligibility 
Act''.

    Section 2(a) of the bill would amend chapter 24 of title 
38, United States Code, by adding a new section 2412.

    Proposed section 2412(a) would establish 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, members or former 
members of a reserve component who served on active duty, was 
honorably discharged from such active duty service, who, at the 
time of death, was under 60 years of age and who would, but for 
age, have been eligible at the time of death for retired pay 
under title 10, United States Code; certain former members of 
the Armed Forces who were separated for disability prior to 
October 12, 1949; former members of the Armed Forces who were 
awarded any one of the following military awards: Medal of 
Honor, Distinguished Service Cross (Air Force Cross or Navy 
Cross), Distinguished Service Medal, Silver Star, or Purple 
Heart; any former POW who dies after November 30, 1993; any 
member of a reserve component of the Armed Forces who dies in 
the performance of duty while on active duty for training or 
inactive duty training; the President or any former President.

    Proposed section 2412(b) would establish the eligibility of 
certain family members of those eligible for burial under 
2412(a) and the conditions of burial.

    Section 2412(b)(1) would authorize burial of the spouse, 
surviving spouse (which includes any remarried surviving 
spouse, section 2402(5) of this title notwithstanding), minor 
child or at the discretion of the Superintendent of Arlington 
National Cemetery, the unmarried adult child, but only if 
buried in the same gravesite as that person.

    Section 2412(b)(2)(A) would authorize burial of an active 
duty member's dependent in the same gravesite if such dependent 
dies while the member is on active duty.

    Section 2412(b)(2)(B) would authorize burial of a former 
member whose dependent was buried at Arlington National 
Cemetery while the member was on active duty, but only if 
buried in the same gravesite.

    Section 2412(b)(3) would authorize burial of the parents of 
a child buried at Arlington based on the eligibility of a 
parent, but only if buried in the same gravesite.

    Section 2412(b)(4)(A) would authorize burial of certain 
dependents at the discretion of the Superintendent of a member 
of the Armed Forces whose body was not recovered or permanently 
listed as missing or missing in action.

    Section 2412(b)(4)(B) would deny burial of dependents 
authorized in (4)(A) if a memorial to honor the memory of the 
member already exists elsewhere in the national cemetery 
system, but would authorize relocation of any such memorial to 
Arlington National Cemetery, thus reinstating eligibility of 
the dependent.

    Section 2412(b)(5) would authorize 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) would authorize, without approval by the 
Superintendent, burial of a disabled unmarried adult child who 
is incapable of self-support up to the time of death if in the 
same gravesite as the eligible parent.

    Section 2412(d) would provide that dependents of those 
listed in subsection (a) who are buried as part of a group 
burial may not be buried in the group gravesite.

    Section 2412(e)(1) would provide that the exclusive 
authority for burial eligibility is section 2412 of title 38, 
United States Code.

    Section 2412(e)(2)(A) would provide the President the 
authority to deem eligible for burial an individual, not 
otherwise eligible under subsection (a), whose acts, service, 
or contributions to the Armed Forces are so extraordinary as to 
justify burial in Arlington National Cemetery.

    Section 2412(e)(2)(B) would require that the Secretary of 
the Army immediately notify the chairmen and ranking members of 
the Committee on Veterans' Affairs of the Senate and House of 
Representatives if the President deems an individual eligible 
for burial under subparagraph (A).

    Section 2412(e)(2)(C)(i) would provide that the authority 
under subparagraph (A) may not be delegated.

    Section 2412(e)(2)(ii) would provide that the President may 
only delegate the authority under subparagraph (A) to the 
Secretary of the Army.

    Section 2412(f)(1) would require that a request for burial 
at Arlington National Cemetery must be made to the Secretary of 
the Army or to any other Federal official that the Secretary of 
the Army may specify.

    Section 2412(f)(2) would prohibit the Secretary or other 
Federal official from considering a request for burial under 
paragraph (1) at Arlington National Cemetery prior to the death 
of the individual for whom burial is requested.

    Section 2412(f)(3) would prohibit the President or the 
Secretary as the case may be, from considering a request for 
burial under subsection (e)(2) that is made before the death of 
the individual for whom burial at Arlington National Cemetery 
is requested.

    Section 2412(g)(1) 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 with respect to each such individual buried on or 
after January 1, 2002.

    Section 2(b) of the bill would require, not later than 180 
days after the date of enactment, the Secretary of the Army to 
publish an updated pamphlet describing eligibility for burial 
in Arlington National Cemetery, as reflected by the provisions 
of section 2412 of title 38, United States Code, as added by 
subsection (a).

    Sections 2(c) through (e) of the bill would provide 
clerical, technical, and conforming amendments to chapter 24 of 
title 38, United States Code.

    Section 2(f) of the bill would provide an effective date, 
except as provided in paragraph (2), section 2412 of title 38, 
United States Code, as added by subsection (a) applying to 
individuals dying on or after the date of enactment of this 
Act.

    Section 3(a) of the bill would add a new section 2413 to 
title 38, United States Code, titled ``Arlington National 
Cemetery: persons eligible for placement in columbarium''.

    Section 2413(a)(1) would provide that the cremated remains 
of anyone eligible for burial under section 2412 of title 38, 
United States Code, in Arlington National Cemetery are eligible 
for placement in the columbarium.

    Section 2413(a)(2)(A) would authorize placement in the 
columbarium of the cremated remains of any veteran whose last 
active duty service (other than active duty for training) ended 
honorably.

    Section 2413(a)(2)(B) would authorize placement in the 
columbarium of the cremated remains of the spouse, minor child 
and (at the discretion of the Superintendent of Arlington) an 
unmarried adult child of such a veteran.

    Sections 3(b) and (c) of the bill provide clerical and 
conforming amendments to the table of sections for chapter 24 
of title 38, United States Code.

    Section 3(d) of the bill would provide an effective date 
for section 2413 as the date of enactment of the Act.

    Section 4(a) of the bill would add a new section 2414 to 
title 38, United States Code, titled ``Arlington National 
Cemetery: authorized headstones, markers, and monuments''.

    Section 2414(a) would direct that gravesite markers conform 
to section 2404 of title 38, United States Code.

    Section 2414(b)(1) would direct the Secretary of the Army 
to prescribe regulations for privately furnished gravesite 
headstones or markers.

    Section 2414(b)(2)(A) would specify general design criteria 
for privately furnished headstones or markers.

    Section 2414(b)(2)(B) would require that the person 
furnishing a private marker provide for maintenance in the 
event repairs are necessary.

    Section 2414(b)(2)(C) would stipulate the Secretary of the 
Army is not responsible for any maintenance or damage to 
privately furnished headstones or markers.

    Section 2414(b)(2)(D) would require privately furnished 
markers to be aesthetically compatible with Arlington National 
Cemetery.

    Section 2414(b)(2)(E) would restrict placement of privately 
furnished headstones or markers to areas designated for such 
headstones or markers as of January 1, 1947.

    Section 2414(c)(1) would prohibit placement of monuments at 
Arlington National Cemetery unless the monument meets 
restrictions in either subsection (c)(2) or (c)(3).

    Section 2414(c)(2) would require that a monument must honor 
the military service of an individual or group, or a military 
event.

    Section 2414(c)(3) would require a 25-year waiting period 
between the military service or event and placement of a 
monument at Arlington National Cemetery.

    Section 2414(c)(4) would restrict placement of monuments to 
areas designated by the Secretary of the Army.

    Section 4(c) of the bill would establish the effective date 
of section 2414 as the date of enactment.

    Section 5 of the bill would direct the Secretary of the 
Army to publish any regulations related to this Act in the 
Federal Register within one year of enactment.

                    Performance Goals and Objectives

    The reported bill would codify burial eligibility for 
Arlington National Cemetery. The Cemetery's performance goals 
and objectives are established in annual performance plans and 
are subject to the Committee's regular oversight.

              Statement of the Views of the Administration

STATEMENT BY THURMAN HIGGINBOTHAM, DEPUTY SUPERINTENDENT, ARLINGTON 
  NATIONAL CEMETERY BEFORE BENEFITS SUBCOMMITTEE ON VETERANS AFFAIRS, 
  UNITED STATES HOUSE OF REPRESENTATIVES, SECOND SESSION, 107TH 
  CONGRESS, JUNE 11, 2002, PROPOSED CHANGES IN BURIAL ELIGIBILITY

    I appreciate the opportunity to appear before this committee to 
discuss eligibility for burial at Arlington National Cemetery and the 
``Arlington National Cemetery Burial Eligibility Act.''
    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.
    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 it 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.
    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.
    Title 32 of the Code of Federal Regulations sets forth the criteria 
for burial eligibility in Arlington National Cemetery. The Army, as the 
Executive Agent for the Cemetery, strives to implement these 
regulations fairly and consistently. We must endeavor to preserve 
Arlington as a National Shrine honoring the men and women who have 
served in the Armed Forces and those Americans who have made 
extraordinary public contributions to our Nation and our Armed Forces.
    Although we acknowledge that the ``Arlington National Cemetery 
Burial Eligibility Act'' provides exception authority, we nonetheless 
object to the legislation. We believe that burial eligibility standards 
at Arlington should continue to be governed through regulations 
promulgated by the Secretary of the Army, rather than by statute. We 
believe that these procedures have been effective in attaining the 
goals of fairness, consistency and efficient use of space. The current 
regulatory regime provides the Army, as Executive Agent, the framework 
and flexibility needed to address unusual cases in a timely, fair and 
appropriate manner.
    We note that the ``Arlington National Cemetery Burial Eligibility 
Act'' would expand burial eligibility to several categories that are 
not now recognized under the regulations in effect. These include 
members of a reserve component who at the time of death were under 60 
years of age and who, but for age, would have been eligible for retired 
pay; members of the Armed Forces who die in the line of duty while on 
active duty for training; and certain remarried surviving spouses.
    The Army is very concerned that expanding burial eligibility to new 
categories of individuals will create inequities. While the Army 
appreciates the actions of the Congress and this Committee in making 
additional land available to the Cemetery, space will eventually run 
out. In light of these constraints, expanding burial eligibility will 
eventually cause the denial of the privilege to other eligible persons. 
Expanding burial eligibility may also create difficulties for those 
families whose loved ones had been denied burial privileges prior to 
the changes.
    For these reasons, the Army opposes legislation that would expand 
categories of eligible individuals beyond those contained in the 
regulations now in effect. In December 2001, the Army provided 
testimony to this Subcommittee expressing concern with H.R. 3423, which 
would extend burial privileges in Arlington National Cemetery to 
certain current and former reserve component members of the Armed 
Forces and their dependents. While the long-term impact of the proposed 
expansions is uncertain, we objected to H.R. 3423 based on the impact 
on space availability and the fact that the expansion would eventually 
require denial of this privilege to eligible persons in categories that 
have existed for decades. At the same time, the Army values greatly the 
major contribution being made by members of our reserve components each 
and every day. The over 30,000 members currently serving on active duty 
in the Reserves and the Guard are eligible for burial in Arlington 
National Cemetery, if they should die while they are currently serving.
    We also note that the ``Arlington National Cemetery Burial 
Eligibility Act'' would eliminate burial eligibility for several 
narrowly defined categories. The Army believes that these individuals, 
including top leadership in the Department of Defense and other high-
level government officials, should continue to receive, by virtue of 
their service to Nation, the special honor afforded by burial in 
Arlington.
    Thank you for providing me with the opportunity to present our 
views on the ``Arlington National Cemetery Burial Eligibility Act.'' I 
look forward to answering your questions.

                            Roll Call Votes

    During Committee consideration of H.R. 4940, there was a 
recorded vote on ordering the bill reported favorably to the 
House. The vote was 22-3 in favor of reporting the bill.

Date:         Tuesday, July 16, 2002
Call to Order: 9:35 a.m.
Adjourn:      11:10 a.m.
Subject:      MARKUP - Motion to report H.R. 4940 favorably to 
            the House


----------------------------------------------------------------------------------------------------------------
                 NAME                            YEA                      NAY                   NOT VOTING
----------------------------------------------------------------------------------------------------------------
Chris Smith, NJ, Chairman............  x......................   ......................
Bob Stump, AZ........................   ......................   ......................  x
Michael Bilirakis, FL, Vice Chairman.    .....................   ......................  x
Terry Everett, AL....................    .....................   ......................  x
Steve Buyer, IN......................    .....................  x......................
Jack Quinn, NY.......................  x......................   ......................
Cliff Stearns, FL....................  x......................   ......................
Jerry Moran, KS......................  x......................   ......................
Howard (Buck) McKeon, CA.............  x......................   ......................
Jim Gibbons, NV......................    .....................   ......................  x
Mike Simpson, ID.....................  x......................   ......................
Richard Baker, LA....................    .....................   ......................  x
Rob Simmons, CT......................  x......................   ......................
Ander Crenshaw, FL...................   ......................   ......................  x
Henry Brown, SC......................  x......................   ......................
Jeff Miller, FL......................  x......................   ......................
John Boozman, AR.....................  x......................   ......................

Lane Evans, IL, Ranking..............  x......................    .....................
Bob Filner, CA.......................   ......................  x......................
Luis Gutierrez, IL...................  x......................    .....................
Corrine Brown, FL....................  x......................    .....................
Julia Carson, IN.....................  x......................    .....................
Silvestre Reyes, TX..................  x......................    .....................
Vic Snyder, AR.......................   ......................  x......................
Ciro Rodriguez, TX...................  x......................    .....................
Ronnie Shows, MS.....................  x......................    .....................
Stephen Lynch, MA....................  x......................   ......................
Shelley Berkley, NV..................  x......................    .....................
Baron P. Hill, IN....................  x......................   ......................
Tom Udall, NM........................  x......................   ......................
Susan Davis, CA......................  x......................   ......................

          TOTAL......................  22.....................  3......................  6
----------------------------------------------------------------------------------------------------------------


               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, July 17, 2002.
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. 4940, the 
Arlington National Cemetery Burial Eligibilty Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Melissa E. 
Zimmerman, who can be reached at 226-2840.

            Sincerely,
                                            Dan L. Crippen,
                                                          Director.

    Enclosure.
                              ----------                              


               Congressional Budget Office Cost Estimate

H.R. 4940, ARLINGTON NATIONAL CEMETERY BURIAL ELIGIBILITY ACT, AS 
  ORDERED REPORTED BY THE HOUSE COMMITTEE ON VETERANS' AFFAIRS ON 
  JULY 16, 2002

    H.R. 4940 would codify, with minor changes, 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, 
grant eligibility for burial to members of the armed services 
who die in the performance of duty during training, and grant 
eligibility to certain members and former members of reserve 
components of the armed forces. H.R. 4940 also would prohibit 
burial of any individual who would otherwise be ineligible, 
unless the President authorizes burial because of a candidate's 
extraordinary contributions to the armed forces. Under the 
bill, future memorials or markers must commemorate service in 
the armed forces.
    H.R. 4940 would require the Secretary of the Army to 
maintain a public register that would describe the eligibility 
of each individual buried in Arlington National Cemetery after 
January 1, 2002. The bill would also require the Secretary to 
publish a pamphlet describing eligibility requirements for 
burial at Arlington National Cemetery.
    CBO estimates that the costs of implementing H.R. 4940 
would not be significant. Most categories of veterans and 
family members covered under 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 the cemetery, but because these 
individuals are small in number and have often received waivers 
in the past, CBO estimates that this new eligibility would not 
lead to a significant increase in the numbers of burials.
    H.R. 4940 also would grant burial eligibility to certain 
members of the armed services who were previously ineligible. 
CBO estimates that less than 1,000 veterans and close family 
members a year would become eligible for burial under the bill, 
but that only a small portion would request burial at Arlington 
National Cemetery. Thus, CBO estimates that implementing these 
new eligibility criteria would not lead to a significant 
increase in the number of burials at the cemetery.
    CBO estimates that the costs of maintaining the register 
and producing the pamphlet would be negligible. Because the 
legislation would not affect direct spending or receipts, pay-
asyou-go procedures would not apply.
    H.R. 4940 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.
    On July 11, 2002, CBO transmitted a cost estimate for H.R. 
4940, as introduced on June 13, 2002. The two versions of the 
bill are identical, as are the two estimates.
    The CBO staff contact is Melissa E. Zimmerman. This 
estimate was approved by Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                     Statement of Federal Mandates

    The preceding Congressional Budget Office cost estimate 
states that the bill contains no intergovernmental or private 
sector mandates as defined in the Unfunded Mandates Reform Act.

                 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 (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, except section 2412(b)(1) of this title, 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 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).

           *       *       *       *       *       *       *


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)(A) Any retired member of the Armed Forces.
          (B) Any member or former member of a reserve 
        component of the Armed Forces--
                  (i) who served on active duty;
                  (ii) who was honorably discharged from such 
                active duty service;
                  (iii) who, at the time of death, was under 60 
                years of age; and
                  (iv) who, but for age, would have been 
                eligible at the time of death for retired pay 
                under chapter 1223 of title 10.
          (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) Any member of a reserve component of the Armed 
        Forces who dies in the performance of duty while on 
        active duty for training or inactive duty training.
          (7) 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.--(1) Eligibility for burial of remains in Arlington 
National Cemetery prescribed under this section is the 
exclusive eligibility for such burial.
    (2)(A) In the case of an individual not otherwise eligible 
for burial under subsection (a) whose acts, service, or 
contributions to the Armed Forces are so extraordinary as to 
justify burial in Arlington National Cemetery, the President 
may deem such individual eligible for burial under subsection 
(a).
    (B) If the President deems an individual eligible for 
burial in Arlington National Cemetery under subparagraph (A), 
the Secretary of the Army shall immediately notify the chairmen 
and the ranking members of the Committee on Veterans' Affairs 
of the Senate and House of Representatives.
    (C)(i) Except as provided in clause (ii), the authority 
under subparagraph (A) may not be delegated.
    (ii) The President may only delegate the authority under 
subparagraph (A) to the Secretary of the Army.
    (f) Application for Burial.--(1) A request for burial of 
remains of an individual in Arlington National Cemetery shall 
be made to the Secretary of the Army or to any other Federal 
official that the Secretary of the Army may specify.
    (2) The Secretary, or other Federal official, may not 
consider a request referred to in paragraph (1) that is made 
before the death of the individual for whom burial in Arlington 
National Cemetery is requested.
    (3) The President, or the Secretary, as the case may be, 
may not consider a request to deem an individual eligible for 
burial in Arlington National Cemetery under subsection (e)(2) 
that is made before the death of the individual for whom burial 
in Arlington National Cemetery is requested.
    (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, 2002, 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 1176 OF THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 
                                  1994

[SEC. 1176. ELIGIBILITY OF FORMER PRISONERS OF WAR FOR BURIAL IN 
                    ARLINGTON NATIONAL CEMETERY.

    [(a) Eligibility for Burial.--Former prisoners of war 
described in subsection (b) are eligible for burial in 
Arlington National Cemetery, Arlington, Virginia.
    [(b) Eligible Former POWS.--A former prisoner of war 
referred to in subsection (a) is a former prisoner of war--
          [(1) who dies on or after the date of the enactment 
        of this Act; and
          [(2) who, while a prisoner of war, served honorably 
        in the active military, naval, or air service, as 
        determined under regulations prescribed by the 
        Secretary of the military department concerned.
    [(c) Savings Provision.--This section may not be construed 
to make ineligible for burial in Arlington National Cemetery a 
former prisoner of war who is eligible to be buried in that 
cemetery under another provision of law.
    [(d) Regulations.--This section shall be carried out under 
regulations prescribed by the Secretary of the Army. Those 
regulations may prescribe a minimum period of internment as a 
prisoner of war for purposes of eligibility under this section 
for burial in Arlington National Cemetery.
    [(e) Definitions.--For purposes of this section:
          [(1) The term ``former prisoner of war'' has the 
        meaning given such term in section 101(32) of title 38, 
        United States Code.
          [(2) The term ``active military, naval, or air 
        service'' has the meaning given such term in section 
        101(24) of such title.]
                              ----------                              


             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).

           *       *       *       *       *       *       *