38 U.S.C. § 2403 — Memorial areas

Page 625 TITLE 38—VETERANS’ BENEFITS § 2403 Pub. L. 102–40 substituted ‘‘6105’’ for ‘‘3505’’ in intro- ductory provisions. 1989—Pub. L. 101–237 substituted ‘‘Secretary’’ for ‘‘Ad- ministrator’’ wherever appearing. 1986—Pars. (2), (3). Pub. L. 99–576, § 701(54)(A), sub- stituted ‘‘while such member’’ for ‘‘while he’’ wherever appearing. Par. (5). Pub. L. 99–576, § 701(54)(B), struck out ‘‘wife, husband,’’ before ‘‘surviving spouse’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2021 AMENDMENT Pub. L. 117–81, div. F, title LXVI, § 6601(b), Dec. 27, 2021, 135 Stat. 2438, provided that: ‘‘The amendments made by this section [amending this section] shall have effect as if included in the enactment of section 251(a) of title II of the Military Construction, Veterans Af- fairs, and Related Agencies Appropriations Act, 2018 (division J of Public Law 115–141; 132 Stat. 824).’’ EFFECTIVE DATE OF 2018 AMENDMENT Pub. L. 115–141, div. J, title II, § 251(b), Mar. 23, 2018, 132 Stat. 825, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall apply with respect to an individual dying on or after the date of the enactment of this Act [Mar. 23, 2018].’’ EFFECTIVE DATE OF 2010 AMENDMENT Amendment by Pub. L. 111–275 applicable with re- spect to the death, on or after Oct. 13, 2010, of the par- ent of a person described in section 2402(a)(9)(B) of this title, who dies on or after October 7, 2001, see section 502(e) of Pub. L. 111–275, set out as a note under section 107 of this title. EFFECTIVE DATE OF 2003 AMENDMENT Amendment by section 212(b) of Pub. L. 108–183 appli- cable with respect to deaths occurring on or after Dec. 16, 2003, see section 212(c) of Pub. L. 108–183, set out as a note under section 107 of this title. Pub. L. 108–183, title V, § 502(b), Dec. 16, 2003, 117 Stat. 2667, provided that: ‘‘The amendment made by sub- section (a) [amending this section] shall apply with re- spect to deaths occurring on or after January 1, 2000.’’ EFFECTIVE DATE OF 2000 AMENDMENT Amendment by section 331(a) of Pub. L. 106–419 appli- cable with respect to deaths occurring on or after Nov. 1, 2000, see section 331(c) of Pub. L. 106–419, set out as a note under section 107 of this title. CRITERIA FOR INTERMENT AT ARLINGTON NATIONAL CEMETERY Pub. L. 115–232, div. A, title V, § 598, Aug. 13, 2018, 132 Stat. 1791, provided that: ‘‘(a) CRITERIA.—The Secretary of the Army, in con- sultation with the Secretary of Defense, shall prescribe revised criteria for interment at Arlington National Cemetery that preserve Arlington National Cemetery as an active burial ground ‘well into the future,’ as that term is used in the report submitted by the Sec- retary of the Army to the Committees on Veterans’ Af- fairs and the Committees on Armed Services of the House of Representatives and the Senate, dated Feb- ruary 14, 2017, and titled ‘The Future of Arlington Na- tional Cemetery: Report on the Cemetery’s Interment and Inurnment Capacity 2017’. ‘‘(b) DEADLINE.—The Secretary of the Army shall es- tablish the criteria under subsection (a) not later than September 30, 2019.’’ IDENTIFICATION OF UNCLAIMED OR ABANDONED HUMAN REMAINS Pub. L. 112–260, title I, § 104(a), Jan. 10, 2013, 126 Stat. 2420, provided that: ‘‘The Secretary of Veterans Affairs shall cooperate with veterans service organizations to assist entities in possession of unclaimed or abandoned human remains in determining if any such remains are the remains of veterans or other individuals eligible for burial in a national cemetery under the jurisdiction of the Secretary.’’ GUIDANCE REQUIRED Pub. L. 111–275, title V, § 502(c), Oct. 13, 2010, 124 Stat. 2882, provided that: ‘‘The Secretary of Veterans Affairs, in consultation with the Secretary of Defense, shall de- velop guidance under which the parent of a person de- scribed in paragraph (9)(B) of subsection (a) of section 2402 of title 38, United States Code, as added by sub- section (b), may be designated for interment in a na- tional cemetery under that section.’’ ELIGIBILITY OF FORMER PRISONERS OF WAR FOR BURIAL IN ARLINGTON NATIONAL CEMETERY Pub. L. 103–160, div. A, title XI, § 1176, Nov. 30, 1993, 107 Stat. 1768, provided that: ‘‘(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 [Nov. 30, 1993]; and ‘‘(2) who, while a prisoner of war, served honorably in the active military, naval, or air service, as deter- mined 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 eli- gible to be buried in that cemetery under another pro- vision 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 pe- riod 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.’’ § 2403. Memorial areas (a) The Secretary shall set aside, when avail- able, suitable areas in national cemeteries to honor the memory of members of the Armed Forces and veterans— (1) who are missing in action; (2) whose remains have not been recovered or identified; (3) whose remains were buried at sea, wheth- er by the member’s or veteran’s own choice or otherwise; (4) whose remains were donated to science; or (5) whose remains were cremated and the ashes scattered without interment of any por- tion of the ashes. (b) Under regulations prescribed by the Sec- retary, group memorials may be placed to honor the memory of groups of individuals referred to in subsection (a), and appropriate memorial headstones and markers may be placed to honor the memory of individuals referred to in sub- section (a) and section 2306(b) of this title. (c) All national and other veterans’ cemeteries under the control of the National Cemetery Ad- Page 626 TITLE 38—VETERANS’ BENEFITS § 2404 1 So in original. The period probably should be a semicolon. ministration shall be considered national shrines as a tribute to our gallant dead and, not- withstanding the provisions of any other law, the Secretary is hereby authorized to permit ap- propriate officials to fly the flag of the United States of America at such cemeteries twenty- four hours each day. (d)(1) Subject to standards established by the Secretary, the Secretary shall permit the dis- play of a Fallen Soldier Display in any national cemetery. (2) In this subsection, the term ‘‘Fallen Sol- dier Display’’ means a memorial monument in honor of fallen members of the Armed Forces that may include a replica of an inverted rifle, boots, helmets, and identification tag. (Added Pub. L. 93–43, § 2(a), June 18, 1973, 87 Stat. 76, § 1003; amended Pub. L. 97–66, title VI, § 603(b), Oct. 17, 1981, 95 Stat. 1034; Pub. L. 97–295, § 4(34), Oct. 12, 1982, 96 Stat. 1307; Pub. L. 101–237, title III, § 313(b)(1), Dec. 18, 1989, 103 Stat. 2077; renum- bered § 2403, Pub. L. 102–83, § 5(a), Aug. 6, 1991, 105 Stat. 406; Pub. L. 105–368, title IV, §§ 401(c), 403(c)(6), Nov. 11, 1998, 112 Stat. 3335, 3339; Pub. L. 116–106, § 2, Jan. 7, 2020, 133 Stat. 3291.) Editorial Notes REFERENCES IN TEXT For cemeteries under the control of the National Cemetery Administration, referred to in subsec. (c), see section 2400(b) of this title. AMENDMENTS 2020—Subsec. (d). Pub. L. 116–106 added subsec. (d). 1998—Subsec. (b). Pub. L. 105–368, § 401(c), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: ‘‘Under regulations prescribed by the Secretary, appropriate memorials or markers shall be erected to honor the memory of those individuals, or group of individuals, referred to in subsection (a) of this section.’’ Subsec. (c). Pub. L. 105–368, § 403(c)(6), substituted ‘‘under the control of the National Cemetery Adminis- tration’’ for ‘‘in the National Cemetery System created by this chapter’’. 1991—Pub. L. 102–83 renumbered section 1003 of this title as this section. 1989—Pub. L. 101–237 substituted ‘‘Secretary’’ for ‘‘Ad- ministrator’’ wherever appearing. 1982—Subsec. (c). Pub. L. 97–295 substituted ‘‘chapter’’ for ‘‘Act’’ after ‘‘created by this’’. 1981—Subsec. (a). Pub. L. 97–66 substituted provisions relating to members of the Armed Forces and veterans, for provisions that related only to members of the Armed Forces, struck out provisions limiting the sub- section to persons who died or were killed while serving in the Armed Forces, and inserted provisions relating to persons whose remains have not been recovered, whose remains were donated to science, or whose re- mains were cremated and the ashes scattered without interment of any portion of the ashes. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1981 AMENDMENT Amendment by Pub. L. 97–66 applicable with respect to veterans dying before, on, or after Oct. 17, 1981, see section 701(b)(6) of Pub. L. 97–66, set out as a note under section 1114 of this title. § 2404. Administration (a) The Secretary is authorized to make all rules and regulations which are necessary or ap- propriate to carry out the provisions of this chapter, and may designate those cemeteries which are considered to be national cemeteries. (b) In conjunction with the development and administration of cemeteries for which the Sec- retary is responsible, the Secretary shall pro- vide all necessary facilities including, as nec- essary, superintendents’ lodges, chapels, crypts, mausoleums, and columbaria. (c)(1) Subject to paragraph (2), each grave in a national cemetery shall be marked with an ap- propriate marker. Such marker shall bear the name of the person buried, the number of the grave, and such other information as the Sec- retary shall by regulation prescribe. (2) The grave markers referred to in paragraph (1) shall be upright for interments that occur on or after January 1, 1987, except that— (A) in the case of any cemetery scheduled to be closed by September 30, 1991, as indicated in the documents submitted by the Adminis- trator of Veterans’ Affairs to the Congress in justification for the amounts included for Vet- erans’ Administration programs in the Presi- dent’s Budget for fiscal year 1987, the Sec- retary may provide for flat grave markers; (B) in the case of any cemetery with a sec- tion which has flat markers on October 28, 1986, the Secretary may continue to provide for flat grave markers in such section; (C) in the case of any cemetery located on the grounds of or adjacent to a Department health-care facility, the Secretary may pro- vide for flat grave markers; (D) in the case of grave sites of cremated re- mains that are interred in the ground, the Sec- retary may provide for flat grave markers.1 (E) in the case of grave sites in a green bur- ial section designated under subsection (i), the Secretary may provide for grave markers of such type as the Secretary considers appro- priate; and (F) in the case of Santa Fe National Ceme- tery, New Mexico, the Secretary may provide for flat grave markers in any section of such cemetery in which flat markers were in use on December 22, 2023. (d) There shall be kept in each national ceme- tery, and at the main office of the Department, a register of burials in each cemetery setting forth the name of each person buried in the cem- etery, the number of the grave in which the vet- eran is buried, and such other information as the Secretary by regulation may prescribe. (e) In carrying out the Secretary’s responsibil- ities under this chapter, the Secretary may con- tract with responsible persons, firms, or cor- porations for the care and maintenance of such cemeteries under the Secretary’s jurisdiction as the Secretary shall choose, under such terms and conditions as the Secretary may prescribe. (f)(1) The Secretary is authorized to convey to any State, or political subdivision thereof, in which any national cemetery is located, all right, title, and interest of the United States in and to any Government owned or controlled ap- proach road to such cemetery if, prior to the de- livery of any instrument of conveyance, the