DEAR MR. CHAIRMAN: This is in reply to your letter of October 24, 1967, in which you requested that we give you our opinion as to the legal sufficiency of the regulations issued by the Department of the Army, effective February 17, 1967, which limit burials in Arlington National Cemetery to persons listed in those regulations who are otherwise eligible for burial in national cemeteries.

The jurisdiction of this Office is such that an authoritative decision may not be rendered (31 U.S.C. 74). However, it is believed that the following may be of assistance to you.

The regulation to which you refer was published February 15, 1967, in the Federal Register, 32 F.R. 2886. It provides:

(v) Effective February 17, 1967, eligibility for burial in Arlington National Cemetery is limited to the following persons if otherwise eligible under the provisions of subparagraphs (2) and (3) of this paragraph:

(a) Any member or retired member of the Armed Forces.

(b) Any former member of the Armed Forces who has been awarded the Medal of Honor.

(c) Any person who has held an elective office of the U.S. Government.

(d) Any person who has held the office of Chief Justice of the United States or Associate Justice of the Supreme Court of the United States.

(e) Any person who has held an office listed in 5 U.S.C. 5312 or 5 U.S.C. 5313. (f) Any person who has held a position of chief of mission which was at any time he held it classified in class 1 under the provisions of section 411 of the Act of August 13, 1946, 60 Stat. 1002, as amended (22 U.S.C. 866).

(g) The surviving spouse, minor child, and, in the discretion of the Secretary of the Army, unmarried adult child (see paragraph (a)(10) of this section and subparagraph (2) (v) (c) of this paragraph) of any of the persons listed in (a) through (f) of this subdivision.

(h) The surviving spouse, minor child, and, in the discretion of the Secretary of the Army, unmarried adult child (see paragraph (a) (10) of this section and subparagraph (2) (v) (c) of this paragraph) of any person already buried in Arlington National Cemetery.

(i) 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. For a brief history of the earliest legislation relating to national cemeteries beginning with section 18 of the act approved July 17, 1862 (12 Stat. 596, see 28 Op. Att. Gen. 543). The statutes enacted from time to time relating to burial in national cemeteries were codified in section 4878 of the Revised Statutes of 1878. As last amended, section 4878 of the Revised Statutes provided:

All soldiers, sailors, or marines and all officers or men of the Coast Guard dying in the service of the United States, or dying in a destitute condition after having been honorably discharged from the service, and all soldiers, sailors, or

marines who served, or may serve, during any war in which the United States has been, or may be, engaged, and, with the consent of the Director of National Park Service, any citizen of the United States who served in the army or navy of any government at war with Germany or Austria during the World War and who died while in such service or after honorable discharge therefrom, may be buried in any national cementery free of cost. The production of the honorable discharge of a deceased man in the first or second case, and a duly executed permit of the Director of National Park Service in the last case, shall be sufficient authority for the superintendent of any cementery to permit the interment. Army nurses honorably discharged from their service as such may be buried in any national cemetery, and, if in a destitute condition, free of cost. The Director of National Park Service is authorized to issue certificates to those Army nurses entitled to such burial. Persons who were members of the Cabinet of the President of the United States at any time during the period between April 6, 1917, and November 11, 1918, may be buried in any national cemetery: Provided, That the interment is without cost to the United States.

Section 4878 of the Revised Statutes, as amended, was specifically repealed and superseded by the act approved May 14, 1948, Public Law 526, 80th Congress (62 Stat. 234), which was entitled "An act to establish eligibility for burial in national cemeteries and for other purposes." It provided

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That burial in national cemeteries of the remains of the following classes of persons is authorized under such regulations as the Secretary of the Army may prescribe: (a) Any member or former member of the armed forces of the United States whose last service terminated honorably, by death or otherwise; (b) any citizen of the United States who, during any war in which the United States has been or may hereafter be engaged, served in the armed forces of any government allied with the United States during such war, and whose last service terminated honorably, by death or otherwise; and (c) the wife, husband, widow, widower, minor child, and, in the discretion of the Secretary of the Army, unmarried adult child of any of the persons enumerated in (a) and (b) herein: Provided, That the remains of those persons enumerated in (c), above, may, in the discretion of the Secretary of the Army, be removed from a national cemetery proper and interred in the post section of a national cemetery or in a post cemetery if, upon death, the related member of the armed forces of the United States or allied government is not buried in the same or an adjoining grave site. Persons who were members of the Cabinet of the President of the United States at any time during the period between April 6, 1917, and November 11, 1918, may also be buried in any national cemetery: Provided, That the interment is without cost to the United States. As used in this section, the term 'widow' includes the widow of any member of the armed forces of the United States lost or buried at sea or officially determined to be permanently absent in a status of missing or missing in action.

"SEC. 2. Section 4878, Revised Statutes, as amended (24 U.S.C. 281), is hereby repealed."

By this enactment the Secretary of War (the Army) for the first time received specific legislative authorization to prescribe regulations for burial in national cemeteries. This legislation was requested by the then Secretary of War, Robert P. Patterson, in identical letters dated July 10, 1947, to the chairman, Committee on Armed Services, U.S. Senate, and to the Speaker of the House of Representatives which read as follows:

DEAR MR. SPEAKER: There is enclosed herewith draft of a bill to establish eligibility for burial in national cemeteries, and for other purposes which the War Department recommends be enacted into law.

The purpose of the proposed legislation is to secure enabling_legislation for the burial in national cemeteries of all members of the Armed Forces who die in the service or after having been honorably discharged therefrom, together with members of their immediate families as specified therein, provided such

burial is desired.

The custom of the service has been to grant the privilege of burial in national cemeteries to the wife, widow, minor children, and unmarried adult daughters

of members of the Armed Forces. The authority for the burial of wives and widows was granted in 1890 and for minor children and unmarried adult daughters in 1904 and 1908 respectively. This authority was granted by the then Secretary of War, upon advice of The Judge Advocate General of the Army, in view of family relationship. While this privilege was granted without specific authority of law, it is the opinion of this Department that the practice has been maintained a sufficient length of time to have become an established custom.

The statute presently in effect which specifies those eligible for burial in national cemeteries provides for the burial of "all soldiers, sailors, or marines and all officers or men of the Coast Guard dying in the service of the United States, or dying in a destitute condition after having been honorably discharged from the service, and all soldiers, sailors, or marines who served, or may serve, during any war in which the United States has been, or may be engaged, and with the consent of the Secretary of War, any citizen of the United States who served in the Army or Navy of any government at war with Germany or Austria during the World War and who died while in such service or after honorable discharge therefrom ***." It will be noted that this law provides for the burial in national cemeteries of former members of the Armed Forces who served during any war in which the United States has been or may be engaged, but does not provide for the burial of such persons who serve during peacetime and die subsequent to honorable discharge therefrom unless they are in a destitute condition at the time of death, nor for citizens of the United States who served in the armed forces of Allied Governments during World War II. It is believed that it was not the intent of Congress to disqualify for burial in national cemeteries persons in these categories. Furthermore, it has not been the custom of the service to disapprove burial of these members of the armed forces in any national cemetery. This custom has been in effect a sufficient length of time to have become well established.

Prior to World War II the civil husbands of female members of the Armed Forces were not authorized burial in national cemeteries with their wives. However, in view of the large number of female members of the Armed Forces who served during World War II, and in order that there be no discrimination between the female and male members of the armed forces as to burial privileges, the War Department has permitted the burial of civil husbands in plots assigned to their wives in national cemeteries, based upon the service rendered by the wife. This authority is based upon the family relationship and previous authority granted for the burial of wives of male members of the Armed Forces.

Since there is no specific legal basis for carrying out the above-mentioned customs of the Department, the attached proposed bill is submitted for enactment into law.

The proposed law, if enacted, will not increase the fiscal estimates pertaining to these nonmilitary activities of the War Department.

The Bureau of the Budget has been consulted and advises that there is no objection to the submission of this proposed legislation for the consideration of the Congress. (See H. Rept No. 1678 dated April 7, 1948, and S. Rept. No. 903 dated February 24, 1948, both of the 80th Cong., second sess.)

It will be noted that the act approved May 14, 1948, is not clear as to the nature of the regulations to be prescribed by the Secretary. The letter from the Secretary which requested its enactment does not shed much light on this point. Also we have not found anything elsewhere in the legislative history which would be helpful. However, the act was amended by the act approved September 14, 1959, Public Law 86-260 (73 Stat. 547), entitled "An act to revise eligibility requirements for burial in national cemeteries and for other pruposes." This act, which is currently in effect, and codified as 24 U.S.C. 281 (1964 edition) provides:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the Act of May 14, 1948 (ch. 289, 62 Stat. 234), is amended to read as follows:

"(a) Under such regulations as the Secretary of the Army may, with the approval of the Secretary of Defense, prescribe, the remains of the following persons may be buried in national cemeteries:

"(1) Any member or former member of the Armed Forces who served on active duty (other than for training) and whose last such service terminated honorably.

"(2) Any member of a reserve component of the Armed Forces, and any member of the Army National Guard or the Air National Guard, whose death occurs under honorable conditions while he is

"(A) on active duty for training, or performing full-time service under section 316, 503, 504, or 505 of title 32, United States Code;

“(B) performing authorized travel to or from that duty or service; "(C) on authorized inactive duty training, including training performed as a member of the Army National Guard or the Air National Guard; or "(D) hospitalized or undergoing treatment, at the expense of the United States, for injury or disease contracted or incurred under honorable conditions while he is

"(i) on that duty or service;

‘(ii) performing that travel or inactive duty training; or

"(iii) undergoing that hospitalization or treatment at the expense of the United States.

"(3) Any member of the Reserve Officers' Training Corps of the Army, Navy, or Air Force whose death occurs under honorable conditions while he is

"(A) attending an authorized training camp or on an authorized practice cruise;

'(B) performs authorized travel to or from that camp or cruise; or (C) hospitalized or undergoing treatment, at the expense of the United States, for injury or disease contracted or incurred under honorable conditions while he is

"(i) attending that camp or on that cruise;

"(ii) performing that travel; or

'(iii) undergoing that hospitalization or treatment at the expense of the United States.

"(4) Any citizen of the United States who, during any war in which the United States is or has been engaged, served in the armed forces of any government allied with the United States during that war, and whose last such service terminated honorably.

"(5) The wife, husband, surviving spouse, minor child, and, in the discretion of the Secretary of the Army, unmarried adult child of any of the persons listed in clauses (1)-(4).

"(b) The remains of any person listed in subsection (a) (5) may, in the discretion of the Secretary of the Army, be removed from a national cemetery proper and interred in the post section of a national cemetery or in a post cemetery if, upon death, the related person named in subsection (a)(1)–(4) is not buried in the same or an adjoining gravesite. However, the remains of a person listed in subsection (a)(5) may not be removed from a national cemetery proper if the related person is

"(1) lost or buried at sea;

'(2) officially determined to be permanently absent in a status of missing or missing in action;

"(3) officially determined to be dead for the purpose of terminating his status of missing or missing in action; or

"(4) one whose remains have not been recovered."

This amendment provides for the burial of the remains of the types of persons listed, under regulations prescribed by the Secretary of the Army with the approval of the Secretary of Defense. The regulations here in question were submitted to the Secretary of Defense by Stanley R. Resor, Secretary of the Army on February 8, 1967, and approved by Robert S. McNamara, Secretary of Defense on February

9, 1967.

In the act approved September 14, 1959, as in the act approved May 14, 1948, the nature of the regulations to be prescribed by the Secretary is not clear. Here the legislation was requested by the Secretary of Defense in a letter dated December 22, 1958, to the Honorable Richard M. Nixon, President of the Senate, as follows:

DEAR MR. PRESIDENT: There is forwarded herewith a draft of legislation, to revise eligibility requirements for burial in national cemeteries, and for other purposes.

This proposed legislation is a part of the Department of Defense legislative program for 1959, and it has been approved by the Bureau of the Budget. The

Department of the Army has been designated as the representative of the Department of Defense for this legislation. It is recommended that this proposal be enacted by the Congress.

PURPOSE OF THE LEGISLATION

The purpose of the legislation is to permit members of the Reserve components of the Armed Forces, the Army National Guard and Air National Guard, and members of the Reserve Officers' Training Corps, under the circumstances stated in the proposal, to be eligible for burial in a national cemetery if the death, injury, illness, or disease of such members occurred or was contracted under honorable conditions. Since the death, injury, illness, or disease of these individuals under the circumstances set forth in the proposed legislation occurs while the individuals are performing services of a military nature, it is believed that the burial of these individuals in a national cemetery is appropriate.

In addition, the act of May 14, 1948, now authorizes the removal from national cemeteries of the remains of the wife, husband, widow, widower, and minor or unmarried adult children, if, upon death, the related member of the Armed Forces of the United States or allied government is not buired in the same or an adjoining grave site. This legislative proposal would prohibit such removal if the related member of the Armed Forces of the United States or allied government is (1) lost or buried at sea, (2) officially determined to be permanently absent in a status of missing or missing in action, (3) officially determined to be dead for the purpose of terminating his status of missing in action, or (4) one whose remains have not been recovered.

COST AND BUDGET DATA

No figures are available indicating the number of interments which the Government will be called upon to make under this legislation. It is estimated that enactment of this legislation will not result in any increase in the budgetary requirements of the Department of Defense.

Neither that letter nor the rest of the legislative history sheds any light on the nature of the regulations to be prescribed.

The only judicial interpretation of this authority of the Secretary of the Army to issue regulations of which we are aware was made by Judge Alexander Holtzoff of the U.S. District Court for the District of Columbia in the case of Sylvia H. Thompson v. Robert S. McNamara. That case was decided against the plaintiff who appealed. It is now pending before the U.S. Court of Appeals for the District of Columbia. It involves the authority of the Secretary of the Army, under the act of September 14, 1959, to prescribe regulations declaring certain classes of felons ineligible for burial in a national cemetery (32 CFR 553.18(b)(3)) and the applicability of those regulations to Robert G. Thompson, an honorably discharged veteran of World War II.

Robert G. Thompson died in October 1965, after having been convicted in 1949 under the Smith Act (18 U.S.C. 2385) of conspiring to organize the Communist Party of America to teach and advocate the necessity of destroying the U.S. Government by force and violence and of willfully and knowingly advocating such forceful and violent overthrow of the Government. He was sentenced to 3 years imprisonment. Thereafter, in 1953, he was sentenced to an additional term of 4 years for contempt of court because of his fleeing and failure to surrender after he had been released on bail while his appeal was pending. His widow, who is also the administratrix of his estate, is seeking to have his cremated remains interred in Arlington National Cemetery.

In considering the word "may" as used in the statute, the District Court stated:

The word "may" is significant. The section does not provide that the remains of the following persons shall be entitled to be buried in national cemeteries.