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H.R. 291 (103rd): Missing Service Personnel Act of 1993


The text of the bill below is as of Jan 5, 1993 (Introduced). The bill was not enacted into law.


HR 291 IH

103d CONGRESS

1st Session

H. R. 291

To amend title 10, United States Code, to establish procedures for determining whether members of the Armed Forces in a missing status or certain civilian officers and employees are deceased, to require certain information to be kept in the personnel files of such persons, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

January 5, 1993

Mr. MURPHY (for himself and Mr. SWIFT) introduced the following bill; which was referred to the Committee on Armed Services


A BILL

To amend title 10, United States Code, to establish procedures for determining whether members of the Armed Forces in a missing status or certain civilian officers and employees are deceased, to require certain information to be kept in the personnel files of such persons, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ‘Missing Service Personnel Act of 1993’.

SEC. 2. PURPOSE.

    The purpose of this Act is to ensure that any member of the Armed Forces or any civilian officer or employee serving with or accompanying an Armed Force in the field under orders is fully accounted for by the Federal Government and, as a general rule, may not be declared dead solely because of the passage of time.

SEC. 3. REQUIREMENTS WITH RESPECT TO MISSING PERSONS.

    Chapter 53 of title 10, United States Code, is amended by adding at the end the following new section:

‘1058. Missing persons: informal investigations; boards of inquiry; determinations of death; personnel files

    ‘(a) INFORMAL INVESTIGATIONS- After receiving notice that a person under the command of an element of the armed forces is missing, the responsible commander shall conduct an informal investigation to determine that person’s whereabouts and, if appropriate, shall place the missing person in a missing status.

    ‘(b) BOARDS OF INITIAL INQUIRY; DUTIES- (1) If a missing person placed in a missing status under subsection (a) is a member of the armed forces on active duty, the responsible commander who places that person in a missing status shall, as soon as feasible after placing that person in a missing status, notify the officer holding general court-martial authority over that person that the person has been placed in a missing status, and such officer shall convene a board of initial inquiry not later than 45 days after receiving such notice.

    ‘(2) If a missing person placed in a missing status under subsection (a) is a civilian, the responsible commander who places that person in a missing status shall, as soon as feasible after placing that person in a missing status, notify the Secretary concerned that that person has been placed in a missing status, and the Secretary concerned shall convene a board of initial inquiry not later than 45 days after receiving such notice.

    ‘(3) A board of initial inquiry convened under this subsection shall--

      ‘(A) investigate and analyze evidence relating to the disappearance of the missing person;

      ‘(B) based upon such evidence, recommend whether to continue such person in a missing status or make a finding that such person has deserted, is absent without leave, or is dead; and

      ‘(C) issue a report describing its recommendations and findings.

    ‘(c) BOARDS OF FURTHER INQUIRY; DUTIES- (1) If a board of initial inquiry convened under subsection (b) recommends that a missing person be continued in a missing status, the Secretary concerned shall convene a board of further inquiry not later than one year after the date on which the board of initial inquiry issues its recommendation. The board of further inquiry shall--

      ‘(A) analyze any information which has become available since the board of initial inquiry issued its report;

      ‘(B) based upon such information and a review of evidence presented during the board of initial inquiry, determine whether such person should be continued in a missing status or should be declared dead; and

      ‘(C) issue a report describing its recommendations and findings.

    ‘(2) Upon the written request of a member of the immediate family of a missing person who, before the date of the enactment of this section, was determined by the Secretary concerned to be dead, the Secretary concerned shall convene a board of further inquiry which shall--

      ‘(A) conduct an investigation to determine whether such finding of death should be upheld or such person should be placed in a missing status; and

      ‘(B) issue a report describing its recommendations and findings.

    ‘(3) If a board of further inquiry convened under this subsection recommends continuing the missing status of a missing person or placing a missing person previously found to be dead in a missing status, the Secretary concerned shall reconvene such board to review the missing status of such person not later than three years after such recommendation is made.

    ‘(d) COMPOSITION AND MEETINGS OF BOARDS- (1) Each board convened under subsection (b) or (c) shall be composed of members of the armed forces on active duty (except as provided in subparagraph (C)) and shall include--

      ‘(A) one attorney;

      ‘(B) one person who is a member of the armed forces whose primary military occupational specialty is the same occupational specialty as that of the missing person at the time of such missing person’s disappearance;

      ‘(C) if the missing person being investigated is a civilian, one person whose occupational specialty is similar to the occupational specialty of such missing person at the time of such missing person’s disappearance; and

      ‘(D) if the missing person being investigated disappeared while in transit, one person who is a member of the armed forces whose military occupational specialty pertains to the piloting, navigating, or operating of the mode of transportation used by such missing person at the time of his disappearance.

    ‘(2) The Secretary concerned shall invite each member of the immediate family of the missing person being investigated to attend any meeting of a board of initial inquiry convened under subsection (b) unless he determines, in consultation with the commander of the military installation at which such meeting is convened, that attendance at such a meeting would place such family members in physical danger. In the case of the meetings of a board of further inquiry convened or reconvened under subsection (c), the Secretary concerned shall--

      ‘(A) invite each member of the immediate family of such missing person to attend such meetings;

      ‘(B) attempt to schedule such meetings at locations and times convenient for the members of the immediate family of such missing person;

      ‘(C) provide members of the immediate family of such missing person with reasonable notice of the time and location of such meetings; and

      ‘(D) open such meetings to the general public.

    ‘(3) Each board convened under subsection (b) or (c) may hold such meetings, take such testimony, and receive such evidence as it considers appropriate, and may secure directly from any department or agency of the United States any information necessary to carry out its duties under this section.

    ‘(e) APPOINTMENT OF COUNSEL- The officer or Secretary concerned who convenes a board under subsection (b) or (c) shall appoint counsel to represent the missing person. Counsel appointed under this subsection shall have the qualifications prescribed under section 827(b) of this title (article 27(b) of the Uniform Code of Military Justice).

    ‘(f) DETERMINATIONS OF DEATH- If a board convened under subsection (b) or (c) determines that a missing person is dead, it shall include in its report a detailed description of the location where the death occurred, the date on which the death occurred, whether the body has been recovered, and, if the body has been recovered, whether a licensed practitioner of forensic medicine determined that the body recovered is that of the missing person. No missing person may be declared dead by a board convened under subsection (a) unless--

      ‘(1) evidence other than the passage of a period of time of less than 50 years exists which suggests that the person is dead;

      ‘(2) no evidence which reasonably suggests that such person is alive is in the possession of the Federal Government;

      ‘(3) representatives of the Federal Government have made a complete search of the area where such person was last seen (unless, after making every good faith effort to obtain access to such area, the United States is not granted such access); and

      ‘(4) representatives of the Federal Government have examined the records of the government or entity having control over the area where such person was last seen (unless, after making every good faith effort to obtain access to such records, the United States is not granted such access).

    ‘(g) JUDICIAL REVIEW- (1) Any member of the immediate family of a missing person who was found by a board convened under subsection (b) or (c)(1) to be dead, or the finding of whose death was upheld by a board convened under subsection (c)(2), may obtain a review of such finding in the court of appeals of the United States within the circuit where such member resides or where the finding of death was made or upheld. Such family member may obtain such review if, at any time after receiving notice of such finding, the family member files in the court a written petition requesting that the finding be set aside.

    ‘(2) The decision of the court of appeals shall be final, except that it shall be subject to review by the Supreme Court upon certiorari, as provided in section 1254 of title 28.

    ‘(3) If the court of appeals sets aside the finding of death and if--

      ‘(A) the time allowed for filing a petition for certiorari has expired and no such petition has been duly filed;

      ‘(B) the petition for certiorari has been denied; or

      ‘(C) the decision of the court of appeals has been affirmed by the Supreme Court;

    the Secretary concerned shall convene a board of further inquiry under subsection (c)(2) to review the missing person’s status not later than three years after the date on which the finding is set aside, the petition for certiorari is denied, or the Supreme Court affirms the decision of the court of appeals.

    ‘(h) PERSONNEL FILES- (1) Except as provided in paragraph (2), the Secretary concerned shall ensure that a missing person’s personnel file contains all information in the possession of Federal departments and agencies pertaining to the disappearance or whereabouts of such person.

    ‘(2) If classified information is withheld from the personnel file of a missing person, the Secretary concerned shall ensure that the file--

      ‘(A) contains a notice that the information exists; and

      ‘(B) contains a notice of the date of the most recent review of the classification status of the information.

    ‘(3) Any person who knowingly and willfully withholds information pertaining to the disappearance or whereabouts of a missing person from that person’s personnel file shall be fined as provided in title 18 or imprisoned not more than one year, or both.

    ‘(4) The Secretary concerned shall make the contents of the personnel file of a missing person available to a member of the immediate family of such person upon the written request of such family member.

    ‘(i) EFFECT ON STATE LAW- Nothing in this section shall be construed to invalidate or limit the power of any State court or administrative entity, or the power of any court or administrative entity of any political subdivision thereof, to find or declare a person dead for purposes of the law of such State or political subdivision.

    ‘(j) DEFINITIONS- In this section:

      ‘(1) The term ‘member of the immediate family’ means the spouse, each adopted or natural child, each parent, and each sibling.

      ‘(2) The term ‘military installation’ means a base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department.

      ‘(3) The term ‘missing person’ means--

        ‘(A) a member of the armed forces on active duty who is missing; or

        ‘(B) a civilian officer or employee serving with or accompanying an armed force under orders who is missing.

      ‘(4) The term ‘missing status’ means the status of a missing person who is determined to be absent in a status of--

        ‘(A) missing;

        ‘(B) missing in action;

        ‘(C) interned in a foreign country;

        ‘(D) captured, beleaguered, or besieged by a hostile force; or

        ‘(E) detained in a foreign country against his will.

      ‘(5) The term ‘State’ means any State, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.’.

SEC. 4. CONFORMING AND CLERICAL AMENDMENTS.

    (a) CONFORMING AMENDMENTS- (1) Section 555 of title 37, United States Code, is repealed.

    (2) Chapter 10 of title 37, United States Code, is amended--

      (A) in the last sentence of section 552(a), by striking the second comma and all that follows and inserting a period;

      (B) in the second sentence of section 552(b)(2), by striking the hyphen and all that follows and inserting ‘that his death is determined under section 1057 of title 10’;

      (C) in section 552(e), by striking ‘section 555 of this title’ and inserting ‘section 1057 of title 10’;

      (D) in section 553(f)--

        (i) by striking ‘When the Secretary concerned’ and inserting ‘When a board convened under section 1057 of title 10’; and

        (ii) by striking ‘the Secretary concerned receives evidence’ and inserting ‘a board convened under section 1057 of title 10 reports’;

      (E) in section 553(g) by striking ‘section 555 of this title’ and inserting ‘section 1057 of title 10’;

      (F) in section 556(a)--

        (i) by inserting ‘and’ at the end of paragraph (3);

        (ii) by striking the semicolon at the end of paragraph (4) and inserting a period; and

        (iii) by striking paragraphs (1), (5), (6), and (7) and redesignating paragraphs (2), (3), and (4) as paragraphs (1), (2), and (3), respectively;

      (G) in section 556(h)--

        (i) by striking ‘status’ and inserting ‘pay’; and

        (ii) by striking the second sentence;

      (H) in section 556, by striking subsection (b) and redesignating subsections (c), (d), (e), (f), (g), and (h) as subsections (b), (c), (d), (e), (f), and (g), respectively;

      (I) in paragraph (1) of section 557(a), by striking ‘, 553, and 555’ and inserting ‘and 553’; and

      (J) in paragraph (4)(B) of section 559(a), by striking ‘556(f)’ and inserting ‘556(e)’.

    (b) CLERICAL AMENDMENTS- (1) The table of sections at the beginning of chapter 53 of title 10, United States Code, is amended by adding at the end the following new item:

      ‘1058. Missing persons: informal investigations; boards of inquiry; determinations of death; personnel files.’.

    (2) The table of sections at the beginning of chapter 10 of title 37, United States Code, is amended by striking the item relating to section 555.