38 U.S.C. § 2402

Current through P.L. 118-107 (published on www.congress.gov on 11/21/2024)

Section 2402 - Persons eligible for interment in national cemeteries

(a) 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) Any veteran (which for the purposes of this chapter includes a person who died in the active military, naval, air, or space service).

(2) Any member of a Reserve component of the Armed Forces, any member of the Space Force, and any member of the Army National Guard or the Air National Guard, whose death occurs under honorable conditions while such member is hospitalized or undergoing treatment, at the expense of the United States, for injury or disease contracted or incurred under honorable conditions while such member is performing active duty for training, inactive duty training, or 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 such member is-

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

(B) performing 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 such member 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 spouse, surviving spouse (which for purposes of this chapter includes a surviving spouse who had a subsequent remarriage), 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), and the spouse, minor child, and, in the discretion of the Secretary, unmarried adult child of a member of the Armed Forces serving on active duty under conditions other than dishonorable, as shown by a statement from a general court-martial convening authority, at the time of the spouse's or child's death if such death occurs before September 30, 2025.

(6) Such other persons or classes of persons as may be designated by the Secretary.

(7) Any person who at the time of death was entitled to retired pay under chapter 1223 of title 10 or would have been entitled to retired pay under that chapter but for the fact that the person was under 60 years of age.

(8) Any individual whose service is described in subsection (a) or (b) of section 107 of this title if such individual at the time of death-

(A) was a citizen of the United States or an alien lawfully admitted for permanent residence in the United States; and

(B) resided in the United States.

(9)

(A) The parent of a person described in subparagraph (B), if the Secretary determines that there is available space at the gravesite where the person described in subparagraph (B) is interred.

(B) A person described in this subparagraph is a person described in paragraph (1) who-

(i) is a hostile casualty or died from a training-related injury;

(ii) is interred in a national cemetery; and

(iii) at the time of the person's parent's death, did not have a spouse, surviving spouse, or child who is buried or who, upon death, may be eligible for burial in a national cemetery pursuant to paragraph (5).

(10) Any individual-

(A) who-

(i) was naturalized pursuant to section 2(1) of the Hmong Veterans' Naturalization Act of 2000 (Public Law 106-207; 8 U.S.C. 1423 note); and

(ii) at the time of the individual's death resided in the United States; or

(B) who-

(i) the Secretary determines served honorably with a special guerrilla unit or irregular forces operating from a base in Laos in support of the Armed Forces at any time during the period beginning on February 28, 1961, and ending on May 7, 1975; and

(ii) at the time of the individual's death-

(I) was a citizen of the United States or an alien lawfully admitted for permanent residence in the United States; and

(II) resided in the United States.

(b) For purposes of subsection (a)(9) of this section:

(1) The term "parent" means a biological father or a biological mother or, in the case of adoption, a father through adoption or a mother through adoption.

(2) The term "hostile casualty" means a person who, as a member of the Armed Forces, dies as the direct result of hostile action with the enemy, while in combat, while going to or returning from a combat mission if the cause of death was directly related to hostile action, or while hospitalized or undergoing treatment at the expense of the United States for injury incurred during combat, and includes a person killed mistakenly or accidentally by friendly fire directed at a hostile force or what is thought to be a hostile force, but does not include a person who dies due to the elements, a self-inflicted wound, combat fatigue, or a friendly force while the person was in an absent-without-leave, deserter, or dropped-from-rolls status or was voluntarily absent from a place of duty.

(3) The term "training-related injury" means an injury incurred by a member of the Armed Forces while performing authorized training activities in preparation for a combat mission.

38 U.S.C. § 2402

Added Pub. L. 93-43, §2(a), June 18, 1973, 87 Stat. 75, §1002; amended Pub. L. 99-576, title VII, §701 (54), Oct. 28, 1986, 100 Stat. 3295; Pub. L. 101-237, title III, §313(b)(1), Dec. 18, 1989, 103 Stat. 2077; Pub. L. 102-40, title IV, §402(d)(1), May 7, 1991, 105 Stat. 239; renumbered § 2402,Pub. L. 102-83, §5(a)2402,, 105 Stat. 406; Pub. L. 103-240, §1, May 4, 1994, 108 Stat. 609; Pub. L. 103-446, title VIII, §§801, Nov. 2, 1994, 802, Nov. 2, 1994, 108 Stat. 4675; Pub. L. 104-275, title II, §211, Oct. 9, 1996, 110 Stat. 3330; Pub. L. 105-368, title IV, §403(c)(5), Nov. 11, 1998, 112 Stat. 3338; Pub. L. 106-419, title III, §331(a), title IV, §404(a)(5), Nov. 1, 2000, 114 Stat. 1856, 1865; Pub. L. 108-183, title II, §212(b), title V, §502(a), Dec. 16, 2003, 117 Stat. 2658, 2667; Pub. L. 111-275, title V, §502(b), Oct. 13, 2010, 124 Stat. 2882; Pub. L. 115-141, div. J, title II, §251(a), Mar. 23, 2018, 132 Stat. 824; Pub. L. 115-407, title II, §202(b), Dec. 31, 2018, 132 Stat. 5373; Pub. L. 116-283, div. A, title IX, §926(a)(39), Jan. 1, 2021, 134 Stat. 3830; Pub. L. 117-81, div. F, title LXVI, §6601(a), Dec. 27, 2021, 135 Stat. 2437; Pub. L. 118-31, div. A, title XVII, §1723(b), Dec. 22, 2023, 137 Stat. 674; Pub. L. 118-83, div. B, title III, §312, Sept. 26, 2024, 138 Stat. 1540.

EDITORIAL NOTES

REFERENCES IN TEXTSection 2(1) of the Hmong Veterans' Naturalization Act of 2000, referred to in subsec. (a)(10)(A)(i), is section 2(1), May 26, 2000 of Pub. L. 106-207, 114 Stat. 316, which is set out as a note under section 1423 of Title 8, Aliens and Nationality.

AMENDMENTS2024-Subsec. (a)(5). Pub. L. 118-83 substituted "September 30, 2025" for "October 1, 2024". 2023-Subsec. (a)(2). Pub. L. 118-31 inserted "any member of the Space Force," after "a Reserve component of the Armed Forces,".2021-Subsec. (a)(1). Pub. L. 116-283 substituted "air, or space service" for "or air service". Subsec. (a)(10)(B). Pub. L. 117-81 added subpar. (B). 2018-Subsec. (a)(5). Pub. L. 115-407 inserted ",and the spouse, minor child, and, in the discretion of the Secretary, unmarried adult child of a member of the Armed Forces serving on active duty under conditions other than dishonorable, as shown by a statement from a general court-martial convening authority, at the time of the spouse's or child's death if such death occurs before October 1, 2024" after "paragraph (7)".Subsec. (a)(10). Pub. L. 115-141 added par. (10). 2010- Pub. L. 111-275 designated existing provisions as subsec. (a), realigned margins, added par. (9) of subsec. (a), and added subsec. (b).2003-Par. (5). Pub. L. 108-183, §502(a), substituted "(which for purposes of this chapter includes a surviving spouse who had a subsequent remarriage)" for "(which for purposes of this chapter includes an unremarried surviving spouse who had a subsequent remarriage which was terminated by death or divorce)". Par. (8). Pub. L. 108-183, §212(b), substituted "subsection (a) or (b) of section 107" for "section 107(a)". 2000-Par. (7). Pub. L. 106-419, §404(a)(5), substituted "chapter 1223 of title 10" for "chapter 67 of title 10". Par. (8). Pub. L. 106-419, §331(a), added par. (8). 1998- Pub. L. 105-368 substituted "under the control of the National Cemetery Administration" for "in the National Cemetery System" in introductory provisions.1996-Par. (5). Pub. L. 104-275 inserted "(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)" after "minor child". 1994-Par. (5). Pub. L. 103-446 inserted "spouse," after "The" and "(which for purposes of this chapter includes an unremarried surviving spouse who had a subsequent remarriage which was terminated by death or divorce)" after "surviving spouse". Pub. L. 103-240, §1(b), inserted "and paragraph (7)" after "paragraphs (1) through (4)".Par. (7). Pub. L. 103-240, §1(a), added par. (7).1991- Pub. L. 102-83 renumbered section 1002 of this title as this section. Pub. L. 102-40 substituted "6105" for "3505" in introductory provisions. 1989- Pub. L. 101-237 substituted "Secretary" for "Administrator" wherever appearing.1986-Pars. (2), (3). Pub. L. 99-576, §701(54)(A), substituted "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 Affairs, 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 respect to the death, on or after Oct. 13, 2010, of the parent 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 applicable 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 subsection (a) [amending this section] shall apply with respect to deaths occurring on or after January 1, 2000."

EFFECTIVE DATE OF 2000 AMENDMENT Amendment by section 331(a) of Pub. L. 106-419 applicable 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 consultation 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 Secretary of the Army to the Committees on Veterans' Affairs and the Committees on Armed Services of the House of Representatives and the Senate, dated February 14, 2017, and titled 'The Future of Arlington National Cemetery: Report on the Cemetery's Interment and Inurnment Capacity 2017'."(b) DEADLINE.-The Secretary of the Army shall establish 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 develop guidance under which the parent of a person described in paragraph (9)(B) of subsection (a) of section 2402 of title 38, United States Code, as added by subsection (b), may be designated for interment in a national cemetery under that section."

ELIGIBILITY OF FORMER PRISONERS OF WAR FOR BURIAL IN ARLINGTON NATIONAL CEMETERY Pub. L. 103-160, div. A, title XI, §11761176,, 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 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."