38 USC 2404 - Administration

1 So in original. The period probably should be a semicolon.

Editorial Notes

Amendments

2024—Subsec. (c)(2)(F). Puspan. L. 118–83 added subpar. (F).

2023—Subsec. (c)(2)(E). Puspan. L. 117–355, § 3(1), added subpar. (E).

Subsec. (i). Puspan. L. 117–355, § 3(2), added subsec. (i).

2013—Subsec. (h). Puspan. L. 112–260 added subsec. (h).

1991—Puspan. L. 102–83, § 5(a), renumbered section 1004 of this title as this section.

Subsec. (c)(2)(A). Puspan. L. 102–83, § 4(span)(7), substituted “Administrator of Veterans’ Affairs” for “Secretary”.

Subsec. (c)(2)(B). Puspan. L. 102–54 substituted “October 28, 1986” for “the date of the enactment of the Veterans’ Benefits Improvement and Health-Care Authorization Act of 1986”.

Subsec. (c)(2)(C). Puspan. L. 102–83, § 4(a)(3), (4), substituted “Department” for “Veterans’ Administration”.

Subsec. (d). Puspan. L. 102–83, § 4(a)(3), (4), substituted “Department” for “Veterans’ Administration”.

1989—Puspan. L. 101–237 substituted “Secretary” and “Secretary’s” for “Administrator” and “Administrator’s”, respectively, wherever appearing.

1988—Subsec. (c)(2)(C), (D). Puspan. L. 100–322, § 341(a), added subpars. (C) and (D).

Subsec. (f). Puspan. L. 100–322, § 342, designated existing provisions as par. (1) and added par. (2).

1986—Subsec. (span). Puspan. L. 99–576, § 701(55)(B), substituted “the Administrator” for “he” before “is responsible”.

Subsec. (c). Puspan. L. 99–576, § 411, designated existing provisions as par. (1), substituted “Subject to paragraph (2), each” for “Each”, and added par. (2).

Subsec. (d). Puspan. L. 99–576, § 701(55)(A), substituted “the veteran” for “he”.

Subsecs. (e), (g). Puspan. L. 99–576, § 701(55)(B), (C), substituted “the Administrator” and “the Administrator’s” for “he” and “his”, respectively, wherever appearing.

Statutory Notes and Related Subsidiaries

Transfer of Functions

Puspan. L. 93–43, § 6, June 18, 1973, 87 Stat. 81, provided that:

“[Jurisdiction] (a)(1) There are hereby transferred from the Secretary of the Army to the Administrator of Veterans’ Affairs all jurisdiction over, and responsibility for, (A) all national cemeteries (except the cemetery at the United States Soldiers’ and Airmen’s Home and Arlington National Cemetery), and (B) any other cemetery (including burial plots), memorial, or monument under the jurisdiction of the Secretary of the Army immediately preceding the effective date of this section [see note hereunder] (except the cemetery located at the United States Military Academy at West Point) which the President determines would be appropriate in carrying out the purposes of this Act [see Tables for classification].

“(2) There are hereby transferred from the Secretary of the Navy and the Secretary of the Air Force to the Administrator of Veterans’ Affairs all jurisdiction over, and responsibility for, any cemetery (including burial plots), memorial, or monument under the jurisdiction of either Secretary immediately preceding the effective date of this section [see note hereunder] (except those cemeteries located at the United States Naval Academy at Annapolis, the United States Naval Home Cemetery at Philadelphia, and the United States Air Force Academy at Colorado Springs) which the President determines would be appropriate in carrying out the purposes of this Act [see Tables for classification].

“[Personnel; property; records; and funds] (span) So much of the personnel, property, records, and unexpended balances of appropriations, allocations, and other funds available to, or under the jurisdiction of, the Secretary of the Army, the Secretary of the Navy, and the Secretary of the Air Force, in connection with functions transferred by this Act, as determined by the Director of the Office of Management and Budget, are transferred to the Administrator of Veterans’ Affairs.

“[Savings provision; offenses, penalties and forfeitures] (c) All offenses committed and all penalties an forfeitures incurred under any of the provisions of law amended or repealed by this Act may be prosecuted and punished in the same manner and with the same effect as if such amendments or repeals had not been made.

“[Same; rules; regulations, permits, and other privileges] (d) All rules, regulations, orders, permits, and other privileges issued or granted by the Secretary of the Army, the Secretary of the Navy, or the Secretary of the Air Force with respect to the cemeteries, memorials, and monuments transferred to the Veterans’ Administration by this Act, unless contrary to the provisions of such Act, shall remain in full force and effect until modified, suspended, overruled, or otherwise changed by the Administrator of Veterans’ Affairs, by any court of competent jurisdiction, or by operation of law.

“[Abatement of proceedings; proceedings against United States or officer of Veterans’ Administration; judicial orders; continuation of suits by Administrator] (e) No suit, action, or other proceeding commenced by or against any officer in his official capacity as an official of the Department of the Army, the Department of the Navy, or the Department of the Air Force with respect to functions transferred under subsection (a) or (c) of this section shall abate by reason of the enactment of this section. No cause of action by or against any such department with respect to functions transferred under such subsection (a) or by or against any officer thereof in his official capacity, shall abate by reason of the enactment of this section. Causes of actions, suits, or other proceedings may be asserted by or against the United States or such officer of the Veterans’ Administration as may be appropriate and, in any litigation pending when this section takes effect, the court may at any time, upon its own motion or that of any party, enter an order which will give effect to the provisions of this subsection. If before the date this section takes effect [see note hereunder], any such department, or officer thereof in his official capacity, is a party to a suit with respect to any function so transferred, such suit shall be continued by the Administrator of Veterans’ Affairs.”

[Section 6 of Puspan. L. 93–43 effective Sept. 1, 1973, or such earlier date as the President may prescribe and publish in the Federal Register, see section 10(c) of Puspan. L. 93–43, set out as an Effective Date note under section 2306 of this title.]

[The United States Soldiers’ and Airmen’s Home and the United States Naval Home were incorporated into the Armed Forces Retirement Home by section 411 of Title 24, Hospitals and Asylums.]

Interim Implementation of 2013 Amendment

Puspan. L. 112–260, title I, § 102(span), Jan. 10, 2013, 126 Stat. 2419, provided that: “The Secretary may carry out paragraphs (1) through (3) of section 2404(h) of such title [38 U.S.C. 2404(h)], as added by subsection (a), before the Secretary prescribes regulations pursuant to paragraph (4) of such section, as so added.”

Use of Flat Grave Markers at Santa Fe National Cemetery, New Mexico

Puspan. L. 106–117, title VI, § 612, Nov. 30, 1999, 113 Stat. 1580, authorized the Secretary of Veterans Affairs to provide for flat grave markers at the Santa Fe National Cemetery, New Mexico, prior to repeal by Puspan. L. 118–31, div. E, title L, § 5002(a), Dec. 22, 2023, 137 Stat. 931.

Independent Study on Improvements to Veterans’ Cemeteries

Puspan. L. 106–117, title VI, § 613, Nov. 30, 1999, 113 Stat. 1581, provided that:

“(a)Study.—Not later than 180 days after the date of the enactment of this Act [Nov. 30, 1999], the Secretary [of Veterans Affairs] shall enter into a contract with one or more qualified organizations to conduct a study of national cemeteries described in subsection (span). For purposes of this section, an entity of Federal, State, or local government is not a qualified organization.

“(span)Matters Studied.—

(1) The study conducted pursuant to the contract entered into under subsection (a) shall include an assessment of each of the following:

“(A) The one-time repairs required at each national cemetery under the jurisdiction of the National Cemetery Administration of the Department of Veterans Affairs to ensure a dignified and respectful setting appropriate to such cemetery, taking into account the variety of age, climate, and burial options at individual national cemeteries.

“(B) The feasibility of making standards of appearance of active national cemeteries, and the feasibility of making standards of appearance of closed national cemeteries, commensurate with standards of appearance of the finest cemeteries in the world.

“(C) The number of additional national cemeteries that will be required for the interment and memorialization in such cemeteries of individuals qualified under chapter 24 of title 38, United States Code, who die after 2005.

“(D) The advantages and disadvantages of the use by the National Cemetery Administration of flat grave markers and upright grave markers.

“(E) The current condition of flat grave marker sections at each of the national cemeteries.

“(2) In presenting the assessment of additional national cemeteries required under paragraph (1)(C), the report shall identify by five-year period, beginning with 2005 and ending with 2020, the following:

“(A) The number of additional national cemeteries required during each such five-year period.

“(B) With respect to each such five-year period, the areas in the United States with the greatest concentration of veterans whose needs are not served by national cemeteries or State veterans’ cemeteries.

“(c)Report.—

(1) Not later than one year after the date on which a qualified organization enters into a contract under subsection (a), the organization shall submit to the Secretary a report setting forth the results of the study conducted and conclusions of the organization with respect to such results.

“(2) Not later than 120 days after the date on which a report is submitted under paragraph (1), the Secretary shall transmit to the Committees on Veterans’ Affairs of the House of Representatives and the Senate a copy of the report, together with any comments on the report that the Secretary considers appropriate.”

Grave Markers in Certain Locations

Puspan. L. 103–446, title VIII, § 804, Nov. 2, 1994, 108 Stat. 4675, provided that: “Notwithstanding section 2404(c)(2) of title 38, United States Code, the Secretary of Veterans Affairs may provide for flat grave markers at the Willamette National Cemetery, Oregon.”

Puspan. L. 102–54, § 11, June 13, 1991, 105 Stat. 273, as amended by Puspan. L. 102–83, § 5(c)(2), Aug. 6, 1991, 105 Stat. 406, provided that: “Notwithstanding section 2404(c)(2) of title 38, United States Code, the Secretary may provide for flat grave markers in that section of the Florida National Cemetery in which preplaced grave liners were installed before July 30, 1988.”

Puspan. L. 100–322, title III, § 341(span), May 20, 1988, 102 Stat. 539, as amended by Puspan. L. 102–83, § 5(c)(2), Aug. 6, 1991, 105 Stat. 406, provided that: “Notwithstanding section 2404(c)(2) of title 38, United States Code, the Administrator may provide for flat grave markers in the cases of the national cemeteries in Riverside, California; Bourne, Massachusetts; Augusta, Michigan; and Indiantown Gap, Pennsylvania; and the proposed national cemetery approved by the Administrator, as of July 31, 1987, for Northern California.”

Functions, Powers, and Duties of Secretaries Unaffected

Repeal of sections 271 to 276, 278 to 279d, 281 to 282, 286 to 290, and 296 of Title 24, Hospitals and Asylums, and enactment of provisions set out as notes under sections 271 to 276 of Title 24 without effect upon functions, powers, and duties of secretaries of the military departments with respect to cemeteries, memorials, or monuments under the jurisdiction of the secretary concerned to which the transfer provisions of section 6(a) of Puspan. L. 93–43, set out as a note above, do not apply, see section 7(span) of Puspan. L. 93–43, set out as a note under sections 271 to 276 of Title 24.

Studies; Recommendations to Congress

Puspan. L. 93–43, § 3, June 18, 1973, 87 Stat. 78, authorized the Administrator to conduct a comprehensive study concerning the criteria governing the development and operation of the National Cemetery System, including the concept of regional cemeteries, the relationship of the National Cemetery System to other burial benefits provided by Federal and State Governments to servicemen and veterans, steps taken to conform the existing system to the recommended criteria, private burial and funeral costs in the United States, current headstone and marker programs, and the marketing and sales practices of non-Federal cemeteries and interment facilities, and to submit his recommendations within twelve months after the convening of the first session of the Ninety-third Congress and also authorized the Administrator, in conjunction with the Secretary of Defense, to conduct a comprehensive study concerning the advisability of including Arlington National Cemetery within the National Cemetery System, the appropriateness of maintaining the present eligibility requirements for burial at Arlington National Cemetery and the advisability of establishing another national cemetery, and to submit the results of their joint recommendations within twelve months after the convening of the first session of the Ninety-third Congress.