38 U.S. Code § 2409 - Memorial areas in Arlington National Cemetery

(a) The Secretary of the Army may set aside, when available, a suitable area or areas in Arlington National Cemetery, Virginia, 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, whether 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 whose ashes were scattered without interment of any portion of the ashes.

(b)

(1) Under regulations prescribed by the Secretary of the Army and subject to paragraph (2), appropriate memorials or markers may be erected in Arlington National Cemetery to honor the memory of those individuals, or group of individuals, referred to in subsection (a) of this section.

(2)

(A) Except for a monument containing or marking interred remains, no monument (or similar structure, as determined by the Secretary of the Army in regulations) may be placed in Arlington National Cemetery except pursuant to the provisions of this subsection.

(B) A monument may be placed in Arlington National Cemetery if the monument commemorates—

(i) the service in the Armed Forces of the individual, or group of individuals, whose memory is to be honored by the monument; or

(ii) a particular military event.

(C) No monument may be placed in Arlington National Cemetery until the end of the 25-year period beginning—

(i) in the case of the commemoration of service under subparagraph (B)(i), on the last day of the period of service so commemorated; and

(ii) in the case of the commemoration of a particular military event under subparagraph (B)(ii), on the last day of the period of the event.

(D) A monument may be placed only in those sections of Arlington National Cemetery designated by the Secretary of the Army for such placement and only on land the Secretary determines is not suitable for burial.

(E) A monument may only be placed in Arlington National Cemetery if an appropriate nongovernmental entity has agreed to act as a sponsoring organization to coordinate the placement of the monument and—

(i) the construction and placement of the monument are paid for only using funds from private sources;

(ii) the Secretary of the Army consults with the Commission of Fine Arts and the Advisory Committee on Arlington National Cemetery before approving the design of the monument; and

(iii) the sponsoring organization provides for an independent study on the availability and suitability of alternative locations for the proposed monument outside of Arlington National Cemetery.

(3)

(A) The Secretary of the Army may waive the requirement under paragraph (2)(C) in a case in which the monument would commemorate a group of individuals who the Secretary determines—

(i) has made valuable contributions to the Armed Forces that have been ongoing and perpetual for longer than 25 years and are expected to continue on indefinitely; and

(ii) has provided service that is of such a character that the failure to place a monument to the group in Arlington National Cemetery would present a manifest injustice.

(B) If the Secretary waives such requirement under subparagraph (A), the Secretary shall—

(i) make available on an Internet website notification of the waiver and the rationale for the waiver; and

(ii) submit to the Committee on Veterans’ Affairs and the Committee on Armed Services of the Senate and the Committee on Veterans’ Affairs and the Committee on Armed Services of the House of Representatives written notice of the waiver and the rationale for the waiver.

(4) The Secretary of the Army shall provide notice to the Committee on Veterans’ Affairs and the Committee on Armed Services of the Senate and the Committee on Veterans’ Affairs and the Committee on Armed Services of the House of Representatives of any monument proposed to be placed in Arlington National Cemetery. During the 60-day period beginning on the date on which such notice is received, Congress may pass a joint resolution of disapproval of the placement of the monument. The proposed monument may not be placed in Arlington National Cemetery until the later of—

(A) if Congress does not pass a joint resolution of disapproval of the placement of the monument, the date that is 60 days after the date on which notice is received under this paragraph; or

(B) if Congress passes a joint resolution of disapproval of the placement of the monument, and the President signs a veto of such resolution, the earlier of—

(i) the date on which either House of Congress votes and fails to override the veto of the President; or

(ii) the date that is 30 session days after the date on which Congress received the veto and objections of the President.

(Added Pub. L. 99–576, title IV, § 413(a), Oct. 28, 1986, 100 Stat. 3284, § 1009; amended Pub. L. 101–237, title III, § 313(b)(5), Dec. 18, 1989, 103 Stat. 2077; renumbered § 2409, Pub. L. 102–83, § 5(a), Aug. 6, 1991, 105 Stat. 406; Pub. L. 112–154, title VI, § 604, Aug. 6, 2012, 126 Stat. 1201.)

Editorial Notes

Amendments

2012—Subsec. (b). Pub. L. 112–154 designated existing provisions as par. (1), inserted “and subject to paragraph (2)” after “Secretary of the Army”, and added pars. (2) to (4).

1991—Pub. L. 102–83 renumbered section 1009 of this title as this section.

1989—Subsec. (b). Pub. L. 101–237 inserted “of the Army” after “Secretary”.

Statutory Notes and Related Subsidiaries

Updates and Preservation of Memorials to Chaplains at Arlington National Cemetery

Pub. L. 117–81, div. A, title V, § 584, Dec. 27, 2021, 135 Stat. 1758, as amended by Pub. L. 117–263, div. A, title V, § 593, Dec. 23, 2022, 136 Stat. 2612, provided that:

“(a) Updates and Preservation of Memorials.—

“(1) Protestant chaplains memorial.—

The Secretary of the Army may permit NCMAF—

“(A) to modify the memorial to Protestant chaplains located on Chaplains Hill to include a granite, marble, or other stone base for the bronze plaque of the memorial;

“(B) to provide an updated bronze plaque, described in subparagraph (A), including the name of each chaplain, verified as described in subsection (b), who died while serving on active duty in the Armed Forces after the date on which the original memorial was placed; and

“(C) to make such other updates and corrections to the memorial that the Secretary determines necessary.

“(2) Catholic and jewish chaplain memorials.—

The Secretary of the Army may permit NCMAF to update and make corrections to the Catholic and Jewish chaplain memorials located on Chaplains Hill that the Secretary determines necessary.

“(3) No cost to federal government.—

The activities of NCMAF authorized by this subsection shall be carried out at no cost to the Federal Government.

“(4) Authority of secretary of the army.—

The Secretary of the Army may permit NCMAF to carry out any action authorized by this subsection without regard to the time limitation under section 2409(b)(2)(C) of title 38, United States Code.

“(b) Verification of Names.—

NCMAF may not include the name of a chaplain on a memorial on Chaplains Hill under subsection (a) unless that name has been verified by the Chief of Chaplains of the Army, Navy, or Air Force or the Chaplain of the United States Marine Corps, depending on the branch of the Armed Forces in which the chaplain served.

“(c) Prohibition on Expansion of Memorials.—

Except as provided in subsection (a)(1)(A), this section may not be construed as authorizing the expansion of any memorial that is located on Chaplains Hill as of the date of the enactment of this Act [Dec. 27, 2021].

“(d) Definitions.—

In this section:

“(1) The term ‘Chaplains Hill’ means the area in Arlington National Cemetery that, as of the date of the enactment of this Act, is generally identified and recognized as Chaplains Hill.

“(2) The term ‘NCMAF’ means the National Conference on Ministry to the Armed Forces or any successor organization recognized in law for purposes of the operation of this section.”

Transfer to the Secretary of the Army and Management of Parcel of Federal Land in Arlington, Virginia

Pub. L. 116–92, div. B, title XXVIII, § 2834(a), Dec. 20, 2019, 133 Stat. 1893, provided that:

“(1) Transfer.—

Administrative jurisdiction over the parcel of Federal land described in paragraph (2) is transferred from the Secretary of the Interior to the Secretary of the Army.

“(2) Description of land.—

The parcel of Federal land referred to in paragraph (1) is the approximately 16.09-acre parcel of land in Arlington, Virginia, as depicted on the map entitled ‘Arlington National Cemetery, Memorial Ave–NPS Parcel’ and dated February 11, 2019.”

Pub. L. 116–92, div. B, title XXVIII, § 2834(e)(3)(A), Dec. 20, 2019, 133 Stat. 1893, provided that:

“The parcel of Federal land transferred to the Secretary of the Army by subsection (a)(1) [set out above] shall be administered by the Secretary of the Army—

“(i) as part of Arlington National Cemetery; and

“(ii) in accordance with applicable law, including—

“(I) regulations; and

“(II) section 2409 of title 38, United States Code.”

Construction of Memorial to the Crew of the Apollo I Launch Test Accident at Arlington National Cemetery

Pub. L. 115–91, div. A, title X, § 1087, Dec. 12, 2017, 131 Stat. 1604, provided that:

“Subject to applicable requirements of section 2409(b)(2)(E) of title 38, United States Code, the Secretary of the Army, in consultation with the Administrator of the National Aeronautics and Space Administration, the Commission of Fine Arts, and the Advisory Committee on Arlington National Cemetery, shall authorize the construction, at an appropriate place in Arlington National Cemetery, Virginia, of a memorial marker honoring the three members of the crew of the Apollo I who died during a launch rehearsal test on January 27, 1967, in Cape Canaveral, Florida. The memorial may not be constructed in a location that is otherwise suitable as an interment site.”

Columbia Orbiter Memorial

Pub. L. 108–11, title III, Apr. 16, 2003, 117 Stat. 603, provided that:

“SEC. 301. SHORT TITLE.

“This title may be cited as the ‘Columbia Orbiter Memorial Act’.

“SEC. 302. CONSTRUCTION OF MEMORIAL TO CREW OF COLUMBIA ORBITER AT ARLINGTON NATIONAL CEMETERY.

“(a) Construction Required.—

The Secretary of the Army shall, in consultation with the Administrator of the National Aeronautics and Space Administration, construct at an appropriate place in Arlington National Cemetery, Virginia, a memorial marker honoring the seven members of the crew of the Columbia Orbiter who died on February 1, 2003, over the State of Texas during the landing of space shuttle mission STS–107.

“(b) Availability of Funds.—

Of the amount appropriated or otherwise made available by title II of the Department of Defense Appropriations Act, 2003 (Public Law 107–248) under the heading ‘Operation and Maintenance, Army’ [116 Stat. 1521], $500,000 shall be available for the construction of the memorial marker required by subsection (a).

“SEC. 303. DONATIONS FOR MEMORIAL FOR CREW OF COLUMBIA ORBITER.

“(a) Authority To Accept Donations.—

The Administrator of the National Aeronautics and Space Administration may accept gifts and donations of services, money, and property (including personal, tangible, or intangible property) for the purpose of an appropriate memorial or monument to the seven members of the crew of the Columbia Orbiter who died on February 1, 2003, over the State of Texas during the landing of space shuttle mission STS–107, whether such memorial or monument is constructed by the Administrator or is the memorial marker required by section 302.

“(b) Transfer.—

(1) The Administrator may transfer to the Secretary of the Army any services, money, or property accepted by the Administrator under subsection (a) for the purpose of the construction of the memorial marker required by section 302.

“(2) Any moneys transferred to the Secretary under paragraph (1) shall be merged with amounts in the account referred to in subsection (b) of section 302, and shall be available for the purpose referred to in that subsection.

“(c) Expiration of Authority.—

The authority of the Administrator to accept gifts and donations under subsection (a) shall expire 5 years after the date of the enactment of this Act [Apr. 16, 2003].”

Authorization of Placement of a Memorial in Arlington National Cemetery Honoring World War II Veterans Who Fought in the Battle of the Bulge

Pub. L. 107–330, title II, § 204, Dec. 6, 2002, 116 Stat. 2824, provided that:

“The Secretary of the Army is authorized to place in Arlington National Cemetery a memorial marker honoring veterans who fought in the battle in the European theater of operations during World War II known as the Battle of the Bulge.”