About That Proposed National Cemetery Law . . . .

Burial in a National Cemetery is a benefit accorded to most veterans.  However, as is the case with most government benefits, it’s not a right guaranteed by the Constitution.  Congress created the benefit, and Congress can set the rules as it sees fit.

Congress occasionally does change the rules about burial in National Cemeteries, or allow the VA to do so.*  Today, those rules are considerably more lenient than I’d personally prefer.  A veteran with a Dishonorable Discharge is banned by law from burial in a National Cemetery; all others who qualify legally as veterans – including those who accepted discharge in lieu of court-martial or received a Bad Conduct Discharge – can be.  (Those with less than an honorable discharge are evaluated on a case-by-case basis and can be buried in National Cemeteries if the VA approves.)

Congress has placed a number of legal restrictions on burial in National Cemeteries.  The aforementioned ban on those with a DD being buried therein is one such legal restriction.  Another is the fact that even an honorably discharged veteran loses the benefit if he or she (1) is convicted of a capital crime, (2) dies before they can be tried for a capital crime, or (3) if clear and convincing evidence exists that the individual committed a capital crime.

However, there is presently no legal authority for the VA to order the removal remains once interred.  And that apparent omission in the law has led to the following conundrum.

A veteran of Afghanistan apparently went “off the rails” in 2012.  He murdered one person, injured three others, and then killed himself.

What actually had happened was apparently not clearly known immediately.  And before things could be investigated and sorted out, the individual had been buried in a National Cemetery with full military honors – without the VA ever knowing he was under suspicion of murder.  All agree it would have been virtually impossible for the VA to have known of the issue prior to the burial, so it’s not a case of the VA “screwing the pooch”.   The situation was simply too murky to sort out prior to the funeral.

The victim’s family is understandably bothered by this turn of events.  They want the VA to remove the murderer’s remains from the cemetery.   And IMO, they have a point; had the facts been known at the time of the funeral, the National Cemetery burial would never have occurred.

Unfortunately, the VA has no legal authority to remove the murderer’s remains.  Without such authority, they can’t do so.

A bill has been introduced in Congress to rectify this legal omission.  The VA has indicated their support, and that they will work with Congress on the technical aspects of the legislation.

On balance, I’d support the proposed law.  I have to admit I have misgivings, though.

In this particular case, the proposal would rectify an obvious injustice.  But as always, there’s the law of unintended consequences to be considered.

Here’s one scenario (there are multiple):  a bar fight occurs between a vet and a non-vet.   The non-vet is the aggressor, and the vet defends himself.  Unfortunately, both end up dead.

The investigation plays out, and the vet is eventually posthumously cleared of any wrongdoing.  But it takes 2 months for the investigation to be completed.

When does the veteran’s family get to bury their lost relative?  Do they have to wait until the end of the investigation?  Does the cemetery allow the burial under such circumstances, at the risk that the deceased might have to be exhumed?

I’m not sure there is a perfect solution here.  This law fixes what is admittedly a “corner case” omission – one that is already very rare.  As I said above, I think the proposed law is probably a good idea.  But even so, the unintended consequences and potential for abuse certainly exist.  It will really need to be written carefully, or the “cure” could end up being worse than the “disease”.

Thoughts?

 

*Note:  while the Army runs Arlington and the Soldiers-and-Airmans Retirement Home National Cemeteries, in the US the VA generally runs the rest. (The Department of the Interior maintains 14 that are located within National Park/Monument/Historical Site boundaries, but only two of them – Andersonville and Andrew Johnson – are open to new interments.)  Outside of the US and its possessions, US military cemeteries are run by the American Battlefield Monuments Commission. 

Category: Crime, Legal, Veterans Issues, Veterans' Affairs Department