Conference Report - Sec. 599 -
Improvement of Missing Person Authorities
CONFERENCE REPORT ON H.R. 1119,
NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 1998
(House of Representatives - October 23, 1997)
[Page: H9116]
SEC. 599. IMPROVEMENT OF MISSING PERSONS AUTHORITIES APPLICABLE TO DEPARTMENT OF DEFENSE.
(a) Applicability to Department of Defense Civilian Employees and Contractor Employees: (1) Section 1501 of title 10, United States Code, is amended--
(A) by striking out subsection (c) and inserting in lieu thereof the following:
`(c) Covered Persons: (1) Section 1502 of this title applies in the case of any member of the armed forces on active duty--
`(A) who becomes involuntarily absent as a result of a hostile action or under circumstances suggesting that the involuntary absence is a result of a hostile action; and
`(B) whose status is undetermined or who is unaccounted for.
`(2) Section 1502 of this title applies in the case of any other person who is a citizen of the United States and a civilian officer or employee of the Department of Defense or (subject to paragraph (3)) an employee of a contractor of the Department of Defense--
`(A) who serves in direct support of, or accompanies, the armed forces in the field under orders and becomes involuntarily absent as a result of a hostile action or under circumstances suggesting that the involuntary absence is a result of a hostile action; and
`(B) whose status is undetermined or who is unaccounted for.
`(3) The Secretary of Defense shall determine, with regard to a pending or ongoing military operation, the specific employees, or groups of employees, of contractors of the Department of Defense to be considered to be covered by this subsection.'; and
(B) by adding at the end the following new subsection:
`(f) Secretary Concerned: In this chapter, the term `Secretary concerned' includes, in the case of a civilian officer or employee of the Department of Defense or an employee of a contractor of the Department of Defense, the Secretary of the military department or head of the element of the Department of Defense employing the officer or employee or contracting with the contractor, as the case may be.'.
(2) Section 1503(c) of such title is amended--
(A) in paragraph (1), by striking out `one military officer' and inserting in lieu thereof `one individual described in paragraph (2)';
(B) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively; and
(C) by inserting after paragraph (1) the following new paragraph (2):
`(2) An individual referred to in paragraph (1) is the following:
`(A) A military officer, in the case of an inquiry with respect to a member of the armed forces.
`(B) A civilian, in the case of an inquiry with respect to a civilian employee of the Department of Defense or of a contractor of the Department of Defense.'.
(3) Section 1504(d) of such title is amended--
(A) in paragraph (1), by striking out `who are' and all that follows in that paragraph and inserting in lieu thereof `as follows:
`(A) In the case of a board that will inquire into the whereabouts and status of one or more members of the armed forces (and no civilians described in subparagraph (B)), the board shall be composed of officers having the grade of major or lieutenant commander or above.
`(B) In the case of a board that will inquire into the whereabouts and status of one or more civilian employees of the Department of Defense or contractors of the Department of Defense (and no members of the armed forces), the board shall be composed of--
`(i) not less than three employees of the Department of Defense whose rate of annual pay is equal to or greater than the rate of annual pay payable for grade GS-13 of the General Schedule under section 5332 of title 5; and
`(ii) such members of the armed forces as the Secretary considers advisable.
`(C) In the case of a board that will inquire into the whereabouts and status of both one or more members of the armed forces and one or more civilians described in subparagraph (B)--
`(i) the board shall include at least one officer described in subparagraph (A) and at least one employee of the Department of Defense described in subparagraph (B)(i); and
`(ii) the ratio of such officers to such employees on the board shall be roughly proportional to the ratio of the number of members of the armed forces who are subjects of the board's inquiry to the number of civilians who are subjects of the board's inquiry.'; and
(B) in paragraph (4), by striking out `section 1503(c)(3)' and inserting in lieu thereof `section 1503(c)(4)'.
(4) Paragraph (1) of section 1513 of such title is amended to read as follows:
`(1) The term `missing person' means--
`(A) a member of the armed forces on active duty who is in a missing status; or
`(B) a civilian employee of the Department of Defense or an employee of a contractor of the Department of Defense who serves in direct support of, or accompanies, the armed forces in the field under orders and who is in a missing status.
Such term includes an unaccounted for person described in section 1509(b) of this title, under the circumstances specified in the last sentence of section 1509(a) of this title.'.
(b) Transmission to Theater Component Commander of Advisory Copy of Missing Person Report: (1) Section 1502 of such title is amended--
(A) by redesignating subsection (b) as subsection (c); and
(B) by inserting after subsection (a) the following new subsection (b): `(b) Transmission of Advisory Copy to Theater Component Commander: When transmitting a report under subsection (a)(2) recommending that a person be placed in a missing status, the commander transmitting that report shall transmit an advisory copy of the report to the theater component commander with jurisdiction over the missing person.'.
(2) Section 1513 of such title is amended by adding at the end the following new paragraph:
`(8) The term `theater component commander' means, with respect to any of the combatant commands, an officer of any of the armed forces who (A) is commander of all forces of that armed force assigned to that combatant command, and (B) is directly subordinate to the commander of the combatant command.'.
(c) Information To Accompany Recommendation of Status of Death: Section 1507(b) of such title is amended adding at the end the following new paragraphs:
`(3) A description of the location of the body, if recovered.
`(4) If the body has been recovered and is not identifiable through visual means, a certification by a forensic pathologist that the body recovered is that of the missing person. In determining whether to make such a certification, the forensic pathologist shall consider, as determined necessary by the Secretary of the military department concerned, additional evidence and information provided by appropriate specialists in forensic medicine or other appropriate medical sciences.'.
(d) Missing Person's Counsel: (1) Sections 1503(f)(1) and 1504(f)(1) of such title are amended by adding at the end the following: `The identity of counsel appointed under this paragraph for a missing person shall be made known to the missing person's primary next of kin and any other previously designated person of the person.'.
(2) Section 1503(f)(4) of such title is amended by adding at the end the following: `The primary next of kin of a missing person and any other previously designated person of the missing person shall have the right to submit information to the missing person's counsel relative to the disappearance or status of the missing person.'.
(e) Scope of Preenactment Review: (1) Section 1509 of such title is amended by striking out subsection (a) and inserting in lieu thereof the following: `(a) Review of Status: (1) If new information (as defined in paragraph (2)) is found or received that may be related to one or more unaccounted for persons described in subsection (b) (whether or not such information specifically relates (or may specifically relate) to any particular such unaccounted for person), that information shall be provided to the Secretary of Defense. Upon receipt of such information, the Secretary shall ensure that the information is treated under paragraphs (2) and (3) of section 1505(c) of this title and under section 1505(d) of this title in the same manner as information received under paragraph (1) of section 1505(c) of this title. For purposes of the applicability of other provisions of this chapter in such a case, each such unaccounted for person to whom the new information may be related shall be considered to be a missing person.
`(2) For purposes of this subsection, new information is information that is credible and that--
`(A) is found or received after the date of the enactment of the the National Defense Authorization Act for Fiscal Year 1998 by a United States intelligence agency, by a Department of Defense agency, or by a person specified in section 1504(g) of this title; or
`(B) is identified after the date of the enactment of the National Defense Authorization Act for Fiscal Year 1998 in records of the United States as information that could be relevant to the case of one or more unaccounted for persons described in subsection (b).'.
(2) Such section is further amended by adding at the end the following new subsection:
`(d) Establishment of Personnel Files for Korean Conflict Cases: The Secretary of Defense shall ensure that a personnel file is established for each unaccounted for person who is described in subsection (b)(1) if the Secretary possesses information relevant to that person's status. In the case of a person described in subsection (b)(1) for whom a personnel file does not exist, the Secretary shall create a personnel file for such person upon receipt of new information as provided in subsection (a). Each such file shall be handled in accordance with, and subject to the provisions of, section 1506 of this title in the same manner as applies to the file of a missing person.'.
(f) Withholding of Classified Information: Section 1506(b) of such title is amended--
(1) by inserting `(1)' before `The Secretary';
(2) by redesignating paragraphs (1) and (2) as subparagraphs (A) and (B), respectively; and
(3) by adding at the end the following:
`(2) If classified information withheld under this subsection refers to one or more unnamed missing persons, the Secretary shall ensure that notice of that withheld information, and notice of the date of the most recent review of the classification of that withheld information, is made reasonably accessible to the primary next of kin, members of the immediate family, and the previously designated person.'.
(g) Withholding of Privileged Information: Section 1506(d) of such title is amended--
(1) in paragraph (2)--
(A) by inserting `or about unnamed missing persons' in the first sentence after `the debriefing report';
(B) by striking out `the missing person' in the second sentence and inserting in lieu thereof `each missing person named in the debriefing report'; and
(C) by adding at the end the following new sentence: `Any information contained in the extract of the debriefing report that pertains to unnamed missing persons shall be made reasonably accessible to the primary next of kin, members of the immediate family, and the previously designated person.'; and
(2) in paragraph (3), by inserting `, or part of a debriefing report,' after `a debriefing report'.