[Congressional Record Volume 143, Number 64 (Thursday, May 15, 1997)]
[Senate]
[Pages S4604-S4606]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CAMPBELL (for himself and Mr. Ford):
  S. 755. A bill to amend title 10, United States Code, to restore the 
provisions of chapter 76 of that title (relating to missing persons) as 
in effect before the amendments made by the National Defense 
Authorization Act for fiscal year 1997 and to make other improvements 
to that chapter; to the Committee on Armed Services.


            THE MISSING PERSONS AUTHORITIES IMPROVEMENT ACT

  Mr. CAMPBELL. Mr. President, with the approach of Memorial Day, we 
are reminded of the millions of American men and women who have 
dedicated and sacrificed their lives in service to the U.S. Armed 
Forces. And for far too many, it is a day to remember those service 
members who have yet to return home from the wars they valiantly fought 
many years ago.
  During the last Congress, we passed the Missing Service Personnel 
Act. Specifically, this bill created a framework of accountability 
within the Department of Defense to establish the status and location 
of our missing Armed Forces personnel. Until this legislation was 
introduced in 1995, the procedures for handling missing service 
personnel had remained unchanged for more than 50 years. This 
legislation improved procedures for reviewing POW/MIA cases and 
protected the missing service member from being declared dead solely 
based on the passage of time. Gathering 47 cosponsors in the Senate and 
achieving unanimous passage in the House, the bill became law in 
February 1996. However, an amendment to the 1997 Defense Authorization 
Conference Report repealed its strongest provisions.
  Today, I am introducing The Missing Persons Authorities Improvement 
Act of 1997 in an effort to restore not only those lost provisions but 
to also offer a sense of accountability for our missing service 
personnel and their loved ones. A companion bill has already been 
introduced in the House of Representatives by Congressman Ben Gilman of 
New York.
  One major provision to be restored requires that military unit 
commanders report and initiate a search within 48 hours from the time a 
person has been deemed missing. Right now, a soldier can be missing for 
up to ten days before a report and search must be made.
  Another restored provision protects civilian defense employees and 
contractors who become missing as a result of hostile action. These 
civilians who serve with, or accompany the Armed Forces in the field 
under orders and place their lives in danger, should be entitled to the 
same protection that is given to uniformed soldiers.
  This bill also includes a provision which requires that if remains 
are recovered and are not identifiable through visual means, 
certification must be made by a forensic scientist that the remains 
recovered are, in fact, the missing person. In the past, hasty and 
speculative conclusions have often lead to misidentification and 
ultimately, undue emotional hardship for MIA families. It is our 
obligation to take full advantage of our current technological 
capabilities and provide the families of missing service personnel with 
certain, respectful closure in every case possible.
  As a veteran who served in Korea, I am especially proud to also 
include an additional provision that calls for the establishment of 
personnel files for Korean conflict cases. Under this provision, if any 
new information is discovered that indicates that the soldier may not 
have been killed during the Korean War, a new case must be opened or an 
existing one must be reviewed. There are currently some 8,000 of my 
Korean war colleagues who have never been accounted for. The recent 
efforts by the many families of Korean War MIA's to learn the fate of 
their loved ones only reinforce the necessity for this provision. These 
families deserve our respect and attention.
  This legislation is supported by numerous veterans' service 
organizations such as the American Legion, the Disabled American 
Veterans, the Korean and Cold War Families Association, and the 
National League of POW/MIA Families.
  This bill asks the Department of Defense only to make the best 
possible effort to recover and return our missing personnel. It is the 
least we owe our soldiers, past and present, who endanger their lives 
in defense of our country. It is the very least we owe the families who 
have and will endure the pain and uncertainty of a loved one left 
unaccounted for at a time of war.
  Mr. President, I ask unanimous consent that the bill be printed in 
the Record. I also ask unanimous consent that Senator Ford be included 
as an original cosponsor to this legislation.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 755

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Missing Persons Authorities 
     Improvement Act of 1997''.

     SEC. 2. 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.--Section 1502 of this title applies 
     in the case of the following persons:
       ``(1) Any member of the armed forces on active duty 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 whose status is 
     undetermined or who is unaccounted for.
       ``(2)(A) Any other person who is a citizen of the United 
     States and is described in subparagraph (B) who serves with 
     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 whose status is 
     undetermined or who is unaccounted for.
       ``(B) A person described in this subparagraph is any of the 
     following:
       ``(i) A civilian officer or employee of the Department of 
     Defense.
       ``(ii) An employee of a contractor of the Department of 
     Defense.
       ``(iii) An employee of a United States firm licensed by the 
     United States under section 38 of the Arms Export Control Act 
     (22 U.S.C. 2778) to perform duties under contract with a 
     foreign government involving military training of the 
     military forces of that government in accordance with 
     policies of the Department of Defense.''; and
       (B) by adding at the end the following new subsection:
       ``(f) Secretary Concerned.--In this chapter, the term 
     `Secretary concerned' includes--
       ``(1) in the case of a person covered by clause (i) of 
     subsection (c)(2)(B), the Secretary of the military 
     department or head of the element of the Department of 
     Defense employing the employee;
       ``(2) in the case of a person covered by clause (ii) of 
     subsection (c)(2)(B), the Secretary of the military 
     department or head of the element of the Department of 
     Defense contracting with the contractor; and
       ``(3) in the case of a person covered by clause (iii) of 
     subsection (c)(2)(B), the Secretary of Defense.''.
       (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)'';

[[Page S4605]]

       (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 with 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) Report on Preliminary Assessment of Status.--(1) 
     Section 1502 of such title is amended--
       (A) in subsection (a)(2)--
       (i) by striking out ``10 days'' and inserting in lieu 
     thereof ``48 hours''; and
       (ii) by striking out ``Secretary concerned'' and inserting 
     in lieu thereof ``theater component commander with 
     jurisdiction over the missing person'';
       (B) in subsection (a), as amended by subparagraph (A)--
       (i) by redesignating paragraphs (1) and (2) as 
     subparagraphs (A) and (B), respectively;
       (ii) by inserting ``(1)'' after ``Commander.--''; and
       (iii) by adding at the end the following new paragraph:
       ``(2) However, if the commander determines that operational 
     conditions resulting from hostile action or combat constitute 
     an emergency that prevents timely reporting under paragraph 
     (1)(B), the initial report should be made as soon as 
     possible, but in no case later than ten days after the date 
     on which the commander receives such information under 
     paragraph (1).'';
       (C) by redesignating subsection (b) as subsection (c);
       (D) by inserting after subsection (a), as amended by 
     subparagraphs (A) and (B), the following new subsection (b):
       ``(b) Transmission Through Theater Component Commander.--
     Upon reviewing a report under subsection (a) recommending 
     that a person be placed in a missing status, the theater 
     component commander shall ensure that all necessary actions 
     are being taken, and all appropriate assets are being used, 
     to resolve the status of the missing person. Not later than 
     14 days after receiving the report, the theater component 
     commander shall forward the report to the Secretary of 
     Defense or the Secretary concerned in accordance with 
     procedures prescribed under section 1501(b) of this title. 
     The theater component commander shall include with such 
     report a certification that all necessary actions are being 
     taken, and all appropriate assets are being used, to resolve 
     the status of the missing person.''; and
       (E) in subsection (c), as redesignated by subparagraph (C), 
     by adding at the end the following new sentence: ``The 
     theater component commander through whom the report with 
     respect to the missing person is transmitted under subsection 
     (b) shall ensure that all pertinent information relating to 
     the whereabouts and status of the missing person that results 
     from the preliminary assessment or from actions taken to 
     locate the person is properly safeguarded to avoid loss, 
     damage, or modification.''.
       (2) Section 1503(a) of such title is amended by striking 
     out ``section 1502(a)'' and inserting in lieu thereof 
     ``section 1502(b)''.
       (3) Section 1504 of such title is amended by striking out 
     ``section 1502(a)(2)'' in subsections (a), (b), and (e)(1) 
     and inserting in lieu thereof ``section 1502(a)''.
       (4) 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) Frequency of Subsequent Reviews.--Subsection (b) of 
     section 1505 of such title is amended to read as follows:
       ``(b) Frequency of Subsequent Reviews.--(1) In the case of 
     a missing person who was last known to be alive or who was 
     last suspected of being alive, the Secretary shall appoint a 
     board to conduct an inquiry with respect to a person under 
     this subsection--
       ``(A) on or about three years after the date of the initial 
     report of the disappearance of the person under section 
     1502(a) of this title; and
       ``(B) not later than every three years thereafter.
       ``(2) In addition to appointment of boards under paragraph 
     (1), the Secretary shall appoint a board to conduct an 
     inquiry with respect to a missing person under this 
     subsection upon receipt of information that could result in a 
     change of status of the missing person. When the Secretary 
     appoints a board under this paragraph, the time for 
     subsequent appointments of a board under paragraph (1)(B) 
     shall be determined from the date of the receipt of such 
     information.
       ``(3) The Secretary is not required to appoint a board 
     under paragraph (1) with respect to the disappearance of any 
     person--
       ``(A) more than 30 years after the initial report of the 
     disappearance of the missing person required by section 
     1502(a) of this title; or
       ``(B) if, before the end of such 30-year period, the 
     missing person is accounted for.''.
       (d) Penalties for Wrongful Withholding of Information.--
     Section 1506 of such title is amended by adding at the end 
     the following new subsection:
       ``(f) Wrongful Withholding.--Any person who (except as 
     provided in subsections (a) through (d)) willfully withholds, 
     or directs the withholding of, any information relating to 
     the disappearance or whereabouts and status of a missing 
     person from the personnel file of that missing person, 
     knowing that such information is required to be placed in the 
     personnel file of the missing person, shall be fined as 
     provided in title 18 or imprisoned not more than one year, or 
     both.''.
       (e) Information To Accompany Recommendation of Status of 
     Death.--Section 1507(b) of such title is amended by 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 
     practitioner of an appropriate forensic science that the body 
     recovered is that of the missing person.''.
       (f) 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.''.
       (3) Section 1505(c)(1) is amended by adding at the end the 
     following: ``The Secretary concerned shall appoint counsel to 
     represent any such missing person to whom such information 
     may be related. The appointment shall be in the same manner, 
     and subject to the same provisions, as an appointment under 
     section 1504(f)(1) of this title.''.
       (g) 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 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) The Secretary concerned shall appoint counsel to 
     represent each such unaccounted

[[Page S4606]]

     for person to whom the new information may be related. The 
     appointment shall be in the same manner, and subject to the 
     same provisions, as an appointment under section 1504(f)(1) 
     of this title.
       ``(3) For purposes of this subsection, new information is 
     information that--
       ``(A) is found or received after the date of the enactment 
     of the Missing Persons Improvement Act of 1997 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 
     Missing Persons Improvement Act of 1997 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). 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.''.
       (h) 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 family members of missing 
     persons.''.
       (i) Withholding of Privileged Information.--Section 1506(d) 
     of such title is amended--
       (1) in paragraph (2)--
       (A) by striking out ``non-derogatory'' both places it 
     appears in the first sentence;
       (B) by inserting ``or about unnamed missing persons'' in 
     the first sentence after ``the debriefing report'';
       (C) by striking out ``the missing person'' in the second 
     sentence and inserting in lieu thereof ``each missing person 
     named in the debriefing report''; and
       (D) 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 family members of missing 
     persons.''; and
       (2) in paragraph (3)--
       (A) by inserting ``, or part of a debriefing report,'' 
     after ``a debriefing report''; and
       (B) by adding at the end the following new sentence: 
     ``Whenever the Secretary withholds a debriefing report, or 
     part of a debriefing report, containing information on 
     unnamed missing persons from accessibility to families of 
     missing persons under this section, the Secretary shall 
     ensure that notice that the withheld debriefing report exists 
     is made reasonably accessible to family members of missing 
     persons.''.
                                 ______