August 3, 2023

Regulatory Implementation: 38 CFR Part 38 (RIN 2900-AR80)
   • Final Rule Issued: August 3, 2023 by the Department of Veterans Affairs.
   • Purpose: To implement the statutory expansion from NDAA FY22 and clarify eligibility pathways.
   • Key Provisions:
       • Eligibility Expansion:
           • Recognizes SGU veterans and irregular forces operating from Laotian bases in support of U.S. Armed Forces.
       • Documentation Requirements:
           • Acceptable evidence includes affidavits, service records, and corroborating documents.
       • Memorialization Benefits:
           • Clarifies eligibility for headstones, markers, and other burial honors.

Link to federal register for:
​ 38 CFR Part 38 (RIN 2900-AR80)

https://public-inspection.federalregister.gov/2023-03052.pdf?1676468724

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Analysis and arguments 

38 CFR Part 38 (RIN 2900-AR80) does not actually enable validation of SGU/irregular service—i.e., it lists items VA may accept but stops short of creating a workable verification system.

Thesis 
RIN 2900-AR80 recognizes categories of “acceptable” paperwork but expressly acknowledges there are no U.S. government service records for SGU/irregular forces, excludes DD-214s, and provides no standards to authenticate affidavits or “other appropriate evidence”; therefore, it does not supply a mechanism to validate an individual’s service—only to receive documents. 
Justia Regulations
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1) The rule admits the core verification gap
VA’s final rule states the agency “recognizes the challenge of verifying an individual’s service” with SGU/irregular forces and that “No U.S. government agency has records of such service.” That is a direct concession that authoritative records are lacking. Without an authoritative source of truth, no regulation in Part 38 can validate service with certainty. 
Justia Regulations

2) What the rule actually does: burial eligibility, not adjudicative validation
RIN 2900-AR80 amends 38 CFR § 38.620(j) (persons eligible for burial) and § 38.619(a)(2) (what to submit with a burial request). It implements eligibility granted by Congress (FY22 NDAA § 6601) but does not create evidentiary standards or investigative procedures to prove SGU service. It is eligibility-administrative, not verification-adjudicative. 
Federal Register
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3) “Acceptable evidence” ≠ validated service
The rule lists what VA will accept as documentation for interment requests—e.g., (A) government-issued documentation, (B) an affidavit from a superior officer, (C) two affidavits from fellow SGU/irregulars, or (D) “other appropriate evidence.” But it does not prescribe how VA authenticates those affidavits, how identity of affiants is verified, what qualifies as “other appropriate evidence,” or any reliability thresholds. This is a receipt rule, not a validation standard. 
Federal Register
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4) Explicit exclusion of the one common U.S. proof (DD-214)
The regulation explicitly says DD-214 is “not an appropriate documentation of service” for SGU/irregular applicants, removing the very document VA otherwise uses to validate U.S. military service. That leaves only non-U.S. or informal evidentiary paths, which the rule does not equip VA to authenticate. 
Federal Register

5) USCIS cross-check applies only to the 2000 Act—not to SGU service itself
For those naturalized under the Hmong Veterans’ Naturalization Act of 2000, VA will verify the basis of naturalization with USCIS. But this confirms the naturalization pathway, not the facts of SGU/irregular service for those naturalized outside that narrow provision or for lawful permanent residents. The regulation offers no external database or agency to validate SGU service for these groups. 
Federal Register

6) VA itself reiterates the scope (NCA guidance)
VA’s own National Cemetery Administration page explains that the SGU/irregular provisions sit within burial eligibility and references § 38.619(a)(2) and § 38.620(j)—again, framing documentation as what may be submitted for burial eligibility, not as a standard for verifying service. 
CommEngage

7) Broader VA evidentiary rules don’t bridge the gap
General VA evidentiary rules (e.g., 38 CFR § 3.203) accept service department records to establish service—but SGU/irregular applicants, by definition, have no U.S. service department records, and Part 38 specifically disallows DD-214 for them. Thus, the usual validation pathway is unavailable. 
eCFR
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Practical language in argument
“RIN 2900-AR80 is an administrative eligibility rule, not a verification rule. It identifies documents VA will accept for burial requests but openly concedes there are no U.S. records to verify SGU service. It neither defines ‘corroborating documents’ nor sets authentication standards for affidavits. It therefore cannot validate service.” 
Justia Regulations
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“The rule removes the only standardized proof VA typically uses—DD-214— and replaces it with undefined affidavits and ‘other appropriate evidence’ without a mechanism to authenticate them. Receipt of paperwork is not validation.” 

Federal Register
“USCIS checks confirm a naturalization pathway under the 2000 Act, not SGU service itself. For LPRs or those naturalized outside that Act, there is no independent government record to validate service.” 
Federal Register

Sources
Final Rule (VA): Persons Eligible for Burial (RIN 2900-AR80), 88 FR 51236 (Aug 3, 2023) (rule acknowledges verification challenges; codifies §§ 38.619(a)(2), 38.620(j); DD-214 not appropriate). 
GovInfo
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Proposed Rule: Persons Eligible for Burial, 88 FR 10065 (Feb 16, 2023) (lays out the same evidence categories). 
Federal Register
NCA explainer: Hmong Burial and Memorial Benefits (references §§ 38.619(a)(2), 38.620(j)). 
CommEngage
General proof-of-service rule (context): 38 CFR § 3.203 (VA accepts service-department documents—unavailable for SGU/irregulars). 
eCFR
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