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Abstract

Prior to the COVID-19 pandemic, courts and government agencies utilized

video teleconference (“VTC”) technology to conduct trials and hearings in

limited settings. However, as the pandemic progressed, a number of these

adjudicative bodies began to rely more heavily on VTC, and at least one military

service sanctioned the use of VTC to conduct administrative separation

proceedings. The administrative separation process is routinely used as an

employment action to separate military members from an armed service. Due

to its speed and efficiency, military commanders often elect to use the administrative

separation process over the more rigorous court-martial procedure

to effect good order and discipline. While military commanders are empowered

with significant discretion to adjudicate misconduct within their

ranks, military members receive fewer procedural due process rights at an

administrative separation board compared to the rights afforded at courtsmartial.

This article argues that conducting separation proceedings entirely

over VTC would violate a service member’s due process rights when the

member is subject to separation under other than honorable conditions. In

particular, this article examines the origin and nature of military administrative

separation proceedings, shedding light on Congress’ historical emphasis

that the proceedings be conducted “in person.” This historical gloss, combined

with the quasi-criminal nature and lifelong consequences of such proceedings,

necessitates that service members be afforded the opportunity to be

physically present when presenting their defense before an administrative

separation board.

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