Opinion · Court of Appeals for the Fifth Circuit

Mindes v. Seaman

501 F.2d 175

Type
Opinion
Court
Court of Appeals for the Fifth Circuit
Jurisdiction
Federal
Date
1974-09-20
Topic
general

PER CURIAM. Captain Mindes sought correction of his military records, 10 U.S.C. §§ 1552, 1553, after he was twice passed over for promotion to Air Force major and was thus subject to mandatory release from active duty. On remand from this Court, Mindes v. Seaman, 5 Cir., 1971, 453 F.2d 197, the district court denied relief. We affirm.

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Cited by
3 opinions
MINDES v. SEAMAN,501 F.2d 175(5th Cir. 1974)
CAPTAIN MILBERT MINDES, PLAINTIFF-APPELLANT, v. DR. ROBERT SEAMAN, SECRETARY
OF THE AIR FORCE, ET AL., DEFENDANTS-APPELLEES.
No. 73-3947.
Summary Calendar.fn*
United States Court of Appeals, Fifth Circuit.
September 20, 1974.
Page 176
Charles M. Holcomb, Cocoa, Fla., William A. Jacob, Orlando, Fla., for plaintiff-appellant.

John L. Briggs, U.S. Atty., Jacksonville, Fla., Harrison T. Slaughter, Jr., Jeffry R. Jontz, Asst. U.S. Attys., Orlando, Fla., William Kanter, Judith H. Norris, Attys., Dept. of Justice, Washington, D.C., for defendants-appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.
PER CURIAM.
[1] Captain Mindes sought correction of his military records,10 U.S.C. §§ 1552,1553, after he was twice passed over for promotion to Air Force major and was thus subject to mandatory release from active duty. On remand from this Court, Mindes v. Seaman, 5 Cir., 1971,453 F.2d 197, the district court denied relief. We affirm.

[2] Appellant failed to show that his not being selected for promotion was due solely to information contained about him in an Officer Effectiveness Report or that this report was factually erroneous. Absent proof of such error, ratings and promotion decisions are peculiarly within the discretion of military authority. Cf. Mindes v. Seaman,supra,at 201.

[3] Appellant's allegation of denial of equal protection also fails since there was no showing of discrimination in the promotion regulations at issue or in their application.

[4] Finally, there is no merit to Mindes' claim that he was denied due process of law because the Correction Board did not grant him a hearing and did not issue written findings of fact. Mindes specifically waived appearance at the hearing, and written findings are not required when appearance has been waived.

[5] Affirmed.
  1. Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970,431 F.2d 409, Part I. ↩