U.S. Court of Appeals for the Fifth Circuit, 1974

Mindes v. Seaman

U.S. Court of Appeals for the Fifth Circuit · Decided September 20, 1974

501 F.2d 175; 1974 U.S. App. LEXIS 6793 (Federal Reporter, Second Series)

Counsel

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.

Cases that cite this one

2 later published cases cite this decision. The 1 that cite it most often are listed here.

Major Adolph H. Knehans, Jr. v. Clifford L. Alexander, Secretary of the Army (D.C. Cir. 1977)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

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.

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.

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.

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.

Affirmed.

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