OpenJurist

501 F2d 175 Mindes v. Seaman 73-3947

501 F.2d 175

Captain Milbert MINDES, Plaintiff-Appellant,
v.
Dr. Robert SEAMAN, Secretary of the Air Force, et al.,
Defendants-Appellees.
No. 73-3947 Summary Calendar.*
*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.

United States Court of Appeals, Fifth Circuit.

Sept. 20, 1974.

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.

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.