Appellant, an Army officer given a general discharge on honorable conditions, sued in the District Court for reinstatement and back pay. On cross-motions for summary judgment, that of the appellee was granted; and this appeal is from that action.
Appellant seeks reversal here on a narrow ground. It is that the proceedings culminating in his discharge were invalid in their inception, in that no provision was made for his personal participation in the processes of the Removal Selection Board which acted to call his conduct into account by the issuance of a show cause order. Congress has by statute invested appellee with the power to convene a selection board to review the record of an officer and “to determine whether he shall be required, * * * to show cause for his retention on the active list.” 10 U.S.C. § 3791. If such an order issues for a selection board and it decides that the matter should go forward, a board of inquiry is convened to receive evidence and to make findings and recommendations. 10 U.S.C. § 3792. A recommendation for removal by a board of inquiry is subject to further review by a board of review appointed by appellee (§ 3793); and removal may be effected by appellee if a board of review so recommends (§ 3794). The statute makes careful and extended provision for notice and opportunity to be heard in person and by counsel before the board of inquiry. 10 U.S.C. § 3795.
The statutory course of procedure was adhered to in this case. The Commanding General of the activity to which appellant was assigned — the U. S. Army Intelligence School at Fort Holabird, Maryland — ordered an investigation of his conduct. Appellant was represented by military counsel during this investigation. The report of the investigating officer went to the Commanding General who, in turn, recommended elimination proceedings to the Commanding General of the Second Army. The latter concurred, and the matter was referred to the Department of the Army which submitted it to the Removal Selection Board.1
Neither by statute nor regulation was appellant given any right to a hearing before the Selection Board; and *883we do not think that, in constitutional or other terms, he was entitled to insist upon one. The Selection Board appears, in the view of Congress, to have been the final stage in the internal processes of the military by which an officer is placed on trial as to his fitness to continue as an officer. That trial itself was envisaged by Congress as taking place before the Board of Inquiry, and explicit provision was made for a “fair and impartial” hearing. Brown v. Gamage, -U.S.App.D.C.-, 377 F.2d 154, decided March 30, 1967.
While the statute authorizes commencement of such proceedings by issuance of a show cause order, a distinction must be made between a procedure whereby the burden of showing suitability for retention is placed on an officer where the facts are not in dispute, and one where the burden of disproving disputed factual allegations is placed on the accused. In this case, where the facts were not in dispute, we find no infirmity in the course followed; and we have no occasion to examine the adequacies of those procedures for other purposes. On this record we hold only that the failure by Congress and appellee to provide appellant with an opportunity to produce evidence and to be heard before the Selection Board did not fatally infect his eventual separation.2
Affirmed.