DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No. 2007-121 
 
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FINAL DECISION 

 
 
This proceeding was conducted according to the provisions of section 1552 of title 10 and 
section 425 of title 14 of the United States Code.  The Chair docketed the application on April 
13, 2007, upon receipt of the application, and subsequently prepared the decision for the Board 
as required by 33 C.F.R. § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This final decision, dated December 19, 2007, is approved and signed by the three duly 

APPLICANT’S REQUEST 

 
 
 The  applicant  asked  the  Board  to  correct  his  military  record  by  removing  an  officer 
evaluation report (OER) for the period from July 1, 2000 to May 14, 2001 (disputed OER), from 
his record and by replacing it with a report for continuity purposes only.  The applicant further 
requested that he be continued on active duty to compete before the next LCDR selection board.1 
 
The Disputed OER  
 
 
The OER covers a period when the applicant was an “AMIO [Alien Migrant Interdiction 
Officer] Officer & Fisheries Enforcement Program Specialist” and assigned to the Xxxxxx Coast 
Guard District (Dxx) Office of Law Enforcement (ole).   
 

The evaluated performance on the disputed OER consists of three parts:  the supervisor’s 
portion, the reporting officer’s portion, and the reviewing officer’s portion.  Under performance 
of  duties  in  the  supervisor’s  portion  of  the  OER,  the  applicant  received  marks  of  3  for  using 
resources,  results/effectiveness,  and  adaptability  and  marks  of  2  in  planning  and  preparedness 

                                                 
1      The  applicant  advised  the  BCMR  that  he  was  separated  from  the  Coast  Guard  in  June  2007  and  is  currently 
serving in the Coast Guard Reserve. 

and  professional  competence.2    In  support  of  the  below-average  marks  in  this  section  of  the 
OER, the supervisor wrote: 

 
Planning skills and foresightedness in anticipation of required deadlines was less 
than expected for an Officer of this grade.  Accomplished required coordination 
with other units to schedule aircraft patrols.  As representative for Dxx, acquired 
specifics of recurring meetings in order to ensure attendance for self.  Maintained 
adequate attendance in work place and required by supervisor.  Demonstration of 
operations  expertise  declined  during  reporting  period.    Was  removed  from  the 
Collateral  Law  Enforcement  Duty  Officer  (LEDO)  watch  section  due  to 
performance  difficulties  during  operational  L/E  cases/reassigned  as  assistant  to 
LEDO  attempts  to  take  advantage  of  experience  base,  with  little  success.  
Assistance  provided  was  adequate  but  task  focused  under  direct  supervision  of 
Duty  Officer.    Had  difficulties  with  time  management  and  often  sought  task 
priorities from Supervisor and Reporting Officer.   Able to perform routine tasks 
w/little  oversight;  such  as  monthly  reports  on  LMR  statistics.    Accomplished 
research as required for these reports in a manner that usually met expectations.  
Inflexible,  much  more  comfortable  with  routine  and  cadence 
task 
accomplishment and production of deliverables.  Deadlines missed when projects 
were  complicated  by  variables  such  as  numerous  high  priority  tasks  being 
simultaneously required or known POC’s being out of contact.  No improvement 
after counseling.   

in 

In the communication skills section of the OER, the supervisor gave the applicant a mark 
of 3 in speaking and listening and a mark of 2 in writing.  In support of these below average 
marks, the supervisor wrote: 

 
Communications  adequate.    Soft  spoken  in  official  venues.    Overcome  in 
discussions with others of similar grade . . .   Constantly reminded to take notes to 
ensure task details were not lost after meetings.  Difficulty with formatted media 
such as record message traffic, often missing required paragraph markings.  This 
required  proof  reader  to  take  extra  care  to  ensure  basic  structure  was  followed 
before  editing  content.    Often  used  excessive  text  from  reports  previously 
received  through  the  practice  of  “cut  and  paste.”    Mentoring  failed  to  improve 
skills.   

 

 

In the leadership skills section of the OER, the supervisor gave the applicant a mark of 4 
in  looking  out  for  others  and  marks  of  3  in  developing  others,  directing  others,  teamwork, 
workplace  climate,  and  evaluations.      In  support  of  the  marks  in  this  section,  the  supervisor 
wrote: 

 
Leadership skills lost in mediocre performance.  Removed from LEDO rotation 
for  cause  which  was  officer’s  only  situation  that  tested  leadership  method.  
Incapable of supervising others and was relegated to tasks that did not require any 

                                                 
2   Marks on an OER are from a low of 1 to a high of 7.  A 4 is considered to be an average mark.   

supervisory skills.  Driven by events and often caught unprepared for unexpected 
situations  requiring  Supervisors  to  take  charge  to  ensure  task  completion  -  EX: 
Unable  to  control  critical  optemps  of  District  Operational  Law  Enforcement 
missions.  As a team member for Branch evolutions, was often led by the group 
dynamics.   Did not increase team effectiveness, but instead was truly a follower.  
Took  tasking  and  completed  work  as  required  with  appropriate/direct  guidance.  
Workplace environment was good.  Officer values diversity of others and exhibits 
positive  interpersonal  skills  with  others.    Sensitivity  to  others  was  offset  by 
troublesome  details  though,  such  as  Officer’s  removal  from  the  watch  section, 
requiring  others  to  carry  additional  work-load,  and  personal  space  being 
unmanageable,  where  files  and  records  were  kept  in  a  constant  condition  of 
disarray  which  affected  productivity.    Officer  did  not  evaluate  others  during 
reporting period.  Self evaluation timely - however was brief and did not capture 
current performance level.   

 
 
The  reporting  officer  wrote  in  block  7.  of  the  OER  that  he  unfortunately  and  sadly 
concurred  with  the  marks  and  comments  of  the  supervisor.    He  stated  that  the  applicant’s 
performance fell and did not improve during the reporting period, which required his removal 
from the LEDO watch rotation.  He further stated that the applicant’s accomplishment of routine 
staff functions was marginal.   
 

In the personal and professional qualities section of the OER, the reporting officer gave 
the  applicant  marks  of  4  in  health  and  well-being  and  marks  of  3  in  initiative,  judgment, 
responsibility, and professional presence.  In support of the marks, the reporting officer wrote the 
following: 

 
Accepted tasking as designated by Supervisors, but did not volunteer for tasks or 
opportunities to improve performance.  After being removed from LEDO rotation, 
Supervisor counseled officer that the disqualification was not permanent and that 
just  as  with  previous  period  of  remedial  training,  qualification  could  be  re-
acquired.  But officer chose to accept assignment as permanent support officer for 
LEDO.   Accepted  tasking  from  LEDO  during  high  tempo  periods,  where  task 
saturation  of  LEDO  required  administrative  assistance.    This  taking  was 
accomplished,  but  only  under  direct  supervision.    Individual  judgment  was 
exemplary.    Officer  holds  self  to  the  high  standards  of  the  service  and 
accomplishes duties as classified document control station operator without chain 
of  command  concern  for  security  of  material. 
  Responsibility  for  own 
performance  falls  short  of  Command  expectation.   Task  quality  and  continuous 
improvement  are  hallmarks  which  are  not  met.    Professional  presence  has 
withered during  reporting period – probably the single largest factor  relating to 
Officer’s  inability  to  perform  LEDO  function,  where  “taking  charge”  is 
requirement of specialty.  Officer’s health is good through daily PT at work.   

 
On the comparison scale in block 9. where the reporting officer compared the applicant 
 
with all other LTs he has known throughout his career, the reporting officer marked the applicant 

as a “marginal performer; limited potential,” which is the equivalent of mark of  2 on a scale of 1 
to a high of 7.   
 
 
In  Block  10,  the  reporting  officer  did  not  recommend  the  applicant  for  promotion, 
operational  assignments,  or  positions  of  increased  responsibility,  and  instead  wrote,  “His 
leadership and professional skills are poor.”  
 

 The  reviewer  authenticated  the  OER  without  comment.    According  to  the  military 

record, the applicant did not submit a reply to the disputed OER. 
 
Applicant’s Other OERs 
 
 
The  applicant’s  LTJG  OERs  from April  1,  1997,  until  the  commencement  date  of  the 
disputed OER were average to above average.  He received seven regular LTJG  OERs and one 
concurrent OER prior to receipt of the disputed OER. On his first two LTJG OERs, his major 
duty was described as deck watch officer and on the remaining LTJG  OERs, his major duty was 
described  as  LEDO  (Law  Enforcement  Duty  Officer),  in  addition  to  AMIO  and  Fisheries 
Enforcement Program Specialist.  His LTJG OERs contained occasional marks of 3 and 5, with 
the majority of his marks being 4s.  Beginning with his third LTJG OER the applicant did not 
receive any marks lower than 4, until receipt of the disputed OER (which is a LT OER).   
 

On the concurrent OER in which he was assigned to duty as a Chinese interpreter for an 
investigation in Guam, the majority of his marks were 4s, with several 5s and two 6s.  On the 
comparison scale of the concurrent OER he was marked in the fifth spot which described him as  
“one of the many competent professionals who form the majority of this grade.” 
 
 
The disputed OER was the applicant’s first in the rank of LT and block 2. of the OER 
described his major duties as AMIO Officer & Fisheries Enforcement Program Specialist.  He 
received his second LT OER at a new command with a new rating chain where his major duty 
was Alien Migrant Interdiction Specialist.  In the next three LT OERs, the applicant’s major duty 
was described as Planning and Assessment Officer.  On the last LT OER in his record, his major 
duty  was  described  as  DeepWater  Human  Resource  Metrics  & Aviation Workforce Transition 
Officer.  Except for the disputed OER, the applicant did not receive any mark lower than 4 on his 
LT OERs.  The vast majority of his marks were 5s, with several marks of 6 and occasional marks 
of 4.  On the comparison scale in block 9, the applicant was marked consistently in the middle 
block (the fourth spot our of seven) as a “good performer; give tough, challenging assignments.”    
 

APPLICANT’S ALLEGATIONS 

 

The applicant alleged that his raters failed to follow the Commandant’s Diversity Policy 

 
resulting in erroneous comments and marks in the disputed OER. 
 
 
The  applicant  stated  that  he  is  among  a  handful  of  Coast  Guard  officers  who  have 
Chinese  backgrounds.    He  was  born  in  Hong  Kong  and  immigrated  to  the  United  States  at 
approximately one year of age.  Chinese, rather than English, was spoken in his home.  In 1991, 
he  became  a  naturalized  citizen.    He  went  to American  schools,  but  on  weekends  he  went  to 

Saturday school to learn the Chinese and cultural teachings of his parents.  The applicant stated 
that because of his exposure to the American and Chinese cultures, his personality and view of 
the world are not the same as that of an Americans of European descent.   
 
 
The  applicant  cited  portions  from  “Ara  Norenzayan,  Incheol  Choi,  &  Kaiping  Peng, 
Perception  and  Cognition,  HANDBOOK  OF  CULTURAL  PSYCHOLOGY,  New  York:  
Guilford Press (forthcoming April 2007)” in support the following conclusions about the impact 
of Chinese culture on the applicant’s personality and his views: 
 

•  That an individual’s cultural context shapes his or her view of the world, and that as a 
result  of  his  upbringing,  the  applicant  likely  has  an  entirely  different  thought  process 
from that of most other Coast Guard officers. 

•  That  growing  up  in  a  Cantonese-speaking  household  shaped  the  applicant’s  perception 

differently from an individual growing up in an English-speaking home. 

•  That the applicant’s traditional Chinese upbringing taught him to be humble, not to speak 
up until he is asked a question, and not to interrupt an individual who is speaking. It was 
ingrained in the applicant to wait for someone to ask his opinion before speaking.  These 
teachings are recognized as greatly affecting an individual’s social interactions.    

•  That the applicant’s East Asian upbringing affects how he views the world around him. 

•  That having the  applicant reflect the behaviors  of another officer who  was raised with 
American culture and tradition would require him to make a complex behavioral change.   

 

 

 

 

 

The applicant argued that his cultural background should have been considered when his 
performance was evaluated for the disputed OER because Respect is a Coast Guard Core Value.   
He quoted the following about Respect from the Coast Guard Core Values statement:  “We value 
our  diverse  work  force.    We  treat  each  other  with  fairness,  dignity,  and  compassion.    We 
encourage individual opportunity and growth.  We encourage creativity through empowerment.  
We work as a team.”3  

 

                                                 
3  The other two Coast Guard Core Values are:  

Honor  
Integrity is our standard.  We demonstrate uncompromising ethical conduct and moral behavior in 
all of our personal actions.  We are loyal and accountable to the public trust. 

* 

 

* 

 

* 

Devotion to Duty  
We are professionals, military and civilian, who seek responsibility, accept accountability, and are 
committed  to  the  successful  achievement  of  our  organizational  goals.    We  exist  to  serve.    We 
serve with pride. 
 

The  applicant  further  argued  that  the  Commandant’s  diversity  policy  is  driven  by  the 
principles of diversity management and valuing differences.4   The applicant stated that diversity 
of management is strategically driven, viewing behaviors and policies as “contributing to organi-
zational goals and objectives.”  He cited “Difference between Affirmative Action, Diversity, and 
Diversity  Management,  available  at  http://www.uscg.mil/hq/g-w/Diversity/diff.htm 
(last 
accessed  29  March  2007).”      The  applicant  stated  that  diversity  management  is  a  pragmatic 
process that benefits the organization by increasing morale, profits, and productivity.   

 
The  applicant  stated  that  valuing  differences,  or  diversity,  is  the  uniqueness  of  all 
individuals and that it is a qualitative  approach  placing emphasis “on appreciating differences 
and creating an environment in which every one feels valued and accepted.”  Id.  The applicant 
quoted the following: 
 

Progress  is  monitored  by  organization  surveys  focused  on  attitudes  and 
perceptions.  Moral and ethical imperatives drive this culture change.  Everyone 
benefits  because  each  person  feels  valued  and  accepted  in  an  inclusive 
environment.    [The  diversity]  [m]odel  assumes  groups  will  retain  their  own 
characteristics and shape the organization as well as be shaped by it, creating a 
common set of values. [Id.]  
 
 
The applicant argued that he was expected to fit an undiversified model of officership.  In 
support of this argument, the applicant pointed to the following comments in the disputed OER 
which, he alleged show that his background and culture were not considered when his abilities or 
contributions to the mission were evaluated. 
 

As a team member for Branch evolutions, was often lead by the group dynamics.  
Did not increase team effectiveness, but instead was truly a follower.  [Comment 
block 5. of disputed OER]. 
 
Professional presence has withered during reporting period – probably the single 
largest  factor  relating  to  Officer’s  inability  to  perform  LEDO  function,  where 

                                                 
4   The Commandant’s diversity policy provides: 
 

Diversity  is  not  a  program  or  policy  –  it  is  a  state  of  being.    Diversity  sparks  innovation  and 
incorporates fresh approaches.  It provides well-rounded perspectives in problem solving that let 
us  identify  better  ways  of  performing  the  duties  entrusted  to  us  by  our  government  and  fellow 
citizens. 
 
The Coast Guard is a diverse works force.  Our mission success and our core values require us to 
ensure  our  work  environment  enhances  the  potential  and  contribution  of  all  employees  by 
promoting inclusion, equity, and respect.   

* 

 

* 

 

* 

I am personally committed to ensuring our Coast Guard provides an environment that values and 
embraces the contributions and potential of every  member of our diverse workforce.  Our Core 
values of Honor, Respect, and Devotion to Duty are fundamental to our individual and collective 
success.  Live them every day. 

“taking  charge”  is  a  requirement  of  specialty.    [Comment  block  8.  of  disputed 
OER].   

 
 
The  applicant  stated  that  in  2004  the  Coast  Guard’s  minority  representation  was  the 
lowest  of  all  the  armed  services,  falling  well  below  the  percentage  of  minorities  in  the  U.S. 
population.    See  “Coast  Guard  Civil  Rights  Directorate,  2004  Demographics  &  Civil  Rights 
Program Report at iv.”   According to the applicant, the U.S. Census Bureau statistics for 2000 
show  that  Asians  comprised  3.8%  of  the  population,  but  within  the  Coast  Guard,  Asians 
comprise only 2.5% of the active duty force, a significant under representation.  The applicant 
further argued: 
 

Diversity  comes  in  all  shapes  and  sizes.    If  the  expectation  is  for  Officers  to 
reflect  Anglo  Characteristics,  the  Coast  Guard  will  never  comport  with  the 
Commandant’s Diversity Policy.  [The applicant] is a much-needed asset for the 
Coast Guard.  His Cantonese and Mandarin language abilities directly contribute 
to  the  Coast  Guard  mission.   A  combination  of  the  under  representation  of  the 
Asian population in the Coast Guard and [the applicant’s] language proficiencies 
magnify his value.   
 
[The applicant’s] raters and the Coast Guard failed to adhere to the principles of 
diversity  and  the  Commandant’s  Diversity  Policy.    His  background  and  skills 
contribute to the Coast Guard mission.  Unfortunately, the rating chain evaluated 
him with a “cookie cutter” mindset.  He was unfairly compared with stereotypical 
ideals  rather  than  evaluating  his  actual  contribution  to  the  Coast  Guard.    The 
resulting subjective evaluation resulted in erroneous comments and marks in his 
OER  that  violated  [Article  10.A.1.b.  of  the  Personnel  Manual]  and  the 
Commandant’s  Diversity  Policy.    The  disputed  OER  should  be  removed  and  a 
continuity report substituted for it.   

 
 
The  applicant’s  attorney  submitted  a  declaration  under  penalty  of  perjury  from  the 
applicant who stated that he entered the Coast  Guard through the Minority Officer Recruiting 
Effort that required him to enlist in the Coast Guard, graduate from college and then go on to 
Officer Candidate School.  In 1995, he graduated from college, after which he completed OCS 
and was commissioned an ensign in the Coast Guard.    
 

As a youth, the applicant stated that he went to Saturday school to learn about Chinese 
culture, tradition, and language.  He stated that his studies taught him to be humble and stressed 
that in the Chinese culture, “you do not speak up until you are asked a question.”  Nor do you 
interrupt a person speaking.  He stated that it was ingrained in him to wait for people to ask his 
opinion, and he thinks that he may have missed opportunities to weigh in on issues as a result.  
 

My  evaluations  at  District  xx  were  good.    I  feel  that  I  performed  in  the  same 
manner, if not better during the 1 July 2000 to the 14 May 2001 rating period.  I 
was told to be more assertive during my performance feedback.   My supervisor 
also wanted me to be “larger than life” and more like another individual in the 
office.  I got the feeling that I was expected to exhibit certain personality traits.  I 

tried  to  adjust  and  portray  what  I  felt  they  were  looking  for.    Unfortunately,  I 
could not change years of learned behavior overnight.    
 
At 5’ 5” tall and 120 pounds, I am usually one of the smallest people in the room.  
I do not think my physical build is what my supervisor was referring to when he 
said that  I needed to be larger than life.  The 1 July 2000 to the 14 May 2001 
rating period perplexes me.  I was rated well for the previous period.  Following 
this rating period, I transferred to Hawaii where I did essentially the same job.  I 
was  once  again  rated  well  for  that  period.    I  do  not  think  my  performance 
changed.   

 

VIEWS OF THE COAST GUARD 

 
 
On August 23, 2007, the Judge Advocate General (JAG) of the Coast Guard submitted an 
advisory opinion recommending that the Board deny the applicant’s request.   He further adopted 
the facts and analysis provided by Commander Coast Guard Personnel Command (CGPC) and 
asked the Board to accept them as the Coast Guard’s advisory opinion.   
 
 
CGPC stated that based on the record, the rating chain carried out its duties in accordance 
with Chapter 10 of the Personnel Manual.  CGPC further stated that the rating  chain was not 
required to consider and incorporate the applicant’s cultural background into the disputed OER.  
CGPC stated there in no evidence of discrimination on the part of the rating chain.  He stated that 
although  the  Coast  Guard  promotes  a  diverse  workforce  and  respects  individual  differences, 
officers  are  still  required  to  perform  based  on  established  standards  described  in  the  Officer 
Evaluation Report that apply to all equally.   
 
 
reporting officer, and reviewer.   
 
 
1.    The  supervisor  stated  that  the  applicant’s  culture  and  background  were  never 
considered by me in his duty assignment or performance measurement.  The supervisor stated 
that during the period in question, he contacted the Pacific Area Equal Employment Opportunity 
office  for  information  about  the  Commandant’s  Policies  on  Diversity  and  he  was  told  that 
background,  culture,  race  and  ethnicity  were  not  considerations  for  duty  assignment  or 
performance  measurement.    With  respect  to  the  applicant’s  performance  during  the  period 
covered by the disputed OER, the supervisor stated the following: 
 

The  Coast  Guard  obtained  declarations  under  penalty  of  perjury  from  the  supervisor, 

[H]is performance level was surpassed by the scope and tempo of his duties.   As 
recorded in [the applicant’s] evaluation record, he had been fully trained and was 
meeting the standards required for one of Dxx’s cadre of LEDO’s of which I was 
a  member.    But,  during  his  2001/05/14  evaluation  period,  [the  applicant]  was 
unable  to  meet  the  increased  operational  tempo  of  Law  Enforcement  cases  to 
which  he  and  his  colleagues  were  prosecuting.    Initially,  on  direction  of  the 
Branch  Chief,  he  was  removed  from  the  duty  rotation  and  placed  in  remedial 
training.   After  remedial  training  did  not  improve  performance,  his  duties  were 
tailored and the position of Assistant LEDO was created for him affording him an 

opportunity  to  improve  his  performance  and  take  advantage  of  his  long  earned 
skills in Law Enforcement prosecution.  [The applicant] was advised by me, this 
position  would  be  temporary,  until  he  felt  that  he  could  be  considered  for 
reinstatement  as  LEDO.    Due  to  the  nature  and  design  of  the  Dxx  staff,  the 
Command  was  unable  to  reassign  [the  applicant]  to  another  position  that  more 
suited his personal strengths.   

 
2.   The  reporting  officer  declared  that  the  disputed  OER  was  based  on  the  applicant’s 
 
performance as measured against the OER standards expected of all Coast Guard officers of his 
grade, regardless of heritage or culture.   The reporting officer stated that during the evaluation 
period,  he  had  daily  contact  with  the  applicant  and  directly  observed  his  performance.    The 
reporting officer stated, “[The applicant] is a fine, decent, and likeable individual.  However his 
OER for the period in question accurately reflects his performance as a USCG officer and as a 
member of the Dxx staff.”  
 
 
3.    The  reviewer  declared  that  the  disputed  OER  is  an  accurate  reflection  of  the 
applicant’s performance and should not be removed from his record.  The reviewer argued that 
we must assume that the applicant accepted that the comments and marks are a proper reflection 
of his performance because he did not allege that the narrative comments are incorrect, that the 
marks do not properly reflect the narrative comments, or that there were acts of discrimination.   
The reviewer further stated: 
 

The  request  to  have  this  OER  removed  .  .  .  is  a  dissertation  on  the  cultural 
differences  between  Europeans  and  Asians,  statistics  about  recruiting  and 
retention of Asians in the Coast Guard, and a collection of OERS that are not a 
reflection of this officer’s performance during the period of the OER that is being 
disputed.  Without any concrete allegations of impropriety by this officer’s rating 
chain, I can not provide a more detailed response     . . .  
 
This officer’s rating chain did not use a “cookie cutter” mindset as the basis for 
evaluation  or  unfairly  use  stereotypical  ideals  rather  than  this  officer’s  actual 
contribution  to  the  Coast  Guard.   The  rating  chain  observed  the  Coast  Guard’s 
core  values  of  “Honor,  Respect  and  Devotion  to  Duty,”  valued  diversity  in  the 
workforce,  treated  this  officer  fairly  and  accurately  reflect  his  officer’s 
performance in the OER. 

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
On  September  11,  2007,  the  Board  received  the  applicant’s  reply  to  the  views  of  the 
Coast Guard.  He stated that each person in his rating chain stated that diversity is not considered 
in the evaluation process and that none of the raters considered his cultural background.   
 
 
The applicant argued that his situation is especially troublesome because the Coast Guard 
commissioned him through a Minority Recruiting effort.  Thus the initial effort on the part of the 
Coast Guard to create a diverse workforce was frustrated by the application of a stereotypical 
model to his evaluation.  The applicant stated that as a result, he received an OER with erroneous 

Additionally, the applicant stated that the disputed OER is not an accurate reflection of 

marks and comments that caused him to not be selected for promotion and to be separated from 
the Coast Guard. 
 
 
The applicant submitted another declaration under penalty of perjury that allegedly shows 
some  of  the  comments  and  marks  on  the  disputed  OER  were  unsupported.    The  applicant 
declared that he did not submit a request to the Personnel Records Review Board (PRRB) within 
12 months of receipt of the OER because his supervisor counseled him that the OER would not 
be considered by the LCDR promotion and therefore would not adversely affect his chances for 
promotion.  He further alleged that his supervisor told him that the disputed OER would “not be 
considered” if [his] subsequent performance improved.  The applicant also claimed that he was 
afraid  that  his  supervisor  would  stop  his  transfer  to  Dxx  Office  of  Law  Enforcement  if  he 
objected to the OER. 
 
 
The  applicant  stated  that  he  did  not  receive  any  “remedial  training”  as  claimed  by  his 
supervisor.    He  stated  that  he  was  already  a  qualified  LEDO  prior  to  the  disputed  reporting 
period.  He stated for the last five months covered by the disputed OER, he was assigned menial 
tasks while opportunities to prove his abilities were withheld.  He stated that although he was 
assigned to be “Assistant LEDO,” his peer LEDOs declined assistance from him and that he was 
never given the opportunity to run cases so that he could be reinstated as LEDO. 
 
 
his performance for the following reasons: 
 
“a.  From 2000/07/01 to 2000/12/18 (the first half of the disputed marking period), I was in the 
LEDO  watch  stander  rotation  and  ran  numerous  Counter  Drug  (CD)  and  Alien  Migrant 
Interdiction Operations (AIMO) law enforcement cases to successful completion.   
 
“b. I submitted supporting documentation for all the cases I completed before the disputed OER 
was prepared.  However, not one single case I performed as a qualified LEDO during this period 
is mentioned in the OER. 
 
“c. The last case I completed as LEDO was on 2000/12/18 (xxxxxxxxxxxxxxxxxxxxxxxx).  It 
resulted in the seizure of xxx lbs of cocaine and seven crew members being apprehended.   
 
“d. I was subpoenaed by the US District Court Middle District of xxxxxxxxxxxxxxxxx, to testify 
in a criminal case against xxxxxxxxxxxxxxxxxxxx, et al. on 2001/03/30 and 2001/04.02.  As a 
result  of  my  testimony  and  that  of  the  members  of  LEDET  104,  all  Go-Fast  crewmembers 
pleaded guilty and received 70 to 159 months of incarceration.   
 
“e. Unlike my previous Dxx OERs, the comments section of the disputed OER contains circular 
reasoning,  vague  and  basically  regurgitated  descriptors  for  each  performance  dimension,  and 
lacks  specific  examples  to  justify  the  marks.    For  example  for  block  3.a.  “planning  and 
Preparedness,” there is a comment stating, “Planning skills and foresightedness in anticipation of 
required  deadlines  less  than  expected  for  an  officer  of  this  grade.”    The  next  comment, 
“Accomplished  required  coordination  with  other  units  to  schedule  aircraft  patrols,  directly 
contradicts  that  previous  comment.    These  vague  general  statements,  like  most  of  the  other 

comments,  are  not  substantiated  by  specific  examples  because  there  are  no  reports  or  records 
upon which they can be based.  The comments and resulting marks are purely subjective.” 
 

FINDINGS AND CONCLUSIONS 

The Board makes the following findings and conclusions on the basis of the applicant's 

 
 
military record and submissions, the Coast Guard's submissions, and applicable law: 
 

1.  The Board has jurisdiction concerning this matter pursuant to section 1552 of title 10 

of the United States Code.  The application was timely. 
 
 
2.  The applicant requested an oral hearing before the Board.  The Chair, acting pursuant 
to  33  C.F.R.  § 52.51,  denied  the  request  and  recommended  disposition  of  the  case  without  a 
hearing.  The Board concurs in that recommendation. 
 
 
3.    The  Board  begins  its  analysis  by  presuming  that  the  disputed  OER  is  correct  as  it 
appears in the record, and the applicant bears the burden of proving by a preponderance of the 
evidence that it is erroneous or unjust.5    For the reasons discussed below, the Board finds the 
applicant has failed to meet his burden of proof.   
 

4.   The  applicant  has  failed  to  prove  by  preponderance  of  the  evidence  that  the  rating 
chain  for  the  disputed  OER  committed  an  error  or  injustice  by  not  making  the  applicant’s 
Chinese  heritage  and  culture  a  factor  in  evaluating  the  applicant’s  performance  for  the  period 
covered by the disputed OER. Nor has he shown by a preponderance of the evidence that the 
members of the applicant’s rating chain for the disputed OER violated the Commandant’s Policy 
on Diversity or the Coast Guard’s Core Values by commenting that the applicant was a follower 
rather than a leader,  that he failed to take charge, or that his professional presence withered, etc.  
The applicant explained that his lack of assertiveness  was actually an  attribute of his Chinese 
culture  that  teaches  humbleness,  and  that,  under  the  Coast  Guard  Core  Value  of  Respect,  his 
cultural background should have been considered when his performance was evaluated for the 
disputed OER.   The Coast Guard Core Values of Honor, Respect, and Devotion to Duty as well 
as the Commandant’s diversity policy are intended to ensure that all members of the Coast Guard 
have fair and equal access to assignments, promotions, etc.  However, there is nothing in these 
policies which state that the rating chain should consider a reported-on officer’s ethnic, racial, 
religious, or  gender diversity in evaluating that  officer’s performance.  To do so would create 
different evaluation criteria among Coast Guard officers that could result in unfair and unequal 
treatment in the evaluation process.   In addition, the applicant has submitted no evidence that 
any  other  officer  of  his  grade  has  received  such  consideration  in  evaluating  his  or  her 
performance.     

 
5.    The  applicant’s  argument  that  he  was  expected  to  fit  an  undiversified  model  of 
officership is without merit.  As required by the Personnel Manual, the applicant was measured 
against the standards on the OER form like any other officer.  Moreover, he has not persuaded 
the  Board  that  Chinese  officers  serving  in  the  Coast  Guard  are  because  of  their  culture, 

                                                 
5 33 C.F.R. § 52.24(b). 

inherently  unable  to  take  charge  or  provide  strong  leadership.    For  the  Board  to  reach  such  a 
conclusion would be an insult to those Chinese American officers who  have succeeded in the 
Coast Guard.    The comments singled out by the applicant in this regard “was often led by the 
group  dynamics.    Did  not  increase  team  effectiveness,  but  instead  was  truly  a  follower  and 
Professional  presence  has  withered  .  .  .  probably  the  single  largest  factor  relating  to  Officer’s 
inability to perform LEDO function, where ‘taking charge’ is a requirement of specialty” could 
describe any officer who failed to display adequate leadership.   
 

6.  Moreover, there is no provision in Article 10.A. (Officer Evaluation System) of the 
Personnel Manual that requires that a rating chain consider the ethnicity, heritage, or culture of a 
reported-on officer in their evaluations of that officer’s performance.  To do so would create a 
different or favored standard of performance for some officers, but not for others.  In fact, Article 
10.A.1.a.    states  that  the  Coast  Guard  Officer  Evaluation  System  has  been  designed  to  set 
performance and character standards to evaluate each officer; prescribe organizational values by 
which each Coast Guard officer can be described; and provide a means of feed back to determine 
how well an officer is measuring up to the standards.  Further, Article 10.A.1.b. states that the 
commanding  officers  must  ensue  accurate,  fair,  and  objective  evaluations  are  provided  to  all 
officers under their command.  “To that end, performance evaluation forms have been made as 
objective  as  possible,  within  the  scope  of  job  and  task  performed  by  officers.    In  using  the 
Officer  Evaluation  Form    .  .  .  strict  and  conscientious  adherence  to  specific  wording  of  the 
standards is essential to realizing the purpose of the evaluation system.”  The Commandant has 
determined that each officer is to be measured against prewritten standards on the OER form for 
each dimension, and the regulation makes no mention that an officer’s failure to meet a certain 
level of performance is to be excused because of his or her race, ethnicity, culture, or heritage.  
The applicant was apparently expected to comply with the same set of evaluation criteria as any 
other officer of his grade and job, and he has not proved that the performance standards should 
have been tailored to fit his personality.     
 

7.      In  his  reply  to  the  advisory  opinion,  the  applicant  alleged  that  the  OER  is  not  an 

accurate assessment of his performance for the following reasons:   

 

a.  Applicant’s comment:  “From 2000/07/01 to 2000/12/18 (the first half of the 
disputed marking period), I was in the LEDO watch stander rotation and ran numerous Counter 
Drug  (CD)  and  Alien  Migrant  Interdiction  Operations  (AIMO)  law  enforcement  cases  to 
successful  completion.”    However,  the  supervisor’s  comments  in  block  3.  contradict  the 
applicant on this point.  The supervisor stated that the applicant’s “[d]emonstration of operations 
expertise declined during reporting period.  Was removed from the Collateral Law Enforcement 
Duty  Officer  (LEDO)  watch  section  due  to  performance  difficulties  during  operational  L/E 
cases/reassigned as assistant to LEDO attempts to take advantage of experience base, with little 
success.”    The  supervisor’s  comments  indicate  that  the  applicant’s  performance  led  to  his 
removal from the LEDO rotation.  The applicant has not submitted any evidence to corroborate 
his contention.     

 
b. Applicant’s comment:  “I submitted supporting documentation for all the cases 
I completed before the disputed OER was prepared.  However, not one single case I performed 
as a qualified LEDO during this period is mentioned in the OER.”   Again, the applicant did not 

submit to the Board any evidence of cases that he completed during the reporting cycle under 
review.  The Board notes the supervisor’s comment in leadership skills portion of the OER that 
“[The  applicant’s]  self  evaluation  timely  –  however  was  brief  and  did  not  capture  current 
performance level.” Therefore, even if the applicant did mention the alleged accomplishment in 
his OER input, the fact that it is not mentioned in the OER does not make the OER invalid or 
erroneous.  It could have been that in the judgment of the reporting chain, the applicant’s input 
did  not  accurately  describe  his  participation  in  those  cases  or  that  his  participation  was  not 
worthy of mention.   

 
c. Applicant’s comment:  “The last case I completed as LEDO was on 2000/12/18 
(xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx).    It  resulted  in  the  seizure  of xxx  lbs  of  cocaine  and 
seven  crew  members  being  apprehended.”     The  applicant  presented  no  corroboration  that  he 
completed  such  a  case  during  the  reporting  period  under  review.    The  case  could  have  been 
completed in an earlier reporting period.  It is hard to believe that a member of the rating chain 
would not have mentioned such an accomplishment in the disputed OER if it actually occurred 
during the reporting period.  The applicant has not proven that such an accomplishment occurred 
during the reporting period and that it was omitted erroneously from the disputed OER.   

 
d. Applicant’s  comment:    “I  was  subpoenaed  by  the  US  District  Court  Middle 
District of xxxxxxxxxxxxxxx, to testify in a criminal case against xxxxxxxxxxxxxxxxx, et al. on 
2001/03/30 and 2001/04.02.  As a result of my testimony and that of the members of LEDET 
104, all Go-Fast crewmembers pleaded guilty and received 70 to 159 months of incarceration.”  
Again,  the  applicant  submitted  no  corroboration  for  this  alleged  accomplishment  or  that  it 
occurred during the  reporting period under  review.  Therefore, he has  failed to prove that the 
OER is inaccurate because it does not include this alleged accomplishment.     

 
e. Applicant’s comment:  “Unlike my previous Dxx OERs, the comments section 
of the disputed OER contains circular reasoning, vague and basically regurgitated descriptors for 
each performance dimension, and lacks specific examples to justify the marks.  For example for 
block  3.a.  ‘planning  and  Preparedness,’  there  is  a  comment  stating,  ‘Planning  skills  and 
foresightedness  in  anticipation  of  required  deadlines  less  than  expected  for  an  officer  of  this 
grade.’  The next comment, ‘Accomplished required coordination with other units to schedule 
aircraft patrols,’ directly contradicts that previous comment.   The comments and resulting marks 
are purely subjective.”’’  However, the Board having reviewed the entire OER finds that it clearly 
explains the applicant’s shortcomings as well as his moderate successes.  The applicant has the 
burden of proving that the disputed OER is an inaccurate assessment of his performance and he 
has failed to do so.   

 
8.   The Article “Perception and Cognition” offered by the applicant explains the impact 
that one’s culture can have on his or her personality.  But it does not prove that the evaluation of 
the  applicant’s  performance  for  the  period  under  review  was  erroneous.      It  is  clear  from  the 
disputed  OER  that  the  applicant  had  a  decline  in  his  performance  from  the  previous  and 
subsequent periods, but that fact alone does not make the OER inaccurate.  The Board notes that 
the  applicant  did  not  make  a  claim  of  entitlement  to  cultural  consideration  in  prior  and 
subsequent  average  to  above  average  OERs.    The  Board  is  not  persuaded  that  the  applicant 
believes that his average to above average performance in his other OERs was the result of a 

lowered standard due to his Chinese heritage and culture, rather than the result of his hard work 
and demonstrated performance.  

 
9.    Further,  the  applicant  argued  that  the  under-representation  of  Asians  in  the  Coast 
Guard and his proficient Chinese language skills made him a much needed asset to the Coast 
Guard and its mission.   The fact that the number of Asians officers in the Coast Guard may not 
reflect  the  percentage  of Asians  within  the  United  States  population,  does  not  prove  that  the 
applicant performed any better than described in the disputed evaluation.  In addition, while his 
language proficiency has at times been of value to the completion of the Coast Guard mission, 
that skill cannot be used to cover shortcomings in the performance of his assigned duties for the 
period under review.  Nor has the applicant proven that his height or weight were factors in the 
evaluation of is performance. As stated above, the evaluation of the applicant’s performance is 
measured against predetermined standards on the OER form.    

 
10.    The  applicant  appears  to  suggest  that  because  he  was  recruited  under  the  Coast 
Guard’s  Minority  Recruiting  Effort  there  was  a  duty  to  consider  his  Chinese  heritage  when 
evaluating his performance.  The fact that the Coast Guard has an effort in place to help insure 
minority officer prospects have fair and equal access to recruiting opportunities does not mean 
that such officers once in the Coast Guard should be evaluated differently than other officers.   
The Board notes that individuals who lack strong leadership and assertiveness skills exist in all 
groups.  So, if the applicant’s poor leadership skills are excused because of his Chinese heritage 
and  culture,  the  Coast  Guard  would  be  required  to  extend  that  same  consideration  to  other 
groups.   
 
11.  The applicant has failed to prove that his supervisor told him that the disputed OER 
would not be considered by the LCDR selection board and that “it would not be considered” if 
his  performance  subsequently  improved.    There  is  no  corroboration  by  the  applicant  for  this 
allegation.  Besides, the Personnel Manual governs the processing of OERs.  The Board is aware 
of  no  provision  that  allows  for  the  withholding  of  a  properly  validated  OER  from  a  selection 
board, unless it is removed from an officer’s military record through an avenue (BCMR) listed in 
Chapter 10.  Withholding or removing an OER by a member of the rating chain is not listed as an 
avenue for removing an OER from a record.   Additionally, the applicant denied that he received 
“remedial training” as described by the supervisor.  However, the reporting officer corroborates 
the supervisor in this regard by the  following statement in the OER “After being removed from 
LEDO rotation, supervisor counseled officer that the disqualification was not permanent and that 
just as with previous period of remedial training qualification could be re-acquired.”    
 

12.   The applicant has failed to prove an error or injustice with respect to the disputed 
OER.  With no error or injustice having been established, there is no basis on which to consider 
the applicant’s request for continuation on active duty or the removal of his failures of selection 
for promotion to LCDR.  

 
13.  In light of the above, the applicant’s request for relief should be denied. 
 
  

 

The  application  of  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx,  USCG,  for  correction  of  his 

ORDER 

 

 
 

 
 

 
 

 
 

 
 

 
 

military record is denied. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

        

 
 
 Steven J. Pecinovsky  

 

 

 
 J. Carter Robertson 

 

 

 
 
 Richard Walter