DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 2949-20  
Ref: Signature Date  

From:  Chairman, Board for Correction of Naval Records  
To:       Secretary of the Navy  

Ref: (a) Title 10 U.S.C. 1552 

Encl: (1) DD Form 149 w/attachments 

1.  Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that Petitioner’s naval record be corrected to remove any reference to his cerebral palsy diagnosis from his record.  Petitioner case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). 

2.  The Board, consisting of    , reviewed Petitioner’s allegations of error and injustice on 4 June 2020 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record.  Documentary material considered by the Board consisted of the enclosures, relevant portions of naval records, and applicable statutes, regulations and policies.  

3.  The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows:

     a.  Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy.

     b.  Petitioner entered active duty with the Navy on 29 July 1974.  Within days of commencing active duty, he reported back pain along with other physical complaints.  A medical board diagnosed Petitioner with Thoracic Scoliosis and Status Post Congenital Cerebral Palsy.  Both conditions were determined to exist prior to Petitioner’s entry into the Navy based on his medical history and brief period of service.  Petitioner was subsequently discharged for erroneous enlistment on 16 August 1974 based on the medical board report.

     c.  Petitioner made his first application to this Board in 2004 claiming disability benefits for his back condition.  He argued that he suffered a fractured vertebrae after falling in the shower during his brief period of active duty.  The Board denied relief based on the medical board report that documented that his back condition preexisted his entry into the Navy. 

     d.  Petitioner subsequently applied to the Board in 2018 requesting that his cerebral palsy diagnosis be removed from his naval record.  He argued that he never had cerebral palsy and provided medical evidence that documented he did not have the condition as of 2005.  The Board denied Petitioner’s request based on the medical board report that indicated he suffered from cerebral palsy symptoms as a child along with a 2005 medical report that referenced his medical history of symptoms as a child.   

     e.  Petitioner applied for reconsideration in 2020 by supplying two medical opinions that indicate Petitioner does not suffer from cerebral palsy.  Additionally, the Board concluded that cerebral palsy is a condition that cannot be outgrown by children.  Therefore, the current absence of cerebral palsy likely means Petitioner’s childhood cerebral palsy symptoms were not, in fact, due to cerebral palsy. 

CONCLUSION 

Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting partial relief.  Specifically, the Board determined that the preponderance of the evidence supports placing a new record in Petitioner’s naval record documenting that his Status Post Congenital Cerebral Palsy was, more likely than not, misdiagnosed by the medical board in 1974.  In making this determination, the Board carefully considered whether to remove all references to his cerebral palsy diagnosis from his record as requested.  However, the Board concluded the diagnosis, even if inaccurate, should remain as part of his official record since it was appropriately made as part of the medical board process and documents the basis for his administrative separation from the Navy.  Further, the Board determined that placing this record of proceedings in Petitioner’s naval record would document the misdiagnosis and alleviate any injustice in the case.  

RECOMMENDATION 

In view of the above, the Board directs the following corrective action. 

Petitioner’s naval record be corrected by placing a copy of this record of proceedings in his naval record.  This record of proceedings documents the findings of the Board that Petitioner was misdiagnosed with Status Post Congenital Cerebral Palsy in his 1974 medical board report and serves as notice to all outside agencies that he should not be denied benefits based on the diagnosis. 

4.  It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter. 

5.  Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulation, Section 723.6(e)) and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy. 


6/9/2020