National Guard Soldiers File Federal Class Action.

BOSTON -- Lawsuit Claims Massachusetts National Guard Failed to Reimburse Guardsmen $73 Million for Basic Allowances and Expenses

The Massachusetts National Guard refused to reimburse millions of dollars to soldiers called to active duty following the 2001 terror attacks and threatened guardsmen who pursued their financial claims, according to a federal lawsuit filed today.

Four Massachusetts National Guard soldiers filed the class action this morning in U.S. District Court in Boston. According to attorneys for the plaintiffs, the Massachusetts National Guard (MNG) refused to reimburse more than $73 million in food, lodging and commuting expenses to hundreds, if not thousands, of MNG soldiers who served active duty from Sept. 12, 2001, through now. Many of these soldiers, including one of the plaintiffs, served in Massachusetts before deployment to Iraq.

The soldiers involved sometimes traveled more than 100 miles a day to perform their duties at locations around the state, including Cape Cod, Ayer, Bedford, Chicopee, Plymouth and the Quabbin Reservoir. Many had to buy their own meals and pay $6 a night to sleep in a barracks bed.

"These men and women interrupted their lives to answer the call of their country. They've done so at significant personal expense. Yet instead of rewarding them, the government has cashed in on their sacrifices," said John Shek, attorney for the plaintiffs. "Worse, when some of these soldiers fought for the reimbursements that were rightly theirs, the bureaucrats at the Massachusetts National Guard declared war on them."

The lawsuit, Tortorella, et al v. Donald H. Rumsfeld, et al, names all U.S., Massachusetts, Army and MNG officials needed to obtain payment of the soldiers' reimbursement claims. The complaint also specifically identifies leaders at the MNG Command Center who denied the reimbursements. The current presiding MNG Adjutant General, Brigadier General Oliver J. Mason Jr., was in charge of MNG Operations, including personnel issues, during the class period.

The four plaintiffs were among many Massachusetts National Guard soldiers activated for temporary duty in early December 2001. In the post 9/11, anti-terror environment, their assignments included security patrols, lock-downs and construction projects at bases across the state.

The temporary duty assignments were standard operating procedure for the military, but the orders themselves were highly irregular, said Constance Driscoll, a military law specialist who is advising the plaintiffs. Soldiers on temporary duty, known as TDY, have historically been reimbursed for meals - up to $34 a day - plus lodging and commuting expenses. But, to the puzzlement and detriment of these soldiers, their activation orders stated: "Per Diem Not Authorized."

When the plaintiffs sought reimbursement of these basic expenses, their senior officers refused and threatened to drop them from their missions.

Retired Capt. Louis P. Tortorella, one of the plaintiffs, spent $14,625 of his own money for basic living expenses while on active duty for 21 months at Camp Edwards, Massachusetts Military Reservation on Cape Cod.

"When you enlist in the military, you expect to make many sacrifices. But requiring us to spend our own money for food and shelter while on active duty is just plain wrong," said Tortorella, of Brookline, N.H. "The military is treating us like second class citizens. It's sad that we have to resort to the courts for reimbursement of basic necessities."

The other plaintiffs in the case are: Sgt. Wayne R. Gutierrez, of New Bedford, Mass., who served at Camp Edwards; Sgt. Steven M. Littlefield, of Plymouth, Mass., who served at Camp Edwards until ordered to Iraq in June 2004; and Joseph P. Murphy, of Derry, N.H., a specialist at Camp Edwards.

"It defies common sense that these soldiers have been denied their right to the reimbursement they are due under the law," said Shek, who praised the plaintiffs for coming forward against their Command.

The suit seeks reimbursement of all per diem expenses, plus damages to the plaintiffs and the class.