Soldiers sue over out-of-pocket costs

Members of the Massachusetts National Guard file what is thought to be a first-of-its-kind lawsuit.

After 9/11, hundreds of thousands of America's part-time soldiers answered the call to serve. Along the way, some have asked whether the costs they bear - from insufficient body armor to mounting debt for their families at home - is fair.

Now, Massachusetts National Guard soldiers are taking the question straight to the top. They have filed a class-action lawsuit claiming they are owed $73 million in food, lodging, and commuting expenses they paid out-of-pocket while activated under state orders to protect sites such as military bases and reservoirs from terrorist attacks.

The lawsuit, filed recently in federal court against the Massachusetts National Guard and the US Department of Defense, is believed to be the first of its kind nationally, and raises new questions about what the government owes its men and women in uniform.

For the soldiers' lawyers in the case, the denial to provide or pay room and board represents a diversion from standard practice. "It doesn't make sense, under applicable law, military procedure, or military experience," says John Shek, a Boston-based lawyer representing the plaintiffs. The case currently names four plaintiffs.

Both the Massachusetts National Guard and the National Guard Bureau in Arlington, Va., would not comment on the case, they said, because it is pending. But Maj. Winfield Danielson, spokesman for the Massachusetts National Guard, did say that this case has been under investigation since May, before the lawsuit was filed.

The plaintiffs contend that suing was their last resort. When retired Capt. Louis Tortorella was called to serve at Camp Edwards on Cape Cod in December 2001, his orders read: "Government quarters not available, meals not available, per diem not authorized."

But his station was 250 miles round trip from his home in Brookline, N.H. In 21 months, he says, he was forced to spend $14,625 in out-of-pocket expenses. He says when he questioned his superiors, he was told to forget about it, to "drive on," but was never told why per diem was denied.

"Never in 25 years of military service have I experienced a set of orders like that," he says.

The lawsuit comes as other units across the country have faced problems with payments. According to a Government Accountability Office (GAO) report last year, units in Maryland housed off-post had to pay for meals themselves or hitchhike to their post's dining facilities. In other states, National Guard members in some cases had not been given proper documentation to collect reimbursements, or standard answers about their entitlements.

"There are lots of disputes over reimbursements for meals," says Gregory Kutz, director of Financial Management and Assurance at the GAO. The sheer number of part-time soldiers, he says, was a major reason.

"It's like trying to put a 10-pound sack of sugar into a five-pound bag," he says, "with soldiers spilling into hotels ... or riding bicycles back and forth. There were all kinds of novel situations created because of the unprecedented volume of people that didn't have sufficient on-base housing."

Still, it is unclear whether this lawsuit will have a ripple effect. There have been problems with payments in other states and even cases of appeals, but John Goheen, spokesman at the National Guard Association of the United States, says he has no indication that disputes such as the one in Massachusetts have been widespread.

Mr. Shek maintains that military culture might play a role - that soldiers who were told not to complain would be hesitant to come forward. He says the plaintiffs in this suit had no choice but to obey their orders and pay whatever it took to fulfill their missions. "If they were to, for instance, quit, they would do so under criminal offense under federal law," says Shek. "They would be AWOL."

Captain Tortorella compares the situation to a bank sending an employee on a business trip, and requiring him or her to pay for lodging and meals.

What's more, the plaintiffs say they worked side by side with other units who did receive per diem because they were called up under Title 10, which means they were federalized. Those activated under state command, or Title 32, did not receive such entitlements. Lawyers for the plaintiffs say that up to 1,200 soldiers may not have received reimbursements.

Experts say the fairness issue is compelling. "If soldier A would have gotten per diem as a member of federal services, and soldier B didn't [under state command], that just doesn't seem fair," says Michael Noone, a retired colonel and law professor at Catholic University of America in Washington.

Still, he says, that point will be tough to argue unless laws show they are owed the money.

Sgt. Steven Littlefield of Plymouth, Mass., another named plaintiff, hopes to recover some of the money he lost, but his main motive goes deeper. "In the grand scheme of things, I just don't want this to happen again," he says. "People are volunteering to serve their country, but they also have to make a living."

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